58748 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0638; FRL–9470–4] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Infrastructure and Interstate Transport 

Requirements for the 1997 Ozone and 

the 1997 and 2006 PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to partially 

approve and partially disapprove 

submittals from the state of Texas 

pursuant to the Clean Air Act (CAA or 

Act) that address the infrastructure 

elements specified in the CAA section 

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

maintain, and enforce the 1997 8-hour 

ozone and 1997 and 2006 fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS 

or standards). We are proposing to find 

that the current Texas State 

Implementation Plan (SIP) meets the 

infrastructure requirements for the 1997 

8-hour ozone NAAQS and the 1997 and 

2006 PM2.5 NAAQS at 110(a)(2)(A), (B), 

(E), (F), (G), (H), (K), (L), (M), and 

portions of (C), (D)(ii) and (J). We are 

proposing to find that the current Texas 

SIP does not meet the infrastructure 

requirements for the 1997 8-hour ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS at 110(a)(2) for portions of (C), 

(D)(ii) and (J) because Texas has stated 

it cannot issue permits for and does not 

intend to regulate greenhouse gas (GHG) 

emissions. (See letter from Bryan W. 

Shaw and Greg Abbott to Lisa Jackson 

and Al Armendariz, dated August 2, 

2010, in the docket for this rulemaking). 

EPA is also proposing to partially 

approve and partially disapprove SIP 

revisions submitted by the state of Texas 

for the purpose of addressing the ‘‘good 

neighbor’’ provisions of CAA section 

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

NAAQS and the 1997 and 2006 PM2.5

NAAQS. These SIP revisions address 

the requirement that the Texas SIP have 

adequate provisions to prohibit air 

emissions from adversely affecting 

another state’s air quality through 

interstate transport. In this action, EPA 

is proposing to partially approve and 

partially disapprove the provisions of 

these SIP submissions that emissions 

from sources in Texas do not interfere 

with measures required in the SIP of 

any other state under part C of the CAA 

to prevent significant deterioration of air 

quality, with regard to the 1997 8-hour 

ozone NAAQS and the 1997 and 2006 

PM2.5 NAAQS. The partial disapproval 

is again because Texas cannot issue 

permits for emissions of GHG. For 

purposes of the 1997 8-hour ozone 

NAAQS, EPA is also proposing to 

approve SIP revisions that modify the 

Texas SIP for Prevention of Significant 

Deterioration (PSD) to include nitrogen 

oxides (NOx) as an ozone precursor. 

This action is being taken under section 

110 and part C of the Act. 

DATES: Comments must be received on 

or before October 24, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2008–0638, by one of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

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

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

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by email to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), 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–2008– 

0638. 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 through http:// 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 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 Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 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 fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The Texas submittal, which is part of 

the EPA record, 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: Ms. 

Carrie Paige, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58749 

1Two elements identified in section 110(a)(2) are 

not governed by the 3-year submission deadline of 

section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within 3 years after promulgation of a new or 

revised NAAQS, but rather are due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172 of the CAA. These elements 

are: (1) Submissions required by section 

110(a)(2)(C) to the extent that subsection refers to 

a permit program as required in part D Title I of 

the CAA and (2) submissions required by section 

110(a)(2)(I) which pertain to the nonattainment 

planning requirements of part D Title I of the CAA. 

Therefore, this action does not cover these specific 

SIP elements. 

2EPA issued a revised 8-hour ozone standard on 

March 27, 2008 (73 FR 16436). On September 16, 

2009, the EPA Administrator announced that EPA 

would take rulemaking action to reconsider the 

2008 primary and secondary ozone NAAQS. On 

January 19, 2010, EPA proposed to set different 

primary and secondary ozone standards than those 

set in 2008 to provide requisite protection of public 

health and welfare, respectively (75 FR 2938). The 

final reconsidered ozone NAAQS have yet to be 

promulgated. This rulemaking does not address the 

2008 ozone standard. 

Suite 700, Dallas, Texas 75202–2733; 

telephone (214) 665–6521; fax number 

214–665–7263; e-mail address 

paige.carrie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ means EPA. 

Table of Contents 

I. Background 

A. What are the National Ambient Air 

Quality Standards? 

B. What is a SIP? 

C. What is the background for this 

rulemaking? 

1. Section 110(a)(1) and (2) Infrastructure 

SIP Elements 

2. Section 110(a)(1) and (2) Interstate 

Transport SIP Elements 

3. Revisions to the Texas PSD SIP 

4. Greenhouse Gas (GHG) Component of 

PSD Programs 

5. PM2.5 SIP Revisions 

D. What elements are required under 

section 110(a)(2)? 

II. What action is EPA proposing? 

A. Section 110(a)(1) and (2) 

B. Why is EPA proposing a partial 

approval, partial disapproval? 

C. What are the implications of a partial 

approval, partial disapproval? 

D. SIP Revisions to 30 TAC 101.1 

III. How has Texas addressed the elements of 

section 110(a)(2)? 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. What are the National Ambient Air 

Quality Standards? 

Section 109 of the Act requires EPA 

to establish NAAQS for pollutants that 

‘‘may reasonably be anticipated to 

endanger public health and welfare,’’ 

and to develop a primary and secondary 

standard for each NAAQS. The primary 

standard is designed to protect human 

health with an adequate margin of 

safety, and the secondary standard is 

designed to protect public welfare and 

the environment. EPA has set NAAQS 

for six common air pollutants, referred 

to as criteria pollutants: Carbon 

monoxide, lead, nitrogen dioxide, 

ozone, particulate matter, and sulfur 

dioxide. These standards present state 

and local governments with the 

minimum air quality levels they must 

meet to comply with the Act. Also, 

these standards provide information to 

residents of the United States about the 

air quality in their communities. 

B. What is a SIP? 

The SIP is a set of air pollution 

regulations, control strategies, other 

means or techniques, and technical 

analyses developed by the state, to 

ensure that the state meets the NAAQS. 

The SIP is required by section 110 and 

other provisions of the Act. These SIPs 

can be extensive, containing state 

regulations or other enforceable 

documents and supporting information 

such as emissions inventories, 

monitoring networks, and modeling 

demonstrations. Each state must submit 

these regulations and control strategies 

to EPA for approval and incorporation 

into the federally enforceable SIP. 

Another important aspect of the SIP is 

to ensure that emissions from within the 

state do not have certain prohibited 

impacts upon the ambient air in other 

states through interstate transport of 

pollutants. This SIP requirement is 

specified in section 110(a)(2)(D) of the 

CAA. Pursuant to that provision, each 

state’s SIP must contain provisions 

adequate to prevent, among other 

things, emissions that interfere with 

measures required to be included in the 

SIP of any other state to prevent 

significant deterioration of air quality in 

any other state. Such EPA-approved 

SIPs protect air quality primarily by 

addressing air pollution at its point of 

origin. 

C. What is the background for this 

rulemaking? 

Under sections 110(a)(1) and (2) of the 

Act, states are required to submit SIPs 

that provide for the implementation, 

maintenance, and enforcement of a new 

or revised NAAQS within three years 

following the promulgation of the 

NAAQS, or within such shorter period 

as EPA may prescribe. Section 110(a)(2) 

lists the specific infrastructure elements 

that must be incorporated into the SIPs, 

including for example, requirements for 

air pollution control measures, and 

monitoring that are designed to assure 

attainment and maintenance of the 

NAAQS. Table 1, listing all 14 

infrastructure elements, is included in 

Section D of this proposed rulemaking.1

EPA refers to the requirements of 

section 110(a)(2)(A)–(C), (D)(ii), (E)–(H), 

and (J)–(M) as the ‘‘infrastructure’’ SIPs. 

Additionally, EPA refers to the 

requirements of section 110(a)(2)(D)(i) 

as the ‘‘interstate transport’’ SIPs. EPA 

provided separate guidance to states on 

each type of SIP, infrastructure and 

interstate transport, and these actions 

are on separate tracks and timelines. 

1. Section 110(a)(1) and (2) 

Infrastructure SIP Eelements 

On July 18, 1997, we published new 

and revised NAAQS for ozone (62 FR 

38856) and PM (62 FR 38652). For 

ozone, we set an 8-hour standard of 0.08 

parts per million (ppm) to replace the 

1-hour standard of 0.12 ppm. For PM we 

set a new annual and a new 24-hour 

NAAQS for particles with an 

aerodynamic diameter less than or equal 

to a nominal 2.5 micrometers (denoted 

PM2.5). The annual PM2.5 standard was 

set at 15 micrograms per cubic meter 

(μg/m3). The 24-hour PM2.5 standard 

was set at 65 μg/m3. On October 17, 

2006, we published revised standards 

for PM (71 FR 61144). For PM2.5 the 

annual standard of 15 μg/m3 was 

retained and the 24-hour standard was 

revised to 35 μg/m3. For PM10 the 

annual standard was revoked and the 

24-hour standard (150 μg/m3) was 

retained. For more information on these 

standards please see the 1997 and 2006 

Federal Register notices (62 FR 38856, 

62 FR 38652, and 71 FR 61144). 

Thus states were required to submit 

such SIPs for the 1997 8-hour ozone and 

PM2.5 NAAQS to EPA no later than June 

2000.2 However, intervening litigation 

over the 1997 8-hour ozone and PM2.5

NAAQS created uncertainty about how 

to proceed and many states did not 

provide the required ‘‘infrastructure’’ 

SIP submission for these newly 

promulgated NAAQS. 

On March 4, 2004, Earthjustice 

submitted a notice of intent to sue 

related to EPA’s failure to issue findings 

of failure to submit related to the 

infrastructure requirements for the 1997 

8-hour ozone and PM2.5 NAAQS. EPA 

entered into a consent decree with 

Earthjustice which required EPA, among 

other things, to complete a Federal 

Register notice announcing EPA’s 

determinations pursuant to section 

110(k)(1)(B) of the Act as to whether 

each state had made complete 

submissions to meet the requirements of 

section 110(a)(2) for the 1997 8-hour 

ozone NAAQS by December 15, 2007. 

Subsequently, EPA received an 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58750 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

3This and any other guidance documents 

referenced in this action are in the docket for this 

rulemaking. 

4See, Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

extension of the date to complete this 

Federal Register notice until March 17, 

2008, based upon agreement to make the 

findings with respect to submissions 

made by January 7, 2008. In accordance 

with the consent decree, EPA made 

completeness findings for each state 

based upon what the Agency had 

received from each state as of January 7, 

2008. With regard to the 1997 PM2.5

NAAQS, EPA entered into a consent 

decree with Earthjustice which required 

EPA, among other things, to complete a 

Federal Register notice announcing 

EPA’s determinations pursuant to 

section 110(k)(1)(B) of the Act as to 

whether each state had made complete 

submissions to meet the requirements of 

section 110(a)(2) for the 1997 PM2.5

NAAQS by October 5, 2008. 

On March 27, 2008, and October 22, 

2008, we published findings concerning 

whether states had made the 110(a)(2) 

submissions for the 1997 ozone (73 FR 

16205) and PM2.5 standards (73 FR 

62902). In the March 27, 2008 action, 

we found that Texas had not made the 

necessary submission for ozone. This 

finding established a 24-month deadline 

for the promulgation by EPA of a 

Federal Implementation Plan (FIP) 

addressing these specific SIP elements 

for ozone, in accordance with section 

110(c)(1) of the Act. On April 4, 2008 

the Texas Commission on 

Environmental Quality (TCEQ) 

submitted a letter stating that Texas has 

addressed any potential infrastructure 

issues associated with the 1997 ozone 

and PM2.5 NAAQS and fulfilled its 

infrastructure SIP obligations. An 

enclosure to the letter provided 

information on Texas SIP provisions 

supporting the 110(a)(2) elements for 

the 1997 ozone and PM2.5 standards. 

Thus, in the October 22, 2008 action, we 

found that Texas had made a complete 

submission that provides for the basic 

program elements specified in section 

110(a)(2) of the Act necessary to 

implement the 1997 PM2.5 NAAQS. 

On October 2, 2007, we issued 

‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 

1997 8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards,’’ 

Memorandum from William T. Harnett, 

Director, Air Quality Policy Division 

(AQPD), Office of Air Quality Planning 

and Standards (OAQPS).3 On September 

25, 2009, we issued ‘‘Guidance on SIP 

Elements Required Under Sections 

110(a)(l) and (2) for the 2006 24-Hour 

Fine Particle (PM2.5) National Ambient 

Air Quality Standards (NAAQS),’’ 

Memorandum also from William T. 

Harnett, Director, AQPD, OAQPS. Each 

of these guidance memos addresses the 

SIP elements found in 110(a)(2). In each 

of these guidance memos, the guidance 

states that to the extent that existing 

SIPs already meet the requirements, 

states need only certify that fact to us. 

On November 23, 2009, the TCEQ 

submitted a letter to fulfill its 

infrastructure SIP obligations for the 

2006 PM2.5 NAAQS. An enclosure to the 

letter provided information on Texas 

SIP provisions supporting the 110(a)(2) 

elements for the 2006 PM2.5 standards. 

The submittal became complete by 

operation of law. 

Additional information: EPA is 

currently acting upon SIPs that address 

the infrastructure requirements of CAA 

section 110(a)(1) and (2) for ozone and 

PM2.5 NAAQS for various states across 

the country. Commenters on EPA’s 

recent proposals for some states raised 

concerns about EPA statements that it 

was not addressing certain substantive 

issues in the context of acting on those 

infrastructure SIP submissions.4 Those 

commenters specifically raised concerns 

involving provisions in existing SIPs 

and with EPA’s statements in other 

proposals that it would address two 

issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources, that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (‘‘director’s discretion’’). 

EPA notes that there are two other 

substantive issues for which EPA 

likewise stated in other proposals that it 

would address the issues separately: (i) 

Existing provisions for minor source 

new source review programs that may 

be inconsistent with the requirements of 

the CAA and EPA’s regulations that 

pertain to such programs (‘‘minor source 

NSR’’); and (ii) existing provisions for 

Prevention of Significant Deterioration 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIP 

submittals for the 1997 8-hour ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS submissions from Texas. 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a reapproval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing State provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit reapproval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on these 

infrastructure SIP submittals for Texas. 

Unfortunately, the commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58751 

5For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

6For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See, e.g., ‘‘Rule 

To Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the 

NOX SIP Call; Final Rule,’’ 70 FR 25162 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

7See, e.g., Id., 70 FR 25162, at 63—65 (May 12, 

2005) (explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

8EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See, ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 9For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPS are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.5 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.6

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).7 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.8 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s SIP. Finally, EPA 

notes that not every element of section 

110(a)(2) would be relevant, or as 

relevant, or relevant in the same way, 

for each new or revised NAAQS and the 

attendant infrastructure SIP submission 

for that NAAQS. For example, the 

monitoring requirements that might be 

necessary for purposes of section 

110(a)(2)(B) for one NAAQS could be 

very different than what might be 

necessary for a different pollutant. Thus, 

the content of an infrastructure SIP 

submission to meet this element from a 

state might be very different for an 

entirely new NAAQS, versus a minor 

revision to an existing NAAQS.9

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58752 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

10See, ‘‘Guidance on SIP Elements Required 

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

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

11 Id., at page 2. 

12 Id., at attachment A, page 1. 

13 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

14See, ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T. 

Harnett, Director, Air Quality Policy Division, to 

Regional Air Division Directors, Regions I–X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS. 10 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 11 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 12 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 13 For the 

one exception to that general 

assumption, however, i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS, EPA gave much 

more specific recommendations. But for 

other infrastructure SIP submittals, and 

for certain elements of the submittals for 

the 1997 PM2.5 NAAQS, EPA assumed 

that each State would work with its 

corresponding EPA regional office to 

refine the scope of a State’s submittal 

based on an assessment of how the 

requirements of section 110(a)(2) should 

reasonably apply to the basic structure 

of the State’s SIP for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.14 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS, e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS. 

Significantly, neither the 2007 

Guidance nor the 2009 Guidance 

explicitly referred to the SSM, director’s 

discretion, minor source NSR, or NSR 

Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

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

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the infrastructure SIP submittals for 

Texas. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable, because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

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

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58753 

15EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011). 

16EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See, ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

17EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

18This is the same submittal that addresses the 

110(a)(2) infrastructure SIP elements for the 2006 

PM2.5 NAAQS. 

19EPA published a finding on April 25, 2005 (70 

FR 21147) that all states had failed to submit SIPs 

addressing interstate transport for the 1997 ozone 

and PM2.5 standards, as required by section 

110(a)(2)(D)(i). EPA proposed a FIP on August 2, 

2010 (75 FR 45210) to limit emissions of ozone 

precursors and PM that contribute significantly to 

nonattainment of the 1997 ozone and 1997 and 

2006 PM NAAQS in other states and interfere with 

maintenance of these three NAAQS in other states. 

EPA finalized the FIP on July 6, 2011; known as the 

Cross-State Air Pollution Rule, it requires that 

Texas (and 26 other states in the eastern half of the 

United States) must significantly improve air 

quality by reducing power plant emissions that 

cross state lines and contribute to ground-level 

ozone and fine particle pollution in other states. See 

76 FR 48208 (published August 8, 2011) and 

http://www.epa.gov/crossstaterule. 

20The Texas Administrative Code (TAC) is a 

compilation of all state agency rules in Texas. Each 

title represents a subject category and related 

agencies are assigned to the appropriate title; Title 

30 is environmental quality and contains the TCEQ 

rules. 

21 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

22 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

23 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

24Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule; Final Rule.’’ 

75 FR 31514 (June 3, 2010). 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.15 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on the infrastructure SIP 

submittal is not the appropriate time 

and place to address all potential 

existing SIP problems does not preclude 

the Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.17

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

SIP Elements 

Section 110(a)(2)(D)(i) pertains to 

interstate transport of certain emissions. 

On August 15, 2006, EPA issued its 

‘‘Guidance for State Implementation 

Plan (SIP) Submission to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and 

PM2.5 National Ambient Air Quality 

Standards’’ (2006 Guidance). EPA 

developed the 2006 Guidance to make 

recommendations to states for making 

submissions to meet the requirements of 

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

8-hour ozone standards and the 1997 

PM2.5 standards. As identified in the 

2006 Guidance, the ‘‘good neighbor’’ 

provisions in section 110(a)(2)(D)(i) 

require each state to submit a SIP that 

prohibits emissions that adversely affect 

another state in the ways contemplated 

in the statute. Section 110(a)(2)(D)(i) 

contains four distinct requirements 

related to the impacts of interstate 

transport. The SIP must prevent sources 

in the state from emitting pollutants in 

amounts which will: (1) Contribute 

significantly to nonattainment of the 

NAAQS in other states; (2) interfere 

with maintenance of the NAAQS in 

other states; (3) interfere with provisions 

to prevent significant deterioration of air 

quality in other states; and (4) interfere 

with efforts to protect visibility in other 

states. 

On May 1, 2008, we received a SIP 

revision from the State of Texas 

intended to address the requirements of 

section 110(a)(2)(D)(i) for both the 1997 

8-hour ozone and 1997 PM2.5 standards. 

On November 23, 2009 we received a 

SIP revision 18 from the State intended 

to address the requirements of section 

110(a)(2)(D)(i) for the 2006 PM2.5

NAAQS. In this rulemaking, we are 

addressing only the requirement that 

pertains to preventing sources in Texas 

from emitting pollutants that will 

interfere with measures required to 

prevent significant deterioration of air 

quality in other states.19 In its 

submission, Texas indicated that its 

current New Source Review (NSR) SIP 

is adequate to prevent such interference. 

3. Revisions to the Texas PSD SIP 

To meet the infrastructure 

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

the Act for the 1997 ozone standard, the 

EPA believes the State must have 

updated its rules for PSD to treat NOX

as a precursor to ozone (70 FR 71612, 

November 29, 2005). PSD rules to treat 

NOX as a precursor to ozone are also 

required to meet the third interstate 

transport prong, interference with 

provisions to prevent significant 

deterioration of air quality in other 

states. 

On March 11, 2011, the TCEQ 

submitted two revisions to its NSR 

program to meet the requirements of the 

‘‘NSR Reform’’ published on December 

31, 2002 (67 FR 80186), the 1997 8-hour 

ozone NAAQS, and the revocation of 

the 1-hour ozone NAAQS. On May 26, 

2011, the TCEQ submitted a correction 

to the March 2011 revisions. The March 

11, and May 26, 2011 submissions 

include, but are not limited to, revisions 

that provide for NOX to be treated as a 

precursor to ozone formation in the 

state’s preconstruction permitting 

program for PSD, found in Title 30 of 

the Texas Administrative Code, Chapter 

116, Section 12 (denoted 30 TAC 

116.12).20 We are proposing action on a 

limited number of revisions to the PSD 

program that implement the provisions 

for NOX as a precursor. At this time, 

EPA is not taking action on other 

portions of the NSR SIP revisions 

submitted by Texas together with the 

PSD revision. EPA intends to act on the 

other revisions submitted together with 

the PSD program revisions at a later 

time. 

4. Greenhouse Gas (GHG) Component of 

PSD Programs 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

are distinct from one another, impact 

today’s proposed action on the Texas 

SIP. Four of these actions include, as 

they are commonly called, the 

‘‘Endangerment Finding’’ and ‘‘Cause or 

Contribute Finding,’’ which EPA issued 

in a single final action,21 the ‘‘Johnson 

Memo Reconsideration,’’ 22 the ‘‘LightDuty Vehicle Rule,’’ 23 and the 

‘‘Tailoring Rule.’’ 24 Taken together and 

in conjunction with the CAA, these 

actions established regulatory 

requirements for GHGs emitted from 

new motor vehicles and new motor 

vehicle engines; determined that such 

regulations, when they took effect on 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58754 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

25The Federal Register action at 73 FR 28321 was 

published May 16, 2008. 

26Section 110(a)(2)(I) is omitted from the list. 

Section 110(a)(2)(I) pertains to the nonattainment 

planning requirements of part D, Title I of the Act. 

This section is not governed by the 3-year 

submission deadline of section 110(a)(1) because 

SIPs incorporating necessary local nonattainment 

area controls are not due within 3 years after 

promulgation of a new or revised NAAQS, but are 

due at the time the nonattainment area plan 

requirements are due pursuant to section 172. Thus 

this action does not cover section 110(a)(2)(I). 

January 2, 2011, subjected GHGs 

emitted from stationary sources to 

permitting requirements for PSD; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. EPA took this last 

action in the Tailoring Rule, which, 

more specifically, established 

appropriate GHG emission thresholds 

for determining the applicability of PSD 

requirements to GHG-emitting sources. 

However, the approved Texas SIP 

contained errors that resulted in its 

failure to address, or provide adequate 

legal authority for, the implementation 

of a GHG PSD program in Texas. On this 

basis, on December 30, 2010, EPA 

corrected its previous full approval of 

Texas’s PSD program to be a partial 

approval and partial disapproval (75 FR 

82430). Further, as required following 

the partial disapproval, EPA in this 

same action promulgated a FIP to 

establish a PSD permitting program in 

Texas for GHG-emitting sources (75 FR 

82430). EPA took these actions through 

interim final rulemaking, effective upon 

publication, to ensure the availability of 

a permitting authority—EPA—in Texas 

for GHG-emitting sources when they 

became subject to PSD on January 2, 

2011. The interim FIP allowed those 

sources to proceed with plans to 

construct or expand. The interim rule 

expired on April 30, 2011 and is 

replaced by the final rule (76 FR 25178, 

May 3, 2011). 

As we discuss further in this proposal 

and in the TSD, Texas currently does 

not have adequate legal authority to 

address the new GHG PSD permitting 

requirements at or above the levels of 

emissions set in the Tailoring Rule, or 

at other appropriate levels, and thus, the 

Texas SIP does not satisfy portions of 

elements within the infrastructure and 

transport requirements. EPA’s 

disapproval here does not engender an 

additional statutory obligation, because 

EPA has already promulgated a FIP for 

the Texas PSD program to address 

permitting GHGs at or above the 

Tailoring Rule thresholds (76 FR 25178). 

5. PM2.5 SIP Revisions 

To implement section 110(a)(2)(C) for 

the 1997 PM2.5 standard, states must 

provide revisions to implement the 

PM2.5 standard due May 16, 2011 under 

73 FR 28321.25 On April 20, 2011, the 

TCEQ adopted revisions to the Texas 

SIP to amend their PSD and 

nonattainment NSR programs to 

implement the PM2.5 NAAQS. These 

revisions became effective and 

enforceable by the state on May 12, 

2011. The state submitted these changes 

to EPA as a SIP revision on May 19, 

2011. EPA will act on this submission 

in a separate rulemaking. 

D. What elements are required under 

Section 110(a)(2)? 

Pursuant to the October 2, 2007, EPA 

guidance for addressing the SIP 

infrastructure elements required under 

section 110(a)(2) for the 1997 ozone and 

1997 and 2006 PM2.5 NAAQS, there are 

14 essential components that must be in 

the SIP. These are listed in Table 1 

below. 

TABLE 1—SECTION 110(a)(2) ELEMENTS REQUIRED IN SIPS

Clean Air Act citation Brief description 

Section 110(a)(2)(A) ................................................................. Enforceable emission limits and other control measures. 

Section 110(a)(2)(B) ................................................................. Ambient air quality monitoring/data system. 

Section 110(a)(2)(C) ................................................................. Program for enforcement of control measures. 

Section 110(a)(2)(D) ................................................................. International and interstate transport. 

Section 110(a)(2)(E) ................................................................. Adequate resources. 

Section 110(a)(2)(F) ................................................................. Stationary source monitoring system. 

Section 110(a)(2)(G) ................................................................ Emergency power. 

Section 110(a)(2)(H) ................................................................. Future SIP revisions. 

Section 110(a)(2)(J) 26 .............................................................. Consultation with government officials. 

Section 110(a)(2)(J) ................................................................. Public notification. 

Section 110(a)(2)(J) ................................................................. Prevention of significant deterioration (PSD) and visibility protection. 

Section 110(a)(2)(K) ................................................................. Air quality modeling/submission of such data. 

Section 110(a)(2)(L) ................................................................. Permitting fees. 

Section 110(a)(2)(M) ................................................................ Consultation/participation by affected local entities. 

II. What action is EPA proposing? 

A. Section 110(a)(1) and (2) 

The EPA is proposing to partially 

approve and partially disapprove the 

Texas SIP submittals that identify where 

and how the 14 basic infrastructure 

elements are in the EPA-approved SIP 

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

The Texas infrastructure SIP submittals 

do not include revisions to the SIP, but 

document how the current Texas SIP 

already includes the required 

infrastructure elements. In today’s 

action, we are proposing to determine 

and approve that the following section 

110(a)(2) elements are contained in the 

current Texas SIP and provide the 

infrastructure for implementing the 

1997 ozone and 1997 and 2006 PM2.5

standards: Emission limits and other 

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

ambient air quality monitoring/data 

system (section 110(a)(2)(B)); the 

program for enforcement of control 

measures, except for the portion that 

addresses GHGs (section 110(a)(2)(C)); 

international and interstate pollution 

abatement, except for the portion that 

addresses GHGs (section 

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

(section 110(a)(2)(E)); stationary source 

monitoring system (section 110(a)(2)(F)); 

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

future SIP revisions (section 

110(a)(2)(H)); consultation with 

government officials (section 

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

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

protection, except for the PSD portion 

that addresses GHGs (section 

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

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

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

participation by affected local entities 

(section 110(a)(2)(M)). In addition, we 

are proposing to determine that portions 

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


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58755 

27As noted in Section I.C.2 of this action, the May 

1, 2008 submittal addresses the 1997 ozone and 

PM2.5 standards; it does not address the 2006 PM2.5

standard. The November 23, 2009 submittal 

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

transport elements for the 2006 PM2.5 NAAQS. 

28By severable, we mean that the portions of the 

SIP revision that address NOX as a precursor can 

be implemented independently of the remaining 

portions of the submittal, without affecting the 

stringency of the submitted rules. In addition, the 

remaining portions of the submittal are not 

necessary for approval of the provisions addressing 

NOX as a precursor. 

29The three elements refer to the infrastructure 

and interstate transport SIP elements discussed in 

section II above. 

30Footnote 1 in Table I under 30 TAC 116.12(18) 

reads: Texas nonattainment area designations as 

defined in 30 TAC 101.1(70) of this title. 

not contained in the current Texas SIP 

and thus do not provide the 

infrastructure for implementing the 

1997 ozone and 1997 and 2006 PM2.5

standards. We are proposing to 

disapprove the GHG portion of the 

element addressing the program for 

enforcement of control measures 

(section 110(a)(2)(C)); the GHG portion 

of the element addressing international 

and interstate pollution abatement 

(section 110(a)(2)(D)(ii)); and the GHG 

portion of the element addressing PSD 

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

We are also proposing to approve 

portions of the May 1, 2008 (the Texas 

Interstate Transport SIP) and the 

November 23, 2009 submissions from 

Texas, demonstrating that Texas has 

adequately addressed one of the four 

required elements (or prongs) of the 

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

that requires that the SIP prohibit air 

emissions from sources within a state 

from interfering with measures required 

to prevent significant deterioration of air 

quality in any other state.27 We are 

proposing to determine that emissions 

from sources in Texas do not interfere 

with measures to prevent significant 

deterioration of air quality in any other 

state for the 1997 8-hour ozone NAAQS 

or the 1997 and 2006 PM2.5 NAAQS 

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

for the portion that addresses GHGs. We 

are proposing to disapprove the portion 

of the Texas Interstate Transport SIP 

element that prohibits GHG emissions 

from sources within Texas from 

interfering with measures required to 

prevent significant deterioration of air 

quality in any other state (section 

110(a)(2)(D)(i)). As noted previously in 

this action, we are not addressing the 

three remaining prongs of section 

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

and 1997 and 2006 PM2.5 NAAQS, that 

pertain to prohibiting air emissions 

within Texas from: (1) Significantly 

contributing to nonattainment in any 

other state, (2) interfering with 

maintenance of the relevant NAAQS in 

any other state and (3) interfering with 

measures required to protect visibility 

in any other state. We will take action 

on the three remaining prongs of section 

110(a)(2)(D)(i) for these three NAAQS, 

which addresses interstate transport, in 

separate rulemakings (see footnote 19). 

In conjunction with our proposed 

finding that the Texas SIP meets the 

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

and interstate transport SIP elements 

listed above for the three NAAQS, we 

are also proposing to approve 

severable 28 portions of the SIP revisions 

submitted by the TCEQ to EPA on 

March 11, 2011 and a correction 

submitted on May 26, 2011. These 

portions contain rule revisions by TCEQ 

to: (1) Add PSD to the title of the 

section, such that the section will 

address Nonattainment and PSD Review 

Definitions; (2) add the definition of 

Federally Regulated NSR Pollutant, 

which identifies volatile organic 

compounds (VOCs) and NOX as 

precursors in all attainment and 

unclassifiable areas; and (3) revise the 

section title, so the definitions for Major 

stationary source, Major modification, 

and the table identifying the Significant 

Level for emission thresholds for major 

sources and major modifications will 

apply under PSD. These revisions 

addressing PSD also specify that a major 

source that is major for VOCs or NOX

shall be considered major for ozone and 

provide that the significant emission 

threshold for ozone (identified as VOC, 

NOX) is 40 tons per year (tpy). The 

actions proposed herein are described in 

greater detail in Section III of this 

rulemaking and in the TSD. In this 

proposal, EPA is not taking action on 

other submitted NSR revisions; EPA 

intends to act on the other NSR SIP 

revisions at a later date. 

B. Why is EPA proposing a partial 

approval, partial disapproval? 

Section 110(k)(3) of the Act states that 

EPA may partially approve and partially 

disapprove a SIP submittal if it finds 

that only a portion of the submittal 

meets the requirements of the Act. We 

believe that the Texas SIP meets a 

majority of the requirements of section 

110(a)(2) of the Act and that specific 

portions of three elements of section 

110(a)(2) are not met.29 Because the 

portions proposed for disapproval are 

independent from those proposed for 

approval, we believe that the Texas 

Infrastructure SIP can be partially 

approved and partially disapproved. 

C. What are the implications of a partial 

approval, partial disapproval? 

Enforcement of a state regulation (or 

rule) before and after it is incorporated 

into the federally approved SIP is 

primarily a state responsibility. 

However, after the rule is federally 

approved, we are authorized to take 

enforcement action against violators. 

Citizens are also offered legal recourse 

to address violations as described in 

section 304 of the Act. If a state rule is 

disapproved, it is not incorporated into 

the federally approved SIP, and is not 

enforceable by EPA or by citizens under 

section 304. Disapproval of any of the 

Texas infrastructure SIP elements would 

not trigger sanctions under section 179 

of the Act, because the submittals are 

not required by part D of Title I of the 

Act and are not required by a call for a 

SIP revision under section 110(k)(5) of 

the Act. However, as noted earlier, EPA 

published a finding on March 27, 2008 

(73 FR 16205) regarding whether or not 

states had made the section 110(a)(2) 

submissions for ozone and found that 

Texas had failed to make a complete 

submission. This finding started a 24- 

month deadline for promulgation by 

EPA of a FIP. This FIP obligation will 

be met for the 110(a)(2) elements that 

EPA has proposed approval, if, after 

considering public comment, EPA 

finalizes the approval. For the proposed 

disapproved infrastructure elements 

(the portions of section 110(a)(2)(C), 

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

110(a)(2)(J) described in section III of 

this action), EPA remains obligated to 

implement a FIP if disapproval is 

finalized. EPA’s disapproval here, 

however, does not engender an 

additional statutory obligation, because 

EPA has already promulgated a FIP for 

the Texas PSD program to address 

permitting GHGs at or above the 

Tailoring Rule thresholds (76 FR 25178). 

As noted earlier, we will take action on 

the remaining three prongs of section 

110(a)(2)(D)(i), which addresses 

interstate transport, in a separate 

rulemaking. 

D. SIP Revisions to 30 TAC 101.1 

As described elsewhere in this 

rulemaking, EPA is acting on revisions 

to 30 TAC 116.12 submitted on March 

11, 2011. One of the revisions upon 

which we are taking action, i.e., Table 

I under the definition for Major 

modification at 30 TAC 116.12(18)(A), 

makes a reference to 30 TAC 

101.1(70).30 Since the cross-referenced 

paragraphs must correlate, we had to 

broaden our review to include revisions 

to several paragraphs in 30 TAC 101.1. 

Thus, EPA is proposing to approve the 

following portions of the March 11, 

2011 SIP revisions: (1) The nonVerDate Mar<15>2010 18:25 Sep 21, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\22SEP1.SGM 22SEP1

emcdonald on DSK5VPTVN1PROD with PROPOSALS
58756 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

31The state’s rule at 30 TAC 101.1(115) cites 74 

FR 3441. EPA identifies a Federal Register action 

by the first page of the rulemaking, thus our 

reference to 74 FR 3437. 

32See 46 FR 61124, published December 15, 

1981. 

33For examples, see the Houston Attainment Plan 

(71 FR 52670, September 6, 2006), the Dallas/Fort 

Worth Attainment Plan (74 FR 1903, January 14, 

2009), and the Beaumont/Port Arthur Redesignation 

(75 FR 64675, October 20, 2010). 

34NOX and VOCs are precursors to ozone. PM can 

be emitted directly and secondarily formed; the 

latter is the result of NOX and SO2 precursors 

combining with ammonia to form ammonium 

nitrate and ammonium sulfate. 

35EPA approved the provisions that clarify 

existing reporting requirements; clarify that the rule 

does not allow exemptions from compliance with 

Federal requirements, including any requirements 

in the federally-approved SIP; provide for an 

affirmative defense from unplanned startup, 

shutdown, or maintenance (i.e., malfunctions), 

consistent with the CAA as interpreted by EPA; and 

provide for a corrective action plan and written 

notification concerning excessive emission events. 

EPA disapproved the provisions that provide for an 

affirmative defense against civil penalties for excess 

emissions during planned maintenance, startup, or 

shutdown activities and related provisions that 

contain non-severable cross-references to the 

affirmative defense provision. For more 

information, see 75 FR 68989. 

36 ‘‘State Implementation Plans (SIPs): Policy 

Regarding Excess Emissions During Malfunctions, 

Startup, and Shutdown,’’ Memorandum from 

Steven A. Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation, dated September 20, 1999. 

37The section addressing exemptions and 

variances is found on p. 45109 of the 1987 

rulemaking. 

substantive revisions to the definition of 

Nonattainment area at 30 TAC 

101.1(70) to reflect the current status of 

ozone nonattainment areas in Texas as 

identified in 40 CFR part 81 and make 

the definition consistent with changes 

proposed for 30 TAC 116.12(18)(A); (2) 

the non-substantive revisions to the 

definition of Reportable quantity at 30 

TAC 101.1(88) to make the definition 

consistent with changes proposed for 30 

TAC 101.1(70); and (3) the nonsubstantive revisions to the definition of 

Maintenance area at 30 TAC 101.1(54) 

to reflect the current status of 

maintenance areas in Texas as identified 

in 40 CFR 81. We are also proposing to 

approve non-substantive revisions to 30 

TAC 101.1(115) submitted on May 26, 

2011, which make the definition of 

Volatile organic compound consistent 

with the EPA’s definition for VOCs, as 

amended January 21, 2009 (74 FR 

3437) 31 and codified at 40 CFR 

51.100(s)(1). 

III. How has Texas addressed the 

elements of Section 110(a)(2)? 

The Texas submittals address the 

elements of Section 110(a)(2) as 

described below. We provide a more 

detailed review and analysis of the 

Texas infrastructure and transport SIP 

elements in the TSD. 

Enforceable emission limits and other 

control measures, pursuant to section 

110(a)(2)(A): Section 110(a)(2)(A) 

requires that all measures and other 

elements in the SIP be enforceable. This 

provision does not require the submittal 

of regulations or emission limits 

developed specifically for attaining the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 standards. Those regulations are 

due later as part of attainment 

demonstrations. Additionally, as 

explained earlier (see footnote 1), EPA 

does not consider SIP requirements 

triggered by the nonattainment area 

mandates in part D of Title I of the CAA 

to be governed by the submission 

deadline of section 110(a)(1). 

Nevertheless, Texas has included some 

SIP provisions originally submitted in 

response to part D in its submission 

documenting its compliance with the 

infrastructure requirements of section 

110(a)(1) and (2). Texas has continually 

updated the elements of its SIP 

revisions submitted in response to the 

infrastructure requirements of section 

110(a)(2) and the nonattainment 

requirements of part D. For the purposes 

of this action, EPA is reviewing any 

rules originally submitted in response to 

part D solely for the purposes of 

determining whether they support a 

finding that the state has met the basic 

infrastructure requirements under 

section 110(a)(2). 

The Texas Clean Air Act (TCAA), 

which named the Texas Air Control 

Board (TACB) as the state’s air pollution 

control agency, provided enforcement 

authority to the TACB. In its approval 

of the Texas 1972 SIP, EPA approved 

the State’s Section V of the SIP 

Narrative as showing that the Board had 

the legal authority to implement and 

enforce the SIP (37 FR 10842, 10895, 

May 31, 1972). Later, in 1981 EPA 

approved a replacement of Section V 

into the SIP as support showing the 

Board continued to have the legal 

authority to implement and enforce the 

SIP.32 The State has continued to submit 

updates in its SIP Narratives concerning 

its legal authorities.33 Pursuant to Acts 

1989, 71st Legislature, chapter 678, 

Section 1, effective September 1, 1989, 

the TCAA was codified as Chapter 382 

of the Texas Health and Safety Code 

(THSC). The TACB was abolished in 

1993 and its powers, duties, 

responsibilities and functions were 

transferred to the Texas Natural 

Resource Conservation Commission, 

which was renamed in 2001, to the 

Texas Commission on Environmental 

Quality (TCEQ). The Texas Water Code 

(TWC) under Section 5.013 provides the 

TCEQ with authority over the 

responsibilities assigned by the THSC 

(which may be cited as the TCAA). The 

THSC under Section 382.017 authorizes 

the TCEQ to adopt rules for the control 

of air pollution. 

The TCEQ has promulgated rules to 

limit and control emissions of among 

other things, PM, sulfur compounds 

(including sulfur dioxide or SO2), 

nitrogen compounds (including NOX), 

and VOCs.34 These rules include 

emission limits, control measures, 

programs for banking and trading of 

emissions, emission reduction incentive 

programs, permits, fees, and compliance 

schedules and are found within 30 TAC, 

chapters 101, 106, and 111–118. 

EPA promulgated a partial approval 

and partial disapproval of the Texas 

provisions regarding excess emissions 

occurring during startup, shutdown, and 

malfunction (SSM) of operations at a 

facility on November 10, 2010 (75 FR 

68989).35 In this action, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at a facility. EPA believes 

that a number of states may have SSM 

SIP provisions which are contrary to the 

Act and inconsistent with existing EPA 

guidance,36 and the Agency plans to 

address such state regulations in the 

future. In the meantime, EPA 

encourages any state having a deficient 

SSM provision to take steps to correct 

it as soon as possible. Similarly, this 

proposed action does not include a 

review of and also does not propose to 

take any action to approve or 

disapprove any existing SIP rules with 

regard to director’s discretion or 

variance provisions. EPA believes that a 

number of SIPs have such provisions 

which are contrary to the Act and not 

consistent with existing EPA guidance 

(52 FR 45044, November 24, 1987) 37

and the Agency plans to take action in 

the future to address such SIP 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision in its 

SIP which is contrary to the Act and 

inconsistent with EPA guidance to take 

steps to correct the deficiency as soon 

as possible. 

A detailed list of the applicable rules 

at 30 TAC, listed above, is provided in 

the TSD. The Texas SIP contains 

enforceable emission limits and other 

control measures, which are in the 

federally enforceable SIP. EPA is 

proposing to determine that the Texas 

SIP meets the requirements of section 

110(a)(2)(A) of the Act with respect to 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58757 

38The Air Quality System (AQS) is EPA’s 

repository of ambient air quality data. AQS stores 

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

currently active. State, Local and Tribal agencies 

collect the data and submit it to AQS on a periodic 

basis. 

39With the exception of maintenance and 

malfunctions, the ozone monitors are constantly 

running and recording one-hour ozone averages. 

Texas submits the hourly data into AQS, where the 

8-hour averages are computed. Texas also computes 

the 8-hour averages and posts the data at http://

www.tceq.state.tx.us/cgi-bin/compliance/monops/

8hr_monthly.pl. 

40The PAMS network undergoes review and 

approval by EPA whenever there are significant 

changes to the network. A copy of the most recent 

approval, dated October 30, 2009, is in the docket 

for this rulemaking. 

41The current design values reflect the 2008– 

2010 ozone season data. 

42A copy of our approval letter is in the docket 

for this rulemaking. At the time of this writing, the 

review of the 2011 AAMNP has not been 

completed. 

43See footnote 1. 

44Texas did not address GHGs under the 

definition for Federally Regulated NSR pollutant. 

See discussion in section I.C.4 of this action. 

the 1997 8-hour ozone and 1997 and 

2006 PM2.5 NAAQS. 

Ambient air quality monitoring/data 

analysis system, pursuant to section 

110(a)(2)(B): Section 110(a)(2)(B) 

requires SIPs to include provisions for 

establishment and operation of ambient 

air quality monitors, collecting and 

analyzing ambient air quality data, and 

making these data available to EPA 

upon request. The TCEQ operates and 

maintains a state-wide network of air 

quality monitors; data are collected, 

results are quality assured and the data 

are submitted to EPA’s Air Quality 

System 38 on a regular basis. The Texas 

Statewide Air Quality Surveillance 

Network was approved by EPA (37 FR 

10842, 10895) and revised on March 7, 

1978 (43 FR 9275). Texas’s air quality 

surveillance network consists of stations 

that measure ambient concentrations of 

the criteria pollutants, including 

ozone 39 and PM2.5. EPA also approved 

Texas’s enhanced ambient air quality 

monitoring network of Photochemical 

Assessment Monitoring Stations 

(PAMS) on October 4, 1994 (59 FR 

50502).40 The TCEQ Web site provides 

the ozone and PM2.5 monitor locations 

and current and historical data, 

including ozone design values for 

current 41 and past trienniums. On June 

30, 2010, TCEQ submitted its 2010 

Annual Air Monitoring Network Plan 

(AAMNP) that addresses each of the 

criteria pollutants, including 8-hour 

ozone and PM2.5 and thus allows the 

state to measure its air quality for 

compliance with the 1997 ozone and 

1997 and 2006 PM2.5 NAAQS; EPA 

approved the AAMNP on December 23, 

2010.42

In summary, Texas meets the 

requirements to establish, operate, and 

maintain an ambient air monitoring 

network, collect and analyze the 

monitoring data, and make the data 

available to EPA upon request. EPA is 

proposing to find that the current Texas 

SIP meets the requirements of section 

110(a)(2)(B) with respect to the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS. 

Program for enforcement of control 

measures and regulation of the 

modification and construction of 

stationary sources * * * including a 

permit program, pursuant to section 

110(a)(2)(C): The THSC and the TWC, as 

stated previously, provide the state with 

enforcement authority for rules adopted 

under the TCAA. The rules in 30 TAC 

101 provide for enforcement of 

emissions inventories. The rules in 30 

TAC 106, 112, 115 and 117 provide for 

allowable emission rates, and control, 

monitoring and testing requirements; 

they clarify the boundaries beyond 

which regulated entities in Texas can 

expect enforcement action. 

To meet the requirement for having a 

program for the regulation of the 

modification and construction of any 

stationary source within the areas 

covered by the plan as necessary to 

assure that NAAQS are achieved, 

including a permit program as required 

by Parts C and D, generally, the State is 

required to have SIP-approved PSD, 

Nonattainment, and Minor NSR 

permitting programs adequate to 

implement the 1997 8-hour ozone and 

the 1997 and 2006 PM2.5 NAAQS. As 

discussed previously, we are not 

evaluating nonattainment-related 

provisions, such as the nonattainment 

NSR program required by part D in 

110(a)(2)(C) and measures for 

attainment required by section 

110(a)(2)(I), as part of the infrastructure 

SIPs for these three NAAQS because 

these submittals are required beyond the 

date (3 years from NAAQS 

promulgation) that section 110 

infrastructure submittals are required. 

PSD programs apply in areas that are 

meeting the NAAQS or are 

unclassifiable, referred to as areas in 

attainment. PSD applies to new major 

sources and major modifications at 

existing sources. The Texas PSD SIP 

(found at 30 TAC 116, Division 6) was 

initially approved on June 24, 1992 (57 

FR 28093). Subsequent revisions to the 

Texas PSD program were approved into 

the SIP on September 9, 1994 (59 FR 

46556); August 19, 1997 (62 FR 44083); 

September 18, 2002 (67 FR 58697); July 

22, 2004 (69 FR 43752); March 20, 2009 

(74 FR 11851); and September 15, 2010 

(75 FR 55978). As noted earlier in this 

proposal, part D of the Act addresses 

nonattainment area provisions, which 

are not governed by the three-year 

submission deadline for section 

110(a)(2) and thus will not be addressed 

in this action.43

EPA’s PSD permitting regulations are 

found at 40 CFR 51.166 and 40 CFR 

52.21. PSD requirements for SIPs are 

found in 40 CFR 51.166 and 40 CFR Part 

51 Appendix W. Similar PSD 

requirements for SIPs incorporating 

EPA’s regulations by reference are found 

in 40 CFR 52.21. To meet the 

requirements of 110(a)(2)(C) for the 1997 

ozone standard, EPA believes the State 

must have updated its PSD rules to treat 

NOX as a precursor for ozone (70 FR 

71612, November 29, 2005). On March 

11, 2011, Texas submitted the 

provisions for NOX as a precursor 

consistent with EPA’s November 29, 

2005, Phase 2 rule for the 1997 8-hour 

ozone NAAQS (70 FR 71612) as part of 

its revisions to address NSR Reform. 

EPA proposes to approve the following 

portions of the March 11, 2011 SIP 

revisions to 30 TAC 116.12: (1) The nonsubstantive revision to the title of 30 

TAC 116.12, changing the title from 

Nonattainment Review Definitions to 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions; (2) the non-substantive and 

administrative revisions to the 

introductory paragraph at 30 TAC 

116.12; (3) the substantive revisions that 

add Federally Regulated NSR pollutant 

as a new definition 44 at 30 TAC 

116.12(14); (4) the non-substantive 

changes to rename and renumber the 

definition of Major facility/stationary 

source at 30 TAC 116.12(10) to Major 

stationary source at 30 TAC 116.12(17) 

and provide minor editorial revisions; 

(5) the substantive changes to the 

definition of Major stationary source at 

30 TAC 116.12(17) to make the 

definition consistent with 40 CFR 

51.166(b)(1); (6) the non-substantive 

changes to renumber the definition of 

Major modification at 30 TAC 

116.12(11) to 30 TAC 116.12(18) and 

provide minor editorial revisions to 

Table I (Major Source/Major 

Modification Emission Thresholds), 

including non-substantive edits to 

footnotes 1–3 in Table I; (7) the 

substantive changes to the definition of 

Major modification at 30 TAC 

116.12(18) to make the definition 

consistent with 40 CFR 51.166(b)(1) and 

(2); and (8) the substantive changes that 

remove footnotes 6 and 7 from Table I 

under 30 TAC 116.12(18)(A) to make the 

Table consistent with the South Coast 

decision (South Coast Air Quality 

Management District, et al., v. EPA, 472 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58758 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

45See the TSD for more detail or the action at 75 

FR 56424 for a full explanation. 

46EPA notes ‘‘model users’’, as referenced in 

Appendix W Section 5.2.1.c, include state and local 

permitting authorities, and permitting applicants 

and their representatives. 

47EPA has received a national administrative 

petition entitled, ‘‘Sierra Club’s Petition for 

Rulemaking to Designate Air Quality Models to use 

for PSD Permit Applications with Regard to Ozone 

and PM2.5 (July 28, 2010).’’ The petition is in the 

docket for this rulemaking. 

48See the November 26, 2010 final action at 75 

FR 72695, pages 72697–72699, ‘‘Approval and 

Promulgation of Implementation Plans; Oklahoma; 

State Implementation Plan Revisions for Interstate 

Transport of Pollution, Prevention of Significant 

Deterioration, Nonattainment New Source Review, 

Source Registration and Emissions Reporting and 

Rules of Practice and Procedure.’’ 

F.3d 882 (DC Cir. 2006)).45 As noted 

earlier, 30 TAC 116.12 previously 

addressed Nonattainment Review 

Definitions and identified NOX as a 

precursor, but only applied to 

nonattainment NSR. By revising the title 

of this subchapter to include 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions, the submitted revisions 

provide that NOX is an ozone precursor 

for PSD and thus address that aspect of 

the requirements at 110(a)(2)(C) for the 

1997 ozone standard. 

The March 11, 2011 revisions to the 

definitions in the Texas rules for ‘‘major 

modification’’ and ‘‘major stationary 

source’’ meet the Federal definition in 

40 CFR 51.166(b)(1) to identify a major 

source of NOX as a major source for 

ozone. The March 11, 2011 revisions to 

the Texas rules also meet the Federal 

definition in 40 CFR 51.166(b)(49) for 

inclusion of NOX as an ozone precursor. 

The March 11, 2011 revisions to the 

emission rate for ozone in 30 TAC 

116.12(18) under Table I for Major 

Source/Major Modification Emission 

Thresholds, under the column for 

Significant Level in the Texas rules 

meet the Federal requirements in 40 

CFR 51.166(b)(23)(i), which establishes 

these emission thresholds as 40 tpy. 

Because of their consistency with 40 

CFR part 51, which provides the 

requirements for an approvable PSD 

program, EPA believes these revisions 

are consistent with 110(l) and the 

revisions would not interfere with any 

applicable CAA requirement concerning 

attainment of any applicable standard. 

Therefore, EPA is proposing to approve 

these revisions as meeting the 

requirements of section 110 of the Act 

and 40 CFR 51.166 for establishing NOX

emissions as a precursor for ozone. 

The revisions to 30 TAC 116.12 and 

EPA’s evaluation of these revisions are 

discussed in greater detail in the TSD. 

The provisions that address NOX as a 

precursor are severable from the March 

11, 2011 submittal and EPA is 

proposing to approve these provisions 

in today’s action. 

Permits that are major for Ozone: 

EPA’s PSD regulations require an 

ambient impact analysis for ozone for 

proposed major stationary sources and 

major modifications to obtain a PSD 

permit (40 CFR 51.166(k), (l) and (m) 

and 40 CFR 52.21(k), (l) and (m)). The 

Texas rules at 30 TAC 116.160–.163 

meet these requirements for PSD and 

were approved into the SIP on June 24, 

1992 (57 FR 28093), as revised 

September 9, 1994 (59 FR 46556), 

September 27, 1995 (60 FR 49781), 

August 19, 1997 (62 FR 44083), July 22, 

2004 (69 FR 43752); March 20, 2009 (74 

FR 11851); and September 15, 2010 (75 

FR 55978). The Texas PSD SIP meets 

these requirements by incorporating by 

reference 40 CFR 52.21(k) and (m) and 

including the following rule at 

116.160(d) that EPA found meets 40 

CFR 51.166(l): ‘‘All estimates of ambient 

concentrations required under this 

subsection shall be based on the 

applicable air quality models and 

modeling procedures specified in the 

EPA Guideline on Air Quality Models, 

as amended, or models and modeling 

procedures currently approved by the 

EPA for use in the state program, and 

other specific provisions made in the 

prevention of significant deterioration 

state implementation plan. If the air 

quality impact model approved by the 

EPA or specified in the guideline is 

inappropriate, the model may be 

modified or another model substituted 

on a case-by-case basis, or a generic 

basis for the state program, where 

appropriate. Such a change shall be 

subject to notice and opportunity for 

public hearing and written approval of 

the administrator of the EPA.’’ The 

Texas rule does not name 40 CFR part 

51, Appendix W, as 40 CFR 51.166(l) 

does, but Appendix W codifies the 

Guideline on Air Quality Models, which 

is named in the Texas rule, and Section 

1.0.a of Appendix W states, in part: 

‘‘The Guideline recommends air quality 

modeling techniques that should be 

applied to [SIP] revisions for existing 

sources and to [NSR], including [PSD]. 

Applicable only to criteria air 

pollutants, it is intended for use by EPA 

Regional Offices in judging the 

adequacy of modeling analyses 

performed by EPA, state and local 

agencies and by industry. [* * *] The 

Guideline is not intended to be a 

compendium of modeling techniques. 

Rather, it should serve as a common 

measure of acceptable technical analysis 

when supported by sound scientific 

judgment.’’ 

Appendix W Section 5.2.1 includes 

the Guideline recommendations for 

models to be utilized in assessing 

ambient air quality impacts for ozone. 

Specifically, Section 5.2.1.c: 

‘‘Estimating the Impact of Individual 

Sources. Choice of methods used to 

assess the impact of an individual 

source depends on the nature of the 

source and its emissions. Thus, model 

users 46 should consult with the 

Regional Office to determine the most 

suitable approach on a case-by-case 

basis (subsection 3.2.2).’’ Due to the 

complexity of modeling ozone and the 

dependency on the regional 

characteristics of atmospheric 

conditions, EPA believes this is an 

appropriate approach rather than 

specifying one particular preferred 

model nationwide, which may not be 

appropriate in all circumstances. 

Instead, the choice of method ‘‘depends 

on the nature of the source and its 

emissions.’’ (Appendix W Section 

5.2.1.c.) Therefore, EPA continues to 

believe it is appropriate for permitting 

authorities to consult and work with 

EPA Regional Offices as described in 

Appendix W, including sections 3.0.b 

and c, 3.2.2 and 3.3, to determine the 

appropriate approach to assess ozone 

impacts for each PSD required 

evaluation. Although EPA has not 

selected one particular preferred model 

in Appendix A of Appendix W 

(Summaries of Preferred Air Quality 

Models) for conducting ozone impact 

analyses for individual sources, state 

and local permitting authorities must 

comply with the appropriate PSD FIP or 

SIP requirements with respect to 

ozone.47 We note in other recent EPA 

actions, some have raised concerns that 

the lack of a preferred model for ozone 

has resulted in the belief that no 

modeling is required or use of 

inappropriate models is allowed.48 This 

underscores the need for consultation 

with the EPA Regional office. EPA 

agrees that states should not be using 

inappropriate analytical tools in this 

context. The use of ‘‘Scheffe Tables’’ 

and other particular screening 

techniques, which involve ratios of NOX

to VOC that do not consider the impact 

of biogenic emissions, or that use other 

outdated or irrelevant modeling, is 

inappropriate to evaluate a single 

source’s ozone impacts on an air quality 

control region. More scientifically 

appropriate screening and refined tools 

are available and should be considered 

for use. Therefore, EPA continues to 

believe states should consult and work 

with EPA Regional Offices as described 

in Appendix W on a case-by-case basis 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58759 

49See letter from Carl E. Edlund to Richard Hyde, 

dated February 10, 2010 and letter from Lawrence 

E. Starfield to Mark Vickery, dated January 24, 

2011, in the docket for this rulemaking. 

50The Federal Register action at 73 FR 28321 was 

published May 16, 2008. 

51See also the discussion on interstate transport 

under section 110(a)(2)(D)(i) in this rulemaking. 

to determine the appropriate method for 

estimating the impacts of these ozone 

precursors from individual sources. 

For ozone, a proposed emission 

source’s impacts are dependent upon 

local meteorology and pollution levels 

in the surrounding atmosphere. Ozone 

is formed from chemical reactions in the 

atmosphere. The impact of a new or 

modified source can have on ozone 

levels is dependent, in part, upon the 

existing atmospheric pollutant loading 

already in the region with which 

emissions from the new or modified 

source can react. In addition, 

meteorological parameters such as wind 

speed, temperature, wind direction, 

solar radiation influx, and atmospheric 

stability are also important factors. The 

more sophisticated analyses consider 

meteorology and interactions with 

emissions from surrounding sources. 

EPA has not identified an established 

modeling system that would fit all 

situations and take into account all of 

the additional local information about 

sources and meteorological conditions. 

The Texas SIP satisfies the Federal 

PSD SIP modeling requirements for 

sources that are major for ozone because 

the state rules approved by EPA into the 

SIP include the Federal requirements. 

EPA has previously commented to 

TCEQ on PSD permits regarding 

concerns with technical inadequacies in 

ozone impact analyses and/or a lack of 

consultation with the Regional Office on 

the development of an adequate ozone 

modeling protocol for single source 

ozone impacts.49 EPA may address 

implementation of the SIP through 

separate action and is not precluded by 

approval of the infrastructure SIP. EPA 

reaffirms that the assessment of ozone 

impacts should be done in consultation 

with the EPA Regional Office. 

PM2.5 permitting: To implement 

section 110(a)(2)(C) for the 1997 PM2.5

standard, states must provide revisions 

to implement the PM2.5 standard due 

May 16, 2011 under 73 FR 28321.50 On 

April 20, 2011, the TCEQ adopted 

revisions to the Texas SIP to amend 

their PSD and nonattainment NSR 

programs to implement the PM2.5

NAAQS. These revisions became 

effective and enforceable by the state on 

May 12, 2011. The state submitted these 

changes to EPA as a SIP revision on May 

19, 2011. EPA will act on this 

submission in a separate rulemaking. 

Minor Source Permitting: Section 

110(a)(2)(C) creates ‘‘a general duty on 

States to include a program in their SIP 

that regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved’’ (70 FR 71612, 71677). EPA 

provides states with a ‘‘broad degree of 

discretion’’ in implementing their minor 

NSR programs (71 FR 48696, 48700, 

August 21, 2006). The ‘‘considerably 

less detailed’’ regulations for minor NSR 

are provided in 40 CFR 51.160 through 

51.164. EPA has determined that the 

Texas minor NSR program adopted 

pursuant to section 110(a)(2)(C) of the 

Act regulates emissions of ozone and its 

precursors and PM. The Texas minor 

source permitting requirements are 

contained at 30 TAC 116 (Subchapter B, 

Division 1). In its initial SIP approved 

by EPA on May 31, 1972 (37 FR 10842, 

10895), Texas provided for review of 

new sources and modification of 

existing sources and for preventing 

construction or modification if it would 

result in violations of applicable 

portions of a control strategy or interfere 

with attainment or maintenance of the 

NAAQS, without distinguishing 

between minor and major sources. Upon 

EPA’s conditional approval of the Texas 

nonattainment NSR (NNSR) 

requirements for major sources and 

major modifications in nonattainment 

areas, March 25, 1980 (45 FR 19231), the 

Texas SIP continued to address minor 

sources and minor modifications. There 

have been numerous revisions approved 

for the Texas Minor NSR SIP since 1980. 

Among many others, they include 

August 13, 1982 (47 FR 35193); 

September 18, 2002 (67 FR 58697); 

November 14, 2003 (68 FR 64543); 

August 28, 2007 (72 FR 49198); March 

8, 2010 (75 FR 10416); and April 2, 2010 

(75 FR 16671). 

In this action, EPA is proposing to 

approve the Texas infrastructure SIP for 

the 1997 ozone and 1997 and 2006 

PM2.5 NAAQS with respect to the 

general requirement of section 

110(a)(2)(C) to include a program in the 

SIP that regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. EPA is not proposing to 

approve or disapprove the state’s 

existing minor NSR program in this 

action; we are not evaluating this 

program for consistency with EPA’s 

regulations governing minor NSR 

herein. EPA believes that a number of 

states may have minor NSR provisions 

that are contrary to the existing EPA 

regulations for this program. EPA 

intends to work with states to reconcile 

state minor NSR programs with EPA’s 

regulatory provisions for the program. 

The statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the states an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

In this action, EPA is not proposing to 

approve or disapprove any state rules 

with regard to NSR Reform 

requirements. As noted earlier, on 

March 11, 2011, the TCEQ submitted 

revisions to their NSR program to meet 

the requirements of the NSR Reform. We 

are acting on a limited portion of that 

submittal, as described earlier in this 

discussion of 110(a)(2)(C) and interstate 

transport 51 and in Section I.C.3 of this 

action. EPA will act on the remainder of 

the March 11, 2011 SIP submittals 

through separate rulemakings. 

As noted in Section I.C.4 of this 

proposal, Texas currently does not have 

adequate legal authority to implement 

the PSD permitting program with 

respect to GHG emissions at or above 

the emissions thresholds established in 

the Tailoring Rule, or at other 

appropriate levels, and thus the Texas 

SIP does not satisfy this portion of 

section 110(a)(2)(C). We are proposing 

to disapprove the Texas SIP for failing 

to meet the infrastructure requirements 

for the 1997 ozone and the 1997 and 

2006 PM2.5 NAAQS with respect to the 

GHG requirement of section 

110(a)(2)(C). EPA is proposing to find 

that the Texas SIP meets the PSD 

requirement of section 110(a)(2)(C) with 

respect to the 1997 8-hour ozone and 

1997 and 2006 PM2.5 NAAQS, with the 

exception of section 110(a)(2)(C) as it 

relates to the GHG component of the 

PSD program. EPA is proposing to find 

that the Texas SIP does not meet the 

PSD requirement of section 110(a)(2)(C) 

as it relates to the GHG component of 

the PSD program with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. However, EPA’s 

disapproval here does not engender an 

additional statutory obligation, because 

EPA has already promulgated a FIP for 

the Texas PSD program to address 

permitting GHGs at or above the 

Tailoring Rule thresholds (76 FR 25178). 

Interstate transport, pursuant to 

section 110(a)(2)(D): Section 

110(a)(2)(D) has two components, 

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

Section 110(a)(2)(D)(i) requires SIPs to 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58760 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

52See 73 FR 28321. 53See 76 FR 48208. 

include provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment, 

interfering with maintenance of the 

NAAQS in another state, or from 

interfering with measures required to 

prevent significant deterioration of air 

quality or to protect visibility in another 

state. Section 110(a)(2)(D)(ii) requires 

SIPs to include provisions insuring 

compliance with sections 115 and 126 

of the Act, relating to interstate and 

international pollution abatement. 

PSD and interstate transport, 

pursuant to section 110(a)(2)(D)(i): 

As previously described, one of the 

four elements or prongs in section 

110(a)(2)(D)(i) requires a SIP to contain 

adequate provisions prohibiting 

emissions that interfere with any other 

state’s required measures to prevent 

significant deterioration of its air 

quality. This is the only element of 

110(a)(2)(D)(i) on which EPA is 

proposing approval in this action. EPA’s 

2006 Guidance made recommendations 

for SIP submissions to meet this 

requirement with respect to both the 

1997 8-hour ozone NAAQS and the 

1997 PM2.5 NAAQS. 

The 2006 Guidance states that the 

PSD permitting program is the primary 

measure that each state must include to 

prevent significant deterioration of air 

quality in accordance with section 

110(a)(2)(D)(i)(II). EPA believes that 

Texas’s May 1, 2008 submission is 

consistent with the 2006 Guidance, 

when considered in conjunction with 

the State’s PSD program and other PSD 

program revisions that EPA is proposing 

to approve in this action. The submittal 

states that all major sources in Texas are 

subject to PSD and nonattainment NSR 

permitting programs. As discussed 

previously in this rulemaking with 

regards to section 110(a)(2)(C) and in the 

TSD, the State’s PSD program is in the 

SIP (57 FR 28093, 62 FR 44083, 67 FR 

58697, 69 FR 43752, 74 FR 11851 and 

75 FR 55978). Please see the TSD and 

our discussion of section 110(a)(2)(C) in 

this rulemaking for additional 

information. 

Consistent with EPA’s November 29, 

2005, Phase 2 rule for the 1997 

8-hour ozone NAAQS (70 FR 71612), 

the State submitted SIP revisions to 

modify its PSD provisions to address 

NOX as an ozone precursor. These 

revisions have been discussed 

previously. EPA believes that the PSD 

revision for the 1997 8-hour ozone 

NAAQS that makes NOx a precursor for 

ozone for PSD purposes, taken together 

with the PSD SIP and the interstate 

transport SIP, satisfies the requirements 

of the third element of section 

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

NAAQS, i.e., there will be no 

interference with any other state’s 

required PSD measures. 

As discussed previously in our 

analysis of section 110(a)(2)(C) for this 

rulemaking, EPA’s PSD regulations also 

require an ambient impact analysis for 

ozone for proposed major stationary 

sources and major modifications to 

obtain a PSD permit (40 CFR 51.166(k), 

(l) and (m) and 40 CFR 52.21(k), (l) and 

(m)). Our affirmation that the Texas SIP 

addresses the Federal PSD modeling 

requirements is discussed in more detail 

under section 110(a)(2)(C) for this 

rulemaking. 

For the 1997 PM2.5 NAAQS, Texas 

stated in its section 110(a)(2)(D)(i) 

submission that its NSR program is 

being implemented in accordance with 

EPA’s interim guidance regarding the 

use of PM10 as a surrogate for PM2.5. 

Furthermore, as indicated earlier, on 

April 20, 2011 the TCEQ adopted 

revisions to the Texas SIP to amend 

their PSD and nonattainment NSR 

programs to implement the 1997 PM2.5

NAAQS. These revisions became 

effective and enforceable by the state on 

May 12, 2011 and the state submitted 

these revisions to EPA on May 19, 2011 

for approval as a SIP revision. They 

effectively supersede the interim 

guidance allowing the use of PM10 as a 

surrogate for PM2.5. Instead, as 

announced in EPA’s May 16, 2008 

rulemaking, the 1997 PM10 Surrogate 

Policy may not be used for any state 

PSD permits after the 3 years allowed 

for SIP development (ending May 16, 

2011).52 With the end of the 1997 PM10

Surrogate Policy in SIP-approved states 

on May 16, 2011, and the repeal of the 

grandfather provision in this final 

action, the 1997 PM10 Surrogate Policy 

may only be relied on as specified in the 

May 18, 2011 rulemaking (see 76 FR 

28646) for any pending or future 

applications. 

EPA is proposing to find that the 

Texas SIP meets the PSD requirement of 

section 110(a)(2)(D)(i) with respect to 

the 1997 8-hour ozone and 1997 and 

2006 PM2.5 NAAQS, with the exception 

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

the GHG component of the PSD 

program. EPA is proposing to find that 

the Texas SIP does not meet the PSD 

requirement of section 110(a)(2)(D)(i) as 

it relates to the GHG component of the 

PSD program with respect to the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS. We will act on the remaining 

three prongs regarding interstate 

transport, per section 110(a)(2)(D)(i) of 

the Act in a separate rulemaking. 

EPA is not proposing to approve the 

PSD program in full because Texas does 

not have adequate legal authority to 

implement the PSD permitting program 

with respect to GHG emissions pursuant 

to section 110(a)(2)(D)(i). EPA’s 

disapproval here does not engender an 

additional statutory obligation, because 

EPA has already promulgated a FIP for 

the Texas PSD program related to 

permitting GHGs at or above the 

Tailoring Rule thresholds (76 FR 25178). 

As aforementioned, EPA is not 

proposing action on the remaining three 

prongs of section 110(a)(2)(D) here (see 

footnote 19). We note however, that EPA 

approved into the Texas SIP the Clean 

Air Interstate Rule (CAIR) NOx Annual 

Trading Program on July 30, 2007 (72 

FR 41453). The intended effect of this 

SIP action implementing the CAIR is to 

reduce NOx emissions from within 

Texas that contribute to nonattainment 

of the 1997 PM2.5 NAAQS in downwind 

states. In addition, Texas submitted 

revisions to its CAIR SIP on March 4, 

2010 to address Phase II of the CAIR 

(which addresses 2015 and thereafter). 

The CAIR was overturned by the court. 

Therefore, the first two prongs of 

Section 110(a)(2)(D)(i)(I)—which limit 

emissions that contribute significantly 

to nonattainment and interfere with 

maintenance of the NAAQS in other 

states—will be evaluated in light of the 

EPA’s Cross-State Air Pollution Rule, 

which found that Texas (and 26 other 

states in the eastern half of the United 

States) must significantly improve air 

quality by reducing power plant 

emissions that cross state lines and 

contribute to ground-level ozone and 

fine particle pollution in other states.53

The protection of visibility requirement 

of 110(a)(2)(D)(i)(II) will be evaluated 

when EPA completes its review of the 

Texas interstate transport SIP submitted 

on May 1, 2008 and the Texas regional 

haze SIP revision submitted on March 

19, 2009. 

Interstate and international pollution 

abatement, pursuant to section 

110(a)(2)(D)(ii): 

Section 110(a)(2)(D)(ii) of the Act 

requires compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

Section 115 addresses endangerment of 

public health or welfare in foreign 

countries from pollution emitted in the 

United States. Pursuant to section 

115(a), the Administrator has not been 

made aware of submissions indicating 

reports, surveys, or studies from any 

duly constituted international agency 

regarding air pollution emitted in Texas 

which may reasonably be anticipated to 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58761 

54See letter from Lawrence E. Starfield to Mark 

R. Vickery, dated May 19, 2011, in the docket for 

this rulemaking. 

endanger public welfare or health in 

Mexico. Furthermore under section 

115(a), the Administrator has not been 

requested by the Secretary of State to 

issue formal notification to Texas that 

emissions originating in the State are 

endangering public health or welfare in 

Mexico. 

Section 126(a) of the Act requires new 

or modified sources to notify 

neighboring states of potential impacts 

from such sources. The Texas SIP 

requires that each major proposed new 

or modified source provide such 

notification (see 67 FR 58697). The State 

also has no pending obligations under 

section 126 of the Act. For additional 

detail, please refer to the TSD. However, 

as previously discussed in this 

rulemaking, Texas does not have 

adequate legal authority to implement 

the PSD program with respect to GHG 

emissions. Therefore, EPA is not 

proposing to approve Texas’s interstate 

pollution abatement provisions in full 

because Texas cannot require each 

major proposed or modified new source 

to notify neighboring states of potential 

impacts from GHGs emitted by such 

sources. 

EPA is proposing to find that the 

Texas SIP meets the interstate and 

international pollution abatement 

requirements of section 110(a)(2)(D)(ii) 

with respect to the 1997 8-hour ozone 

and 1997 and 2006 PM2.5 NAAQS, with 

the exception of section 110(a)(2)(D)(ii) 

as it relates to the GHG notification 

component of the interstate pollution 

abatement requirement. 

EPA is proposing to find that the 

Texas SIP does not meet the interstate 

and international pollution abatement 

requirements of section 110(a)(2)(D)(ii) 

with respect to the 1997 ozone and 1997 

and 2006 PM2.5 NAAQS, as it relates to 

the GHG notification component of the 

interstate pollution abatement 

requirement. EPA’s disapproval here 

does not engender an additional 

statutory obligation, because EPA has 

already promulgated a FIP for the Texas 

PSD program related to permitting 

GHGs at or above the Tailoring Rule 

thresholds (76 FR 25178). 

Adequate resources and authority, 

pursuant to section 110(a)(2)(E): Texas 

statutes contain basic structural 

provisions that provide TCEQ with 

generic authority for enforcement of the 

SIP. The TWC at Section 5.012 declares 

that ‘‘[t]he commission is the agency of 

the state given primary responsibility 

for implementing the constitution and 

laws of this state relating to the 

conservation of natural resources and 

the protection of the environment.’’ In 

addition, the TCEQ has general 

jurisdiction over the responsibilities 

assigned under the TCAA (see THSC at 

section 382). The general powers and 

duties of the TCEQ, pursuant to the 

TCAA (382.011) include administering 

the TCAA, controlling the quality of the 

state’s air, and accomplishing the 

purposes of the TCAA ‘‘through the 

control of air contaminants by all 

practical and economically feasible 

methods.’’ In Section 382.011, the THSC 

also states that the TCEQ ‘‘has the 

powers necessary or convenient to carry 

out its responsibilities.’’ Enforcement 

authority is provided under the TWC, 

Chapter 7 (section 7.002). 

We propose to find that the generic 

authority concerning enforcement 

evinced by these state statutory 

provisions cumulatively are sufficient to 

assure enforcement of the NAAQS in 

Texas, in accordance with the 

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

While EPA proposes to find that these 

provisions confirm that the TCEQ has 

adequate authority pursuant to 

110(a)(2)(E), EPA is aware of Texas 

legislation that may have altered the 

ambit of the state’s enforcement 

authority with respect to the federally 

approved Texas Title V program. Senate 

Bill 12, codified at TWC Section 

7.00251, by its own statutory terms 

alters TCEQ’s enforcement authority for 

‘‘violations based on information 

[TCEQ] receives as required by Title V 

of the Clean Air Act’’ upon first 

infraction. Senate Bill 12 alters TCEQ’s 

enforcement authority with respect to 

self-certified violations documented in a 

Title V deviation report. EPA believes it 

is important to note that Senate Bill 12 

does not affect, restrict, or alter the 

authority ascribed to EPA, citizens, or 

parties other than TCEQ to enforce the 

provisions of the SIP with respect to 

violations of the requirements of the 

SIP, nor does it preclude TCEQ from 

seeking injunctive relief for the 

violations or penalties for a repeat 

infraction. In conjunction with Texas’s 

generic statutory enforcement authority 

provisions cited previously, EPA 

concludes that this legislation does not 

impede EPA’s approval of Texas’s 

infrastructure SIP for the 1997 8-hour 

ozone NAAQS and the 1997 and 2006 

PM2.5 NAAQS under the requirements 

of CAA 110(a)(2). 

However, EPA’s proposed approval of 

the Texas infrastructure SIP submission 

as meeting the requirements of 

110(a)(2)(E) does not include evaluation 

of adequate enforcement authority 

under the Title V program, as Title V is 

subject to statutory and regulatory 

mechanisms outside those provided 

within the scope of section 110(a). EPA 

is currently, under Title V statutory and 

other regulatory mechanisms, evaluating 

Senate Bill 12 for potential impacts on 

Texas’s enforcement authority to collect 

penalties with respect to the types of 

violations covered by this legislation. 

EPA believes Senate Bill 12 may affect 

TCEQ’s enforcement authority under its 

federally approved Title V program to 

collect penalties with respect to a subset 

of self-reported violations upon the first 

infraction. Section 502 of Title V under 

the CAA requires that a permitting 

authority have adequate authority in 

part, to recover civil penalties in a 

maximum amount of not less than 

$10,000 per day for each violation. This 

Federal statutory requirement is 

codified in regulations governing the 

Title V program. 40 CFR 70.11 requires 

that an agency administering a Title V 

program shall have enforcement 

authority, in part, to recover civil 

penalties for the violation of any 

applicable requirement. 40 CFR 70.4(i) 

establishes procedures to address a 

state’s Title V revisions, and authorizes 

EPA to request, and the state must 

provide, a supplemental Attorney 

General’s statement, program 

description, or other such documents or 

other information as the EPA 

determines are necessary when the 

agency has reason to believe the 

circumstances with respect to a state’s 

approved Title V program have 

changed. In conformity with the 

statutory and regulatory process for 

review of a state’s Title V program, EPA 

has initiated this process by a formal 

letter to TCEQ requesting a 

supplemental Attorney General’s 

statement and information EPA believes 

necessary to evaluate the impact of 

Senate Bill 12 on Texas’s Title V 

program. A copy of this letter is 

included in the docket for this 

rulemaking.54

Because EPA considers evaluation of 

a state’s Title V program outside the 

statutory and regulatory parameters of 

section 110(a), our evaluation of Texas’s 

enforcement authority and consequent 

approval under 110(a)(2)(E) for 

infrastructure SIP purposes also does 

not preclude EPA’s future actions with 

respect to Texas’s enforcement authority 

pursuant to the Title V program. The 

scope of this action is limited to 

determining whether the existing Texas 

SIP meets certain infrastructure and 

interstate transport requirements of 

CAA 110(a)(2) with respect to the 1997 

8-hour ozone NAAQS and the 1997 and 

2006 PM2.5 NAAQS. 

With regard to whether the State has 

adequate resources to carry out its 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58762 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

55The DFW Reasonable Further Progress SIP to 

address the 1997 ozone moderate nonattainment 

area was approved on October 7, 2008 (73 FR 

58475). See also the approved SIPs for the three 

Early Action Compact (EAC) areas on August 19, 

2005, (70 FR 48640 and 70 FR 48642) and August 

22, 2005 (70 FR 48877). 

56See TCAA at 382.026 and TWC Chapter 5, 

Subchapter L (5.514). 

57The ozone and PM data are available through 

AQS and the State Web site (http:// 

www.tceq.texas.gov/agency/air_main.html). The 

AQS data for PM are provided in the docket for this 

rulemaking. 

duties as required by 110(E), the 

commission may apply for, solicit, 

contract for, receive, or accept money 

from any source to carry out its duties 

under this chapter (TCAA, section 

382.0335). This section also requires the 

TCEQ to establish fees not less than 50 

percent of the TCEQ’s actual annual 

expenditures to review and act on 

permits or special permits; amend and 

review permits, inspect permitted, 

exempted, and specially permitted 

facilities; and enforce the rules and 

orders of certain adopted permits, 

special permits, and exemptions issued. 

Furthermore under section 382.0622 of 

the TCAA, the TCEQ may request 

appropriations of sufficient money to 

contract for services of local units of 

government meeting certain eligibility 

criteria to ensure that the combination 

of Federal and state funds annually 

available for an air pollution program is 

equal to or greater than the program 

costs for the operation of an air quality 

program by the local unit of 

government. The Texas SIP provides for 

the collection of fees at 30 TAC 106.50 

(Registration Fees) and 30 TAC 116 

(Determination of Fees, Payment of 

Fees, PSD Permit Fees, Renewal 

Application Fees, Standard Permit Fees, 

and Permit Fees). Most of these 

provisions have been in the Texas SIP 

for many decades and revisions to them 

were approved on March 20, 2009 (74 

FR 11851) and the Permit Fees at 30 

TAC 116.926 were approved on January 

11, 2011 (76 FR 1525). The state also has 

the authority to collect fees for vehicle 

inspection and maintenance (I/M) 

programs in several nonattainment areas 

and in the Austin area under THSC 

sections 382.202 and 382.302. These 

rules are approved in the Texas SIP and 

are found at 30 TAC 114.53 (71 FR 

52670) and 114.87 (70 FR 45542). See 

the TSD for more detail. 

There are Federal sources of funding 

for the implementation of the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS through, for example, the CAA 

sections 103 and 105 grant funds. The 

TCEQ receives Federal funds on an 

annual basis, under section 105 of the 

Act, to support its air quality programs. 

Fees collected for motor vehicle 

inspections, the Title V and non-Title V 

permit programs, and other inspections, 

emissions and renewal fees required of 

other air pollution sources also provide 

necessary funds to help implement the 

State’s air programs. More specific 

information on permitting fees is 

provided in the discussion for 

110(a)(2)(L) below and in the TSD. 

Texas has routinely submitted SIP 

revisions with assurances that TCEQ has 

adequate personnel, funding, and 

authority under state law to implement 

the SIP. The State has provided these 

assurances in SIP submittals approved 

by EPA.55

Section 110(a)(2)(E)(ii) requires that 

the state comply with section 128. 

Section 128 requires: (1) That the 

majority of members of the state body 

which approves permits or enforcement 

orders do not derive any significant 

portion of their income from entities 

subject to permitting or enforcement 

orders under the CAA; and (2) any 

potential conflicts of interest by such 

body be adequately disclosed. In 1981, 

the EPA approved into the SIP the 

Standards of Conduct of State Officers 

and Employees (Texas Revised Civil 

Statute Annotated, Article 6252–9b) (46 

FR 61124). The TWC addresses these 

requirements in the Standards of 

conduct of state officers and employees. 

See TWC Title 2, Subtitle A, Chapter 5, 

Subchapter C, § 5.053: Eligibility for 

Membership; § 5.054: Removal of 

Commission Members; § 5.059: Conflict 

of Interest; § 5.060: Lobbyist Prohibition; 

and Subchapter D (General Powers and 

Duties of the Commission), § 5.111: 

Standards of Conduct. 

EPA is proposing to find that the 

Texas SIP meets the requirements of 

section 110(a)(2)(E) with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. 

Stationary source monitoring system, 

pursuant to section 110(a)(2)(F): 30 TAC 

chapters 101, 106, 111, 112, and 115– 

117 require that stationary sources 

monitor for compliance, provide 

recordkeeping and reporting, and 

provide for enforcement for ozone, 

PM2.5, and precursors to these pollutants 

(NOX, SO2 and VOCs). These source 

monitoring requirements also generate 

data for these pollutants. 

Under the Texas SIP rules, the TCEQ 

is required to analyze the emissions data 

from point, area, mobile, and biogenic 

(natural) sources. The TCEQ uses this 

data to track progress towards 

maintaining the NAAQS, develop 

control and maintenance strategies, 

identify sources and general emission 

levels, and determine compliance with 

Texas and EPA requirements. Emissions 

data are available electronically: http:// 

www.tceq.texas.gov/nav/main/ 

air_main.html#report. Texas’s point 

source emission inventory (EI) is 

available at http://www.tceq.texas.gov/ 

airquality/point-source/psei/psei.html. 

These rules are in the federally 

approved SIP. A list of the chapters and 

Federal Register citations is provided in 

the TSD. 

EPA is proposing to find that the 

Texas SIP meets the requirements of 

section 110(a)(2)(F) with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. 

Emergency power, pursuant to section 

110(a)(2)(G): Section 110(a)(2)(G) 

requires states to provide for authority 

to address activities causing imminent 

and substantial endangerment to public 

health, including contingency plans to 

implement the emergency episode 

provisions in their SIPs. The TCAA and 

TWC provide the TCEQ with authority 

to address such activities 56 and the 

TCEQ has contingency plans to 

implement emergency episode 

provisions in the SIP. The Texas Air 

Pollution Emergency Episode 

Contingency Plan was initially 

approved into the SIP on October 7, 

1982 (47 FR 44260). Subsequent 

revisions were approved on September 

6, 1990 (55 FR 36632) and July 26, 2000 

(65 FR 45915). The episode criteria and 

contingency measures are found in 30 

TAC 118. The rules at 30 TAC 118 

(Renamed ‘‘Control of Air Pollution 

Episodes’’) provide for air pollution 

emergency episodes and preplanned 

abatement strategies. The criteria for 

ozone are based on a 1-hour average 

ozone level. These episode criteria and 

contingency measures are adequate to 

address ozone emergency episodes and 

are in the federally approved SIP. 

The 2009 Infrastructure SIP Guidance 

for PM2.5 recommends that a state with 

at least one monitored 24-hour PM2.5

value exceeding 140.4 μg/m3 since 2006 

establish an emergency episode plan 

and contingency measures to be 

implemented should such level be 

exceeded again. The 2006–2010 ambient 

air quality monitoring data 57 for Texas 

do not exceed 140.4 μg/m3. The PM2.5

levels have consistently remained below 

this level (140.4 μg/m3), and 

furthermore, the state has appropriate 

general emergency powers to address 

PM2.5 related episodes to protect the 

environment and public health. Given 

the state’s monitored PM2.5 levels, EPA 

is proposing that Texas is not required 

to submit an emergency episode plan 

and contingency measures at this time, 

for the 1997 and 2006 PM2.5 standards. 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58763 

58Section 110(a)(2)(J) is divided into three 

segments: Consultation with government officials; 

public notification; and PSD and visibility 

protection. 

59For example, see the Memorandum of 

Understanding (MOU) with the Texas Department 

of Transportation, 70 FR 73380 (December 12, 

2005). 

60The TCEQ forecasts for 8-hour ozone are based 

on the 2008 ozone standard, which is 75 ppb. 

61The 9 forecast areas for 8-hour ozone are 

Austin, Beaumont-Port Arthur, Corpus Christi, 

Dallas-Fort Worth, El Paso, Houston, San Antonio, 

Tyler-Longview, and Victoria. See http:// 

www.tceq.texas.gov/cgi-bin/compliance/monops/ 

ozone_actionday.pl. 

62The 14 forecast areas for PM2.5 are Austin, 

Beaumont-Port Arthur, Brownsville-McAllen, 

Corpus Christi, Dallas-Fort Worth, El Paso, 

Houston, Laredo, Lubbock, Midland-Odessa, San 

Antonio, Tyler-Longview, Victoria, and WacoKilleen. See http://www.tceq.texas.gov/airquality/ 

monops/forecast_today.html. 

63Ozone is a gas composed of three oxygen 

atoms. Ground level ozone is generally not emitted 

directly from a vehicle’s exhaust or an industrial 

smokestack, but is created by a chemical reaction 

between NOX and VOCs in the presence of sunlight 

and high ambient temperatures. Thus, ozone is 

known primarily as a summertime air pollutant. For 

South Texas, the ozone season runs from January 

1 through December 31. For North Texas, the ozone 

season runs from March 1 through October 31 (see 

40 CFR 58, Appendix D, Table D–3). The Texas air 

quality control regions are defined at 62 FR 30270 

(June 3, 1997). 

64The ozone warning areas: Austin, Dallas-Fort 

Worth, Houston-Galveston-Brazoria, and San 

Antonio. 

65See http://www.tceq.texas.gov/airquality/ 

monops/ozone_email.html. 

Additional detail is provided in the 

TSD. 

EPA is proposing to find that the 

Texas SIP meets the requirements of 

section 110(a)(2)(G) with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. 

Future SIP revisions, pursuant to 

section 110(a)(2)(H): The TCAA directs 

the TCEQ to prepare and develop the 

SIP and provides TCEQ with the power 

to amend any rule or regulation it makes 

(TCAA Section 382.0173). In addition, 

the TCAA in Section 382.036 provides 

that ‘‘[t]he board shall: [* * *] advise, 

consult and cooperate with [* * *] the 

federal government, [* * *] in regard to 

matters of common interest in air 

control.’’ Thus, Texas has the authority 

to revise its SIP from time to time as 

may be necessary to take into account 

revisions of primary or secondary 

NAAQS, or the availability of improved 

or more expeditious methods of 

attaining such standards. Furthermore, 

Texas also has the authority under these 

TCAA provisions to revise its SIP in the 

event the EPA pursuant to the Act finds 

the SIP to be substantially inadequate to 

attain the NAAQS. 

EPA is proposing to find that the 

Texas SIP meets the requirements of 

section 110(a)(2)(H) with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. 

Consultation with government 

officials, pursuant to section 

110(a)(2)(J): 58 The TCAA provides 

under Section 382.017 that ‘‘[t]he 

commission shall hold a public hearing 

before adopting a rule consistent with 

the policy and purposes of this 

chapter.’’ In addition, the TCAA 

provides under Section 382.036 that 

‘‘[t]he commission shall: [* * *] advise, 

consult, and cooperate with other state 

agencies, political subdivisions of the 

state, industries, other states, the 

Federal government, and interested 

persons or groups concerning matters of 

common interest in air quality control.’’ 

The TCAA under Section 382.035 also 

authorizes the TCEQ to adopt by rule 

any Memorandum of Understanding 

(MOU) between the TCEQ and any other 

state Agency. Accordingly, the TCEQ 

has provisions to establish a 

Memorandum of Agreement (MOA) 

with one or more agencies in order to 

clarify areas of responsibility. Several of 

these MOAs are in the federally 

approved SIP.59

EPA is proposing to find that the 

Texas SIP meets the requirements of this 

portion of section 110(a)(2)(J) with 

respect to the 1997 8-hour ozone and 

1997 and 2006 PM2.5 NAAQS. 

Public notification if NAAQS are 

exceeded, pursuant to section 

110(a)(2)(J): Public notification begins 

with the air quality forecasts, which 

advise the public of conditions capable 

of exceeding the 8-hour ozone 60 and 

PM2.5 NAAQS. The air quality forecasts 

can be found on the TCEQ Web site: for 

8-hour ozone, the forecast includes 9 

regions 61 in the State; for PM2.5, the 

forecast includes 14 regions 62 in the 

State. Ozone forecasts are made daily 

during the ozone season for each of the 

nine forecast areas.63 The ozone 

forecasts are made, in most cases, a day 

in advance by 2 p.m. local time and are 

valid for the next day. The only 

exception is for the Houston area, where 

the forecast can be updated as late as 9 

a.m. local time on the same day that the 

forecast is in effect. When the forecast 

indicates that ozone levels will be above 

the 8-hour ozone standard, the State 

notifies the National Weather Service, 

who then broadcasts the information 

across its weather wire. In addition, four 

areas receive ‘‘ozone warnings’’ when 

monitors measure levels above the 8- 

hour ozone standard.64 Ozone warnings 

for these areas are generated 

automatically, approximately 20 

minutes after the hour when high ozone 

is measured for that particular area. The 

ozone forecasts and warnings are 

available through e-mail notification.65

EPA is proposing to find that the 

Texas SIP meets the requirements of this 

portion of section 110(a)(2)(J) with 

respect to the 1997 8-hour ozone and 

1997 and 2006 PM2.5 NAAQS. 

PSD and visibility protection, 

pursuant to section 110(a)(2)(J): This 

portion of section 110(a)(2)(J) in part 

requires that a state’s SIP meet the 

applicable requirements of section 

110(a)(2)(C) as relating to PSD programs. 

As discussed previously in this 

rulemaking with regards to section 

110(a)(2)(C) and in the TSD, the State’s 

PSD program is in the SIP (57 FR 28093, 

62 FR 44083, 67 FR 58697, 69 FR 43752, 

74 FR 11851 and 75 FR 55978). In 

addition to the approved program and to 

meet the requirements of 110(a)(2)(C) 

and 110(a)(2)(D)(i) for the 1997 ozone 

standard, EPA believes the State must 

have updated its PSD rules to treat NOX

as a precursor for ozone. Thus, we are 

proposing to approve portions of SIP 

revisions (submitted March 11, 2011) to 

implement NOX as a precursor to ozone. 

These revisions are proposed for the 

definitions at 30 TAC 116 and 30 TAC 

101, as discussed previously in this 

rulemaking with regards to section 

110(a)(2)(C) and 110(a)(2)(D)(i). To 

implement section 110(a)(2)(C) for the 

1997 PM2.5 standard, states must 

provide revisions due May 16, 2011 

under EPA’s Implementation of the New 

Source Review (NSR) Program for 

Particulate Matter Less Than 2.5 

Micrometers (73 FR 28321). On April 

20, 2011, the TCEQ adopted revisions to 

the Texas SIP to amend their PSD and 

nonattainment NSR programs to 

implement the PM2.5 NAAQS. These 

revisions became effective and 

enforceable by the state on May 12, 

2011. The state submitted these changes 

to EPA as a SIP revision on May 19, 

2011. EPA will act on this submission 

in a separate rulemaking. 

EPA is not proposing to approve the 

PSD program in full pursuant to section 

110(a)(2)(J) because, as stated previously 

in our discussion of the PSD program 

under section 110(a)(2)(C), Texas does 

not have adequate legal authority to 

implement the PSD permitting program 

with respect to GHG emissions. The 

PSD program related to permitting 

GHGs at or above the Tailoring Rule 

thresholds for the State is currently 

under a FIP. More detail is provided in 

the discussion for section 110(a)(2)(C) in 

this rulemaking and in the TSD. EPA is 

proposing to find that the Texas SIP 

does not meet the portion of section 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58764 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

66The Austin and Northeast Texas areas were 

designated as attainment and participated in the 

EAC program. EPA approved the modeling for these 

areas on August 19, 2005 at 70 FR 48640 and 70 

FR 48642, respectively. 

67See 62 FR 44083, 67 FR 58697, 74 FR 11851 

and 76 FR 1525 (January 11, 2011). 

68See MOA with the Houston Airport System, 66 

FR 57222 (November 14, 2001); MOAs with the 

cities of Dallas and Fort Worth and the DFW 

International Airport Board, 67 FR 19516 (April 22, 

2002); and MOA with the NCTCOG, 70 FR 20816 

(April 22, 2005). 

110(a)(2)(J) that relates to permitting 

GHGs with respect to the 1997 8-hour 

ozone and PM2.5 NAAQS. However, 

EPA’s disapproval here does not 

engender any additional statutory 

obligation, because EPA has already 

promulgated a FIP for the Texas PSD 

program related to permitting GHGs at 

or above the Tailoring Rule thresholds 

(76 FR 25178). 

EPA approved the Texas SIP Revision 

for Visibility Protection and long-term 

strategy for visibility into the Texas SIP 

on February 23, 1989 (57 FR 28093). 

The State’s most recent SIP revision of 

their Regional Haze program was 

submitted to EPA on March 19, 2009, 

and we will take action on it in a 

separate rulemaking. With regard to the 

applicable requirements for visibility 

protection, EPA recognizes that States 

are subject to visibility and regional 

haze program requirements under part C 

of the Act (which includes sections 

169A and 169B). In the event of the 

establishment of a new NAAQS, 

however, the visibility and regional 

haze program requirements under part C 

do not change. Thus, we find that there 

is no new visibility obligation 

‘‘triggered’’ under section 110(a)(2)(J) 

when a new NAAQS becomes effective. 

This would be the case even in the 

event a secondary PM2.5 NAAQS for 

visibility is established, because this 

NAAQS would not affect visibility 

requirements under part C. EPA is 

therefore proposing to find that the 

Texas SIP meets this portion of section 

110(a)(2)(J) with respect to the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS. 

EPA is proposing to find that the 

Texas SIP meets the requirements of this 

portion of section 110(a)(2)(J) with 

respect to the 1997 8-hour ozone and 

1997 and 2006 PM2.5 NAAQS with the 

exception of section 110(a)(2)(J) as it 

relates to the GHG component of the 

PSD program. EPA is proposing to find 

that the Texas SIP does not meet the 

requirements of section 110(a)(2)(J) as it 

relates to the GHG component of the 

PSD program with respect to the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS. 

Air quality modeling and submission 

of data, pursuant to section 110(a)(2)(K): 

The TCAA prescribes at Section 382.012 

that the TCEQ ‘‘shall prepare and 

develop a general, comprehensive plan 

for the proper control of the state’s air.’’ 

Texas has extensive modeling in 

numerous submitted SIP revisions. As 

examples, Texas submitted modeling in 

SIP revisions for the Austin and 

Northeast Texas Early Action Compact 

(EAC) Areas to demonstrate attainment 

of the 1997 8-hour ozone standard. The 

modeling in these SIP revisions was 

approved by EPA and adopted into the 

SIP.66

This section of the Act also requires 

that a SIP provide for the submission of 

data related to such air quality modeling 

to the EPA upon request. As indicated 

above, section 382.036 of the TCAA 

requires the TCEQ to cooperate with the 

Federal government, allowing it to make 

this submission to the EPA. 

EPA is proposing to find that the 

Texas SIP meets the requirements of 

section 110(a)(2)(K) with respect to the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. 

Permitting fees, pursuant to section 

110(a)(2)(L): The TCAA under section 

382.062 provides authority for the TCEQ 

to charge and collect fees for Title V and 

non-Title V permit applications, 

revisions, renewals and inspections. 

The non-Title V rules that address 

permit fees found at 30 TAC 106 and 

116 are in the federally approved SIP.67

A detailed list of the applicable chapters 

listed herein is provided in the TSD. 

EPA is proposing to find that the Texas 

SIP meets the requirements of section 

110(a)(2)(L) with respect to the 1997 

8-hour ozone and 1997 and 2006 PM2.5

NAAQS. 

Consultation/participation by affected 

local entities, pursuant to section 

110(a)(2)(M): As indicated above, the 

TCAA directs the TCEQ to hold a public 

hearing before adopting a rule. In 

addition, the TCAA provides that the 

TCEQ shall ‘‘advise, consult and 

cooperate with [* * *] political 

subdivisions of the state, industries, 

[* * *] and interested persons or 

groups concerning matters of common 

interest in air control.’’ The TCEQ has 

a MOA with each of five local entities: 

the cities of Dallas and Fort Worth, the 

Houston and DFW airports, and the 

North Central Texas Council of 

Governments.68 These agreements are in 

the federally approved SIP. EPA is 

proposing to find that the Texas SIP 

meets the requirements of section 

110(a)(2)(M) with respect to the 1997 

ozone and PM2.5 NAAQS with respect to 

the 1997 8-hour ozone and 1997 and 

2006 PM2.5 NAAQS. 

IV. Proposed Action 

We are proposing to partially approve 

and partially disapprove the submittals 

provided by the State of Texas to 

demonstrate that the Texas SIP meets 

the requirements of Section 110(a)(1) 

and (2) of the Act for the 1997 ozone 

and 1997 and 2006 PM2.5 NAAQS. 

We are proposing to find that the 

current Texas SIP meets the 

infrastructure elements for the 1997 

ozone and 1997 and 2006 PM2.5 NAAQS 

listed below: 

Emission limits and other control 

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

Ambient air quality monitoring/data 

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

Program for enforcement of control 

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

except for the portion that addresses 

GHGs; 

Interstate transport, pursuant to 

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

except for the portion that addresses 

GHGs; 

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

the Act); 

Stationary source monitoring system 

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

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

Act); 

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

the Act); 

Consultation with government 

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

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

Act); 

Prevention of significant deterioration 

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

portion that addresses GHGs; 

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

the Act); 

Air quality modeling data 

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

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

Act); and 

Consultation/participation by affected 

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

We are proposing to find that the 

current Texas SIP does not meet the 

infrastructure elements for the 1997 

ozone and 1997 and 2006 PM2.5 NAAQS 

listed below: 

Program for enforcement of control 

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

as it relates to GHGs; 

Interstate transport, pursuant to 

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

as it relates to GHGs; and 

Prevention of significant deterioration 

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

to GHGs. 

We are also proposing to approve the 

Texas Interstate Transport SIP 

provisions that address the requirement 

of section 110(a)(2)(D)(i)(II) that 

emissions from sources in Texas do not 

interfere with measures required in the 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 58765 

SIP of any other state under part C of the 

CAA to prevent significant deterioration 

of air quality, except as they relate to 

GHGs for the 1997 ozone and 1997 and 

2006 PM2.5 NAAQS. 

We are proposing to disapprove the 

portion of the Texas Interstate Transport 

SIP provisions that address the 

requirement of section 110(a)(2)(D)(i)(II), 

as it relates to GHGs, that emissions 

from sources in Texas do not interfere 

with measures required in the SIP of 

any other state under part C of the CAA 

to prevent significant deterioration of air 

quality, for the 1997 ozone and 1997 

and 2006 PM2.5 NAAQS. We will act on 

the remaining three SIP elements 

regarding interstate transport, per 

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

separate rulemakings. 

We are also proposing to approve the 

following revisions to 30 TAC 101.1 and 

30 TAC 116.12, submitted by TCEQ on 

March 8, 2011, as part of the Texas NSR 

SIP: 

1. The substantive revisions to the 

definition of Maintenance area at 30 

TAC 101.1(54). 

2. The substantive revisions to the 

definition of Nonattainment area at 30 

TAC 101.1(70). 

3. The substantive revisions to the 

definition of Reportable quantity at 30 

TAC 101.1(88). 

4. The non-substantive revisions to 

the definition of Volatile organic 

compound at 30 TAC 101.1(115). 

5. The non-substantive revision to the 

title of 30 TAC 116.12 from 

Nonattainment Review Definitions to 

Nonattainment and Prevention of 

Significant Deterioration Review 

Definitions. 

6. The non-substantive revisions to 

the introductory paragraph at 30 TAC 

116.12. 

7. The substantive revisions that add 

Federally Regulated NSR pollutant to 

the definitions at 30 TAC 116.12(14). 

8. The non-substantive changes to 

rename and renumber the definition of 

Major facility/stationary source at 30 

TAC 116.12(10) to Major stationary 

source at 30 TAC 116.12(17) and the 

substantive changes making the 

definition consistent with 40 CFR 

51.166(b)(1). 

9. The non-substantive changes to 

renumber the definition of Major 

modification at 30 TAC 116.12(11) as 30 

TAC 116.12(18) and provide editorial 

revisions, and the substantive changes 

making the definition consistent with 40 

CFR 51.165(a)(1) and 40 CFR 

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

the grounds for the September 15, 2010 

disapproval of this definition. 

EPA is proposing these actions in 

accordance with section 110 and part C 

of the Act and EPA’s regulations and 

consistent with EPA guidance. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to act on state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by State law. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This proposed action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 4, 1993) and is 

therefore not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

This proposed 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 CAA 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 CAA will not in-and-of itself 

create any new requirements but simply 

disapproves certain State requirements 

for inclusion into the SIP. Accordingly, 

it affords no opportunity for EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the CAA prescribes that 

various consequences (e.g., higher offset 

requirements) may or will flow from 

this disapproval does not mean that 

EPA either can or must conduct a 

regulatory flexibility analysis for this 

action. Therefore, this action will not 

have a significant economic impact on 

a substantial number of small entities. 

We continue to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. EPA 

has determined that the proposed 

disapproval action does not include a 

Federal mandate that may result in 

estimated costs of $100 million or more 

to either State, local, or tribal 

governments in the aggregate, or to the 

private sector. This action proposes to 

disapprove pre-existing requirements 

under State or local law, and imposes 

no new requirements. Accordingly, no 

additional costs to State, local, or tribal 

governments, or to the private sector, 

result from this action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

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 


emcdonald on DSK5VPTVN1PROD with PROPOSALS
58766 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Proposed Rules 

power and responsibilities among the 

various levels of government.’’ 

This proposed 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 CAA. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This proposed action does not have 

tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the action 

EPA is proposing neither imposes 

substantial direct compliance costs on 

tribal governments, nor preempts tribal 

law. Therefore, the requirements of 

section 5(b) and 5(c) of the Executive 

Order do not apply to this rule. 

Consistent with EPA policy, EPA 

nonetheless is offering consultation to 

Tribes regarding this rulemaking action. 

EPA will respond to relevant comments 

in the final rulemaking 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 proposed action is not 

subject to Executive Order 13045 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This proposed SIP 

disapproval under section 110 and 

subchapter I, part D of the CAA 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 action is not subject to 

Executive Order 13211 (66 FR 28355, 

May 22, 2001) because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

note) directs 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 proposed 

action is not subject to requirements of 

Section 12(d) of NTTAA because 

application of those requirements would 

be inconsistent with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

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 CAA. 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 CAA and will 

not in-and-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. 

K. Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

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

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: September 14, 2011. 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2011–24384 Filed 9–21–11; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK5VPTVN1PROD with PROPOSALS