Wednesday, 

September 15, 2010 

Part IV 

Environmental 

Protection Agency 

40 CFR Part 52 

Approval and Promulgation of 

Implementation Plans; Texas; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Nonattainment 

NSR (NNSR) for the 1-Hour and the 1997 

8-Hour Ozone Standard, NSR Reform, and 

a Standard Permit; Final Rule 


srobinson on DSKHWCL6B1PROD with RULES3
56424 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0133 and EPA–R06– 

OAR–2005–TX–0025; FRL—9199–6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Nonattainment NSR (NNSR) for the 1- 

Hour and the 1997 8-Hour Ozone 

Standard, NSR Reform, and a Standard 

Permit 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

disapprove submittals from the State of 

Texas, through the Texas Commission 

on Environmental Quality (TCEQ), to 

revise the Texas Major and Minor NSR 

SIP. We are disapproving the submittals 

because they do not meet the 2002 

revised Major NSR SIP requirements. 

We are also disapproving the submittals 

as not meeting the Major Nonattainment 

NSR SIP requirements for 

implementation of the 1997 8-hour 

ozone national ambient air quality 

standard (NAAQS) and the 1-hour 

ozone NAAQS. EPA is disapproving the 

submitted Standard Permit (SP) for 

Pollution Control Projects (PCP) because 

it does not meet the requirements of the 

CAA for a minor NSR Standard Permit 

program. Finally, EPA is also 

disapproving a submitted severable 

definition of best available control 

technology (BACT) that is used by 

TCEQ in its Minor NSR SIP permitting 

program. 

EPA is not addressing the submitted 

revisions concerning the Texas Major 

PSD NSR SIP, which will be addressed 

in a separate action. EPA is taking no 

action on severable provisions that 

implement section 112(g) of the Act and 

is restoring a clarification to an earlier 

action that removed an explanation that 

a particular provision is not in the SIP 

because it implements section 112(g) of 

the Act. EPA is not addressing severable 

revisions to definitions submitted June 

10, 2005, submittal, which will be 

addressed in a separate action. We are 

taking no action on a severable 

provision relating to Emergency and 

Temporary Orders, which we will 

address in a separate action. 

EPA is taking these actions under 

section 110, part C, and part D, of the 

Federal Clean Air Act (the Act or CAA). 

DATES: This rule is effective on October 

15, 2010. 

ADDRESSES: EPA has established a 

docket for this action on New Source 

Review (NSR) Nonattainment NSR 

(NNSR) Program for the 1-Hour Ozone 

Standard and the 1997 8-Hour Ozone 

Standard, NSR Reform, and a specific 

Standard Permit under Docket ID No. 

EPA–R06–OAR–2006–0133. The docket 

for the action on the definition of BACT 

is in Docket ID No. EPA–R06–OAR– 

2005–TX–0025. All documents in these 

dockets are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, e.g., confidential 

business information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State 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: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7212; fax number 

214–665–7263; e-mail address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the 

following terms have the meanings 

described below: 

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

• ‘‘Act’’ and ‘‘CAA’’ means Clean Air 

Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations–Protection 

of the Environment. 

• ‘‘SIP’’ means State Implementation 

Plan as established under section 110 of 

the Act. 

• ‘‘NSR’’ means new source review, a 

phrase intended to encompass the 

statutory and regulatory programs that 

regulate the construction and 

modification of stationary sources as 

provided under CAA section 

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

and 40 CFR 51.160 through 51.166. 

• ‘‘Minor NSR’’ means NSR 

established under section 110 of the Act 

and 40 CFR 51.160. 

• ‘‘NNSR’’ means nonattainment NSR 

established under Title I, section 110 

and part D of the Act and 40 CFR 

51.165. 

• ‘‘PSD’’ means prevention of 

significant deterioration of air quality 

established under Title I, section 110 

and part C of the Act and 40 CFR 

51.166. 

• ‘‘Major NSR’’ means any new or 

modified source that is subject to NNSR 

and/or PSD. 

• ‘‘TSD’’ means the Technical Support 

Document for this action. 

• ‘‘NAAQS’’ means national ambient 

air quality standards promulgated under 

section 109 of that Act and 40 CFR part 

50. 

• ‘‘PAL’’ means ‘‘plantwide 

applicability limitation.’’ 

• ‘‘PCP’’ means ‘‘pollution control 

project.’’ 

• ‘‘TCEQ’’ means ‘‘Texas Commission 

on Environmental Quality.’’ 

Table of Contents 

I. What action is EPA taking? 

II. What is the background? 

III. Did we receive public comments on the 

proposed rulemaking? 

IV. What are the grounds for these actions? 

A. The Submitted Minor NSR Definition of 

BACT SIP Revision 

1. What is the background for the 

submitted definition of BACT under 30 

TAC 116.10(3) as proposed under Docket 

No. EPA–R06–OAR–2005–TX–0025? 

2. What is EPA’s response to comments on 

the submitted minor NSR definition of 

BACT SIP revision? 

3. What are the grounds for disapproval of 

the submitted minor NSR definition of 

BACT SIP revision? 

B. The Submitted Anti-Backsliding Major 

NSR SIP Requirements for the 1-hour 

Ozone NAAQS 

1. What is the background for the 

submitted anti-backsliding major NSR 

SIP requirements for the 1-hour ozone 

NAAQS? 

2. What is EPA’s response to comments on 

the submitted anti-backsliding major 

NSR SIP requirements for the 1-hour 

ozone NAAQS? 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56425 

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

provisions that are either outside the scope of the 

SIP or which revise an earlier submittal of a base 

regulation that is currently undergoing review for 

appropriate action. 

3. What are the grounds for disapproval of 

the submitted anti-backsliding major 

NSR SIP requirements for the 1-hour 

ozone NAAQS? 

C. The Submitted Major Nonattainment 

NSR SIP Requirements for the 1997 8- 

hour Ozone NAAQS 

1. What is the background for the 

submitted major nonattainment NSR SIP 

requirements for the 1997 8-hour ozone 

NAAQS? 

2. What is EPA’s response to comments on 

the submitted major nonattainment NSR 

SIP requirements for the 1997 8-hour 

ozone NAAQS? 

3. What are the grounds for disapproval of 

the submitted major nonattainment NSR 

SIP requirements for the 1997 8-hour 

ozone NAAQS? 

D. The Submitted Major NSR Reform SIP 

revision for Major NSR with PAL 

Provisions 

1. What is the background for the 

submitted major NSR reform SIP revision 

for major NSR with PAL provisions? 

2. What is EPA’s response to comments on 

the submitted major NSR reform SIP 

revision for major NSR with PAL 

provisions? 

3. What are the grounds for disapproval of 

the submitted major NSR reform SIP 

revision for major NSR with PAL 

provisions? 

E. The Submitted Non PAL Aspects of the 

Major NSR SIP Requirements 

1. What is the background for the 

submitted non PAL aspects of the major 

NSR SIP requirements? 

2. What is EPA’s response to comments on 

the submitted non PAL aspects of the 

major NSR SIP requirements? 

3. What are the grounds for disapproval of 

the submitted non-PAL aspects of the 

major NSR SIP requirements? 

F. The Submitted Minor NSR Standard 

Permit for Pollution Control Project SIP 

Revision 

1. What is the background for the 

submitted minor NSR standard permit 

for pollution control project SIP 

revision? 

2. What is EPA’s response to comments on 

the submitted minor NSR standard 

permit for pollution control project SIP 

revision? 

3. What are the grounds for disapproval of 

the submitted minor NSR standard 

permit for pollution control project SIP 

revision? 

G. No Action on the Revisions to the 

Definitions under 30 TAC 101.1 

H. No Action on Provisions that Implement 

Section 112(g) of the Act and for 

Restoring an Explanation that a Portion 

of 30 TAC 116.115 is not in the SIP 

Because it Implements Section 112(g) of 

the Act. 

I. No Action on Provision Relating to 

Emergency and Temporary Orders. 

J. Responses to General Comments on the 

Proposal 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

A. What regulations is EPA 

disapproving? 

We are disapproving the SIP revisions 

submitted by Texas on June 10, 2005, 

and February 1, 2006, as not meeting the 

Act and the 1997 8-hour ozone Major 

Nonattainment NSR SIP requirements, 

and as not meeting the Act and Major 

Nonattainment NSR SIP requirements 

for the 1-hour ozone NAAQS. We are 

disapproving the SIP revision submitted 

by Texas on February 1, 2006, as not 

meeting the Major NSR Reform SIP 

requirements for PAL provisions and 

the Major NSR Reform SIP requirements 

without the PAL provisions. We are 

disapproving the Standard Permit for 

PCP submitted February 1, 2006, as not 

meeting the Act and Minor NSR SIP 

requirements. We proposed to 

disapprove the above SIP revision 

submittals on September 23, 2009 (74 

FR 48467). We are disapproving the 

State’s regulatory definition for its Texas 

Clean Air Act’s statutory definition for 

‘‘BACT’’ that was submitted in 30 TAC 

116.10(3) on March 13, 1996, and July 

22, 1998, because it is not clearly 

limited to minor sources and minor 

modifications. We proposed to 

disapprove this severable definition of 

BACT under our action on Qualified 

Facilities. See 74 FR 48450, at 48463 

(September 23, 2009). It is EPA’s 

position that each of these six identified 

portions in the SIP revision submittals, 

8-hour ozone, 1-hour ozone, PALs, nonPALs, PCP Standard Permit, and Minor 

NSR definition of BACT, is severable 

from each other and from the remaining 

portions of the SIP revision submittals. 

We have evaluated the SIP 

submissions to determine whether they 

meet the Act and 40 CFR Part 51, and 

are consistent with EPA’s interpretation 

of the relevant provisions. Based upon 

our evaluation, EPA has concluded that 

each of the six portions of the SIP 

revision submittals, identified below, 

does not meet the requirements of the 

Act and 40 CFR part 51. Therefore, each 

portion of the State submittals is not 

approvable. As authorized in sections 

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

portions of the State submittal are 

severable, EPA may approve the 

portions of the submittal that meet the 

requirements of the Act, take no action 

on certain portions of the submittal,1

and disapprove the portions of the 

submittal that do not meet the 

requirements of the Act. When the 

deficient provisions are not severable 

from the all of the submitted provisions, 

EPA must disapprove the submittals, 

consistent with section 301(a) and 

110(k)(3) of the Act. Each of the six 

portions of the State submittals is 

severable from each other. Therefore, 

EPA is disapproving each of the 

following severable provisions of the 

submittals: 

• The submitted 1997 8-hour ozone 

NAAQS Major Nonattainment NSR SIP 

revision, 

• The submitted 1-hour ozone 

NAAQS Major NNSR SIP revision, 

• The submitted Major NSR reform 

SIP revision with PAL provisions, 

• The submitted Major NSR reform 

SIP revision with no PAL provisions, 

• The submitted Minor NSR Standard 

Permit for PCP SIP revision, and 

• The submitted definition of ‘‘BACT’’ 

under 30 TAC 116.10(3) for Minor NSR. 

The provisions in these submittals for 

each of the six portions of the SIP 

revision submittals were not submitted 

to meet a mandatory requirement of the 

Act. Therefore, this final action to 

disapprove the submitted six portions of 

the State submittals does not trigger a 

sanctions or Federal Implementation 

Plan clock. See CAA section 179(a). 

B. What other actions is EPA taking? 

EPA is taking action in a separate 

rulemaking action published in today’s 

Federal Register on the severable 

revisions that relate to Prevention of 

Significant Deterioration. The affected 

provision that is being acted upon 

separately in today’s Federal Register is 

30 TAC 116.160. 

We are taking no action on 30 TAC 

116.400, 116.402, 116.404, and 116.406, 

submitted February 1, 2006. These 

provisions implement section 112(g) of 

the Act, which is outside the scope of 

the SIP. We are also making an 

administrative correction relating to 30 

TAC 116.115(c)(2)(B)(ii)(I). In our 2002 

approval of 30 TAC 116.115 we 

included an explanation in 40 CFR 

52.2270(c) that 30 TAC 

116.115(c)(2)(B)(ii)(I) is not in the SIP 

because it implements section 112(g) of 

the Act, which is outside the scope of 

the SIP. In a separate action published 

April 2, 2010 (75 FR 16671), we 

inadvertently removed the explanation 

that states that this provision is not part 

of the SIP. 

We are taking no action on severable 

portions of the June 10, 2005, submittal 

concerning 30 TAC 101.1 Definitions. 

We will take action on these portions of 

the submittal in a later rulemaking. 

Finally, we are taking no action on 

severable portions of the February 1, 

2006, submittal which relate to 


srobinson on DSKHWCL6B1PROD with RULES3
56426 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

Emergency and Temporary Orders. We 

will take action on these portions of the 

submittal in a later rulemaking. 

II. What is the background? 

A. Summary of Our Proposed Action 

On September 23, 2009, under Docket 

No. EPA–R06–OAR–0133, EPA 

proposed to disapprove revisions to the 

SIP submitted by the State of Texas that 

relate to revisions to the New Source 

Review (NSR) State Implementation 

Plan (SIP); (1) Prevention of Significant 

Deterioration (PSD), (2) Nonattainment 

NSR (NNSR) for the 1997 8-Hour Ozone 

Standard, (3) NNSR for the 1-Hour 

Ozone Standard, (4) Major NSR Reform 

for PAL provisions, (5) The Major NSR 

Reform SIP requirements without the 

PAL provisions and (6) The Standard 

Permit for PCP. See 74 FR 48467. These 

affected provisions that we proposed to 

disapprove were 30 TAC 116.12, 

116.121, 116.150, 116.151, 116.160, 

116.180, 116.182, 116.184, 116.186, 

116.188, 116.190, 116.192, 116.194, 

116.196, 116.198, 116.610(a), and 

116.617 under Chapter 116, Control of 

Air Pollution by Permits for New 

Construction or Modification. EPA also 

proposed on September 23, 2009, under 

Docket No. EPA–R06–OAR–2005–TX– 

0025 (see 74 FR 48450, at 48463–48464), 

to disapprove a revision to the SIP 

submitted by the State that relates to the 

State’s Minor NSR definition of BACT. 

The affected definition that we 

proposed to disapprove was 30 TAC 

116.10(3). See 74 FR 48450, at 48463– 

48464. EPA finds that each of these six 

submitted provisions is severable from 

each other. EPA also finds that the 

submitted definition is severable from 

the other submittals. 

EPA is taking action in a separate 

rulemaking action published in today’s 

Federal Register on the severable 

revisions that relate to Prevention of 

Significant Deterioration. The affected 

provision that is being acted upon 

separately in today’s Federal Register is 

30 TAC 116.160. 

EPA proposed on September 23, 2009, 

under Docket No. EPA–R06–OAR–0133, 

no action on the following regulations: 

• 30 TAC 116.400, 116.402, 116.404, 

116.406, 116.610(d). These regulations 

implement section 112(g) of the CAA 

and are outside the scope of the SIP; 

• 30 TAC 116.1200. This regulation 

relates to Emergency and Temporary 

Orders and will be addressed in a 

separate action under the Settlement 

Agreement in BCCA Appeal Group v. 

EPA, Case No. 3:08–cv–01491–N (N.D. 

Tex). 

B. Summary of the Submittals 

Addressed in This Final Action 

Tables 1 and 2 below summarize the 

changes that are in the SIP revision 

submittals. A summary of EPA’s 

evaluation of each section and the basis 

for this final action is discussed in 

sections III through V of this preamble. 

The TSD (which is in the docket) 

includes a detailed evaluation of the 

submittals. 

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

Title of SIP submittal 

Date submitted to 

EPA 

Date of 

state 

adoption 

Regulations affected in this 

action 

Qualified Facilities and Modification to Existing Facilities 3/13/1996 2/14/1996 30 TAC 116.10—definition of ‘‘BACT’’. 

NSR Rule Revisions; section 112(g) Rule Review for 

Chapter 116.

7/22/1998 6/17/1998 30 TAC 116.10(3)—definition of ‘‘BACT’’. 

New Source Review for Eight-Hour Ozone Standard ...... 6/10/2005 5/25/2005 30 TAC 116.12 and 115.150. 

Federal New Source Review Permit Rules Reform ......... 2/1/2006 1/11/2006 30 TAC 116.12, 116.121, 116.150, 116.151, 116.180, 

116.182, 116.184, 116.186, 116.188, 116.190, 

116.192, 116.194, 116.196, 116.198, 116.400, 

116.402, 116.404, 116.406, 116.610, 116.617, and 

116.1200. 

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

Section Title Submittal 

dates Description of change Final action 

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

Subchapter A—Definitions 

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

7/22/1998 Repealed and a new definition 

submitted as paragraph (3).

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

implement Federal phase I rule 

implementing 8-hour ozone 

standard.

Disapproval. 

Nonattainment Review and Prevention of Significant Deterioration Definitions.2/1/2006 Renamed section and added and 

revised definitions to implement 

Federal NSR Reform regulations.

Disapproval. 

Subchapter B—New Source Review Permits 

Division 1—Permit Application 

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

for Emissions Increase.

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


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56427 

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

Section Title Submittal 

dates Description of change Final action 

Division 5—Nonattainment Review 

30 TAC 116.150 ................. New Major Source or Major Modification in Ozone Nonattainment Area.6/10/2005 Revised section to implement 

Federal phase I rule implementing 8-hour ozone standard.

Disapproval. 

2/1/2006 Revised section to implement 

Federal NSR Reform regulations.

Disapproval. 

30 TAC 116.151 ................. New Major Source or Major Modification in Nonattainment Areas 

Other Than Ozone.

2/1/2006 Revised section to implement 

Federal NSR Reform regulations.

Disapproval. 

Subchapter C—Plant-Wide Applicability Limits 

Division 1—Plant-Wide Applicability Limits 

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

30 TAC 116.182 ................. Plant-Wide Applicability Limit Permit Application.2/1/2006 New Section ................................. Disapproval. 

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

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

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

30 TAC 116.190 ................. Federal Nonattainment and Prevention of Significant Deterioration Review.2/1/2006 New Section ................................. Disapproval. 

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

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

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

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

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

Part 63) a

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

116.180.

No action. 

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

116.181.

No action. 

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

116.182.

No action. 

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

116.183.

No action. 

Subchapter F—Standard Permits 

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

through (a)(5), (b), and (d) b.

- Disapproval of paragraph 

(a) 

- No action on paragraph 

(d) 

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

Standard Permit.

2/1/2006 Replaced former 30 TAC 

116.617—Standard Permit for 

Pollution Control Projects c.

Disapproval. 

Subchapter K—Emergency Orders d

30 TAC 116.1200 ............... Applicability .................................. 2/1/2006 Recodification from 30 TAC 

116.410.

No action. 

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

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

c 30 TAC 116.617 is not SIP-approved. 

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

C. Other Relevant Actions on the Texas 

Permitting SIP Revision Submittals 

Final action on the submitted Major 

NSR SIP elements and the Standard 

Permit is required by August 31, 2010, 

as provided in the Consent Decree 

entered on January 21, 2010 in BCCA 

Appeal Group v. EPA, Case No. 3:08– 

cv–01491–N (N.D. Tex). As required by 

the Consent Decree, EPA published its 

final actions for the following SIP 

revisions: (1) Texas Qualified Facilities 


srobinson on DSKHWCL6B1PROD with RULES3
56428 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

2The January 1972 Texas NSR rules, as revised 

in July 1972, require a proposed new facility or 

modification to utilize ‘‘best available control 

technology, with consideration to the technical 

practicability and economic reasonableness of 

reducing or eliminating the emissions resulting 

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

the Texas Clean Air Act. EPA approved this into the 

Texas NSR SIP possibly in the 1970’s and definitely 

on August 13, 1982 (47 FR 35193). When EPA 

approved the Texas PSD program SIP revision 

submittals, including the State’s incorporation by 

reference of the Federal definition of PSD BACT, in 

1992, both EPA and Texas interpreted the use of the 

TCAA BACT definition to be for Minor NSR SIP 

permitting purposes only. EPA specifically found 

that the State’s TCAA BACT definition did not meet 

the Federal PSD BACT definition. We required the 

use of the Federal PSD BACT definition for PSD SIP 

permitting purposes. See the proposal and final 

approval of the Texas PSD SIP at 54 FR 52823 

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

1992). 

3Texas’s current PSD SIP incorporates by 

reference the Federal PSD definition of BACT in 40 

CFR 52.21(b)(12). See current SIP at 30 TAC 

116.160(a). On February 1, 2006, TCEQ submitted 

a revision that reorganized 30 TAC 116.160 and 

removed the reference to the BACT definition. On 

September 23, 2009, EPA proposed to disapprove 

the 2006 revision to section 116, because of the 

removal of the reference to the Federal PSD BACT 

definition. On July 16, 2010, Texas submitted a 

revision to section 116.160 that reinstated the 

reference to the PSD BACT definition in 40 CFR 

52.21(b)(12). See 30 TAC 116.160(c)(1)(A), 

submitted July 16, 2010. EPA is addressing the 2006 

and 2010 revisions to 30 TAC 116.160 in a separate 

action published in today’s Federal Register. 

Program and its associated General 

Definitions on April 14, 2010 (See 75 FR 

19467); and (2) Texas Flexible Permits 

Program on July 15, 2010 (See 75 FR 

41311). 

TCEQ submitted on July 16, 2010, a 

proposed SIP revision addressing the 

PSD SIP requirements. We are acting 

upon the previous PSD SIP revision 

submittal of February 1, 2006, and the 

newly submitted PSD SIP revision in a 

separate rulemaking. Additionally, EPA 

acknowledges that TCEQ is developing 

a proposed rulemaking package to 

address EPA’s concerns with revisions 

to the New Source Review (NSR) State 

Implementation Plan (SIP); 

Nonattainment NSR (NNSR) for the 

1997 8-Hour Ozone Standard and the 1- 

Hour Ozone Standard, NSR Reform, and 

the PCP Standard Permit. We will, of 

course, consider any rule changes if and 

when they are submitted to EPA for 

review. However, the rules before us 

today are those of Texas’s current 1997 

8-Hour Ozone Standard NNSR Program, 

1-Hour Ozone Standard NNSR Program, 

NSR Reform Program, PCP Standard 

Permit, and we have concluded that 

these current Programs are not 

approvable for the reasons set out in this 

notice. 

III. Did we receive public comments on 

the proposed rulemaking? 

In response to our September 23, 

2009, proposal, we received comments 

from the following: Association of 

Electric Companies of Texas (AECT); 

Austin Physicians for Social 

Responsibility (PSR); Baker Botts, 

L.L.P., on behalf of BCCA Appeal Group 

(BCCA); Baker Botts, L.L.P., on behalf of 

Texas Industrial Project (TIP); Bracewell 

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

Electric Reliability Coordinating 

Council (ERCC); Citizens of Grayson 

County; Gulf Coast Lignite Coalition 

(GCLC); Office of the Mayor—City of 

Houston, Texas (City of Houston); Harris 

County Public Health and 

Environmental Services (HCPHES); 

Sierra Club—Houston Regional Group 

(Sierra Club); Sierra Club Membership 

Services (including 2,062 individual 

comment letters) (SCMS); Texas 

Chemical Council (TCC); Texas 

Commission on Environmental Quality 

(TCEQ); Texas Association Business; 

Members of the Texas House of 

Representatives; Texas Association of 

Business (TAB); Texas Oil and Gas 

Association (TxOGA); and University of 

Texas at Austin School of Law— 

Environmental Clinic (the Clinic) on 

behalf of Environmental Integrity 

Project, Environmental Defense Fund, 

Galveston-Houston Association for 

Smog Prevention, Public Citizen, 

Citizens for Environmental Justice, 

Sierra Club Lone Star Chapter, 

Community-In-Power and Development 

Association, KIDS for Clean Air, Clean 

Air Institute of Texas, Sustainable 

Energy and Economic Development 

Coalition, Robertson County: Our Land, 

Our Lives, Texas Protecting Our Land, 

Water and Environment, Citizens for a 

Clean Environment, Multi-County 

Coalition, and Citizens Opposing Power 

Plants for Clean Air. 

We respond to these comments in our 

evaluation and review under this final 

action in section IV below. 

IV. What are the grounds for these 

actions? 

This section includes EPA’s 

evaluation of each part of the submitted 

rules. The evaluation is organized as 

follows: (1) A discussion of the 

background of the submitted rules; (2) a 

summary and response to each 

comment received on the submitted 

rule; and (3) the grounds for final action 

on each rule. 

A. The Submitted Minor NSR State 

BACT Definition SIP Revision 

EPA proposed to disapprove this 

severable definition of BACT in 30 TAC 

116.10(3), submitted March 13, 1996, 

and July 22, 1998, when EPA proposed 

to disapprove the Texas Qualified 

Facilities Program (under Docket No. 

EPA–R06–OAR–2005–TX–0025). See 74 

FR 48450, at 48463–48464. The 

submittals on March 13, 1996, and July 

22, 1998, include a new regulatory 

definition for the Texas Clean Air Act’s 

definition of ‘‘BACT,’’ defining it as 

BACT with consideration given to the 

technical practicability and economical 

reasonableness of reducing or 

eliminating emissions. 

1. What is the background for the 

submitted definition of BACT under 30 

TAC 116.10(3) as proposed under 

Docket No. EPA–R06–OAR–2005–TX– 

0025? 

On July 27, 1972, the State of Texas 

revised its January 1972 permitting 

rules, then Regulation VI at rule 603.16, 

to add the Texas Clean Air Act statutory 

requirement that a proposed new 

facility and proposed modification 

utilize BACT, with consideration to the 

technical practicability and economical 

reasonableness of reducing or 

eliminating the emissions from the 

facility. EPA approved the revised 

603.16 into the Texas SIP 2 and that 

provision is presently codified in the 

Texas SIP at 30 TAC 116.111(a)(2)(C). 

The Texas NSR SIP includes not only 

the PSD BACT definition 3 but also a 

requirement for a source to perform a 

BACT analysis. See 30 TAC 

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

SIP provision in its 1992 original 

approval of the Texas PSD SIP as 

meeting the PSD requirement of 40 CFR 

52.21(j). See 54 FR 52823, at 52824– 

52825, and 57 FR 28093, at 28096– 

28096. Both Texas and EPA interpreted 

this SIP provision to require either a 

Minor NSR BACT determination or a 

Major PSD BACT determination. Since 

EPA’s approval of the Texas PSD SIP in 

1992, there has been some confusion 

about the distinction between a State 

Minor NSR BACT definition and a PSD 

Major NSR BACT definition and the 

requirement that a source must perform 

the relevant BACT analysis. 

TCEQ in 1996 submitted a regulatory 

definition of the TCAA BACT statutory 

provision but failed to distinguish the 

submitted regulatory BACT definition as 

the Minor NSR BACT definition. See the 

proposed disapproval of the BACT 

definition in 30 TAC 116.10(3) at 74 FR 

48450, at 40453 (footnote 2), 48463– 

48464, TCEQ’s proposed revisions to its 

Qualified Facilities Program 

rulemaking, and EPA’s June 7, 2010, 

comment letter on TCEQ’s Qualified 

Facilities Program, for further 

information. 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56429 

4On March 12, 2008, EPA significantly 

strengthened the 1997 8-hour ozone standard, to a 

level of 0.075 ppm. EPA is developing rules needed 

for implementing the 2008 revised 8-hour ozone 

standard and has received the States’ submittals 

identifying areas with their boundaries they 

identify to be designated nonattainment. EPA is 

reviewing the States’ submitted data. 

2. What is EPA’s response to comments 

on the submitted Minor NSR definition 

of BACT SIP revision? 

Comment 1: TCEQ commented (under 

Docket No. EPA–R06–OAR–2005–TX– 

0025) on the proposed disapproval of 

BACT in the Qualified Facilities 

proposal that it will consider EPA’s 

comments in connection with its 

disapproval of the definition of BACT 

and plans to revise its definition of 

BACT to correct the deficiencies 

identified in the proposal. 

Response: EPA acknowledges TCEQ’s 

consideration of our comments 

regarding our disapproval of the 

definition of BACT as well as TCEQ’s 

plans to revise its definition of BACT to 

correct the deficiencies identified in our 

proposal. TCEQ proposed to revise this 

definition on March 30, 2010. On June 

7, 2010, we forwarded comments to 

TCEQ on this proposed rule. In our 

comments, we stated that the definition 

of the TCAA BACT must be revised to 

indicate more clearly that the definition 

is for any air contaminant or facility that 

is not subject to the Federal permitting 

requirements for PSD. The proposed 

substantive revisions to the regulatory 

definition are acceptable. Nonetheless, 

as we explained in our comment letter, 

we believe that the TCAA BACT 

regulatory definition should be given a 

distinguishable name, e.g., State, Texas, 

Minor NSR Best Available Control 

Technology. We recognize that the State 

must continue to use the term BACT 

since it is in the TCAA; we believe that 

TCEQ could add before ‘‘BACT’’ 

however, Texas, State, or Minor NSR, to 

clearly distinguish this BACT definition 

from the Federal PSD BACT definition. 

Comment 2: The Clinic commented 

(under Docket No. EPA–R06–OAR– 

2005–TX–0025) on the proposed 

disapproval and agrees that this 

definition cannot be substituted for the 

Federal definition of BACT for purposes 

of PSD. The Clinic further comments 

that rather than limiting the 

applicability of the definition of ‘‘Texas 

BACT’’ to minor sources and 

modifications, Texas should use a 

different acronym for its minor NSR 

technology requirement. The use of dual 

definitions of BACT within the same 

program is too confusing, as evidenced 

by the ongoing application of Texas 

BACT in the Texas PSD permitting 

proceedings. 

Response: EPA agrees with the Clinic 

that the TCAA BACT regulatory 

definition cannot be substituted for the 

Federal definition of PSD BACT. EPA 

takes note of the Clinic’s comment 

regarding the dual use of the definition 

of ‘‘Texas BACT’’ within the same 

program and ensuing confusion. See 

Response to Comment 1 above for 

further information. 

3. What are the grounds for disapproval 

of the submitted Minor NSR definition 

of BACT SIP revision? 

EPA is disapproving the submitted 

definition of BACT under 30 TAC 

116.10(3) as proposed under Docket No. 

EPA–R06–OAR–2005–TX–0025. EPA 

proposed to disapprove this severable 

definition of BACT in 30 TAC 116.10(3), 

submitted March 13, 1996, and July 22, 

1998, when EPA proposed to 

disapprove the submitted Texas SIP 

revisions for Modification of Existing 

Qualified Facilities Program and 

General Definitions (under Docket No. 

EPA–R06–OAR–2005–TX–0025). See 74 

FR 48450, at 48463–48464. 

EPA received comments from TCEQ 

and the Clinic regarding the proposed 

disapproval of this submitted definition 

as a revision to the Texas NSR SIP. See 

our response to these comments in 

section IV.A.2 above. The submitted 

regulatory BACT definition of the TCAA 

provision at 30 TAC 116.10(3) fails to 

apply clearly only for minor sources and 

minor modifications at major stationary 

sources. See the proposed disapproval 

of the BACT definition in 30 TAC 

116.10(3) at 74 FR 48450, at 40453 

(footnote 2), 48463–48464, TCEQ 

Qualified Facilities proposal, and EPA’s 

Qualified Facilities comment letter, for 

further information. Moreover, we 

strongly recommend, as suggested in 

comments from the Clinic, that Texas 

adopt a prefatory term before its TCAA 

BACT definition, e.g., State, Texas, or 

Minor NSR, to avoid any confusion with 

the term BACT as used by the CAA and 

the major source PSD program. 

B. The Submitted Anti-Backsliding 

Major NSR SIP Requirements for the 1- 

Hour Ozone NAAQS 

1. What is the background for the 

submitted anti-backsliding Major NSR 

SIP requirements for the 1-hour ozone 

NAAQS? 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based upon 8- 

hour average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

NAAQS was changed from 0.12 parts 

per million (ppm) to 0.08 ppm (62 FR 

38865).4 On April 30, 2004 (69 FR 

23951), we published a final rule that 

addressed key elements related to 

implementation of the 1997 8-hour 

ozone NAAQS including, but not 

limited to: revocation of the 1-hour 

NAAQS and how anti-backsliding 

principles will ensure continued 

progress toward attainment of the 1997 

8-hour ozone NAAQS. We codified the 

anti-backsliding provisions governing 

the transition from the revoked 1-hour 

ozone NAAQS to the 1997 8-hour ozone 

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

hour ozone major nonattainment NSR 

SIP requirements indicated that certain 

1-hour ozone standard requirements 

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

CFR 51.905(f). 

On December 22, 2006, the DC Circuit 

vacated the Phase 1 Implementation 

Rule in its entirety. South Coast Air 

Quality Management District, et al., v. 

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

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

that the vacatur was limited to the 

issues on which the court granted the 

petitions for review). EPA requested 

rehearing and clarification of the ruling 

and on June 8, 2007, the Court clarified 

that it was vacating the rule only to the 

extent that it had upheld petitioners’ 

challenges. Thus, the Court vacated the 

provisions in 40 CFR 51.905(e) that 

waived obligations under the revoked 1- 

hour standard for NSR. The court’s 

ruling, therefore, maintains major 

nonattainment NSR applicability 

thresholds and emission offsets 

pursuant to classifications previously in 

effect for areas designated 

nonattainment for the 1-hour ozone 

NAAQS. 

On June 10, 2005 and February 1, 

2006, Texas submitted SIP revisions to 

30 TAC 116.12 and 30 TAC 116.150 

which relate to the transition from the 

major nonattainment NSR requirements 

applicable for the 1-hour ozone NAAQS 

to implementation of the major 

nonattainment NSR requirements 

applicable to the 1997 8-hour ozone 

NAAQS. Texas’s revisions at 30 TAC 

116.12(18) (Footnote 6 under Table I 

under the definition of ‘‘major 

modification’’) and 30 TAC 116.150(d) 

introductory paragraph, effective as 

State law on June 15, 2005, provide that 

for ‘‘the Houston-Galveston-Brazoria, 

Dallas-Fort Worth, and Beaumont-Port 

Arthur eight hour ozone nonattainment 

areas, if the United States 

Environmental Protection Agency 

promulgates rules requiring new source 

review permit applications in these 

areas to be evaluated for nonattainment 

new source review according to the 

area’s one-hour standard classification,’’ 

then ‘‘each application will be evaluated 


srobinson on DSKHWCL6B1PROD with RULES3
56430 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

5See New Source Review (NSR) Aspects of the 

Decision of the U.S. Court of Appeals for the 

District of Columbia Circuit on the Phase I Rule to 

Implement the 8-Hour Ozone National Ambient Air 

Quality Standards (NAAQS), from Robert J. Meyers, 

Principal Deputy Assistant Administrator, to EPA 

Regional Administrators, dated October 3, 2007. 

This memorandum is in the docket for this action 

numbered EPA–R06–OAR–2006–0133–0007 and is 

available at: http://www.regulations.gov/search/ 

Regs/ 

home.html#documentDetail?R=09000064801987ff. 

according to that area’s one-hour 

standard classification’’ and ‘‘* * * the 

de minimis threshold test (netting) is 

required for all modifications to existing 

major sources of VOC or NOX in that 

area * * *.’’ The footnote 6 and the 

introductory paragraph add a new 

requirement for an affirmative 

regulatory action by EPA on the 

reinstatement of the 1-hour ozone 

NAAQS major nonattainment NSR 

requirements before the legally 

applicable major nonattainment NSR 

requirements under the 1-hour ozone 

standard will be implemented in the 

Texas 1-hour ozone nonattainment 

areas. 

The currently approved Texas major 

nonattainment NSR SIP does not require 

such an affirmative regulatory action by 

EPA before the 1-hour ozone major 

nonattainment NSR requirements come 

into effect in the Texas 1-hour ozone 

nonattainment areas. The current SIP 

states at 30 TAC 116.12(18) (Footnote 1 

under Table I) that ‘‘Texas 

nonattainment area designations are 

specified in 40 Code of Federal 

Regulations § 81.344.’’ That section 

includes designations for the one-hour 

standard as well as the eight-hour 

standard. Moreover, the submitted 

revisions to 30 TAC 116.12(18) and 

116.150(d) do not comport with the 

South Coast decision as discussed 

above. 

The court opinion maintains the 

lower applicability thresholds and more 

stringent offset ratios for a 1-hour ozone 

nonattainment area whose classification 

under that standard was higher than its 

nonattainment classification under the 

8-hour standard. In the submitted rule 

revision, the lower applicability 

thresholds and more stringent offset 

ratios for a classified 1-hour ozone 

nonattainment area would not be 

required in a Texas 1-hour ozone 

nonattainment area unless and until 

EPA promulgated a rulemaking 

implementing the South Coast decision. 

Although EPA proposed that the Texas 

revision relaxes the requirements of the 

approved SIP and we stated that EPA 

lacks sufficient information to 

determine whether this relaxation 

would not interfere with any applicable 

requirement concerning attainment and 

reasonable further progress, or any other 

applicable requirement of the Act (see 

74 FR 48467, at 48473) we have now 

determined that it is unnecessary to 

reach this issue because the revision 

nonetheless fails to comply with the 

CAA, whereas, the existing approved 

SIP meets CAA requirements. 

2. What is EPA’s response to comments 

on the submitted anti-backsliding Major 

NSR SIP requirements for the 1-Hour 

Ozone NAAQS? 

Comment 1: TCEQ commented that 

the anti-backsliding issue associated 

with the status of the requirements for 

compliance with the 1-hour ozone 

NAAQS with the implementation of the 

8-hour ozone NAAQS was delayed by 

litigation that took several years to 

become final. TCEQ adopted changes to 

30 TAC 116.12(18) in June, 2005, prior 

to the resolution of the litigation. After 

the South Coast decision, EPA 

subsequently stated it would conduct 

rulemaking to address the 1-hour ozone 

NAAQS requirements.5 TCEQ commits 

to work with EPA to ensure that the rule 

is revised to comply with current law. 

Response: EPA acknowledges TCEQ’s 

commitment to revise its State rules to 

implement the Major NSR antibacksliding requirement. However, the 

2007 Meyers Memorandum cited in the 

comment did not indicate that States 

should await EPA rulemaking before 

taking any necessary steps to comply 

with the South Coast decision. Rather, 

the memorandum encouraged the 

Regions to ‘‘have States comply with the 

court decision as quickly as possible.’’ 

The memorandum’s reference to 

‘‘rulemaking to conform our NSR 

regulations to the court’s decision’’ was 

not intended to suggest that States could 

simply ignore the court’s decision until 

EPA had updated its regulations to 

reflect the vacatur. 

Comment 2: The Clinic commented 

that Texas rules limit enforcement of the 

1-hour ozone NAAQS in violation of 

South Coast Air Quality Management 

District v. EPA. As a result of this 

decision, States must immediately 

comply with the formerly revoked 1- 

hour ozone requirements, including 

NNSR applicability thresholds and 

emission offset requirements. Texas 

rules include two provisions that 

require EPA to conduct rulemaking 

before TCEQ can begin enforcing the 

one-hour standard classification 

requirements for NAAQS. See 30 TAC 

116.12(18), Table I, and 116.150(d). 

Response: See response to Comment 

1. 

Comment 3: BCCA, TIP, TCC, 

commented that the Texas rules 

regarding the 1-hour/8-hour transition 

are neither inconsistent with the CAA, 

nor the court’s decision in South Coast. 

With its remand to EPA following 

vacatur of parts of the Phase 1 transition 

rule, the South Coast court did not offer 

specific direction concerning 

implementation of the backsliding 

requirements as they apply to NSR. 

However, the court in its Opinion on 

Petitions for Rehearing ‘‘urged’’ EPA ‘‘to 

act promptly in promulgating a revised 

rule that effectuates the statutory 

mandate by implementing the eighthour standard * * *.’’ South Coast Air 

Quality Mgmt. Dist. v. EPA, 489 F.3d 

1245, 1248–49 (DC Cir. 2007). 

The commenters note that consistent 

with the court’s direction in South 

Coast, the language of CAA § 172(e) 

suggests that EPA must take definite 

action to implement anti-backsliding 

requirements: 

If the Administrator relaxes a national 

primary ambient air quality standard * * * 

the Administrator shall, within 12 months 

after the relaxation, promulgate requirements 

applicable to all areas which have not 

attained that standard as of the date of such 

relaxation. Such requirements shall provide 

for controls which are not less stringent than 

the controls applicable to areas designated 

nonattainment before such relaxation. 

42 U.S.C. 7502(e) (emphasis added). 

Commenters claim that an October 2007 

memorandum from EPA Deputy 

Administrator Robert Meyers stated that 

EPA intends to undertake rulemaking to 

conform the Agency’s NSR regulations 

to the South Coast decision and yet EPA 

has not yet proposed such a rule. The 

footnote 6 and introductory paragraph 

cited in EPA’s proposed disapproval are 

consistent with CAA § 172(e) and not a 

basis for disapproval of the proposed 

SIP revision. TCC stated that it is 

reasonable for TCEQ to understand that 

some EPA action is necessary before it 

proceeds with appropriate rule changes 

to reinstate the major NNSR 

applicability thresholds and emission 

offset requirements, and this is not a 

rational basis to justify disapproving the 

State’s rules. 

Response: EPA disagrees with the 

claim that States are under no obligation 

to take steps to comply with the South 

Coast decision until EPA updates its 

regulations. Neither the court’s vacatur 

of the provision that waived States’ 

obligation to include in their SIPs NSR 

provisions meeting the requirements for 

the 1-hour standard nor section 172(e) 

mandate that EPA promulgate a rule 

before such a requirement applies. 

As EPA provided in the preamble to 

the Phase 1 Implementation Rule and as 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56431 

recognized by the Court in South Coast, 

CAA § 172(e) does not apply because 

the 1997 8-hour NAAQS was a 

strengthening, rather than a relaxation, 

of the 1-hour NAAQS. See 69 FR 23951, 

at 23972 (April 30, 2004); 489 F.3d at 

1248. However, in the preamble to the 

Phase I Implementation Rule, we cited 

to section 172(e) of the CAA and stated 

that ‘‘if Congress intended areas to 

remain subject to the same level of 

control where a NAAQS was relaxed, 

they also intended that such controls 

not be weakened where the NAAQS is 

made more stringent.’’ See 69 FR 23951, 

at 23972 (April 30, 2004). Thus, even if, 

as suggested upon revocation of a 

standard in the absence of an EPA rule 

retaining them pursuant to section 

172(e), that would hold true only where 

section 172(e) directly applied, i.e., 

where EPA had promulgated a less 

stringent NAAQS. Regardless, EPA 

disagrees with that interpretation of 

section 172(e). Rather, EPA interprets 

the CAA as retaining requirements 

applicable to any area, but allowing EPA 

through rulemaking to develop 

alternatives approaches or processes 

that would apply, so long as such 

alternatives ensure that the 

requirements are no less stringent than 

what applies under the Act. Thus, in the 

case, once the Court vacated EPA 

determination under the principles of 

section 172(e) that NSR as it applied for 

the 1-hour NAAQS should no longer 

apply, that requirement, as established 

under the CAA, once again applied. We 

do not believe that the interpretation 

suggested by the commenters is a 

reasonable interpretation as it would 

allow areas to discontinue 

implementing measures mandated by 

Congress with respect to a revoked 

standard in the absence of EPA 

rulemaking specifically retaining such 

obligations. Such a result would be 

counter to the health-protective goals of 

the CAA and inconsistent with the 

South Coast decision, which upheld 

EPA’s authority to revoke standards but 

only where adequate anti-backsliding 

requirements were in place. 

Nor do we believe that the language 

cited by the commenter from the South 

Coast decision supports their claim that 

rulemaking is necessary before the 

statutory 1-hour NSR requirement 

applies. The quoted language from the 

court’s opinion immediately follows a 

sentence that pertains to the 

classification issue that was decided by 

the Court. Specifically, the Court notes 

that some parties objected to a partial 

vacatur of the rule because it would 

‘‘inequitably exempt Subpart 1 areas 

from regulation while the remand is 

pending.’’ See 489 F.3d at 1248. In other 

words, certain States with areas subject 

to subpart 2 claimed it would be 

inequitable for such areas to remain 

subject to planning obligations while 

subpart 1 areas would be ‘‘exempt.’’ The 

Court responded by saying that a 

complete vacatur ‘‘would only serve to 

stall progress where it is most needed’’ 

and then urges EPA ‘‘to act promptly in 

promulgating a revised rule.’’ See 489 

F.3d at 1248. Thus, this portion of the 

opinion expressly addressed the need 

for EPA to promulgate a rule quickly so 

that areas that had been classified as 

subpart 1 would no longer be ‘‘exempt’’ 

from planning requirements for the 1997 

ozone NAAQS, which requirements are 

linked to whether an area is subject only 

to subpart 1 or also subpart 2 and to an 

area’s classification under subpart 2. 

For these reasons, the effect of the 

portion of the court’s ruling that vacated 

the waiver of the 1-hour NSR obligation 

is to restore the statutory obligation for 

areas that were nonattainment for the 1- 

hour standard at the time of designation 

for the 1997 8-hour standard to include 

in their SIPs major nonattainment NSR 

applicability thresholds and emission 

offsets pursuant to the area’s 

classifications for the 1-hour ozone 

NAAQS at the time of designation for 

the 1997 ozone NAAQS. 

In addition, the Court specifically 

concluded that withdrawing 1-hour 

NSR from a SIP ‘‘would constitute 

impermissible backsliding.’’ See 472 

F.3d at 900. Thus, it would be 

inconsistent with the South Coast 

decision for Texas to withdraw the 1- 

hour NSR applicability thresholds and 

emission offsets from its SIP. Texas’s 

proposed addition of SIP language 

conditioning implementation of the 1- 

hour NSR thresholds and offsets on an 

affirmative regulatory action by EPA 

would be equivalent, in terms of human 

health impact, to a temporary 

withdrawal of those requirements from 

the SIP, and therefore would be 

inconsistent with the Court’s decision. 

Finally, we note that the 2007 Meyers 

Memorandum cited in the comment did 

not indicate that States should await 

EPA rulemaking before taking any 

necessary steps to comply with the 

South Coast decision. Rather, the 

memorandum encouraged the Regions 

to ‘‘have States comply with the court 

decision as quickly as possible.’’ The 

memorandum’s reference to 

‘‘rulemaking to conform our NSR 

regulations to the court’s decision’’ was 

not intended to suggest that States could 

simply ignore the court’s decision until 

EPA had updated its regulations to 

reflect the vacatur. EPA proposed to 

remove the vacated provisions from its 

regulations on January 16, 2009 (74 FR 

2936). 

3. What are the grounds for disapproval 

of the submitted anti-backsliding Major 

NSR SIP requirements for the 1–hour 

ozone NAAQS? 

EPA is disapproving the submitted 

Anti-Backsliding Major NSR SIP 

revisions for the 1-hour ozone NAAQS. 

This includes the SIP revisions 

submitted June 10, 2005, and February 

1, 2006, with changes to 30 TAC 116.12 

and 30 TAC 116.150 which relate to the 

transition from the major nonattainment 

NSR requirements applicable for the 1- 

hour ozone NAAQS to implementation 

of the major nonattainment NSR 

requirements applicable to the 1997 8- 

hour ozone NAAQS. See section B.1, 

first three paragraphs, for the 

information regarding EPA’s 

promulgation of the new 1997 8-hour 

ozone NAAQS, EPA’s Phase 1 

Implementation Rule, the court history, 

and the description of the submitted SIP 

revisions. 

The currently approved Texas major 

nonattainment NSR SIP does not require 

such an affirmative regulatory action by 

EPA before the 1-hour ozone major 

nonattainment NSR requirements can be 

implemented in the Texas 1-hour ozone 

nonattainment areas. However, the 

submitted revisions to 30 TAC 

116.12(18) and 116.150(d) do not 

comply with the CAA as interpreted by 

the Court in the South Coast decision 

because the opinion does not require 

further action by EPA with respect to 

NSR, as discussed above. 

EPA received comments from TCEQ, 

the Clinic, and industry regarding the 

proposed disapproval of these 

submitted SIP revisions. See our 

response to these comments in section 

IV.B.2 above. We are disapproving the 

revisions as not meeting part D of the 

Act as interpreted by the Court in South 

Coast for the Major NNSR SIP 

requirements for the 1-hour ozone 

NAAQS. See the proposal at 74 FR 

48467, at 48472–48473, our background 

for these submitted SIP revisions in 

section IV.B.1 above, and our response 

to comments on these submitted SIP 

revisions in section IV.B.2 above for 

additional information. 

C. The Submitted Major Nonattainment 

NSR SIP Requirements for the 1997 8– 

Hour Ozone NAAQS 

1. What is the background for the 

submitted Major Nonattainment NSR 

SIP requirements for the 1997 8-hour 

ozone NAAQS? 

EPA interprets its Major NSR SIP 

rules to require that an applicability 


srobinson on DSKHWCL6B1PROD with RULES3
56432 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

6 You can access this document at: http://www.

epa.gov/ttn/nsr/gen/nstrans.pdf. 

7 It is our understanding of State law, that a 

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

of a stationary source that emits or may have the 

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

also can be a piece of equipment, which is smaller 

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

‘‘major stationary source’’ as defined by Federal law. 

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

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

emissions point on a company site, without limiting 

these emissions points to only those belonging to 

the same industrial grouping (SIC code). 

determination regarding whether Major 

NSR applies for a pollutant should be 

based upon the designation of the area 

in which the source is located on the 

date of issuance of the Major NSR 

permit. EPA also interprets the Act and 

its rules that if an area is designated 

nonattainment on the date of issuance of 

a Major NSR permit, then the Major 

NSR permit must be a NNSR permit, not 

a PSD permit. If the area is designated 

attainment/unclassifiable, then under 

EPA’s interpretation of the Act and its 

rules, the Major NSR permit must be a 

PSD permit on the date of issuance. See 

the following: sections 160, 165, 

172(c)(5) and 173 of the Act; 40 CFR 

51.165(a)(2)(i) and 51.166(a)(7)(i). EPA’s 

interpretation of these statutory and 

regulatory requirements is guided by the 

memorandum issued March 11, 1991, 

and titled ‘‘New Source Review (NSR) 

Program Transitional Guidance,’’ issued 

March 11, 1991, by John S. Seitz, 

Director, Office of Air Quality Planning 

and Standard.6

Revised 30 TAC 116.150(a), as 

submitted June 10, 2005 and February 1, 

2006, now reads as follows under State 

law: 

(a) This section applies to all new 

source review authorizations for new 

construction or modification of facilities 

as follows: 

(1) For all applications for facilities 

that will be located in any area 

designated as nonattainment for ozone 

under 42 United States Code (U.S.C.), 

7407 et seq. on the effective date of this 

section, the issuance date of the 

authorization; and 

(2) For all applications for facilities 

that will be located in counties for 

which nonattainment designation for 

ozone under 42 U.S.C. 7407 et seq. 

becomes effective after the effective date 

of this section, the date the application 

is administratively complete.7

The submitted rule raises two 

concerns. First, the revised language in 

the submitted 30 TAC 116.150(a) is not 

clear as to when and where the 

applicability date will be set by the date 

the application is administratively 

complete and when and where the 

applicability date will be set by the 

issuance date of the authorization. The 

rule, adopted and submitted in 2005, 

applies the date of administrative 

completeness of a permit application, 

not the date of permit issuance, where 

setting the date for determination of 

NSR applicability after June 15, 2004 

(the effective date of ozone 

nonattainment designations). The 

submitted 2006 rule adds the date of 

permit issuance. Unfortunately, the 

submitted 2006 rule by introducing a 

bifurcated structure creates vagueness 

rather than clarity. The effective date of 

this new bifurcated structure is 

February 1, 2006. It is unclear whether 

this means under subsection (1) that the 

permit issuance date is used in existing 

nonattainment areas designated 

nonattainment for ozone before and up 

through February 1, 2006. Thus, the 

proposed revision lacks clarity on its 

face and is therefore not enforceable. 

Second, to the extent that the date of 

application completeness is used in 

certain instances to establish the 

applicability date for Nonattainment 

NSR requirements, such use is contrary 

to EPA’s interpretation of the governing 

EPA regulations, as discussed above. 

Thus, based upon the above and in 

the absence of any explanation by the 

State, EPA proposed to disapprove the 

SIP revision submittals for not meeting 

the Major NNSR SIP requirements for 

the 1997 8-hour ozone standard. See the 

proposal at 74 FR 48467, at 48473– 

48474, for additional information. 

2. What is EPA’s response to comments 

on the submitted Major Nonattainment 

NSR SIP requirements for the 1997 8- 

hour ozone NAAQS? 

Comment 1: TCEQ commented that in 

2006 it had revised the rule to clarify 

and implement EPA interpretation that 

the applicability date is the date of 

permit issuance, as well as provide for 

the possibility of new nonattainment 

areas. The 2006 submittal also added a 

new bifurcated structure to the rule for 

when applicability is based upon date of 

submittal of a complete application and 

when applicability is based upon the 

date of permit issuance. TCEQ further 

agrees that this new bifurcated structure 

is unclear. TCEQ commits to work with 

EPA to comply with current rule and 

practice. 

Response: EPA acknowledges TCEQ’s 

commitment to revise the rule to clarify 

and implement EPA’s interpretation of 

the Act that the applicability date is the 

date of permit issuance for all 

nonattainment areas, including 

applicability in newly designated 

nonattainment areas. 

Comment 2: TCEQ, the Clinic, BCC, 

TIP, and TCC commented on the 

definition of ‘‘facility’’ as used in its 

submitted Major Nonattainment NSR 

SIP Requirements for the 1997 8-hour 

ozone NAAQS. They also commented 

on this definition under the evaluation 

of the Submitted Non-PAL Aspects of 

the Major NSR SIP Requirements in 

section IV. 

Response: See section IV.E.2, 

Comments 1 through 3, for the 

comments and EPA’s response on the 

definition of facility. 

Comment 3: The Clinic commented 

that TCEQ’s rules fail to require all NSR 

applicability determinations to be based 

on the applicable attainment status of an 

area on the date of permit issuance, as 

required under the CAA. Texas rule 

authorize certain sources to construct or 

modify in a nonattainment area to 

comply with PSD requirements rather 

than NNSR requirements if the facility’s 

permit application is administratively 

complete prior to the area’s designation 

to nonattainment. See 30 TAC 

116.150(a). While the rules are vague as 

to what constitutes the ‘‘effective date of 

this section,’’ 30 TAC 116.150(a)(2) 

clearly is not approvable because it 

authorizes facilities to base applicability 

determination on the area’s attainment 

status as of the date their applications 

are administratively complete. 

Response: EPA agrees with this 

comment. 

Comment 4: BCCA, TIP, TCC, 

commented that the applicability cutoff 

established in TCEQ rules is not 

inconsistent with the CAA or EPA rules. 

While it may be inconsistent with EPA’s 

interpretation of that rule language, the 

use of application completeness as an 

applicability date is not inconsistent 

with Part 51 itself. As a result, the 

applicability cutoff dates, established in 

30 TAC 116.150(a), are not appropriate 

grounds for disapproval of the proposed 

SIP revision. EPA concerns regarding 

applicability dates are properly 

addressed through comments on 

individual permits, and not through a 

disapproval of the SIP revision. TCC 

further commented that TCEQ rules 

state that for facilities located in areas 

that are designated nonattainment areas 

after the effective date of TCEQ rules, 

the NNSR requirements apply the day 

the application is administratively 

complete. The day the application is 

determined to be administratively 

complete occurs prior to the issuance 

date of the permit; therefore, the State’s 

rules are more stringent than the Federal 

rules in this regard. 

Response: EPA disagrees with this 

comment. The applicability cutoff 

established in the submitted revision is 

inconsistent with the CAA and EPA 

rules. EPA interprets EPA’s NSR SIP 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56433 

8The TSD for the 2002 NSR rule making is in the 

docket for this action as document no. EPA–R06– 

OAR–2006–0133–0010. You can access this 

document at: http://www.regulations.gov/search/ 

Regs/ 

home.html#documentDetail?R=0900006480a2b968. 

rules to require that an applicability 

determination regarding whether Major 

NSR applies for a pollutant should be 

based upon the attainment or 

nonattainment designation of the area in 

which the source is located on the date 

of issuance of the Major NSR permit. 

EPA also interprets its rules that if an 

area is designated nonattainment on the 

date of issuance of a Major NSR permit, 

then the Major NSR permit must be a 

NNSR permit, not a PSD permit. If the 

area is designated attainment/ 

unclassifiable, then under EPA’s 

interpretation of the Act and its rules, 

the Major NSR permit must be a PSD 

permit on the date of issuance. See the 

following: sections 160, 165, 172(c)(5) 

and 173 of the Act; 40 CFR 

51.165(a)(2)(i) and 51.166(a)(7)(i). EPA’s 

interpretation of these statutory and 

regulatory requirements is guided by the 

memorandum issued March 11, 1991, 

and titled ‘‘New Source Review (NSR) 

Program Transitional Guidance,’’ issued 

March 11, 1991, by John S. Seitz, 

Director, Office of Air Quality Planning 

and Standard. See section IV.C.1 above 

for further information. The submitted 

revision provides the regulatory 

framework for administering individual 

permits, thus it is necessary to ensure it 

is consistent with the equivalent Federal 

requirements. The submitted revision 

applies the date of administrative 

completeness of a permit application, 

not the date of permit issuance, where 

setting the date for determination of 

NSR applicability after June 15, 2004 

(the effective date of ozone 

nonattainment designations). The 

submitted revision also appears to apply 

the date of permit issuance in existing 

nonattainment areas designated 

nonattainment for ozone before and up 

through February 1, 2006. This 

regulatory structure creates ambiguity 

and lacks clarity. Thus, the proposed 

revision lacks clarity on its face and is 

therefore not enforceable. 

3. What are the grounds for disapproval 

of the submitted Major Nonattainment 

NSR SIP requirements for the 1997 

8-hour ozone NAAQS? 

EPA is disapproving the submitted 

Major Nonattainment NSR SIP 

requirements for the 1997 8-hour ozone 

NAAQS. An applicability determination 

for a Major Nonattainment NSR (NNSR) 

permit based upon the date of 

administrative completeness, rather 

than date of issuance, would allow more 

sources to avoid the Major NSR 

requirements where there is a 

nonattainment designation between the 

date of administrative completeness and 

the date of issuance, and thus this 

submitted revision will reduce the 

number of sources subject to Major 

NNSR requirements. The submitted 

revised rule does not apply the date of 

permit issuance in all cases and 

therefore violates the Act, as discussed 

previously. 

The submitted revised 2006 rule by 

introducing a bifurcated structure 

creates vagueness rather than clarity. 

The effective date of this new bifurcated 

structure is February 1, 2006. Thus, the 

proposed revision lacks clarity on its 

face and is therefore not enforceable. 

EPA received comments from TCEQ, 

the Clinic, and industry regarding the 

proposed disapproval of these 

submitted SIP revisions. See our 

response to these comments in section 

IV.C.2 above. See the proposal at 74 FR 

48467, at 48473–48474, our background 

for these submitted SIP revisions in 

section IV.C.1 above, and our response 

to comments on these submitted SIP 

revisions in section IV.C.2 above for 

additional information. 

D. The Submitted Major NSR Reform 

SIP Revision for Major NSR With PAL 

Provisions 

1. What is the background for the 

submitted Major NSR reform SIP 

revision for Major NSR with PAL 

provisions? 

We proposed to disapprove the 

following non-severable revisions that 

address the revised Major NSR SIP 

requirements with Plant-Wide 

Applicability Limitation (PAL) 

provisions: 30 TAC Chapter 116 

submitted February 1, 2006: 30 TAC 

116.12—Definitions; 30 TAC 116.180— 

Applicability; 30 TAC 116.182—PlantWide Applicability Limit Permit 

Application; 30 TAC 116.184— 

Application Review Schedule; 30 TAC 

116.186—General and Special 

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

116.190—Federal Nonattainment and 

Prevention of Significant Deterioration 

Review; 30 TAC 116.192—Amendments 

and Alterations; 30 TAC 116.194— 

Public Notice and Comment; 30 TAC 

116.196—Renewal of a Plant-Wide 

Applicability Limit Permit; 30 TAC 

116.198—Expiration or Voidance. 

We proposed disapproval of the PAL 

Provisions because of the following: 

• The submittal lacks a provision 

which limits applicability of a PAL only 

to an existing major stationary source, 

and which precludes applicability of a 

PAL to a new major stationary source, 

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

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

limits applicability of a PAL to an 

existing major stationary source. In the 

absence of such limitation, this 

submission would allow a PAL to be 

authorized for the construction of a new 

major stationary source. In EPA’s 

November 2002 TSD for the revised 

Major NSR Regulations, we respond on 

pages I–7–27 and 28 that actuals PALs 

are available only for existing major 

stationary sources, because actuals PALs 

are based on a source’s actual 

emissions.8 Without at least 2 years of 

operating history, a source has not 

established actual emissions upon 

which to base an actuals PAL. However, 

for individual emissions units with less 

than two years of operation, allowable 

emissions would be considered as 

actual emissions. Therefore, an actuals 

PAL can be obtained only for an existing 

major stationary source even if not all 

emissions units have at least 2 years of 

emissions data. Moreover, the 

development of an alternative to 

provide new major stationary sources 

with the option of obtaining a PAL 

based on allowable emissions was 

foreclosed by the Court in New York v. 

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

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

since 1977 requires a comparison of 

existing actual emissions before the 

change and projected actual (or 

potential emissions) after the change in 

question is required). 

• The submittal has no provisions 

that relate to PAL re-openings, as 

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

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

and (ii)(a). 

• There is no mandate that failure to 

use a monitoring system that meets the 

requirements of this section renders the 

PAL invalid, as required by 40 CFR 

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

51.166(w)(12)(i)(d). 

• The Texas submittal at 30 TAC 

116.186 provides for an emissions cap 

that may not account for all of the 

emissions of a pollutant at the major 

stationary source. Texas requires the 

owner or operator to submit a list of all 

facilities to be included in the PAL, 

such that not all of the facilities at the 

entire major stationary source may be 

specifically required to be included in 

the PAL. See 30 TAC 116.182(1). 

However, the Federal rules require the 

owner or operator to submit a list of all 

emissions units at the source. See 40 

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

51.166(w)(3)(i). The Texas submittal is 

unclear as to whether the PAL would 

apply to all of the emission units at the 

entire major stationary source and 


srobinson on DSKHWCL6B1PROD with RULES3
56434 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

9 ‘‘The submittals do not meet the following 

public participation provisions for PALs: 1) For 

PALs for existing major stationary sources, there is 

no provision that PALs be established, renewed, or 

increased through a procedure that is consistent 

with 40 CFR 51.160 and 51.161, including the 

requirement that the reviewing authority provide 

the public with notice of the proposed approval of 

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

submittal of public comment, consistent with the 

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

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

major stationary sources, there is no requirement 

that the State address all material comments before 

taking final action on the permit, consistent with 40 

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

applicability provision in section 39.403 does not 

include PALs, despite the cross-reference to 

Chapter 39 in Section 116.194.’’ See 73 FR 72001 

(November 26, 2008) for more information on 

Texas’s public participation rules and their 

relationship to PALs. The November 2008 proposal 

addressed the public participation provisions in 30 

TAC Chapter 39, but did not specifically propose 

action on 30 TAC 116.194. 

therefore appears to be less stringent 

than the Federal rules. In the absence of 

any demonstration from the State, EPA 

proposed to disapprove 30 TAC 116.186 

and 30 TAC 116.182(1) as not meeting 

the revised Major NSR SIP 

requirements. 

• Submitted 30 TAC 116.194 requires 

that an applicant for a PAL permit must 

provide for public notice on the draft 

PAL permit in accordance with 30 TAC 

Chapter 39—Public Notice—for all 

initial applications, amendments, and 

renewals or a PAL Permit.9 Although 

this submitted rule relates to the public 

participation requirements of the PAL 

program, it is is not severable from the 

PAL program. Because we proposed to 

disapprove the PAL program, we 

likewise proposed to disapprove 30 

TAC 116.194. 

• The Federal definition of the 

‘‘baseline actual emissions’’ provides 

that these emissions must be calculated 

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

year at which the unit actually emitted 

the pollutant during any consecutive 24- 

month period.’’ See 40 CFR 

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

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

Emphasis added. Texas’s submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 

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

from the Federal definition by providing 

that the baseline shall be calculated as 

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

unit actually emitted the pollutant 

during any consecutive 24-month 

period.’’ The submitted definition omits 

reference to the ‘‘average rate.’’ The 

definition differs from the Federal SIP 

definition but the State failed to provide 

a demonstration showing how the 

different definition is at least as 

stringent as the Federal definition. 

Therefore, EPA proposed to disapprove 

the different definition of ‘‘baseline 

actual emissions’’ found at 30 TAC 

116.12(3) as not meeting the revised 

Major NSR SIP requirements. On the 

same grounds for lacking a 

demonstration, EPA proposed to 

disapprove 30 TAC 116.182(2) that 

refers to calculations of the baseline 

actual emissions for a PAL, as not 

meeting the revised Major NSR SIP 

requirements. 

• The State also failed to include the 

following specific monitoring 

definitions: ‘‘Continuous emissions 

monitoring system (CEMS)’’ as defined 

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

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

rate monitoring system (CERMS)’’ as 

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

and 51.166(b)(46); ‘‘Continuous 

parameter monitoring system (CPMS)’’ 

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

and 51.166(b)(45); and ‘‘Predictive 

emissions monitoring system (PEMS)’’ 

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

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

definitions concerning the monitoring 

systems in the revised Major NSR SIP 

requirements are essential for the 

enforceability of and providing the 

means for determining compliance with 

a PALs program. Therefore, we 

proposed to disapprove the State’s lack 

of these four monitoring definitions as 

not meeting the revised Major NSR SIP 

requirements. Additionally, where, as 

here, a State has made a SIP revision 

that does not contain definitions that are 

required in the revised Major NSR SIP 

program, EPA may approve such a 

revision only if the State specifically 

demonstrates that, despite the absence 

of the required definitions, the 

submitted revision is more stringent, or 

at least as stringent, in all respects as the 

Federal program. See 40 CFR 

51.165(a)(1) (non-attainment SIP 

approval criteria); 51.166(b) (PSD SIP 

definition approval criteria). Texas did 

not provide such a demonstration. 

Therefore, EPA proposed to disapprove 

the lack of these definitions as not 

meeting the revised Major NSR SIP 

requirements. 

None of the provisions and 

definitions in the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR SIP requirements for 

PALs is severable from each other. 

Therefore, we proposed to disapprove 

the portion of the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR PALs SIP 

requirements as not meeting the Act and 

the revised Major NSR SIP regulations. 

See the proposal at 74 FR 48467, at 

48474–48475, for additional 

information. 

2. What is EPA’s response to comments 

on the submitted Major NSR Reform SIP 

Revision for Major NSR With PAL 

provisions? 

Comment 1: TCEQ commented that it 

does not use a rate that differs from the 

Federal NSR requirement relating to 

baseline actual emissions. TCEQ 

definition of ‘‘actual emissions’’ includes 

the modifier ‘‘average,’’ and ‘‘actual 

emissions’’ are included in the 

definition of ‘‘baseline actual emissions’’ 

rate. In practice, TCEQ contends that a 

reading of the entire definition, 

including parts (a)–(d), results in an 

average emission rate being used to 

establish a baseline actual emission rate. 

This is because to determine an actual 

emission rate in tons per year from a 

consecutive 24-month period requires 

averaging the emissions over 24 months 

to obtain an annual emission rate (an 

average annual emission rate). 

TCEQ is willing to work with EPA to 

address any changes necessary to clarify 

the definition, and specifically reference 

that a baseline actual emission rate is an 

average emission rate, in tons per year, 

of a Federally regulated new source 

review pollutant. 

Response: We appreciate the State’s 

willingness to work with EPA to address 

any changes necessary to clarify the 

definition, and specifically reference 

that a baseline actual emission rate is an 

average emission rate, in tons per year, 

of a NSR regulated pollutant, but 

disagree with TCEQ’s comment. We 

acknowledge that the SIP-approved 

definition of ‘‘actual emissions’’ at 30 

TAC 116.12(1) is based upon average 

emissions but the lack of a specific 

provision in the definition of ‘‘baseline 

actual emissions’’ to require such 

emissions to be calculated as average 

emissions can be interpreted to be less 

stringent than the Federal minimum 

requirements because readers can 

interpret ‘‘the’’ emissions rate to be the 

highest rate instead of an average rate. 

It does not necessarily follow that the 

reading of the entire definition and the 

requirement to determine an actual 

emission rate in tons per year from a 

consecutive 24-month period to obtain 

an annual emission rate would result in 

an average emission rate. 

Comment 2: BCCA and TIP 

commented that the substance of EPA’s 

concern appears to be that the Texas 

rules are missing the word ‘‘average.’’ 

The missing term is not grounds for 

disapproval of the Texas definition of 

‘‘baseline actual emissions.’’ The 

omission of the term ‘‘average’’ from this 

phrase in the 30 TAC 116.12(3) 

definition does not render the definition 

invalid or inconsistent with the 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56435 

10See 31 Tex. Reg. 516, 527 & 528 (Jan. 27, 2006). 

11 67 FR 80,186, at 80,208 (Dec. 31, 2002). 

12 Id. 

equivalent provision in 40 CFR Part 51. 

EPA cites a distinction without a 

substantive difference, as application of 

the two definitions will reach the same 

conclusion with regard to the tons per 

year (‘‘tpy’’) emission rate over the 24- 

month baseline period. The Texas 

definition of ‘‘baseline actual emissions’’ 

in the proposed SIP revision is 

equivalent to the Federal definition in 

this regard and should be approved. 

Response: EPA disagrees with this 

comment. See the response to comment 

1 above. 

Comment 3: TCEQ commented on 

EPA’s statements that TCEQ’s rules do 

not include the following PAL 

requirements: 

• Provisions for PAL re-openings; 

• Requirements concerning the use of 

monitoring systems (and associated 

definitions); 

• A provision which limits 

applicability of a PAL only to an 

existing major stationary source; 

• A provision that requires all 

facilities at a major source, emitting a 

PAL pollutant be included in the PAL; 

• A provision that a PAL include 

every emissions point at a site, without 

limiting these emissions points to only 

those belonging to the same industrial 

grouping (SIC) code; and 

• Notwithstanding the ‘‘lack of 

explicit limitation,’’ i.e., defining facility 

to equal emissions unit; that is how 

TCEQ applies the rule. 

TCEQ will address these items in a 

future rulemaking. 

Response: We appreciate the State’s 

willingness to work with EPA to address 

any changes necessary to clarify these 

concerns relating to PAL re-openings; 

requirements concerning the use of 

monitoring systems (and associated 

definitions); a provision which limits 

applicability of a PAL only to an 

existing major stationary source; the 

lack of regulatory provisions relating to 

emissions to be included in a proposed 

PAL, the lack of provisions to require 

that all facilities at a major source, 

emitting a pollutant for which a PAL is 

being requested, be included in the 

PAL; and the concern that PAL can 

include every emissions point at a site, 

without limiting these emissions points 

to only those belonging to the same 

industrial grouping (SIC) code. 

However, our evaluation is based on the 

submitted rule currently before us. 

Comment 4: The Clinic comments 

that Texas illegally allows PALs for new 

sources based upon allowable 

emissions. Federal regulations allow an 

agency to approve a PAL for ‘‘any 

existing major stationary source.’’ See 40 

CFR 51.166(f)(1)(i). PALs are intended 

to serve as thresholds for determining 

when emission increases trigger NNSR 

and PSD permitting review. As the DC 

Circuit found in New York v. EPA, 

‘‘Congress clearly intended to apply NSR 

to changes that increase actual 

emissions. New York v. EPA, 413 F.3d 

3, 38–40 (DC Cir. 2005.) Because new 

sources do not have past actual 

emissions, they cannot be subject to a 

PAL. 67 FR 80186, 80285 (December 31, 

2002). The submitted Texas PAL rules 

do not limit their applicability to 

existing major sources. 

Response: EPA agrees with this 

comment. The Federal PAL regulations 

provide that ‘‘[t]he reviewing authority 

may approve the use of an actuals PAL 

for any existing major stationary source 

* * *.’’ See 40 CFR 51.165(f)(1) and 

51.166(w)(1). Emphasis added. See the 

discussion in the proposal at 74 FR 

48467, at 48474, and section IV.D.1 

above, for further information. 

Comment 5: Regarding limiting 

issuance of PAL permits only to existing 

major stationary sources, BCCA, TIP, 

and TCC comment that the absence of 

a reference to ‘‘existing’’ facilities is not 

grounds for disapproval of the Texas 

PAL rules. Even absent a reference to 

existing facilities, the Texas PAL rules 

are substantively similar to and closely 

track the Federal PAL regulations, as 

TCEQ explained in adopting the Texas 

PAL program.10 The Texas PAL rules’ 

applicability provisions are consistent 

with the Federal PAL program in 40 

CFR Part 51, and should be approved as 

part of the Texas SIP on that basis. 

Moreover, the Federal scheme 

contemplates that ‘‘new’’ units may be 

included when calculating the baseline 

actual emissions for a PAL.11 The 

preamble goes on to provide, ‘‘For any 

emission unit * * * that is constructed 

after the 24-month period, emissions 

equal to its PTE must be added to the 

PAL level.’’ 12 Additionally, EPA issued 

PALs before NSR reform and these PALs 

showed a degree of flexibility tailored to 

the specific sites. For example, in its 

flexible permit pilot study, EPA 

examined a hybrid PAL issued to the 

Saturn plant in Spring Hill, Tennessee. 

This permit consisted of PSD permit for 

a major expansion with permitted 

emissions based on projected future 

actual emissions in combination with a 

PSD permit for existing emissions units 

with allowable emissions based on 

current actual emissions at the existing 

emissions units. According to EPA, that 

plant’s hybrid PAL permit enabled 

Saturn to add and modify new lines ‘‘in 

a timely manner, while ensuring that 

best available pollution control 

technologies are installed and that air 

emissions remain under approved 

limits.’’ Texas’s PAL provisions are 

consistent with the Federal PAL 

provisions, and so should be approved. 

EPA concerns regarding TCEQ’s 

implementation of the Texas rules are 

properly addressed through comments 

on individual permits, and not through 

a disapproval of the SIP revision. 

Response: EPA disagrees that Texas’s 

rules are consistent with the Federal 

PAL provisions, and we find the 

absence to a reference to ‘‘existing’’ 

major stationary sources to be grounds 

for disapproval. The Federal regulations 

generally adhere to the basic tenet that 

the PAL level is based on actual, 

historical operations. Such information 

is absent for new major stationary 

sources, and thus, EPA chose not to 

allow PALs for new major stationary 

sources. The commenters’ reference to a 

hybrid PAL issued to the Saturn plant 

in Spring Hill, Tennessee, is not 

relevant to the approvability of the 

Texas’s rules. This facility was 

permitted under a flexible permit pilot 

study, not under the provisions under 

40 CFR 51.165(f) and 51.166(w), which 

specify the minimum requirements for 

an approvable State PAL SIP Program. 

Moreover, TCEQ provided no 

demonstration that its submitted 

program is at least as stringent as the 

Federal minimum PAL SIP Program 

requirements despite its broader 

applicability. EPA’s concerns with the 

submitted PAL Program revisions are a 

result of its evaluation of these 

revisions. EPA disapproval is due to 

programmatic deficiencies, not 

problems associated with individual 

permits. Moreover, implementation by 

the State of its State PAL program is 

outside the scope of this rulemaking 

action. 

Comment 6: The Clinic comments 

that Texas’s rules fail to include 

adequate reopening provisions. Federal 

rules allow a permitting authority to reopen a PAL permit to correct errors in 

calculating a PAL or to reduce the PAL 

based on new Federal or State 

requirements or changing NAAQS levels 

or a change in attainment status. See 40 

CFR 51.165(f)(8). The Texas rules do not 

provide for such reopening and are less 

stringent than Federal regulations. 

Response: EPA agrees with this 

comment. The Federal rules require 

PAL re-openings as provided under 40 

CFR 51.165(f)(8)(ii)) and 

51.166(w)(8)(ii). The State did not 

provide any demonstration, as required 

for a customized Major NSR SIP 

revision submittal, showing how its 

submitted program is at least as 


srobinson on DSKHWCL6B1PROD with RULES3
56436 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

stringent as the Federal PAL SIP 

Program requirements. 

Comment 7: Regarding PAL reopenings, BCCA, TIP, TCC, and TxOGA 

comment that the current provisions of 

30 TAC 116.192 regarding amendments 

and alterations of PALs provide 

adequate safeguards to ensure that 

appropriate procedural requirements are 

followed, both to increase a PAL 

through an amendment and to decrease 

a PAL through a permit alteration. See, 

e.g., 30 TAC 116.190(b), requiring the 

decrease of a PAL for any emissions 

reductions used as offsets. The absence 

of rule language using the specific term 

‘‘reopening’’ does not prevent TCEQ 

from implementing and enforcing the 

program in a manner consistent with 

Part 51 and is not an appropriate basis 

for disapproval of the SIP revision. The 

Texas PAL rules should be approved as 

a revision to the Texas SIP. 

Response: EPA disagrees with this 

comment. The provisions in 30 TAC 

116.192 relate to amendments and 

alterations. The Federal rules provide 

for PAL re-openings for other causes 

which include the following: correction 

of typographical/calculation errors in 

setting the PAL; reduction of the PAL to 

create creditable emission reductions for 

use as offsets; reductions to reflect 

newly applicable Federal requirements 

(for example, NSPS) with compliance 

dates after the PAL; PAL reduction 

consistent with any other requirement, 

that is enforceable as a practical matter, 

and that the State may impose on the 

major stationary source under the SIP; 

and PAL reduction if the reviewing 

authority determines that a reduction is 

necessary to avoid causing or 

contributing to a NAAQS or PSD 

increment violation, or an adverse 

impact on an air quality related value 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

for which information is available to the 

general public. See 40 CFR 

51.165(f)(4)(i)(A) and (f)(6)(i), and 

51.166(w)(4)(i)(a) and (w)(6)(i). Texas 

has submitted no demonstration, as 

required for a customized Major NSR 

SIP revision submittal, that the lack of 

provisions for PAL re-openings is at 

least as stringent as the Federal PAL 

Program SIP requirements. 

Comment 8: The Clinic comments 

that Texas illegally allows for ‘‘partial 

PALs.’’ Federal rules require that all 

units at a source be subject to the PAL 

cap. See 40 CFR 52.21(aa)(6)(i)–(ii). 

Texas rules do not require PALs to 

include all units at the source that emit 

the PAL pollutant. See 30 TAC 

116.182(1). EPA stated in its proposal 

that inclusion of all units at the source 

that emit the PAL pollutant is an 

‘‘essential feature of the Federal PAL.’’ 

Texas failure to require such provision 

justifies disapproval of the Texas PAL 

rules. 

Response: The 2002 final rules require 

States to include PALs as a minimum 

program element in the SIP-approved 

major NSR program. The minimum 

Federal requirement for an approvable 

PAL regulations must include all 

emissions units at a major stationary 

source that emit the PAL pollutant as 

provided under 40 CFR 51.165(f)(6)(i) 

and 51.166(w)(6)(i). We reviewed the 

approvability of the Texas submitted 

program against these criteria, and 

determined, inter alia, that the 

submitted program does not meet these 

minimum program elements. 

EPA has not taken a position on 

whether a State could include a ‘‘partial 

PAL’’ program, separate and apart from 

a PAL program that meets the Federal 

minimum program requirements, as an 

element in its major or minor NSR 

program. Nonetheless, the State did not 

submit its PAL Program with a request 

to have it reviewed by EPA on a caseby-case basis for approvability as a 

program, separate and apart from the 

Federal source-wide PAL program. Nor 

did it submit it for approval as a Minor 

NSR SIP revision. TCEQ did not provide 

any demonstration, as required for a 

customized Major NSR SIP revision 

submittal, showing how the allowing of 

an emission cap that does not include 

all emissions units at the major 

stationary source that emit the PAL 

pollutant is at least as stringent as the 

Federal PAL Program SIP requirements, 

nor does the record show whether 

Texas’s submission will interfere with 

any applicable requirement concerning 

attainment and reasonable further 

progress or any other CAA requirement. 

Comment 9: Concerning the lack of 

provision that a PAL include all 

emissions units at the major stationary 

source that emit the PAL pollutant, 

BCCA, TIP, TCC, and TxOGA 

commented that EPA’s interpretation of 

the Texas PAL rules, which are 

consistent with the Federal PAL, is not 

grounds for disapproval of the SIP 

revision. The Texas PAL rules are 

substantively similar to and closely 

track the Federal PAL regulations, as 

TCEQ explained in adopting the Texas 

PAL program. EPA concerns regarding 

TCEQ’s implementation of the Texas 

rules are properly addressed through 

comments on individual permits and 

not through a disapproval of the SIP 

revision. The Texas rules require that 

applicants for a PAL specify the 

facilities and pollutants to be covered by 

the PAL. Specifically, an applicant must 

detail ‘‘[A] list of all facilities, including 

their registration or permit number to be 

included in the PAL * * *.’’ See 30 

TAC 116.182. This requirement closely 

tracks the Federal provisions. Moreover, 

logic dictates, and the Federal rules 

recognize, that not every facility emits 

every regulated pollutant. Under the 

Federal rules ‘‘[e]ach PAL shall regulate 

emissions of only one pollutant.’’ See 40 

CFR 52.21(aa)(4)(e). Additionally, EPA 

has recognized that States may 

implement PAL programs in a more 

limited manner. In its 1996 proposal for 

the PAL concept, EPA noted ‘‘States may 

choose * * * to adopt the PAL 

approach on a limited basis. For 

example, States may choose to adopt the 

PAL approach only in attainment/ 

unclassifiable areas, or only in 

nonattainment areas, for specified 

source categories, or only for certain 

pollutants in these areas.’’ See 61 FR 

38250, at 38265 (July 23, 1996) 

(emphasis added). The Texas PAL 

provisions track the Federal regulations, 

and so should be approved. 

Response: EPA disagrees with this 

comment. The Federal rules at 40 CFR 

51.165(f)(4)(i)(A) and (f)(6)(i), and 

51.166(w)(4)(i)(a) and (w)(6)(i) require a 

PAL to include each emissions unit at 

a major stationary source that emits the 

PAL pollutant. The Federal rules do not 

require a PAL to include an emissions 

unit that does not emit, or has the 

potential to emit, the relevant PAL 

pollutant. In 1996, EPA proposed to 

allow States to pick and choose from the 

menu of reform options. In 2002, we 

rejected this proposed approach in favor 

of making all the reform options 

minimum program elements. See 67 FR 

80185, at 80241, December 31, 2002. 

Accordingly, our final rule requires 

States to adopt the Federal PAL 

provisions as a minimum program 

element, or to demonstrate that an 

alternative program is equivalent or 

more stringent in effect. Texas has 

submitted no demonstration, as required 

for a customized Major NSR SIP 

revision submittal, that the difference in 

its program is at least as stringent as the 

Federal PAL Program SIP requirements. 

Comment 10: The Clinic comments 

that Texas fails to prohibit the use of 

PALs in ozone extreme areas. Federal 

rules prohibit the use of PALs in 

extreme ozone nonattainment areas. See 

40 CFR 51.165(f)(1)(ii). The Texas rules 

contain no such prohibition, and are 

less stringent than the Federal rules and 

not protective of air quality. 

Response: EPA agrees that 40 CFR 

51.165(f)(1)(ii) requires the prohibition 

and the submittal lacks such a 

prohibition. Texas currently has no 

extreme ozone nonattainment areas so it 

is not clear how that requirement 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56437 

13 ‘‘The submittals do not meet the following 

public participation provisions for PALs: (1) For 

PALs for existing major stationary sources, there is 

no provision that PALs be established, renewed, or 

increased through a procedure that is consistent 

with 40 CFR 51.160 and 51.161, including the 

requirement that the reviewing authority provide 

the public with notice of the proposed approval of 

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

submittal of public comment, consistent with the 

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

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

major stationary sources, there is no requirement 

that the State address all material comments before 

taking final action on the permit, consistent with 40 

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

applicability provision in section 39.403 does not 

include PALs, despite the cross-reference to 

Chapter 39 in Section 116.194.’’ 

applies. We do not need to reach the 

issue, however, because the scope of our 

disapproval, i.e., the entire Texas PALs 

Program, is not changed even if we 

added this as a basis for disapproval. 

Comment 11: TCEQ commented that 

it will address EPA’s concerns regarding 

public participation for PALs in a 

separate rulemaking regarding public 

participation for the NSR permitting 

program. 

Response: TCEQ adopted revised 

rules for public participation on June 2, 

2010; these rules became effective on 

June 24, 2010. TCEQ submitted these 

revised rules to EPA on July 2, 2010. 

EPA is reviewing these submitted 

regulations and will address the 

submittal in a separate action. Because 

this 30 TAC 116.740 relates to the 

public participation requirements of the 

PAL program, this section is not 

severable from the PAL program. 

Because we are disapproving the PAL 

program, we are also disapproving the 

submitted 30 TAC 116.194. 

Comment 12: The Clinic commented 

that the PAL rules lack adequate public 

participation. Texas’s rules do not 

require PALs to be established, 

renewed, or increased through a 

procedure that is consistent with 40 

CFR 51.160 and 51.161. In particular, 

the PAL rules are missing the 

requirements that the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit and at least 30 day period for 

submittal of public comment on the 

draft permit as required under 40 CFR 

51.165(f)(5) and (11) and 51.166(w)(5) 

and (11). Further the rules lack 

provisions for public participation for 

PAL renewals or emission increases. 

There is no requirement that TCEQ 

address all material comments before 

taking final action on the permit. 

Accordingly, these rules are less 

stringent than the Federal rules. 

Response: EPA agrees with these 

comments. The submitted rule does not 

meet the public participation 

requirements for PAL as required in 40 

CFR 51.165(f)(5) and (11) and 

51.166(w)(5) and (11). These rules 

require that PALs be established, 

renewed, or increased through a 

procedure that is consistent with 40 

CFR 51.160 and 51.161; and which 

require the program to include 

provisions for public participation for 

PAL renewals or emission increases. 

The Federal rules further require that 

TCEQ address all material comments 

before taking final action on the permit. 

Because the submitted rule lacks these 

requirements it is not consistent with 

the Federal rules. 

Comment 13: Concerning the lack of 

provisions in the Texas PAL that meet 

the public participation requirements in 

40 CFR 51.160 and 51.161, BCCA and 

TIP commented that EPA appears to be 

concerned that there is not an explicit 

reference to PALs in the public 

participation provisions. The Texas 

rules make clear that PALs are subject 

to public notice and participation. The 

absence of a reference to PALs in the 

applicability section of 30 TAC 39.403 

is not significant. Section 116.194 of the 

PAL rules provides the clear crossreferences to the applicable provisions 

of Chapter 39. A reference back from 

Chapter 39 to the PAL rules is 

redundant and unnecessary, and not 

grounds for disapproval of the Texas 

PAL rules. 

Response: EPA disagrees with this 

comment. Submitted 30 TAC 116.194 

requires that an applicant for a PAL 

permit must provide for public notice 

on the draft PAL permit in accordance 

with 30 TAC Chapter 39—Public 

Notice—for all initial applications, 

amendments, and renewals of a PAL 

Permit.13 See 73 FR 72001 (November 

26, 2008) for more information on 

Texas’s public participation rules and 

their relationship to PALs. The 

November 2008 proposal addressed the 

public participation provisions in 30 

TAC Chapter 39, but did not specifically 

propose action on 30 TAC 116.194. In 

the September 23, 2009, proposal, we 

proposed to address 30 TAC 116.194. 

Because this section relates to the public 

participation requirements of the PAL 

program, this section is not severable 

from the PAL program. Because we are 

disapproving the PAL program, we are 

also disapproving the submitted 30 TAC 

116.194. 

Comment 14: The Clinic commented 

that Texas fails to include required 

monitoring definitions for PALs. While 

the Federal regulations define 

‘‘continuous emission monitoring 

system (CEMS),’’ ‘‘continuous emission 

rate monitoring system (CERMS),’’ 

‘‘continuous parameter monitoring 

system (CPMS),’’ and ‘‘predictive 

emissions monitoring system (PEMS)’’ 

(see 40 CFR 51.165(a)(1)(xxxi), (xxxiv), 

(xxxiii), and (xxxii)), the Texas rules 

omit definitions. Because these 

definitions are crucial to enforcing and 

monitoring PALs, the lack of these 

definitions in Texas’s PAL rules make 

the PAL rules less stringent that the 

Federal rules. 

Response: EPA agrees with this 

comment. See 74 FR 48467, at 48475, 

and section IV.D.I of this action. 

Comment 15: BCCA and TIP 

commented that EPA appears to be 

concerned that the monitoring 

provisions are not separately and 

discretely defined. They comment that 

Texas PAL rules in 30 TAC 116.192(c) 

contain monitoring requirements that 

are equivalent to the Federal PAL rules. 

They also comment that the absence of 

definitions of CEMS, CERMS, CPMS 

and PEMS does not render the rules 

unenforceable. They maintain that the 

rules themselves identify and define 

each type of monitoring system, and 

identify Federal-equivalent 

requirements that each monitoring 

system must satisfy. They cite, as an 

example, 30 TAC 116.192(c)(2)(B) as 

providing that an owner or operator 

using a CEMS to monitor PAL pollutant 

emissions shall comply with applicable 

performance specifications found in 40 

CFR Part 60, Appendix B and sample, 

analyze, and record data at least every 

15 minutes while the emissions unit is 

operating. Similar requirements are 

included for mass balance calculations, 

CPMS, PEMS and emissions factors 

used to monitor PAL pollutant 

emissions. They claim that the absence 

of separate definitions does not impact 

the enforceability of Texas PALs. The 

Texas provisions adequately address 

monitoring requirements for PALs, and 

should therefore be approved. 

Response: EPA disagrees with this 

comment. In the proposal we stated that 

‘‘[a]ll definitions concerning the 

monitoring systems in the revised Major 

SIP requirements are essential for the 

enforceability of and providing the 

means for determining compliance with 

a PALs program.’’ We acknowledge that 

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

51.166(w)(12)(i)(c) allow a State 

program to include alternative 

monitoring, but the alternative 

monitoring must be approved by EPA as 

meeting the requirements of 40 CFR 

51.165(f)(12)(A) and 51.166(w)(12)(a). 

The State did not provide any request 

for approval for alternative monitoring. 

Furthermore, the State did not provide 

any demonstration, as required for a 

customized Major NSR SIP revision 


srobinson on DSKHWCL6B1PROD with RULES3
56438 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

14See section IV.E.3 of this preamble for further 

information on the basis for disapproval of the 

submitted definitions ‘‘baseline actual emission’’ for 

not determining baseline emissions as average 

emissions. 

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

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

structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source, 

including appurtenances other than emission 

control equipment.’’ 

submittal, showing how the absence of 

these PAL monitoring definitions, is at 

least as stringent as the Federal PAL 

Program SIP requirements. 

Comment 16: BCCA, TIP, TCC, and 

TxOGA commented that the Texas PAL 

rules make clear that monitoring is 

mandatory for a PAL. They comment 

that the rules establish monitoring 

requirements in 30 TAC 116.186(c) that 

are consistent with the Federal PAL 

monitoring requirements. They also 

comment the monitoring requirements 

are, most importantly, cast in terms of 

requirements that ‘‘shall’’ or ‘‘must’’ be 

met. Examples include: 

• 30 TAC 116.186(c)(1): ‘‘The PAL 

monitoring system must accurately 

determine all emissions of the PAL 

pollutant in terms of mass per unit of 

time.’’ 

• 30 TAC 116.186(c)(2) further 

specifies requirements that shall be met 

for any permit holder using mass 

balance equations, continuous 

emissions monitoring system (‘‘CEMS’’), 

continuous parameter monitoring 

system (‘‘CPMS’’) predictive emissions 

monitoring system (‘‘PEMS’’), or 

emission factors. 

The commenters claim that these 

provisions adequately address the 

monitoring requirements required under 

the Federal PAL provisions. They assert 

that any additional statement that the 

PAL is rendered invalid unless the 

permit holder complies with these 

requirements is unnecessary in light of 

the clearly mandatory monitoring 

requirements that are equivalent to 

Federal requirements. 

Response: EPA disagrees with this 

comment. The rules referred to by the 

commenters only provide that the 

required monitoring be met, but has no 

provision that the PAL becomes invalid 

whenever a major stationary source with 

a PAL Permit or any emissions unit 

under such PAL is operated without 

complying with the required 

monitoring, as required under 40 CFR 

51.165(f)(12)(i)(D) and 51.166(w)(i)(d). 

TCEQ did not provide any 

demonstration, as required for a 

customized Major NSR SIP revision 

submittal, showing how the lack of a 

requirement invalidating the PAL if 

there is no compliance with the 

required monitoring, is at least as 

stringent as the Federal PAL Program 

SIP requirements. 

3. What are the grounds for disapproval 

of the submitted Major NSR Reform SIP 

revision for Major NSR with PAL 

provisions? 

EPA is disapproving the submitted 

Major NSR Reform SIP Revision for 

Major NSR with PAL provisions. We are 

disapproving the following nonseverable revisions that address the 

revised Major NSR SIP requirements 

with a PALs provision: 30 TAC Chapter 

116 submitted February 1, 2006: 30 TAC 

116.12—Definitions; 30 TAC 116.180— 

Applicability; 30 TAC 116.182—PlantWide Applicability Limit Permit 

Application; 30 TAC 116.184— 

Application Review Schedule; 30 TAC 

116.186—General and Special 

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

116.190—Federal Nonattainment and 

Prevention of Significant Deterioration 

Review; 30 TAC 116.192—Amendments 

and Alterations; 30 TAC 116.194— 

Public Notice and Comment; 30 TAC 

116.196—Renewal of a Plant-Wide 

Applicability Limit Permit; 30 TAC 

116.198—Expiration or Voidance. 

We are disapproving the submitted 

PAL revisions for the following reasons: 

(1) The submittal lacks a provision 

which limits applicability of a PAL only 

to an existing major stationary source; 

(2) the submittal has no provisions that 

relate to PAL re-openings; (3) there is no 

mandate that failure to use a monitoring 

system that meets the requirements of 

this section renders the PAL invalid; (4) 

the Texas submittal at 30 TAC 116.186 

provides for an emissions cap that may 

not account for all of the emissions of 

a pollutant at the major stationary 

source; (5) the submitted 30 TAC 

116.194 does not require that: (a) PALs 

be established, renewed, or increased 

through a procedure that is consistent 

with 40 CFR 51.160 and 51.161, 

including the requirement the reviewing 

authority provide the public with notice 

of the proposed approval of a PAL 

permit and at least a 30-day period for 

submittal of public comment; (b) that 

the State address all material comments 

before taking final action on the permit; 

and (c) include a cross-reference to 30 

TAC Chapter 39—Public Notice; (6) the 

Federal definition of the ‘‘baseline actual 

emissions’’ provides that these 

emissions must be calculated in terms of 

the average rate, in tons per year at 

which the unit actually emitted the 

pollutant during any consecutive 24- 

month period; 14 and (7) the State also 

failed to include the following specific 

monitoring definitions for CEMS, 

CERMS, CPMS, PEMS. 

EPA received comments from TCEQ, 

the Clinic, and industry regarding the 

proposed disapproval of these 

submitted SIP revisions. See our 

response to these comments in section 

IV.D.2 above. None of the provisions 

and definitions in the February 1, 2006, 

SIP revision submittal pertaining to the 

revised Major NSR SIP requirements for 

PALs is severable from each other. 

Therefore, we are disapproving the 

portion of the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR PALs SIP 

requirements as not meeting the Act and 

the revised Major NSR SIP regulations. 

See the proposal at 74 FR 48467, at 

48474–48475, our background for these 

submitted SIP revisions in section 

IV.D.1 above, and our response to 

comments on these submitted SIP 

revisions in section IV.D.2 above for 

additional information. 

E. The Submitted Non-PAL Aspects of 

the Major NSR SIP Requirements 

1. What is the background for the 

submitted non-PAL aspects of the Major 

NSR SIP requirements? 

The submitted NNSR non-PAL rules 

do not explicitly limit the definition of 

‘‘facility’’ 15 to an ‘‘emissions unit’’ as do 

the submitted PSD non-PAL rules. It is 

our understanding of State law that a 

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

any part of a stationary source that emits 

or may have the potential to emit any 

air contaminant, as the State explicitly 

provides in the revised PSD rule at 30 

TAC 116.160(c)(3). A ‘‘facility’’ also can 

be a piece of equipment, which is 

smaller than an ‘‘emissions unit.’’ A 

‘‘facility’’ can include more than one 

‘‘major stationary source.’’ It can include 

every emissions point on a company 

site, without limiting these emissions 

points to only those belonging to the 

same industrial grouping (SIP code). In 

our proposed action on the Texas 

Qualified Facilities State Program, EPA 

specifically solicited comment on the 

definition for ‘‘facility’’ under State law. 

Regardless, the State clearly thought the 

prudent legal course was to limit 

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

in its PSD SIP non-PALs revision. TCEQ 

did not submit a demonstration showing 

how the lack of this explicit limitation 

in the NNSR SIP non-PALs revision is 

at least as stringent as the revised Major 

NSR SIP requirements. Therefore, EPA 

is disapproving the submitted definition 

and its use as not meeting the revised 

Major NNSR non-PALs SIP 

requirements. 

Under the Major NSR SIP 

requirements, for any physical or 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56439 

16The submitted definition of ‘‘baseline actual 

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

emissions previously demonstrated as emissions 

events or historically exempted under Chapter 101 

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

they have been authorized, or are being authorized, 

in a permit action under Chapter 116. 30 TAC 

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

17The term ‘‘facility’’ shall replace the words 

‘‘emissions unit’’ in the referenced sections of the 

CFR. 30 TAC 116.160(c)(3). 

18Tex. Health & Safety Code § 382.003(12). 

19Chevron U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 387, 842–43 (1984). 

‘‘When a court reviews an agency’s construction of 

the statute which it administers, it is confronted 

with two questions. First, always is the question 

whether Congress has directly spoken to the precise 

question at issue. If the intent of Congress is clear, 

that is the end of the matter, for the court, as well 

as the agency, must give effect to the 

unambiguously express intent of Congress. If, 

however, the court determines Congress has not 

directly addressed the precise question at issue, the 

court does not simply impose its own construction 

on the statute, as would be necessary in the absence 

of an administrative interpretation. Rather, if the 

statute is silent or ambiguous with respect to the 

specific issue, the question for the court is whether 

the agency’s answer is based on a permissible 

construction of the statute.’’ 

operational change at a major stationary 

source, a source must include emissions 

resulting from startups, shutdowns, and 

malfunctions in its determination of the 

baseline actual emissions (see 40 CFR 

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

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

and the projected actual emissions (see 

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

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

of the term ‘‘baseline actual emissions,’’ 

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

does not require the inclusion of 

emissions resulting from startups, 

shutdowns, and malfunctions.16 Our 

understanding of State law is that the 

use of the term ‘‘may’’ ‘‘creates 

discretionary authority or grants 

permission or a power. See Section 

311.016 of the Texas Code Construction 

Act. Similarly, the submitted definition 

of ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) does not require that 

emissions resulting from startups, 

shutdowns, and malfunctions be 

included. The submitted definitions 

differ from the Federal SIP definitions 

and the State has not provided 

information demonstrating that these 

definitions are at least as stringent as the 

Federal SIP definitions. Therefore, 

based upon the lack of a demonstration 

from the State, EPA is disapproving the 

definitions of ‘‘baseline actual 

emissions’’ at 30 TAC 116.12(3) and 

‘‘projected actual emissions’’ at 30 TAC 

116.12(29) as not meeting the revised 

Major NSR SIP requirements. 

The Federal definition of the ‘‘baseline 

actual emissions’’ provides that these 

emissions must be calculated in terms of 

‘‘the average rate, in tons per year at 

which the unit actually emitted the 

pollutant during any consecutive 24- 

month period.’’ The submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 116.12 

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

Federal definition by leaving out the 

word ‘‘average’’ and instead providing 

that the baseline shall be calculated as 

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

unit actually emitted the pollutant 

during any consecutive 24-month 

period.’’ 

None of the provisions and 

definitions in the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR SIP requirements for 

non-PALs is severable from each other. 

Therefore, we proposed to disapprove 

the portion of the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR non-PALs SIP 

requirements as not meeting the Act and 

the revised Major NSR SIP regulations. 

See the proposal at 74 FR 48467, at 

48475, for additional information. 

2. What is EPA’s response to comments 

on the submitted non-PAL aspects of the 

Major NSR SIP requirements? 

Comment 1: TCEQ responded to 

EPA’s request concerning its 

interpretation of Texas law and the 

Texas SIP with respect to the term 

‘‘facility.’’ The definition of ‘‘facility’’ is 

the cornerstone of the Texas Permitting 

Program under the Texas Clean Air Act. 

In addition, to provide clarity and 

consistency, TCEQ also provides similar 

comments in regard to Docket ID No. 

EPA–R06–OAR–2005–TX–0025 and 

EPA–R06–OAR–2005–TX–0032. EPA 

believes that the State uses a ‘‘dual 

definition’’ for the term facility. Under 

the TCAA and TCEQ rule, ‘‘facility’’ is 

defined as ‘‘a discrete or identifiable 

structure, device, item, equipment, or 

enclosure that constitutes or contains a 

stationary source, including 

appurtenances other than emission 

control equipment. Tex. Health & Safety 

Code 382.003(6); 30 TAC 116.10(6). A 

mine, quarry, well test, or road is not 

considered to be a facility.’’ A facility 

may contain a stationary source—point 

of origin of a contaminant. Tex. Health 

& Safety Code 382.003(12). As a discrete 

point, TCEQ contends that, under 

Federal law, a facility can constitute but 

cannot contain a major stationary source 

as defined by Federal law. A facility is 

subject to Major and Minor NSR 

requirements, depending on the facts of 

the specific application. Under Major 

NSR, EPA uses the term ‘‘emissions 

unit’’ (generally) when referring to a part 

of a ‘‘stationary source,’’ TCEQ translates 

‘‘emissions unit’’ to mean ‘‘facility,’’ 17

which TCEQ contends is at least as 

stringent as Federal rule. TCEQ and its 

predecessor agencies have consistently 

interpreted facility to preclude 

inclusion of more than one stationary 

source, in contrast to EPA’s stated 

understanding. Likewise, TCEQ does 

not interpret facility to include ‘‘every 

emissions point on a company site, even 

if limiting these emission points to only 

those belonging to the same industrial 

grouping (SIC Code).’’ The Federal 

definition of ‘‘major stationary source’’ is 

not equivalent to the state definition of 

‘‘source.’’ 40 CFR 51.166(b)(1)(a). A 

‘‘major stationary source’’ 18 can include 

more than one ‘‘facility’’ as defined 

under Texas law—which is consistent 

with EPA’s interpretation of a ‘‘major 

stationary source’’ including more than 

one emissions unit. The above 

interpretation of ‘‘facility’’ has been 

consistently applied by TCEQ and its 

predecessor agencies for more than 30 

years. TCEQ’s interpretation of Texas 

statutes enacted by the Texas 

Legislature is addressed by the Texas 

Code Construction Act. More 

specifically, words and phrases that 

have acquired a technical or particular 

meaning, whether by legislative 

definition or otherwise, shall be 

construed accordingly. Tex. Gov’t Code 

311.011(b). While Texas law does not 

directly refer to the two steps allowing 

deference enunciated in Chevron 

U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., Texas law and 

judicial interpretation recognize 

Chevron 19 and follow similar analysis 

as discussed below. The Texas 

Legislature intends an agency created to 

centralize expertise in a certain 

regulatory area ‘‘be given a large degree 

of latitude in the methods it uses to 

accomplish its regulatory function.’’ 

Phillips Petroleum Co. v. Comm’n on 

Envtl. Quality, 121 S.W.3d 502, 508 

(Tex.App.—Austin 2003, no pet.), 

which cites Chevron to support the 

following: ‘‘Our task is to determine 

whether an agency’s decision is based 

upon a permissible interpretation of its 

statutory scheme.’’ Further, Texas courts 

construe the test of an administrative 

rule under the same principles as if it 

were a statute. Texas Gen. Indem. Co. v. 

Finance Comm’n, 36 S.W.3d 635,641 

(Tex.App.—Austin 2000, no pet.). Texas 

Administrative agencies have the power 

to interpret their own rules, and their 

interpretation is entitled to great weight 

and deference. Id. The agency’s 

construction of its rule is controlling 

unless it is plainly erroneous or 

inconsistent. Id. ‘‘When the construction 


srobinson on DSKHWCL6B1PROD with RULES3
56440 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

of an administrative regulation rather 

than a statute is at issue, deference is 

even more clearly in order.’’ Udall v. 

Tallman, 380 U.S. 1, 17 (1965). This is 

particularly true when the rule involves 

complex subject matter. See Equitable 

Trust Co. v. Finance Comm’n, 99 

S.W.3d 384, 387 (Tex.App.—Austin 

2003, no pet.). Texas courts recognize 

that the legislature intends an agency 

created to centralize expertise in a 

certain regulatory area ‘‘be given a large 

degree of latitude in the methods it uses 

to accomplish its regulatory function.’’ 

Reliant Energy, Inc. v. Public Util. 

Comm’n, 62 S.W.3d 833,838 

(Tex.App.—Austin 2001, no pet.)(citing 

State v. Public Util. Comm’n, 883 

S.W.2d 190, 197 (Tex. 1994). In 

summary, TCEQ translates ‘‘emissions 

unit’’ to mean ‘‘facility.’’ Just as an 

‘‘emissions unit’’ under Federal law is 

construed by EPA as part of a major 

stationary source, a ‘‘facility’’ under 

Texas law can be a part of a major 

stationary source. However, a facility 

cannot include more than one stationary 

source as defined under Texas law. 

Response: EPA welcomes the 

clarification concerning TCEQ’s 

interpretation of Texas law and the 

Texas SIP with respect to the term 

‘‘facility.’’ However, we have determined 

that Texas’s use of the term ‘‘facility,’’ as 

it applies to the NNSR non-PALs rules, 

is overly vague, and therefore, 

unenforceable. TCEQ comments that it 

translates ‘‘emissions unit’’ to mean 

‘‘facility.’’ Although Texas’s PSD nonPAL rules explicitly limit the definition 

of ‘‘facility’’ to ‘‘emissions unit,’’ the 

NNSR non-PALs rules fail to make such 

a limitation. See 74 FR 48467, at 48473, 

footnote 6, and 48475; compare 30 TAC 

116.10(6) to 30 TAC 116.160(c)(3). The 

State clearly thought the prudent legal 

course was to limit ‘‘facility’’ explicitly 

to ‘‘emissions unit’’ in its PSD SIP nonPALs revision. Furthermore, TCEQ did 

not submit information sufficient to 

demonstrate that the lack of this explicit 

limitation in the submitted NNSR nonPALs is at least as stringent as the 

revised definition in the PSD non-PALs 

definition. 

We recognize that TCEQ should be 

accorded a level of deference to 

interpret the State’s statutes and 

regulations; however, such 

interpretations must meet the applicable 

requirements of the Act and 

implementing regulations under 40 CFR 

part 51 to be approvable into the SIP as 

Federally enforceable requirements. The 

State has failed to provide any case law 

or SIP citation that confirms TCEQ’s 

interpretation for ‘‘facility’’ under the 

NNSR non-PALs that would ensure 

Federal program scope. 

Comment 2: The Clinic comments 

that Texas’s use of the term ‘‘facility’’ 

makes its rules unacceptably vague. 

Texas’s use of this term is problematic 

because of its dual definitions and broad 

meanings. The commenter compares 

Texas’s definition of ‘‘facility’’ in 30 

TAC 116.10 with the definition of 

‘‘stationary source’’ in 30 TAC 116.12 

and the definition of ‘‘building, 

structure, facility, or installation’’ in 30 

TAC 116.12 and concludes that these 

definitions are quite similar. The 

commenter acknowledges that this 

argument assumes that one can rely on 

the Nonattainment NSR rules to 

interpret the general definitions. If one 

cannot use the Nonattainment NSR 

definitions to interpret the general 

definition of ‘‘facility,’’ then one must 

resort to the definition of ‘‘source’’ in 30 

TAC 116.10(17), which is defined as ‘‘a 

point of origin of air contaminants, 

whether privately or publicly owned or 

operated.’’ Pursuant to this reading, a 

facility is more like a Federal ‘‘emissions 

unit.’’ 40 CFR 51.165(a)(1)(vii). 

‘‘ ‘Emissions unit’ means any part of a 

stationary source that emits or would 

have the potential to emit any regulated 

NSR pollutant * * *’’ At least in the 

Qualified Facility rules, it appears that 

TCEQ use of the definition of ‘‘facility’’ 

is more like a Federal ‘‘emissions unit.’’ 

The circular nature of these definitions, 

and the existence of two different 

definitions of ‘‘facility’’ without clear 

description of their applicability, makes 

Texas’s rules, including the Qualified 

Facility rules, vague. The commenter 

urges EPA to require Texas to clarify its 

definition of ‘‘facility’’ and to ensure that 

its use of the term throughout the rules 

is consistent with that definition. 

Response: EPA agrees with this 

comment. See our response to comment 

1 above for further information. 

Comment 3: Concerning the definition 

of ‘‘facility,’’ BCCA, TIP, and TCC 

commented that the term ‘‘facility’’ is 

defined in Chapter 116 and in the Texas 

Clean Air Act, and is used in a 

consistent manner throughout. The term 

has identical meaning in the NNSR nonPAL rules and the PSD non-PAL rules. 

Any failure to ‘‘explicitly limit the 

definition’’ in one part of Chapter 116 is 

not grounds for disapproval, given the 

well-established definition of ‘‘facility’’ 

in the context of Texas air permitting 

and that it is comparable to the Federal 

definition of ‘‘emissions unit.’’ TCEQ 

regulations in 30 TAC 116.10(6) defines 

a facility as: ‘‘A discrete or identifiable 

structure, device, item, equipment, or 

enclosure that constitutes or contains a 

stationary source, including 

appurtenances other than emission 

control equipment. A mine, quarry, well 

test, or road is not a facility.’’ See 30 

TAC 116.10(6). Section 116.10 states 

that the definitions contained in the 

section apply to all uses throughout 

Chapter 116. 30 TAC 116.10 (‘‘[T]he 

following words and terms, when used 

in this chapter, shall have the following 

meanings, unless the context clearly 

indicates otherwise.’’) This definition is 

similar to the definition of ‘‘emission 

unit’’ in Texas’s Title V rules. There, 

‘‘emissions unit’’ is defined as: ‘‘A 

discrete or identifiable structure, device, 

item, equipment, or enclosure that 

constitutes or contains a stationary 

source, including appurtenances other 

than emission control equipment. See 

30 TAC 122.10(8). Under the express 

terms of 30 TAC 116.10, the definition 

of ‘‘facility’’ is clear, and is equivalent to 

the Federal definition of ‘‘emission unit’’ 

in the nonattainment NSR non-PAL 

rules, as it is throughout Chapter 116. 

Response: EPA disagrees with these 

comments. See our response to 

comment 1 above for further 

information. 

Comment 4: TCEQ comments that 

TCEQ rules includes maintenance, 

startup and shutdown emissions in the 

development of ‘‘baseline actual 

emissions’’ to the extent that the permit 

reviewer can verify that these emissions 

occurred, were properly quantified and 

reported as part of the baseline, and 

were creditable. Otherwise, startup and 

shutdown, as well as maintenance 

emissions, are treated as unauthorized 

and, as such, have a baseline actual 

emission rate of zero. Further, TCEQ 

rules do not authorize malfunction 

emissions. TCEQ has concerns about 

crediting a major source with an 

emission associated with 

malfunctioning of equipment when the 

source determines baseline actual 

emissions. TCEQ is concerned that 

including malfunction emissions would 

inflate the baseline and narrow the gap 

between baseline actual emissions and 

the planned emission rate. Therefore, 

the number of ‘‘major’’ sources or 

modifications would be reduced. It is 

unclear how emissions that are not 

authorized would be considered 

creditable within the concept of NSR 

applicability. 

EPA has approved the exclusion of 

malfunction emissions from the baseline 

calculation in other States’ rules. TCEQ 

considers the exclusion of malfunction 

emissions from baseline actual 

emissions to be at least as stringent as 

the Federal rule. TCEQ is willing to 

work with EPA to clarify the inclusion 

of startup and shutdown emissions 

when determining baseline actual 

emissions. 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56441 

Response: EPA disagrees with this 

comment. We note two fundamental 

concerns with the Texas definitions, as 

discussed in this response. First, the 

Texas definition of ‘‘baseline actual 

emissions’’ provides discretion to 

include emissions from malfunctions, 

startups, and shutdowns, but does not 

contain specific, objective, and 

replicable criteria for determining 

whether TCEQ’s choice of emissions 

events to be included in the baseline 

actual emissions will be effective in 

terms of enforceability, compliance 

assurance, and ambient impacts. 

Second, the Texas definition of 

‘‘projected actual emissions’’ does not 

include emissions from startups, 

shutdowns and malfunctions in contrast 

to the Federal definition which includes 

such emissions. 

The Federal definition of ‘‘baseline 

actual emissions’’ requires such 

emissions to include emissions 

associated with startups, shutdowns, 

and malfunctions. See 40 CFR 

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

51.166(b)(47)(i)(a) and (ii)(a). In 

contrast, Texas’s submitted definition of 

‘‘baseline actual emissions’’ at 30 TAC 

116.12(3)(E) differs from the Federal 

definition by providing that ‘‘[u]ntil 

March 1, 2016, emissions previously 

demonstrated as emissions events or 

historically exempted under [30 TAC] 

Chapter 101 of this title * * * may be 

included the extent they have been 

authorized, or are being authorized, in 

a permit action under Chapter 116.’’ 

Emphasis added. EPA’s understanding 

of State law is that the use of the term 

‘‘may’’ creates discretionary authority or 

grants permission or power. See section 

311.016 of the Texas Code Construction 

Act. 

TCEQ considers emission events as 

unauthorized emissions associated with 

the startup, shutdown, and malfunction 

related activities. See 30 TAC 101.1(28). 

Texas has adopted an affirmative 

defense approach to handle such 

emissions. See 30 TAC 101.222. For 

emissions associated with the planned 

maintenance, startup or shutdown 

activities, the State rule has adopted a 

phased-in approach to allow a source to 

file an application to permit its planned 

maintenance, startup or shutdown 

related emissions in a source’s NSR 

permit. This approach is based on the 

source’s SIC code. See 101.222(h) and 

(i). For EPA’s proposed rulemaking 

action on the State’s Emission Events 

rule, see May 13, 2010 (75 FR 26892). 

The State’s submitted definition 

provides director discretion whether to 

include these types of emissions. Such 

director discretion provisions are not 

acceptable for inclusion in SIPs, unless 

each director decision is required under 

the plan to be submitted to EPA for 

approval as a single-source SIP revision. 

This Program does not contain specific, 

objective, and replicable criteria for 

determining whether the Executive 

Director’s choice of emissions events to 

be included in the baseline actual 

emissions will be effective in terms of 

enforceability, compliance assurance, 

and ambient impacts. This would 

include a replicable procedure for use of 

any discretionary decision to determine 

which maintenance, startup, and 

shutdown emissions are properly 

quantified and reported as part of the 

baseline, and are creditable; and for 

determining that maintenance, startup, 

and shutdown emissions then do not 

meet such criteria and can be excluded 

because they are unauthorized. 

The State did not provide any 

demonstration, as required for a 

customized Major NSR SIP revision 

submittal, that the submitted provision 

that may exclude any emissions from 

maintenance, startup, and shutdown 

from the definition of baseline actual 

emissions, is at least as stringent as the 

definition in the Federal non-PAL 

Program SIP requirements. Texas also 

includes authorized maintenance 

emissions in its baseline actual 

emissions. Because maintenance 

emissions are not specifically required 

in the Federal definition, the State must 

provide a demonstration, as required for 

a customized Major NSR SIP revision 

submittal, that including these 

emissions in the baseline actual 

emissions is at least as stringent as the 

definition in the Federal non-PAL 

Program SIP requirements. 

With respect to ‘‘projected actual 

emission,’’ the Federal definition of 

‘‘projected actual emissions’’ requires 

the projected emissions to include 

emissions associated with startups, 

shutdowns, and malfunctions. See 40 

CFR 51.165(a)(1)(xxviii)(B)(2) and 

51.166(b)(40)(ii)(b). Texas’s submitted 

definition of ‘‘projected actual 

emissions’’ at 30 TAC 116.12(29) differs 

from the Federal definitions by not 

including emissions associated with 

startups, shutdowns, and malfunctions. 

The exclusion of these emissions in the 

projected actual emissions while 

providing for the possible inclusion of 

these emissions from baseline actual 

emissions does not provide a 

comparable estimation of emissions 

increases associated with the project 

and could narrow the gap between 

baseline actual emissions and the 

projected actual emissions in a way that 

allows facilities to avoid NSR 

requirements. The State did not provide 

a demonstration, as required for a 

customized Major NSR SIP revision, 

that excluding these emissions from 

projected actual emissions, is at least as 

stringent as the Federal non-PALs SIP 

requirements. (EPA also wishes to note 

that the submitted definition of baseline 

actual emissions is unclear how TCEQ 

will include authorized emissions 

events as baseline actual emissions and 

projected actual emissions on and after 

March 1, 2016.) 

With respect to one aspect specifically 

related to emissions associated with 

malfunctions, EPA appreciates Texas’s 

concern that including malfunction 

emissions in the baseline and projected 

actual emissions would inflate the 

baseline and narrow the gap between 

baseline and planned emissions. EPA 

acknowledges that it has approved the 

exclusion of malfunction emissions 

from the baseline calculation in other 

States’ rules. This includes the approval 

of such exclusions in Florida (proposed 

April 4, 2008 at 73 FR 18466 and final 

approval on June 27, 2008 at 73 FR 

36435) and South Carolina (proposed 

September 12, 2007 at 72 FR 52031 and 

final approval on June 2, 2008 at 73 FR 

31368) and the proposed exclusion in 

Georgia (proposed September 4, 2008 at 

73 FR 51606). EPA’s review of these 

actions indicates that in each State, 

malfunctions were excluded from both 

baseline actual emissions and projected 

actual emissions. This exclusion was 

based upon the difficulty of quantifying 

past malfunction emissions and 

estimating future malfunction emissions 

as part of the projected actual emissions. 

Georgia’s rules specify that if 

malfunction emissions are omitted from 

projected actual emissions, they must 

also be omitted from baseline emissions, 

and vice versa, so as to provide a 

comparable estimation of emissions 

increases associated with the project. 

Florida is also concerned about the 

possibility that including malfunction 

emissions may result in the unintended 

rewarding of the source’s poor operation 

and maintenance, by allowing 

malfunction to be included in the 

baseline emissions that will be used to 

calculate emissions changes and 

emissions credits. 

After reviewing Texas’s comments on 

exclusion of malfunctions from its 

baseline actual emissions and projected 

actual emissions, we note that TCEQ 

voices concerns similar to Florida, 

Georgia, and South Carolina. 

Accordingly, we agree with TCEQ’s 

concern that including malfunction 

emissions would inflate the baseline 

and narrow the gap between baseline 

actual emissions and the planned 

emission rate. Therefore, the number of 

‘‘major’’ sources or modifications would 


srobinson on DSKHWCL6B1PROD with RULES3
56442 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

20 30 TAC 116.12(3)(D) (‘‘The actual rate shall be 

adjusted downward to exclude any non-compliant 

emissions that occurred during the consecutive 24- 

month period.’’) 

21 GA. COMP. R. & REGS. 391–3– 1– 

.02(7)(a)2.(ii)(II)II (2009). 

22 73 FR 51,606, at 51,609 (Sept. 4, 2008). 

23See ‘‘Letter to Richard Hyde, TCEQ, Director, 

Air Permits Division’’ from Jeff Robinson, EPA, 

Region 6, Chief, Air Permits Section (May 21, 2008) 

(Attachment 7 in the Clinic’s comments). 

be reduced. It is unclear how emissions 

that are not authorized would be 

considered creditable within the 

concept of NSR applicability. 

Nevertheless, we must review the 

submitted definitions pending before 

EPA for action. Both definitions do not 

exclude malfunctions emissions. 

Furthermore, the baseline actual 

emissions definition allows the 

discretionary inclusion of malfunction 

emissions. To be approvable, both 

definitions must mandate the exclusion 

of malfunction emissions. 

Comment 5: BCCA, TIP, TCC, and 

TxOGA commented that the Texas 

rules’ treatment of startups, shutdowns, 

and malfunctions is not a proper basis 

for disapproval of the proposed SIP 

revision. The Federal and Texas 

definitions both require that noncompliant emissions be excluded from 

the determination of baseline actual 

emissions.20 Based on the Texas rules’ 

integration of pending Chapter 101 

revisions on startup, shutdown, and 

malfunction emissions (as requested by 

EPA), the proposed SIP revision’s 

treatment of these types of emissions is 

a reasonable approach. 

EPA has approved rules for baseline 

calculations that exclude some of the 

elements they assert should be included 

in Texas’s definition. For example, 

Georgia’s PSD regulations give 

applicants the option of excluding 

malfunction emissions from the 

calculation of baseline emissions.21 In 

approving this approach, EPA noted 

‘‘The intent behind this optional 

calculation methodology is that it may 

result in a more accurate estimate of 

emission increases. The Federal rules 

allow for some flexibility, and EPA 

supports EPD’s analysis that the Georgia 

rule is at least as stringent as the Federal 

rule.’’ 22 Similarly, Texas’s approach to 

the baseline calculation attempts for a 

more accurate estimate of emissions. 

Moreover, TCEQ is underway in 

permitting maintenance, startup and 

shutdown emissions through Chapter 

116 preconstruction permits, and a SIP 

revision reflecting the maintenance, 

startup, and shutdown permitting 

initiative has been submitted to EPA for 

approval. TCEQ is distinguishing 

between planned and unplanned 

maintenance, startup, and shutdown 

emissions, and working to authorize 

those planned maintenance, startup, 

and shutdown emissions in Texas air 

permits. It is reasonable and appropriate 

that the maintenance, startup, and 

shutdown permitting initiative be 

properly integrated with the definition 

of ‘‘baseline actual emissions.’’ The 

proposed SIP revision recognizes that 

such emissions may be added to the 

baseline in the future, based on TCEQ’s 

ongoing process of authorizing 

maintenance, startup, and shutdown 

emissions. The proposed SIP revision 

and TCEQ’s current approach is sound 

and reasonable based on historical 

treatment of maintenance, startup, and 

shutdown emissions in Texas air 

permits, and is not grounds for 

disapproval of the proposed SIP 

revision. 

Response: EPA disagrees with this 

comment. See the response to Comment 

4 above for more information. 

Comment 6: The Clinic comments 

that Texas’s definition of ‘‘baseline 

actual emissions’’ is less stringent than 

the Federal definition. The Federal 

regulations define ‘‘baseline actual 

emissions’’ as ‘‘the average rate, in tons 

per year, at which the unit actually 

emitted the pollutant during any 

consecutive 24-month period.’’ See 40 

CFR 51.165(a)(1)(xxxv)(A) and (B). This 

definition further provided that the 

average rate ‘‘shall include emissions 

associated with startups, shutdowns, 

and malfunctions.’’ See 40 CFR 

51.165(a)(1)(xxxv)(A)(1). 

Texas rules define ‘‘baseline actual 

emissions’’ as ‘‘the rate, in tons per year, 

at which the unit actually emitted the 

pollutant during any consecutive 24- 

month period.’’ See 30 TAC 

116.12(3)(A). The Texas rules do not 

require baseline actual emissions to 

include emissions associated with 

maintenance, startups, and shutdowns. 

Instead, the rules state that 

maintenance, startup, and shutdown 

events ‘‘may be included to the extent 

they have been authorized, or are being 

authorized.’’ See 30 TAC 116.12(3)(E). 

Texas’s failure to incorporate the 

Federal definition and the express 

failure to require incorporation of 

maintenance, startup, and shutdown 

emissions in the average rate renders the 

definition as inconsistent with Federal 

regulations. 

The commenter further notes that 

Texas’s failure to include maintenance, 

startup, and shutdown emissions is 

related to a larger problem with Texas’s 

program. Texas is allowing sources to 

authorize their maintenance, startup, 

and shutdown emissions separately 

from their routine emissions. For 

example, Texas allows sources that have 

individual major NSR or PSD permits to 

authorize their maintenance, startup, 

and shutdown emissions through a 

stand-alone permit-by-rule. See 30 TAC 

106.263. This allows sources to avoid 

considering their maintenance, startup, 

and shutdown emissions in determining 

potential to emit, as well as in 

determining the magnitude of any 

emission increases. EPA has repeatedly 

informed Texas that its approach for 

permitting maintenance, startup, and 

shutdown emissions violates the Act.23

EPA should take action to ensure that 

Texas follows the Act when permitting 

maintenance, startup, and shutdown 

emissions. 

Response: EPA agrees with the 

comment relating to not calculating 

baseline actual emissions as average 

emission rates. See section IV.D.2, 

responses to comments 1 and 2 for 

further information. 

EPA agrees with this comment related 

to the inclusion of emissions associated 

with authorized maintenance, startup, 

and shutdown in the baseline actual 

emissions. See the response to comment 

4 above. The comments relating to 

authorizing maintenance, startup, and 

shutdown emissions separately from 

routine emissions are outside the scope 

of this action. 

Comment 7: The Clinic comments 

that Texas’s definition of ‘‘projected 

actual emissions’’ is less stringent than 

the Federal definition. The Federal 

regulations define ‘‘projected actual 

emissions’’ to include maintenance, 

startup, and shutdown emissions. See 

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

51.166(b)(40)(ii)(b). Texas’s definition of 

‘‘projected actual emissions’’ fails to 

include maintenance, startup, and 

shutdown emissions. See 30 TAC 

116.12(29). Even where such emissions 

are included in a source’s baseline 

actual emissions, there is no provision 

to require such emission in the 

projected actual emissions. The 

commenter states that facilities in Texas 

often have extremely large maintenance, 

startup, and shutdown emissions. See 

Attachment 8 of the comments (Facility 

emission event information). Under 

Texas’s definitions, a source which 

would trigger a major modification 

under Federal rules could avoid a major 

modification by failing to include 

maintenance, startup, and shutdown in 

their projected actual emissions. The 

commenter states that any company that 

includes maintenance, startup, and 

shutdown in its baseline actual 

emissions should be required to include 

a realistic estimate of maintenance, 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56443 

startup, and shutdown emissions in its 

projected actual emissions. 

Response: EPA agrees with this 

comment. See our response to Comment 

4 above for further information. 

3. What are the grounds for disapproval 

of the submitted non-PAL aspects of the 

major NSR SIP requirements? 

EPA is disapproving the submitted 

NNSR non-PAL rules because they do 

not explicitly limit the definition of 

‘‘facility’’ to an ‘‘emissions unit.’’ It is our 

understanding of State law that a 

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

any part of a stationary source that emits 

or may have the potential to emit any 

air contaminant, as the State explicitly 

provides in the revised PSD rule at 30 

TAC 116.160(c)(3). A ‘‘facility’’ also can 

be a piece of equipment, which is 

smaller than an ‘‘emissions unit.’’ A 

‘‘facility’’ can include more than one 

‘‘major stationary source.’’ It can include 

every emissions point on a company 

site, without limiting these emissions 

points to only those belonging to the 

same industrial grouping (SIP code). 

Regardless, the State clearly thought the 

prudent legal course was to limit 

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

in its PSD SIP non-PALs revision. TCEQ 

did not submit a demonstration showing 

how the lack of this explicit limitation 

in the NNSR SIP non-PALs revision is 

at least as stringent as the revised Major 

NSR SIP requirements. Therefore, EPA 

is disapproving the use of the submitted 

definition as not meeting the revised 

Major NNSR non-PALs SIP 

requirements. 

Under the Major NSR SIP 

requirements, for any physical or 

operational change at a major stationary 

source, a source must include emissions 

resulting from startups, shutdowns, and 

malfunctions in its determination of the 

baseline actual emissions. The 

definition of the term ‘‘baseline actual 

emissions,’’ as submitted in 30 TAC 

116.12(3)(E), does not require the 

inclusion of emissions resulting from 

startups, shutdowns, and malfunctions 

as required under Federal regulations. 

The submitted definition of baseline 

actual emissions provides that until 

March 1, 2016, emissions previously 

demonstrated as emissions events or 

historically exempted under [30 TAC] 

Chapter 101 of this title may be 

included the extent they have been 

authorized, or are being authorized, in 

a permit action under Chapter 116. The 

submitted definition of ‘‘projected actual 

emissions’’ at 30 TAC 116.12(29) differs 

from the Federal definitions by not 

including emissions associated with 

startups, shutdowns, and malfunctions. 

The authorized emission events under 

the submitted definition include 

emissions associated with maintenance, 

startups, and shutdowns. Our 

understanding of State law is that the 

use of the term ‘‘may’’ creates 

discretionary authority or grants 

permission or a power. See Section 

311.016 of the Texas Code Construction 

Act. Similarly, the submitted definition 

of ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) does not require that 

emissions resulting from startups, 

shutdowns, and malfunctions be 

included. The submitted definitions 

differ from the Federal SIP definitions 

and the State has not provided 

information demonstrating that these 

definitions meet the Federal SIP 

definitions. Specifically, the State has 

not provided: (1) A replicable procedure 

for determining the basis for which 

emissions associated with maintenance, 

startup, and shutdown will and will not 

be included in the baseline actual 

emissions, (2) the basis for including 

emissions associated with maintenance 

in baseline actual emissions, (3) the 

basis for not including maintenance, 

startup, and shutdown emissions in the 

projected actual emissions, and (4) 

provisions for how it will handle 

maintenance, startup, and shutdown 

emissions after March 1, 2016. 

Therefore, based upon the lack of a 

demonstration from the State, as is 

required for a customized Major NSR 

SIP revision submittal, EPA is 

disapproving the definitions of ‘‘baseline 

actual emissions’’ at 30 TAC 116.12(3) 

and ‘‘projected actual emissions’’ at 30 

TAC 116.12(29) as not meeting the 

revised Major NSR SIP requirements. 

Texas stated that it has excluded 

emissions associated with malfunctions 

from the calculation of baseline actual 

emissions and projected actual 

emissions because including such 

emissions would inflate the baseline 

and narrow the gap between baseline 

and project emissions. EPA agrees with 

the reasons Texas uses to exclude 

malfunction emissions from baseline 

actual emissions and projected actual 

emissions are comparable to the reasons 

EPA used for excluding malfunction 

emissions from other States in which 

EPA approved such exclusion. 

Notwithstanding Texas’s exclusion of 

malfunctions from these definitions, 

Texas must address the other grounds 

for disapproval as discussed above. This 

includes mandating the exclusion of 

malfunction emissions in both 

definitions. 

The Federal definition of the ‘‘baseline 

actual emissions’’ provides that these 

emissions must be calculated in terms of 

‘‘the average rate, in tons per year at 

which the unit actually emitted the 

pollutant during any consecutive 24- 

month period.’’ The submitted 

definition of the term ‘‘baseline actual 

emissions’’ found at 30 TAC 116.12 

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

Federal definition by providing that the 

baseline shall be calculated as ‘‘the rate, 

in tons per year at which the unit 

actually emitted the pollutant during 

any consecutive 24-month period.’’ 

Texas has not provided any 

demonstration, as is required for a 

customized Major NSR SIP revision 

submittal, showing how this different 

definition is at least as stringent as the 

Federal SIP definition. Therefore, EPA 

is disapproving the submitted definition 

of ‘‘baseline actual emissions’’ found at 

30 TAC 116.12(3) as not meeting the 

revised major NSR SIP requirements. 

EPA received comments from TCEQ, 

the Clinic, and industry regarding the 

proposed disapproval of these 

submitted SIP revisions. See our 

response to these comments in section 

IV.E.2 above. None of the provisions 

and definitions in the February 1, 2006, 

SIP revision submittal pertaining to the 

revised Major NSR SIP requirements for 

non-PALs is severable from each other. 

Therefore, we are disapproving the 

portion of the February 1, 2006, SIP 

revision submittal pertaining to the 

revised Major NSR non-PALs SIP 

requirements as not meeting the Act and 

the revised Major NSR SIP regulations. 

See the proposal at 74 FR 48467, at 

48475, our background for these 

submitted SIP revisions in section 

IV.E.1 above, and our response to 

comments on these submitted SIP 

revisions in section IV.E.2 above for 

additional information. 

F. The Submitted Minor NSR Standard 

Permit for Pollution Control Project SIP 

Revision 

1. What is the background for the 

submitted Minor NSR Standard Permit 

for Pollution Control Project SIP 

revision? 

EPA approved Texas’s general 

regulations for Standard Permits in 30 

TAC Subchapter F of 30 TAC Chapter 

116 on November 14, 2003 (68 FR 

64548) as meeting the minor NSR SIP 

requirements. The Texas Clean Air Act 

provides that the TCEQ may issue a 

standard permit for ‘‘new or existing 

similar facilities’’ if it is enforceable and 

compliance can be adequately 

monitored. See section 382.05195 of the 

TCAA. EPA approved the State’s 

Standard Permit program as part of the 

Texas Minor NSR SIP program on 

November 14, 2003 (68 FR 64548). In 

the final FRN, EPA noted that the 

submitted provisions provide for a 


srobinson on DSKHWCL6B1PROD with RULES3
56444 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

24The 2006 submittal also included a revision to 

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

Standard Permits, to change an internal cross 

reference from Subchapter C to Subchapter E, 

consistent with the re-designation of this 

Subchapter by TCEQ. See section IV.H, and 74 FR 

48467, at 48476, for further information on this 

portion of the 2006 submittal. 

streamlined mechanism for approving 

the construction or modification of 

certain sources in categories that 

contain numerous similar sources. EPA 

approved the provisions for issuing and 

modifying standard permits because, 

among other things, the submitted rules 

required the following: (1) No major 

stationary source or major modification 

subject to part C or part D of the Act 

could be issued a standard permit; (2) 

sources qualifying for a standard permit 

are required to meet all applicable 

requirements under section 111 of the 

Act (NSPS), section 112 of the Act 

(NESHAPS and MACT), and the TCEQ 

rules (this includes the Texas SIP 

control strategies); (3) sources have to 

register their emissions with the TCEQ 

and this registration imposes an 

enforceable emissions limitation; (4) 

maintenance of records sufficient to 

demonstrate compliance with all the 

permit’s conditions; and (5) periodic 

reporting of the nature and amounts of 

emissions necessary to determine 

whether a source is in compliance. 

TCEQ must conduct an air quality 

impacts analysis of the anticipated 

emissions from the similar facilities 

before issuing and modifying any 

standard permit. All new or revised 

standard permits are required to 

undergo public notice and a 30-day 

comment period, and TCEQ must 

address all comments received from the 

public before finalizing its action to 

issue or revise a standard permit. Based 

upon the above and as further described 

in the TSD for the approval action, EPA 

found that the submitted Texas Minor 

NSR Standard Permits Program was 

adequate to protect the NAAQS and 

reasonable further progress (RFP) and 

was enforceable. 

One of the primary reasons why EPA 

found that the Standard Permits 

Program was enforceable is that these 

types of Minor NSR permits were to be 

issued for similar sources. The issuance 

of a Minor NSR permit for similar 

sources eliminates the need for a caseby-case review and evaluation to ensure 

that the NAAQS and RFP are protected 

and the permit is enforceable. The 

provisions of the Texas Standard 

Permits Program also ensured that the 

terms and conditions of an individual 

standard permit would be replicable. 

This is a key component for the EPA 

authorization of a generic 

preconstruction permit. Replicable 

methodologies eliminate any director 

discretion issues. Otherwise, if there are 

any director discretion issues, EPA 

requires that they be addressed in a 

case-by-case Minor NSR SIP permit. 

When EPA approved the Texas 

Standard Permits Program as part of the 

Texas Minor NSR SIP, it explicitly did 

not approve the Pollution Control 

Project (PCP) Standard Permit (30 TAC 

116.617). See 68 FR 64543, at 64547. On 

February 1, 2006, Texas submitted a 

repeal of the previously submitted PCP 

Standard Permit and submitted the 

adoption of a new PCP Standard Permit 

at 30 TAC 116.617—State Pollution 

Control Project Standard Permit.24 One 

of the main reasons Texas adopted a 

new PCP Standard Permit was to meet 

the new Federal requirements to 

explicitly limit this PCP Standard 

Permit only to Minor NSR. In State of 

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

Cir. June 24, 2005), the Court vacated 

the Federal pollution control project 

provisions for NNSR and PSD. Although 

the new PCP Standard Permit explicitly 

prohibits the use of it for Major NSR 

purposes, TCEQ has failed to 

demonstrate how this particular 

Standard Permit meets the Texas 

Standard Permits NSR SIP since it 

applies to numerous types of pollution 

control projects, which can be used at 

any source that wants to use a PCP, and 

is not an authorization for similar 

sources. 

Under the Texas Standard Permits 

Minor NSR SIP, an individual Standard 

Permit must be limited to new or 

existing similar sources, such that the 

affected sources can meet the Standard 

Permit’s standardized permit 

conditions. This particular PCP 

Standard Permit does not lend itself to 

standardized, enforceable, replicable 

permit conditions. Because of the broad 

types of source categories covered by 

the PCP Standard Permit, this Standard 

Permit lacks replicable standardized 

permit conditions specifying how the 

Director’s discretion is to be 

implemented for the individual 

determinations, e.g., the air quality 

determination, the controls, and even 

the monitoring, recordkeeping, and 

reporting. Rather, the types of sources 

covered by a Pollution Control Project 

are better designed for case-by-case 

additional authorization, source-specific 

review, and source-specific technical 

determinations. For case-by-case 

additional authorization, source-specific 

review, and source specific technical 

determinations, under the minor NSR 

SIP rules, if these types of 

determinations are necessary, under the 

Texas Minor NSR SIP, the State is 

required to use its minor NSR SIP caseby-case permit process under 30 TAC 

116.110(a)(1). 

Because of the lack of replicable 

standardized permit conditions and the 

lack of enforceability, the PCP Standard 

Permit is not the appropriate vehicle for 

authorizing PCPs. EPA proposed to 

disapprove the PCP Standard Permit, as 

submitted February 1, 2006. See the 

proposal at 74 FR 48467, at 48475– 

48476, for additional information. 

2. What is EPA’s response to comments 

on the submitted Minor NSR Standard 

Permit for Pollution Control Project SIP 

revision? 

Comment 1: TCEQ commented that its 

PCP Standard Permit has been used to 

implement control technologies 

required by regulatory changes, 

statutory changes, and/or EPA consent 

decree provisions. As such, control 

devices may be applied to numerous 

different facility types and industry 

types, ranging from storage tanks to 

fired units. TCEQ understands EPA’s 

comments and will work with EPA to 

develop an approvable authorization(s) 

that will achieve the same goals and 

emission reductions. 

Response: EPA appreciates TCEQ’s 

understanding of our comments and 

intention to work with us to develop an 

approvable rule revision. However, our 

evaluation is based on the submitted 

rule currently before us. 

Comment 2: The Clinic comments 

that the Texas PCP Standard Permit 

does not meet Federal NNSR and PSD 

requirements. See New York v. EPA, 413 

F.3d 4 (DC Cir. 2005). The PCP Standard 

Permit also fails to meet the minimum 

standards for minor authorizations as 

provided by the Act at 42 U.S.C. 

7410(a)(2)(C) and (C) and at 40 CFR 

51.160(a) and (b). Texas’s PCP Standard 

Permit is not limited to a particular 

source-category and can apply to 

various pollution control projects at any 

source type. See 30 TAC 116.617(a). 

Further, the permit itself does not have 

emission limits or monitoring; instead, 

a facility is permitted to include sitespecific limits and monitoring 

requirements in its application for 

coverage under a PCP Standard Permit. 

See 30 TAC 116.617(d)(2). The PCP 

Standard Permit includes a generic 

statement that the permit must not be 

used to authorize changes for which the 

Executive Director at TCEQ determines 

whether ‘‘there are health effects 

concerns or the potential to exceed a 

national ambient air quality standard 

criteria pollutant or contaminant that 

results from an increase in emissions of 

any air contaminant until those 

concerns are addressed by the 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56445 

25 In re Tennessee Valley Authority, 9 EAD 357, 

461 (EAB Sept. 15, 2000). 

registrant.’’ See 30 TAC 116.617(a)(3)(B). 

This provision itself, without specific 

emission limits and monitoring 

requirements in the PCP Standard 

Permit, in inadequate to protect the 

NAAQS, and is an acknowledgement 

that provisions on the face of the PCP 

Standard Permit are not sufficient to 

assure protection of the NAAQS and 

PSD increments. The commenter 

supports EPA taking action to 

disapprove and to further require 

facilities that have emissions authorized 

under the PCP Standard Permit to seek 

a Federally valid authorization. 

Response: EPA agrees with the 

comments that the submitted PCP 

Standard Permit does not meet the 

requirements of the Texas Minor NSR 

Standard Permits SIP. 

Comment 3: BCCA, TIP, TCC, GCLC, 

TxOGA, and TAB commented that the 

PCP standard permit does contain on its 

face all requirements applicable to its 

use. See 30 TAC 116.617(d). The rule 

requires that a permittee make a 

submittal to TCEQ, but does not require 

the Executive Director to act to approve 

the submittal. Under the rules, if the 

Executive Director does not act, the 

authorization under the permit stands. 

Review by the Executive Director is not 

to make case-by-case determination, but 

rather to review for impacts on air 

quality and disallow use if air quality 

would be negatively impacted. See 30 

TAC 116.617(a)(3)(B). This is an 

important distinction. The Texas PCP 

permit is more stringent than a program 

that lacks a discretionary denial 

provision. 

Moreover, the PCP is a minor NSR 

authorization. The CAA does not 

establish requirements for a State’s 

minor NSR programs. The Federal 

regulations that govern minor NSR 

programs at 40 CFR 51.160–.164 provide 

States great flexibility in establishing 

SIP approvable minor NSR programs. 

Indeed, EPA’s Environmental Appeals 

Board (‘‘EAB’’) has recognized the 

flexibility provided States in 

establishing a non-PSD, nonnonattainment NSR permitting program, 

noting that Federal requirements do not 

mandate a particular minor NSR 

applicability methodology or test.25

In light of this flexibility, the Texas 

PCP standard permit is an acceptable 

part of the State’s minor NSR SIP. 

Notably, EPA cites no statutory 

authority or provision of Part 51 in 

suggesting a bar on approval of general 

or standard permits. The manner in 

which TCEQ implements the PCP 

standard permit is reasonable and 

practical, and a decision to reject the 

PCP standard permit is a decision to 

reject an important minor NSR tool used 

by Texas sources to authorize 

environmentally beneficial projects in 

an expedited fashion. Site-specific 

traditional NSR permitting for such 

projects is impractical, inefficient and 

detrimental to the environment. 

Response: EPA disagrees with this 

comment. We are not disapproving the 

Texas PCP Standard Permit because 

under the Texas Minor NSR SIP, Texas 

cannot issue general or standard 

permits. In fact, EPA has approved the 

Texas Standard Permits Program as part 

of the Texas Minor NSR SIP. EPA’s 

approval authorizes Texas to issue socalled general permits, i.e., the Texas 

standard permits. Our approval of the 

Texas Standard Permit Program as part 

of the Texas Minor NSR SIP was based 

on the statutory and regulatory 

requirements, including section 110 of 

the Act, in particular section 

110(a)(2)(C), and 40 CFR 51.160, which 

require EPA to determine that the State 

has adequate procedures in place in the 

submitted Program to ensure that 

construction or modification of sources 

will not interfere with attainment of a 

National Ambient Air Quality Standard 

(NAAQS) or Reasonable Further 

Progress (RFP). 

This particular submitted individual 

Standard Permit does not meet the 

requirements of the Texas Standard 

Permits Minor NSR SIP. The submitted 

revision allows the Executive Director to 

selectively review for impacts on air 

quality and disallow use if air quality 

would be negatively impacted or even 

revise the emission limit to avoid 

negative air quality impacts. It grants 

the Executive Director too much 

discretion to act selectively and make 

site-specific determinations outside the 

scope of the PCP Standard Permit and 

fails to include replicable procedures for 

the exercise of such discretion. It fails 

to include replicable procedures for the 

exercise of such discretion. Under the 

Texas Minor NSR Standard Permits SIP, 

each Standard Permit promulgated by 

Texas is required to include replicable 

standardized permit terms and 

conditions. Each Standard Permit is 

required to stand on its own. No further 

action on the part of the Executive 

Director for holders of a Standard 

Permit is authorized under the SIP 

because each individual Standard 

Permit is required to contain upfront all 

the replicable standardized terms and 

conditions. The replicability of a 

Standard Permit issued pursuant to the 

SIP rules eliminates any director 

discretion. EPA approval will not be 

required in each individual case as the 

TCEQ evaluates (and perhaps revises) a 

source’s PCP Standard Permit. If the 

Director retains the authority to exercise 

discretion in the evaluation of each PCP 

Standard Permit holder’s impact on air 

quality, this undermines EPA’s rationale 

for approving the Texas Standard 

Permits Program as part of the Texas 

Minor NSR SIP. Under the SIP, any 

case-by-case determination must be 

made through the vehicle of the case-bycase Minor NSR SIP permit, not using 

a Minor NSR SIP Standard Permit as the 

vehicle. While Minor NSR SIP permit 

programs are given great flexibility, they 

cannot interfere with attainment and 

must meet the requirements for minor 

NSR. The Executive Director’s selective 

application of his discretion on a caseby-case basis, without specific 

replicable criteria, exceeds the scope of 

EPA’s approval of the Standard Permits 

Program in 30 TAC Subchapter F of 30 

TAC Chapter 116 as approved on 

November 14, 2003 (68 FR 64548). 

The submitted PCP Standard Permit 

revision has no replicable conditions 

that specify how the Director’s 

discretion is to be exercised and 

delineated. We are particularly 

concerned that the Executive Director 

may exercise such discretion in casespecific determinations in the absence 

of generic, replicable enforceable 

requirements. These replicable 

methodologies and enforceable 

requirements should be in the submitted 

individual Standard Permit itself, not in 

the Executive Director’s after the fact 

case-specific determinations made in 

issuing a customized Standard Permit to 

a source. If an individual Standard 

Permit requires any customizations for a 

holder, then this particular Standard 

Permit no longer meets the requirements 

for the Texas Standard Permit Program 

SIP. This customized Standard Permit 

has morphed into a case-by-case Minor 

NSR SIP permit and must meet the 

Texas NSR SIP requirements for this 

type of permit. 

Comment 4: BCCA, TIP, TCC, GCLC, 

and TAB commented that the manner in 

which TCEQ has defined pollution 

control projects is reasonable and 

practical, and a decision to reject the 

PCP Standard Permit is a decision to 

reject an important minor NSR tool used 

by Texas sources to authorize 

environmentally beneficial projects in 

an expedited fashion. TCC further 

comments that EPA does not, and 

cannot, question that the Standard 

Permit for PCPs provides for the 

regulation of stationary sources as 

necessary to assure that that NAAQS are 

achieved. TCC also comments that Parts 

C (PSD) and D (NNSR) are not 

implicated because PCP Standard 


srobinson on DSKHWCL6B1PROD with RULES3
56446 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

Permits are expressly made unavailable 

to major sources and major 

modifications. All commenters 

indicated that narrowing the scope of 

projects that can qualify for the 

expedited standard permit approval (or 

requiring TCEQ to promulgate source 

category-specific PCP standard permits 

for every source category in Texas) is 

impractical, inefficient, and detrimental 

to the environment. 

Response: EPA agrees that the 

submitted PCP Standard Permit does 

not apply to major stationary sources 

and major modifications subject to PSD 

or NNSR. While the manner in which 

TCEQ has defined pollution control 

projects may be reasonable and 

practical, using the Texas Standard 

Permits SIP to issue one individual 

Standard Permit for all types of PCPs 

does not meet the SIP’s requirements. 

The scope of a Standard Permit 

promulgated by TCEQ is governed by 

the TCAA and the SIP’s general 

regulations for Standard Permits in 30 

TAC Subchapter F of 30 TAC Chapter 

116. These do not provide for the 

issuance of a Standard Permit for 

dissimilar sources. They provide for the 

issuance of a Standard Permit for 

similar sources so that its permit terms 

and conditions are determined upfront 

in the promulgation of the individual 

Standard Permit. There is no need for 

any director discretion or customization 

of the individual Standard Permit. This 

is not to say that TCEQ is precluded 

from issuing various individual 

Standard Permits for PCPs; TCEQ can 

issue various individual Standard 

Permits for PCPs that cover similar 

sources. 

Comment 5: ERCC commented that 

PCP authorizations are not unique to 

Texas and EPA’s concerns with Texas 

PCP Standard Permit is too broad, is 

misplaced, and fails to recognize the 

regulatory restrictions in place, and the 

benefits that allow efficient emission 

reduction projects to proceed in the 

State. The commenter refers to two 

States with pollution control 

exemptions from the definition of 

modification which allow PCPs to 

proceed with significantly fewer 

limitations than the Texas PCP Standard 

Permit: Ohio and Oregon. Neither of 

these States limits PCP by a category of 

pollution control techniques or 

industrial sources. These SIP-approved 

provisions fail to provide any guidance 

for an application, director review, 

recordkeeping, or monitoring 

requirements. The Texas PCP program is 

highlighted for disapproval because it 

placed too much emphasis on the 

requirements and limitations of the PCP 

program. The Texas program has more 

safeguards than Oregon and Ohio. The 

Texas PCP program is solely a Minor 

NSR Program. By proposing disapproval 

of the Texas PCP program, EPA is 

holding Texas to a vastly more stringent 

approach and is designed to judge Texas 

in a way that EPA has not proposed for 

any other State. 

Response: See response to Comments 

3 and 4. EPA also wishes to note that 

that the cited Oregon and Ohio PCP 

exemptions from Major NSR were 

approved by EPA before the court held 

that EPA lacked the authority to exempt 

PCPs from the Major NSR SIP 

requirements. See State of New York v. 

EPA, 413 F 3d. 3 (DC Cir. 2005). These 

exemptions of PCPs from Major NSR are 

not the same as a Minor NSR Standard 

Permit for PCPs. Moreover, they have no 

relationship to the Texas Minor NSR 

Standard Permits SIP. 

Comment 6: TAB commented on the 

history of the PCP programs at EPA and 

in Texas and states that Texas has been 

issuing Standard Permits for PCP 

Projects since 1994. TAB comments that 

the standard permit program was 

administered for several years with no 

suggestion of programmatic abuses, and 

more importantly, no examples given by 

anyone of unintended consequences. 

TAB also asserts that 13 years after 

Texas adopted its pollution control 

project standard permit, EPA finally 

commented on it in the proposal. TAB 

asserts that EPA cannot question that 

TCEQ’s Minor NSR program, including 

the PCP Standard Permit, meets this 

provision of the Act. 

Response: EPA disagrees with the 

comment. EPA had no need to comment 

on the administration of the general 

Standard Permit Program in this action 

because EPA approved Texas’ general 

regulations for Standard Permits in 30 

TAC Subchapter F of 30 TAC Chapter 

116 on November 14, 2003 (68 FR 

64548) as meeting the minor NSR SIP 

requirements. That approval describes 

how the Standard Permit rules met 

EPA’s requirements for new minor 

sources and minor modifications. The 

scope of EPA’s disapproval in this 

action is limited to Texas’s submission 

of a SIP revision, on February 1, 2006, 

adopting a Standard Permit for PCPs at 

30 TAC 116.617—State Pollution 

Control Project Standard Permit. CAA 

section 110 sets out the process for 

EPA’s review of State SIP submittals. 

Nothing in the Act suggests EPA is 

foreclosed from disapproving a 

submittal because it failed to comment 

on it during the State’s rulemaking 

process. For further response to the 

remainder of the comment, see response 

to comments 3 and 4. 

Comment 7: TAB discussed numerous 

guidance memoranda that EPA used to 

support its position that the PCP 

Standard Permit is unapprovable 

because it is not limited to a particular 

narrowly defined source category that 

the permit is designed to cover and can 

be used to make site-specific 

determinations that are outside the 

scope of this type permit. The 

commenter states that these memos are 

not law, and cannot conceivably be used 

as an independent basis to deny 

approval of a SIP revision. Any EPA 

pronouncement that purports to be 

binding must be adopted through notice 

and comment rulemaking. See 

Appalachian Power Company v. EPA, 

208 F.3d 1015, 1023 (DC Cir. 2000). The 

commenter concludes that if EPA wants 

to disapprove a submitted SIP revision 

of a Standard Permit because it is not 

limited to a particular narrowly defined 

source category and that allow site 

specific determinations, then EPA must 

adopt a rule that says so. TAB 

comments that even if the memos could 

legally support EPA’s position, that the 

PCP Standard Permit is unapprovable 

because it not limited to a particular 

narrowly defined source category that 

the permit is designed to cover and can 

be used to make site-specific 

determinations that are outside the 

scope of this type permit, neither of the 

cited memos actually says so. The 

commenter reviewed each cited memo 

and found nothing to suggest any intent 

to fill gaps or qualify any provision of 

40 CFR 51.160. TAB further comments 

on EPA’s cites to a series of Federal 

Registers on actions taken on other 

States’ minor NSR programs. The 

commenter states that these actions offer 

no explanation of how these particular 

actions illuminate EPA’s proposal to 

disapprove Texas’ PCP Standard Permit. 

TAB further comments on EPA’s cites to 

a series of Federal Registers on actions 

taken on other States’ minor NSR 

programs. The commenter states that 

these actions offer no explanation of 

how these particular actions illuminate 

EPA’s proposal to disapprove Texas’ 

PCP Standard Permit. 

Response: EPA disagrees with this 

comment. Section 110 of the Act, in 

particular section 110(a)(2)(C), and 40 

CFR 51.160, require the EPA to 

determine that the State has adequate 

procedures to ensure that construction 

or modification of sources will not 

interfere with attainment of a National 

Ambient Air Quality Standard 

(NAAQS). The CAA grants EPA the 

authority to ensure that the construction 

or modification of sources will not 

interfere with attainment of a National 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56447 

Ambient Air Quality Standard 

(NAAQS). The memoranda cited in the 

proposal were cited for the purpose of 

providing documentary evidence of how 

EPA has exercised its discretionary 

authority when reviewing general 

permit programs similar to the Texas 

Standard Permits SIP. They also 

collectively provide an historical 

perspective on how EPA has exercised 

its discretion in reviewing regulatory 

schemes similar to the submitted PCP 

Standard Permit. The utility of these 

citations is not in the specific subject 

matter they address, but in their 

discussion of the regulatory principles 

to be applied in reviewing permit 

schemes that adopt emission limitations 

created through standardized protocols. 

For example, the memorandum titled 

Approaches to Creating FederallyEnforceable Emissions Limits, 

Memorandum from John S. Seitz, 

OAQPS, November 3, 1993, on page 5 

discusses EPA recognition that 

emissions limitations can be created 

through standardized protocols. 

Likewise, the memorandum titled 

Guidance on Enforceability 

Requirements for Limiting Potential to 

Emit through SIP and section 112 rules 

and General permits, Memorandum 

from Kathie A Stein, Office of 

Enforcement and Compliance 

Assurance, January 25, 1995, discusses 

on page 6 the essential characteristics of 

a general permit that covers a 

homogenous group of sources. 

Again, the Federal Register citations 

provided in the proposal serve to further 

highlight EPA’s practical application of 

the policies enunciated in the above 

referenced memoranda. These 

documents demonstrate that EPA has 

consistently applied these policies with 

respect to approval of the minor source 

permit programs which feature rules 

which are similar to the Texas Standard 

Permits SIP. For example the Federal 

Register at 71 FR 5979, final approval of 

Wisconsin SIP revision, February 6, 

2006, states on page 5981 that EPA 

regards the prohibitory rules and 

general permits are essentially similar 

and goes on to discuss requirements for 

approval of permit schemes of this 

nature. The cited notices address 

requirements for approval of general 

permit programs submitted as SIP 

revisions and are illustrative of 

regulatory policy applied by EPA in 

reviewing Standard Permit programs for 

SIP approval. 

The cumulative effect of these 

documents is to provide the public with 

an insight to EPA’s policy with regard 

to its application of discretionary 

authority in reviewing a variety of 

proposed general permit schemes. In 

this instance, EPA interprets the 

applicable statutes and rules to require 

that Standard Permits be limited to 

similar sources and they cannot be used 

to make site-specific determinations that 

are outside the scope of this type of 

permit. This is consistent with EPA’s 

prior policy pronouncements on this 

subject as evidenced by the memoranda. 

EPA’s interpretation is circumscribed by 

the statutory requirement that such a 

permit program not interfere with the 

attainment of the NAAQS. 

Consequently, the commenter’s failure 

to find relevant information to 

illuminate EPA’s decision to disapprove 

the submitted Texas’ PCP Standard 

Permit is not a reflection on the utility 

of the cited documents. 

Comment 8: TAB concludes by 

observing that there is no evidence of 

Standard Permit Program failure or 

adverse comments. The commenter 

criticizes EPA for not taking action on 

the PCP Standard Permit Program which 

the CAA required action long before 

2009. EPA is further criticized for failing 

to review the record to determine the 

negative impacts of the PCP Standard 

Permit Program during the intervening 

time during which TCEQ has been 

issuing PCP authorizations under this 

program. EPA offers no example of a 

PCP Project that failed to protect public 

health or welfare, or could not be 

enforced, or that did not accomplish its 

valuable purpose of quickly, but 

carefully, authorizing emission 

reduction projects. 

Response: EPA disagrees with this 

comment. The standard for review in 

this context is not the existence of 

adverse comments or failure in the 

implementation of a Standard Permit 

Program SIP. EPA reviews a SIP revision 

submission for its compliance with the 

Act and EPA regulations. CAA 

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

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

2003); Natural Resources Defense 

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

1123 (DC Cir. 1995). This includes an 

analysis of the submitted regulations for 

their legal interpretation. The existence 

of adverse comments is not the 

exclusive criteria for review of 

submitted revisions. In this particular 

instance, EPA’s review is limited to 

Texas’s submission of a SIP revision for 

a new PCP Standard Permit at 30 TAC 

116.617, not a SIP revision for general 

Standard Permits Program. EPA has 

already approved Texas’ general 

regulations for Standard Permits in 30 

TAC Subchapter F of 30 TAC Chapter 

116 on November 14, 2003 (68 FR 

64548) as meeting the minor NSR SIP 

requirements. 

3. What are the grounds for 

disapproving the submitted Minor NSR 

Standard Permit for Pollution Control 

Project SIP revision? 

EPA is disapproving the submitted 

Minor NSR Standard Permit for 

Pollution Control Project SIP revision 

because the PCP Standard Permit, as 

adopted and submitted by Texas to EPA 

for approval into the Texas Minor NSR 

SIP, does not meet the requirements of 

the Texas Minor NSR Standard Permits 

Program. It does not apply to similar 

sources. Because it does not apply to 

similar sources, it lacks the requisite 

replicable standardized permit terms 

specifying how the Director’s discretion 

is to be implemented for the case-bycase determinations. 

EPA received comments from TCEQ, 

the Clinic, and industry regarding the 

proposed disapproval of these 

submitted SIP revisions. See our 

response to these comments in section 

IV.F.2 above. Because the PCP Standard 

Permit, in 30 TAC 116.617, does not 

meet the Texas Minor NSR SIP 

requirements for Standard Permits, EPA 

is disapproving the PCP Standard 

Permit, as submitted February 1, 2006. 

See the proposal at 74 FR 48467, at 

48475–48476, our background for these 

submitted SIP revisions in section 

IV.F.1 above, and our response to 

comments on these submitted SIP 

revisions in section IV.F.2 above for 

additional information. 

G. No Action on the Revisions to the 

Definitions Under 30 TAC 101.1 

We proposed to take no action upon 

the June 10, 2005, SIP revision submittal 

addressing definitions at 30 TAC 

Chapter 101, Subchapter A, section 

101.1, because previous revisions to that 

section are still pending review by EPA. 

See 74 FR 48467, at 48476. We received 

no comments on this proposal. 

Accordingly, we will take appropriate 

action on the submittals concerning 30 

TAC 101.1 in a separate action. As 

noted previously, these definitions are 

severable from the other portions of the 

two SIP revision submittals. 

H. No Action on Provisions That 

Implement Section 112(g) of the Act and 

for Restoring an Explanation That a 

Portion of 30 TAC 116.115 Is Not in the 

SIP Because It Implements Section 

112(g) of the Act 

Texas originally submitted a new 

Subchapter C—Hazardous Air 

Pollutants: Regulations Governing 

Constructed and Reconstructed Sources 

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

22, 1998. EPA has not taken action upon 

the 1998 submittal. In the February 1, 


srobinson on DSKHWCL6B1PROD with RULES3
56448 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

2006, SIP revision submittal, this 

Subchapter C is recodified to 

Subchapter E and sections are 

renumbered. This 2006 submittal also 

includes an amendment to 30 TAC 

116.610(d) to change the cross-reference 

from Subchapter C to Subchapter E. 

These SIP revision submittals apply to 

the review and permitting of 

constructed and reconstructed major 

sources of hazardous air pollutants 

(HAP) under section 112 of the Act and 

40 CFR part 63, subpart B. The process 

for these provisions is carried out 

separately from the SIP activities. SIPs 

cover criteria pollutants and their 

precursors, as regulated by NAAQS. 

Section 112(g) of the Act regulates 

HAPs, this program is not under the 

auspices of a section 110 SIP, and this 

program should not be approved into 

the SIP. These portions of the 1998 and 

2006 submittals are severable. For these 

reasons we proposed to take no action 

on this portion relating to section 112(g) 

of the Act. See 74 FR 48467, at 48476– 

48477. We received no comments on 

this proposal. Accordingly, we are 

taking no action on the recodification of 

Subchapter C to Subchapter (d) and 30 

TAC 116.610(d). 

In a related matter, we are making an 

administrative correction to an earlier 

action which inadvertently removed an 

explanation that 30 TAC 

116.115(c)(2)(B)(ii)(I) is not in the SIP. 

When we approved 30 TAC 116.115 in 

the SIP on September 18, 2002, we 

excluded 30 TAC 116.115(c)(2)(B)(ii)(I) 

because it implemented the 

requirements of section 112(g) of the 

Act. See 67 FR 58679, at 58699. In a 

separate action, we approved revisions 

to 30 TAC 116.115 on April 2, 2010 (75 

FR 16671), which are unrelated to the 

excluded provisions of 30 TAC 

116.115(c)(2)(B)(ii)(I). However, that 

action inadvertently removed the 

explanation that excluded 

116.115(c)(B)(ii)(I) from the SIP. In this 

action, we are making an administrative 

correction to restore into the Code or 

Federal Regulations the explanation that 

the SIP does not include 30 TAC 

116.115(c)(B)(ii)(I). 

I. No Action on Provision Relating to 

Emergency and Temporary Orders 

We proposed to take no action upon 

the February 1, 2006, SIP revision 

submittal which recodified the 

severable provisions relating to 

Emergency Orders from 30 TAC Chapter 

116, Subchapter E to a new Subchapter 

K. See 74 FR 48467, at 48477. We 

received no comments on this proposal. 

Accordingly, we will take appropriate 

action on the Emergency Order 

requirements in a separate action, 

according to the Consent Decree 

schedule. 

J. Responses to General Comments on 

the Proposal 

Comment 1: The following 

commenters support EPA’s proposal to 

disapprove the Texas NSR Reform 

Program, 1-hour NNSR, 1997 8-hour 

NNSR, and PCP Standard Permit: 

HCPHES; several members of the Texas 

House of Representatives; the Sierra 

Club; the City of Houston, and the 

Clinic. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s NSR 

Reform Program, 1-hour NNSR, 1997 8- 

hour NNSR, and PCP Standard Permit, 

as discussed in detail at in the proposal 

at 74 FR 48467, at 40471–48476, and 

further support EPA’s action to 

disapprove the Texas NSR Reform 

Program submission. 

Comment 2: The SCMS and PSR sent 

numerous similar letters via e-mail that 

relate to this action. These comments 

include 1,789 identical letters from 

SCMS (sent via e-mail) and a comment 

letter from PSR, which support EPA’s 

proposed ruling that major portions of 

TCEQ air permitting program do not 

adhere to the CAA and should be 

thrown out. While agreeing that the 

proposed disapprovals are a good first 

step, the commenters state that EPA 

should take bold actions such as halting 

any new air pollution permits being 

issued by TCEQ utilizing TCEQ’s 

current illegal policy; creating a 

moratorium on the operations of any 

new coal fired power plants; reviewing 

all permits issued since TCEQ adopted 

its illegal policies and requiring that 

these entities resubmit their 

applications in accordance with the 

Federal CAA; and putting stronger rules 

in place in order to reduce globalwarming emissions and to make sure 

new laws and rules do not allow 

existing coal plants to continue 

polluting with global warming 

emissions. 

The commenters further state that 

Texas: (1) Has more proposed coal and 

petroleum coke fired power plants than 

any other State in the nation; (2) Is 

number one in carbon emissions; and 

(3) Is on the list for the largest increase 

in emissions over the past five years. 

Strong rules are needed to make sure the 

coal industry is held responsible and 

that no permits are issued under TCEQ’s 

illegal permitting process. Strong 

regulations are vital to cleaning up the 

energy industry and putting Texas on a 

path to clean energy technology that 

boosts economic growth, creates jobs in 

Texas, and protects the air quality, 

health, and communities. 

In addition, SCMS sent 273 similar 

letters (sent via e-mail) that contained 

additional comments that Texas should 

rely on wind power, solar energy, and 

natural gas as clean alternatives to coal. 

Other comments expressed general 

concerns related to: impacts on global 

warming, lack of commitment by TCEQ 

to protect air quality, the need for clean 

energy efficient growth, impacts upon 

human health, endangerment of 

wildlife, impacts on creation of future 

jobs in Texas, plus numerous other 

similar concerns. The PSR further 

commented that as health care 

professionals, they are concerned about 

the health effects they are seeing in their 

patients due to environmental toxins in 

the air and water. 

Response: To the extent that the 

SCMS and PSR letters comment on the 

proposed disapproval of the submitted 

1-hour ozone standard, 1997 8-hour 

ozone standard, and NSR Reform 

Programs, they support EPA’s action to 

disapprove these submitted rules. The 

remaining comments are outside the 

scope of our actions in this rulemaking. 

Comment 3: TCEQ understands that 

EPA’s review was conducted by 

applying the current applicable law. 

The Executive Director will conduct a 

review of all EPA comments and 

propose changes to the rules proposed 

for disapproval. 

TCEQ understands EPA’s concerns 

with issues regarding, among other 

things, applicability, clarity, 

enforceability, replicable procedures, 

recordkeeping, and compliance 

assurance. Specifically, the Executive 

Director will consider rulemaking to 

address the following concerns: 

• Clarify references for major 

stationary sources and major 

modifications to EPA rules for 

nonattainment and maintenance area 

definitions and removing rule language 

indicating that the 1-hour thresholds 

and offsets are not effective unless EPA 

promulgates rules, and clarifying the 

applicability of nonattainment 

permitting rules; 

• Clarify the definition of baseline 

actual emission rate, and clarify the 

inclusion of maintenance, startup, and 

shutdown emissions when determining 

baseline actual emissions; and 

• Add missing items and clarify the 

existing requirements to obtain and 

comply with a PAL to meet FNSR 

requirements. 

New and amended rules will be 

subject to the statutory and regulatory 

requirements for a SIP revision, as 

interpreted in EPA policy and guidance 

on SIP revisions, as well as applicable 

Texas law. The revised program will 

ensure protection of the NAAQS, and 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56449 

26For example, 30 TAC 106.261, 106.262, 

106.263, and 106.264. 

27See ‘‘Letter to Dan Eden, TCEQ Deputy 

Director’’ from Carl Edlund, EPA Region 6, Director 

Multimedia Planning and Permitting Division 

(March 12, 2008) (‘‘EPA has consistently expressed 

concern about PBRs that authorize a category of 

emissions, such as startup or shutdown emissions, 

or that modify an existing NSR permit.’’) 

(Attachment 10 of the Clinic’s comments); ‘‘Letter 

to Richard Hyde, TCEQ, Director, Air Permits 

Division’’ from Jeff Robinson, EPA Region 6, Chief, 

Air Permits Section (November 16, 2007) 

(Attachment 11 of then Clinic’s comments); ‘‘Letter 

to Steve Hagle, TCEQ, Special Assistant, Air 

Permits Director’’ from David Neleigh, EPA Region 

6, Chief, Air Permits Section (March 30, 2006) 

(Attachment 12 of the Clinic’s comments); ‘‘Letter 

to Lola Brown, TCEQ, Office of Legal Services’’ from 

David Neleigh, EPA Region 6, Chief, Air Permits 

Section (February 3, 2006) (Attachment 13 of the 

Clinic’s comments). 

demonstrate noninterference with the 

Texas SIP control strategies and 

reasonable further progress. 

In addition, and as noted, TCEQ will 

address EPA’s concerns regarding 

public participation in a separate 

rulemaking action. 

Response: EPA appreciates TCEQ’s 

commitment to consider rulemaking to 

correct the deficiencies in the submitted 

1-hour ozone standard, 1997 8-hour 

ozone standard, and NSR Reform 

Programs. However, our evaluation is 

based on the submitted rules that are 

currently before us. 

Comment 4: The Clinic further asks 

that EPA take action to halt Texas’s use 

of permits-by-rule that, like the PCP 

standard permit, fail to meet minimum 

standards for minor source permitting 

and for general permits and 

exclusionary rules. Texas has adopted 

and is applying a number of permits-byrule that are not source specific, do not 

include specific emission limitations or 

monitoring, and are inadequate to 

protect the NAAQS. These include the 

permits-by-rule in Subchapter K of 

Chapter 106 of the Texas rules. In 

addition, like the PCP, some of these 

permits—rather than authorizing 

specific types of minor emission source 

categories—can be used to increase 

authorized emissions from any type of 

facility.26 EPA has repeatedly stated that 

Texas’s current use of permit-by-rule 

violates the Act and Texas’s approved 

SIP.27 Yet EPA has failed take action to 

stop the illegal use of permits-by-rule. 

Response: Any action on Texas’s use 

of permits-by-rule, as requested by the 

commenter, is outside the scope of our 

actions in this rulemaking. 

Comment 5: Concerned Citizens of 

Grayson expressed concerns about a hot 

mix asphalt plant located near the small 

town of Pottsboro, TX, which is located 

near public schools and private 

residences and has caused significant 

disruptions in the lives of those liming 

nearby because or ‘‘the noxious stench 

repeatedly emitted from the plant.’’ The 

commenters are concerned because the 

plant was authorized under a Standard 

Permit issued by TCEQ which only had 

public participation and comment when 

TCEQ issued the Standard Permit for 

hot mix asphalt plants and there was no 

opportunity for public participation and 

comment on a source that applied for 

authorization under a Standard Permit 

for a specific source after the Standard 

Permit has been authorized. 

Response: These comments do not 

relate to the submitted Standard Permit 

for Pollution Control Projects that EPA 

is reviewing in this action. These 

comments, which relate to a Standard 

Permit for Hot Mix Asphalt Plants, are 

outside the scope of this action. 

Comment 6: AECT believes that EPA’s 

proposed disapproval has injected 

uncertainty into the Texas permitting 

program, will cause tremendous 

operational-uncertainty for companiesin light of significant air emission rule 

proposals considered by EPA (e.g. 

mercury MACT, PSD Tailoring Rule), 

this and other disapprovals may 

jeopardize or substantially delay the 

ability of electric generators to obtain 

necessary air permits to install pollution 

controls that will be necessary to 

comply with current and future rules; 

and prompt EPA approval of the 

proposed TCEQ NSR SIP Revisions is 

needed in order to provide the 

regulatory certainty necessary for 

economic development, creation of 

critically needed jobs, and generation of 

affordable, reliable electricity in Texas. 

Response: We are disapproving the 

submitted Texas NSR Reform Program, 

1-hour NNSR, and PCP Standard Permit 

programs because they do not meet 

applicable requirements of the Act, as 

discussed herein. EPA is required to 

review a SIP revision for its compliance 

with the Act and EPA regulations. See 

CAA section 110(k)(3); see also BCCA 

Appeal Group v. EPA, 355 F 3d.817, 822 

(5th Cir 2003); Natural Resources 

Defense Council, Inc. v. Browner, 57 

F.3d 1122, 1123 (DC Cir. 1995). 

Comment 7: BCCA and TIP comment 

that under Texas’s integrated air 

permitting regime, air quality in the 

State is demonstrating strong, sustained 

improvement. The commenters cite to 

substantial reductions in nitrogen 

oxides and improvements in the ozone 

concentrations in the HoustonGalveston and Dallas-Fort Worth ozone 

nonattainment areas. 

Response: We are disapproving the 

submitted Texas NSR Reform Program, 

1997 8-hour NNSR, 1-hour NNSR, and 

PCP Standard Permit programs because 

they do not meet applicable 

requirements of the Act, as discussed 

herein. EPA is required to review a SIP 

revision submission for its compliance 

with the Act and EPA regulations. CAA 

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

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

2003); Natural Resources Defense 

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

1123 (DC Cir. 1995). 

Even if the commenters’ premises are 

to be accepted, they fail to substantiate 

their claim that the Texas NSR Reform 

Program, 1-hour NNSR, 1997 8-hour 

NNSR, and PCP Standard Permit 

programs have had a significant impact 

on improving air quality in Texas by 

producing data showing that any such 

gains are directly attributable to the 

submitted Programs, and are not 

attributable to the SIP-approved control 

strategies (both State and Federal 

programs) or other Federal and State 

programs. They provide no explanation 

or basis for how their numbers were 

derived. 

Furthermore, since the commenters 

thought EPA was acting inconsistently, 

they should have identified SIPs that are 

inconsistent with our actions and 

provided technical, factual information, 

not bare assertions. 

Comment 8: GCLC, TIP, BCCA, AECT, 

and TCC comment that EPA ignores the 

fact that the Texas NSR Program has had 

a significant impact on improving air 

quality in Texas. TCEQ commented that 

significant emission reductions have 

been achieved by the submitted Program 

through the large number of 

participating grandfathered facilities, 

which resulted in improved air quality 

based upon the monitoring data. 

BCCA, TAB, TxOGA, and ERCC 

comment that the legal standard for 

evaluating a SIP revision for approval is 

whether the submitted revision 

mitigates any efforts to attain 

compliance with a NAAQS. EPA’s 

failure to assess the single most 

important factor in the submitted 

Program, the promotion of continued air 

quality improvement, is inconsistent 

with case law and the Act and is a 

deviation from the SIP consistency 

process and national policy. EPA should 

perform a detailed analysis of approved 

SIP programs through the United States 

and initiate the SIP consistency process 

within EPA to ensure fairness to Texas 

industries. 

Response: EPA is required to review 

SIP revisions submission for their 

compliance with the Act and EPA 

regulations. CAA 110(k)(3); See also 

BCCA Appeal Group v. EPA, 355 F 3d. 

817, 822 (5th Cir. 2003); Natural 

Resources Defense Council, Inc. v. 

Browner, 57 F.3d 1122, 1123 (DC Cir. 

1995). EPA is not disapproving the 


srobinson on DSKHWCL6B1PROD with RULES3
56450 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

entire Texas NSR SIP. Specifically, on 

September 23, 2009, EPA proposed to 

disapprove revisions to the Texas NSR 

SIP submitted by the State of Texas that 

relate to the Nonattainment NSR 

(NNSR) Program for the 1-Hour Ozone 

Standard and the 1997 8-Hour Ozone 

Standard, NSR Reform, and a specific 

Standard Permit. Further, EPA is not 

required to initiate the SIP consistency 

process within EPA unless the pending 

SIP revision appears to meet all the 

requirements of the Act and EPA’s 

regulations but raises a novel issue. EPA 

is disapproving the submitted revisions 

because they fail to meet the Act and 

EPA’s regulations. Because the 

submitted revisions fail to meet the 

requirements for a SIP revision, the SIP 

consistency process is not relevant. 

Comment 9: The ERCC comments that 

to avoid negative economic 

consequences EPA should exercise 

enforcement discretion statewide for 

sources that obtained government 

authorization in good faith and as 

required by TCEQ, the primary 

permitting authority. EPA should not 

require any injunctive relief and should 

consider penalty only cases in this 

rulemaking. 

Response: EPA enforcement of the 

CAA in Texas is outside the scope of 

our actions. 

V. Final Action 

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

for the reasons stated above, EPA is 

disapproving the following: (1) The 

submitted definition of ‘‘best available 

control technology’’ in 30 TAC 

116.10(3); (2) Major NSR in areas 

designated nonattainment for the 1-hour 

ozone NAAQS; (3) Major NSR in areas 

designated nonattainment for the 1997 

8-hour ozone NAAQS; (4) Major NSR 

SIP requirements for PALs; (5) Non-PAL 

aspects Major NNSR SIP requirements; 

and (6) submittals for a Minor Standard 

Permit for PCP. EPA is also proposing 

to take no action on certain severable 

revisions submitted June 10, 2005, and 

February 1, 2006. 

Specifically, we are disapproving the 

following regulations: 

• Disapproval of the definition of best 

available control technology at 30 TAC 

116.10(3), submitted March 13, 1996, 

and July 22, 1998; 

• Disapproval of revisions to 30 TAC 

116.12 and 116.150 as submitted June 

10, 2005; 

• Disapproving revisions to 30 TAC 

116.12, 116.150, 116.151; and 

disapproving new sections at 30 TAC 

116.121, 116.180, 116.182, 116.184, 

116.186, 116.188, 116.190, 116.192, 

116.194, 116.196, 116.198, 116.610(a), 

and 116.617, as submitted February 1, 

2006. 

We are also taking no action on the 

provisions identified below: 

• The revisions to 30 TAC 101.1— 

Definitions, submitted June 10, 2005; 

• The recodification of the existing 

Subchapter C under 30 TAC Chapter 

116 to a new Subchapter E under 30 

TAC Chapter 116; 

• The provisions of 30 TAC 

116.610(d); and 

• The recodification of the existing 

Subchapter E under 30 TAC Chapter 

116 to a new Subchapter K under 30 

TAC Chapter 116. 

Finally, we are making administrative 

corrections to reinstate an explanation 

to the SIP-approved 30 TAC 116.115, 

that was inadvertently removed in a 

separate action on April 2, 2010 (75 FR 

16671). 

Sources are reminded that they 

remain subject to the requirements of 

the Federally approved Texas Major 

NSR SIP and subject to potential 

enforcement for violations of the SIP 

(See EPA’s Revised Guidance on 

Enforcement During Pending SIP 

Revisions, dated March 1, 1991). 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This final action has been determined 

not to be a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

SIP disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

information collection burdens but 

simply disapproves certain State 

requirements for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

Because this final action does not 

impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

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. This rule will not 

have a significant impact on a 

substantial number of small entities 

because SIP approvals and disapprovals 

under section 110 and part D of the 

Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the States 

are already imposing. 

Furthermore, as explained in this 

action, the submissions do not meet the 

requirements of the Act and EPA cannot 

approve the submissions. The final 

disapproval will not affect any existing 

State requirements applicable to small 

entities in the State of Texas. Federal 

disapproval of a State submittal does 

not affect its State enforceability. After 

considering the economic impacts of 

today’s rulemaking on small entities, 

and because the Federal SIP disapproval 

does not create any new requirements or 

impact a substantial number of small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of State action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. U.S. 

EPA, 427 U.S. 246, 255–66 (1976); 42 

7410(a)(2). 

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 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 Federal action determines that preexisting requirements under State or 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56451 

local law should not be approved as part 

of the Federally approved SIP. It 

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 

power and responsibilities among the 

various levels of government.’’ 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain State 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (59 FR 22951, November 9, 

2000), because the SIP EPA is 

disapproving would not apply in Indian 

country located in the State, and EPA 

notes that it will not impose substantial 

direct costs on Tribal governments or 

preempt Tribal law. This final rule does 

not have Tribal implications, as 

specified in Executive Order 13175. It 

will not have substantial direct effects 

on Tribal governments, on the 

relationship between the Federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes. This 

action does not involve or impose any 

requirements that affect Indian Tribes. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This SIP 

disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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 the Office 

of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

EPA believes that this action is not 

subject to requirements of Section 12(d) 

of NTTAA because application of those 

requirements would be inconsistent 

with the Clean Air Act. Today’s action 

does not require the public to perform 

activities conducive to the use of VCS. 

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 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

State choices, based on the criteria of 

the Clean Air Act. Accordingly, this 

action merely disapproves certain State 

requirements for inclusion into the SIP 

under section 110 and subchapter I, part 

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

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

L. Petitions for Judicial Review 

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 15, 

2010. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 


srobinson on DSKHWCL6B1PROD with RULES3
56452 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: August 31, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7410 et seq. 

Subpart SS—Texas 

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

‘‘EPA–Approved Regulations in the 

Texas SIP’’ is amended by revising the 

entry for section 116.115 to read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA—APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

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

* * * * * * * 

Subchapter B—New Source Review Permits 

* * * * * * * 

Division 1—Permit Application 

Section 116.115 ..... General and Special Conditions.8/20/2003 4/2/2010, 75 FR 16671 .... The SIP does not include subsection 

116.115(c)(2)(B)(ii)(I). 

* * * * * * * 

* * * * * 

■ 3. Section 52.2273 is amended by 

adding a new paragraph (d) to read as 

follows: 

§ 52.2273 Approval status. 

* * * * * 

(d) EPA is disapproving the Texas SIP 

revision submittals under 30 TAC 

Chapter 116—Control of Air Pollution 

by Permits for New Construction and 

Modification as follows: 

(1) The following provisions in 30 

TAC Chapter 116, Subchapter A— 

Definitions: 

(i) 30 TAC 116.10—General 

Definitions—the definition of ‘‘BACT’’ in 

30 TAC 116.10(3), adopted February 14, 

1996, and submitted March 13, 1996; 

and repealed and readopted June 17, 

1998, and submitted July 22, 1998; 

(ii) The revisions to 30 TAC 116.12— 

Nonattainment Review Definition, 

adopted May 25, 2005, and submitted 

June 10, 2005; 

(iii) The revisions to 30 TAC 116.12— 

Nonattainment and Prevention of 

Significant Deterioration Definitions, 

adopted January 11, 2006, and 

submitted February 1, 2006 (which 

renamed the section title); 

(2) The following section in 30 TAC 

Chapter 116, Subchapter B—New 

Source Review Permits, Division 1— 

Permit Application: 30 TAC 116.121— 

Actual to Projected Actual Test for 

Emission Increase, adopted January 11, 

2006, and submitted February 1, 2006; 

(3) The following sections in 30 TAC 

Chapter 116, Subchapter B—New 

Source Review Permits, Division 5— 

Nonattainment Review: 

(i) Revisions to 30 TAC 116.150—New 

Major Source or Modification in Ozone 

Nonattainment Area—revisions adopted 

May 25, 2005, and submitted June 10, 

2005; and revisions adopted January 11, 

2006, and submitted February 1, 2006; 

(ii) Revisions to 30 TAC 116.151— 

New Major Source or Modification in 

Nonattainment Areas Other Than 

Ozone—revisions adopted January 11, 

2006, and submitted February 1, 2006; 

(4) The following sections in 30 TAC 

Chapter 116, Subchapter C—Plant-Wide 

Applicability Limits, Division 1—PlantWide Applicability Limits: 

(i) 30 TAC 116.180—Applicability— 

adopted January 11, 2006, and 

submitted February 1, 2006; 

(ii) 30 TAC 116.182—Plant-Wide 

Applicability Limit Permit 

Application—adopted January 11, 2006, 

and submitted February 1, 2006; 

(iii) 30 TAC 116.184—Application 

Review Schedule—adopted January 11, 

2006, and submitted February 1, 2006; 

(iv) 30 TAC 116.186—General and 

Special Conditions—adopted January 

11, 2006, and submitted February 1, 

2006; 

(v) 30 TAC 116.188—Plant-Wide 

Applicability Limit—adopted January 

11, 2006, and submitted February 1, 

2006; 

(vi) 30 TAC 116.190—Federal 

Nonattainment and Prevention of 

Significant Deterioration Review— 

adopted January 11, 2006, and 

submitted February 1, 2006; 

(vii) 30 TAC 116.192—Amendments 

and Alterations—adopted January 11, 

2006, and submitted February 1, 2006; 

(viii) 30 TAC 116.194—Public Notice 

and Comment—adopted January 11, 

2006, and submitted February 1, 2006; 

(ix) 30 TAC 116.196—Renewal of a 

Plant-Wide Applicability Limit Permit— 

adopted January 11, 2006, and 

submitted February 1, 2006; 

(x) 30 TAC 116.198—Expiration and 

Voidance—adopted January 11, 2006, 

and submitted February 1, 2006; 


srobinson on DSKHWCL6B1PROD with RULES3
Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56453 

(5) The following sections in 30 TAC 

Chapter 116, Subchapter F—Standard 

Permits: 

(i) Revisions to 30 TAC 116.610— 

Applicability—paragraphs (a)(1) 

through (a)(5) and (b)—revisions 

adopted January 11, 2006, and 

submitted February 1, 2006; 

(ii) 30 TAC 116.617—State Pollution 

Control Project Standard Permit— 

adopted January 11, 2006, and 

submitted February 1, 2006; 

[FR Doc. 2010–22670 Filed 9–14–10; 8:45 am] 

BILLING CODE 6560–50–P 


srobinson on DSKHWCL6B1PROD with RULES3