### ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-0AR-2010-0620; FRL- --.J 

### Approval and Promulgation ofAir Quality Implementation Plans; Texas; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention ofSignificant Deterioration (PSD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA 

### is taking direct 

### final action approving revisions to the Texas PSD State 

### Implementation Plan (SIP). EPA is approving a SIP revision submitted February 1,2006, as amended 

### bya SIP revision submitted July 16, 2010. This action makes no substantive changes to the Texas PSD SIP; it merely approves reorganization and renumbering ofthe Texas PSD SIP 

### rules. Further, the July 16, 2010 submission corrects certain deficiencies identified in EPA's September 23, 2009 proposed disapproval. The EPA is approving these revisions pursuant to section 110 and part C ofthe Federal Clean Air Act (Act or CAA).

DATES: This direct final rule will 

### be effective on [Insert date 60 days from date of publication in the Federal Register' without further notice, unless EPA receives relevant adverse comments by 

### IInse" date 30 days from date ofpublication in the Federal Register],

### 2 

### IfEPA 

### receives such comments, EPA willpublish atimely withdrawal 

### ofthedirect final rule in the Federal Register 

### informing the public 

### that this rule will nottake effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-0AR-2010- 

### 0620, by one ofthe 

### following methods:

· Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions forsubmitting comments.
· U.S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm Please click on "6PD" (Multimedia) and select "Air" before submitting comments.

· E-mail: Mr. Stanley M. Spruiell atspruieILstanley@epa,goy, Please also cc 

### the person listed in the FOR FURTHER INFORMATION CONTACT section below.

Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), at fax number 214-665- 7263.



### · Mail: Mr. 

### Stanley M. Spruiell, AirPermits Section (6PD-R), Envirorunental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

### 3 . Hand or CourierDelivery: Mr. StanleyM. Spruiell, Air Permits Section(6PD-R), Environmental Protection Agency, 1445Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of8:00am and 4:00pm weekdays except for legal holidays. Special arrangements should 

### bemade for deliveries ofboxed information.



### Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-20 10-0620. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal 

### information provided, unless the comment includes information claimed to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Do not submit information that you consider to 

### be 

### eBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an "anonymous access" system, which means EPA will not know your identity or contact information unless you provide it in the body ofyour comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part ofthe comment that is placed in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends that you include your name and other contact information in the body ofyour comment and with any disk or CD-ROM you submit. 

### IfEPA cannot read your comment due to teclmical difficulties and cannot contact you for clarification, EPA may not 

### be able to consider your comment. Electronic files should avoid the use ofspecial characters, any form of encryption, and 

### be free ofany defects or viruses.

### 4


### Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., 

### eBI or other information 

### whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 

### will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Permits Section (6PD-R), Envirorunental 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 of8:30am and 4:30pm weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at (214) 665-7253 to make an appointment. Ifpossible, please make the appointment at least two working days in advance ofyour visit. There will be a 15 cent per page fee for making photocopies ofdocuments. On the day ofthe visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment:

Texas Commission on Enviromnental Quality, Office ofAir Quality, 12124 Park 35 Circle, Austin, Texas 78753.

### 5 FOR FURTHER INFORMAnON 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 nwnber 214-665-7263; e-mail address spruiell.stanley@epa.gov.



### SUPPLEMENTARY INFORMAnON:
Throughout this document wherever "we," "us," or"our" is used, we mean theEPA.

Outline 

### I. What Action is EPA Taking?

II. What did the State Submit? III. What is the Backgroundfor this Action? 

# e,D IV. What Commentsdid EPA Receive on the Proposed Disapprovalofthe 2006j!9t'J'SIP RevisionSubmittal?


### V. What are the Grounds for Approval?

### 6



### VI. Final Action
VII. Statutoryand Executive Order Reviews



### I. What Action is EPA Taking?



### EPAis approving 

### the revisions to the Texas SIP PSD Program (Program) that

### amend Title 30 ofthe Texas Administrative Code (30 TAC) 116.160 - Prevention ofSignificant 

### Deterioration Requirements. This includes SIPrevisions to theProgram as follows: the revision which relates to the PSD Program that Texas submitted February I, 2006 (as adopted by the 

### Texas Commissionon Environmental Quality (TCEQ) on January 11,2006), and a revision submitted July 16,2010 (as adopted by TCEQ on June 2, 2010) that amends the 2006 submittal. 

### Weare approving these revisions as meetingtheMajorNSR PSD SIPrequirements.
Specifically, we are approving thenonsubstantive 

### reorganizing and renumbering of30 TAC 116.160 as 

### submitted in 2006 and as revisedin 2010. Ourfinal actionensures thatthe Texas PSD SIPremains the same in substance 

### with improvement inclarity.

### 7 II. What did the State Suhmit?



### On September 23, 2009, EPAproposed to disapprove the SIP revisions submittals relating to Prevention ofSignificant Deterioration (PSD); Nonattainment NSR (NNSR) for the 1- Hour Ozone Standard, NNSR for the 1997 8-Hour Ozone Standard, NSR Reform, and a Standard Permit (under Docket No. EPA-R06-0AR-2006-0133). See 

### the proposal at 74 FR 48467, at 

### 48472. Weproposed to disapprove the submitted PSD revisions in 30 TAC 116.160because:

• This 2006 SIP revision submittal removed from the State rules theincorporation by reference ofthe 

### Federal PSD definition of"best 

### available control technology (BACT)" as defined in 40 CFR 51.166(b)(12). The currently approved PSD SIP includes the Federal definition ofPSD BACT. See 30 TAC 116.160(a); and



### • The 2006 SIP submittal also removed from the State rules, the PSD SIP requirement at 40 CFR 52.21(r)(4) that the State previously had incorporated by reference. The currently approved PSD SIP mandates this requirement. See 30 TAC I 16.160(a). 

### This provisionspecifies that

### if a project becomes amajor stationary source ormajor 

### modification solelybecause ofarelaxation ofanenforceable limitation on the source ormodification's capacity to emit apollutant, then the source ormodification is subject to PSD as ifconstruction had not yetcommenced. The State'sactionin eliminating that requirement means the State'srules will notregulate thesetypes of

### 8 

### major stationary sources ormodifications as stringently asthe Federal program orthe current approved Texas PSD SIP.



### The 2006 SIPrevisionsubmittal included a nonsubstantive reorganizing, and renumbering ofthe 

### State's PSD rules but for theremoval ofthe 

### two requirements described above. Thereorganization and renumbering of30 TAC 116.160 (submitted in 2006) includes the following:



### • a revision to 30 TAC 116.160(a);

• deletion ofthe existing 30 TAC 116.160(b);

• addition ofanew 30 TAC 116.160(b);

• deletion ofthe existing 30 TAC 116.160(c), including the removal ofthe two 

### definitionsof"building, 

### structure, facility, or installation" and "secondary emissions" from 30 TAC 116.160(c), which had duplicated the definitions ofthose tenms as currently defined in the SIP at 30 TAC 116.12(4) and (17), respectively;



### • portions ofthe 

### existing 30 TAC 

### 116.160(a) and (b) werereorganized into a new and revised 30 TAC 116. 160(c)(I), (2), and (3);

### 9
• moving the existing 30 TAC 116.160(d) into a new 30 TAC 116.160(c)(4); and
• finally, moving the existing 30 TAC 116.160(e) into new 30 TAC 116.160(d).



### EPA finds thatthese submitted changesarenonsubstantive and continue to meet the Act 

### and EPA'sPSD SIP regulations, with theexception of theremoval oftheincorporation of the PSD BACT definition in 40 CFR 52.21(b)(12) and the removal ofthe incorporation ofthe provisions in 40 CFR 52.2I(r)(4) PSD SIP requirement.
On July 16, 2010, TCEQ submitted revisions to 30 TAC 116.160. These revisions 

### revised theState's rules asfollows:

• Incorporated by reference the federal PSD BACT definition in 40 CFR 52.21(b)(12). See 

### 30 TAC 116.160(c)(l)(A). This corrects a deficiency identified in the 2009 proposal.
• Incorporated by reference the requirements of40 CFR 52.2I(r)(4). See 

### 30 TAC I 16.160(c)(2)(A). This corrects a deficiency identified in the 2009 proposal.10



### • Incorporated 

### by reference the requirements of40 CFR52.21G)- Control 

### technology review. 

### See 30 TAC I 16.160(c)(2)(C). This provision identifies the circumstances under which PSD BACT must be required for the construction ofa major stationary 

### source and amajor modification that is subject toPSD.
TCEQ adopted andsubmitted forthe first time, incorporation byreference ofthe Federal PSD requirement at 40 CFR 52.210) for approval by EPA into the Texas PSD SIP to ensure that 

### it 

### is clear that major stationary sources and major modifications inattainmentlunclassifiable designated areas must meet the PSD requirement 

### by performing a PSD BACT analysis. The Texas NSR SIP includesnot only thefederal PSD BACT definitionbutalso a requirement for a
source to perform a State BACT analysis. 

### See 30 TAC 116.111(a)(2)(C). EPA relied upon this 

### SIP provision in its 1992 originalapproval ofthe 

### Texas PSD SIP as meeting the PSD requirement of40 CFR 52.210). 

### 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 ofthe 

### Texas PSD SIP in 1992, there has been some confusion aboutthe distinctionbetween a StateMinorNSR BACT definitionanda PSD MajorNSR BACT definition andthe requirement that a sourcemust perform the relevant PSD BACT analysis 1 TCEQ's July 2010 submittal's inclusion ofthe PSD 

### requirement of40 CFR 52.21G) is aimed atclarifying the Texas PSD SIP in thisrespect.

I The January 1972Texas NSRrules, as revised inJuly 1972,require aproposed newfacility ormodification to utilize "best available control technology, with consideration to the technical practicability and economic reasonableness ofreducing oreliminating theemissions resulting from thefacility." Thisdefinition ofBACT is from the Texas Clean AirAct. When EPAapproved theTexasPSDprogram SIPrevision submittals, including the

### 11 Based upon our review, we find that the 2010 SIP revision submittal corrects the deficiencies identified in the September 2009 proposed disapproval concerning the 2006 SIP revision submittal. Consequently, because Texas has corrected the deficiencies, we are now approving the PSD Program revisions submitted February 1, 2006 and as amended July 16, 2010. 

### Our final action ensures that 

### the substance ofthe Texas PSD SIP continues to remain the same and approval ofthe two SIP revision submittals improves the clarity ofthe Texas PSD SIP. See 

### sections III through V ofthis preamble, the proposal FRN, and the technical support document (TSD) 

### for further information on the basis for approving this submitted Texas PSD Program. 

### Therefore, EPA is approving the amendments to 30 TAC 116.160, as submitted on February I, 2006 and as amended on July 16, 2010.

III. What is the Background for this Action?

Tables 1 and 2 below summarize the changes 

### that are in the two SIP revision submittals. A summary ofEPA'5 evaluation ofeach section and the basis for this direct final action is discussed in sections IV and V ofthis preamble. The TSD includes a detailed evaluation ofthe submittals.

State's incorporation by reference ofthe Federal definition ofPSD BACT, in 1992, both EPA and Texas interpreted the use ofthe TCAA BACT definition to befor Minor NSR SIP pennitting purposes only. EPA specifically found that the State's TCAA BACT defmition did not meet the Federal PSD BACT definition. We required the use ofthe

### 12 Table I

- Summary ofEach SIP Submittal that is Affected by this Action Title afSIP Date Date of Regulations affected

submittal submitted State to EPA edoetlon Federal New Source 2/1/2006 1/1 tl2006 30 TAC 116.160

- Prevention ofSignificant Deterioration Review Permit Rules Requirements. Reform 

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

## • This change resulted in removal ofcross-references to 40 CFR 52.21(b)(l2) and 52.21(r)(4) which are critical to administration and enforcement ofPSD requirements. 

## • The change included the removal ofdefmitions of"building, structure, facility, on installation" and "secondary emissions" in 30 TAC 116.160(cXl)-(2), respectively. The removal ofthese definitions is nonsubstantive because these terms are currently defined with the same defmitions in the Texas SIP at 30 TAC 116.12(4\ and fJ7\ resoecdvelv. Best Available 7116/2010 61212010 30 TAC 116.160 Prevention ofSignificant Deterioration Control Technology Requirements. (BACT) in 

# • Re-instatement ofcross-references to 40 CFR 52.21(b)(I2) Prevention of and 52.21(,)(4). Significant 

## • Added cross-reference to 40 CFR 52.21

### G)

- Control Deterioration (PSD) technology review. Permittine 

### Table 2 - Summary ofEach Regulation that is Affected by this Action Section Title Date Date of Comments submitted State adontion Chanter 116 Control ofAir Pollution bv Permits New Construction or Modification Subehanter B New Source Review Permits Division 6 Prevention ofSi"nificant Deterioration Review Section 116.160 Prevention of 21112006 111112006 

## • Rule changed to reorganize existing SIP· Significant approved rule. Deterioration 

## • This change resulted in removal ofcrossRequirements references to 40 CFR 52.21(b)(12) and 52.21(r)(4) which are critical to administration and enforcement ofPSD reouirements. 711612010 61212010 

## • Re-instatement ofcross-references to 40 CFR 52.21(b)(12) and52.21(')(4). 

## • Added cross-reference to 40 CFR 52.21

### G)

- Control technoloav review.

Federal PSD BACT defmition for PSD SIP permitting purposes. See the proposal and final approval ofthe Texas PSD SIP at 54 FR 52823 (December 22,1989) and 57 FR 28093 (June 24,1992).13 IV. What Comments did EPA Receive on the Proposed Disapproval ofthe 2006 SIP 

### Revisions Submittal?
In response to our September 23,2009, proposed disapproval ofthe submitted revisions to Texas' PSD Program, we received comments from the following: Baker Botts, L.L.P., on behalfofBCCA Appeal Group (BCCA); Baker Botts, L.L.P., on behalfofTexas Industrial Project (TIP); Bracewell & Guiliani, L.L.P., on behalfofthe Electric Reliability Coordinating Council (ERCC); GulfCoast Lignite Coalition (GCLC); Texas Chemical Council (TCC); Texas Commission on Environmental Quality (TCEQ); Members ofthe Texas House of Representatives; University ofTexas at Austin School ofLaw- Environmental Clinic (the Clinic)
on 

### behalfof: 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 ofTexas, Sustainable Energy and Economic Development Coalition, Robertson County: Our Land, Our Lives, Texas Protecting Our Land, Water and Environment, Citizens for a Clean Environment, Multi-County Coalition, and Citizens Opposing Power Plants for Clean Air.

Below is a summary ofthe comments and our responses.14 

### Comment 1: TCEQ commented on the lack ofa specific definition ofPSD BACT and the absence ofa requirement contained in 40 CFR 52.21(r)(4). TCEQ noted that although these references are currently missing from 30 TAC 116.160, its permitting actions are implemented in
a manner that does not circumvent federal New Source Review (FNSR) requirements and does not allow a control technology review to be conducted that results in a technology that is less than PSD BACT as defined in the federal rule. TCEQ agrees that ifa project becomes a major
source or major modification through the relaxation ofan enforceable limitation, PSD review is required, and TCEQ complies with that requirement in its permitting actions. The missing references are oversights, and TCEQ agreed to adopt revisions to 30 TAC 116.160 to include these provisions.


### Response: EPA acknowledges TCEQ's description ofhow it implements the submitted Program. However, our evaluation considers whether a submitted SIP revision that removes a statutory requirement can still meet the requirements ofthe Act. In the proposal, EPA explained that the removal ofa statutory requirement from a State's program renders a SIP revision unapprovable because the removal does not meet the requirements ofthe Act. PSD BACT is not only a defined statutory and regulatory term; it is also a central requirement ofthe Act. Accordingly, a state's submission ofa revision that removes the requirement that all new major stationary sources or major modifications install, at a minimum, PSD BACT as defined by the Act creates a situation where the submitted SIP revision violates the Act and also would be a relaxation ofthe requirements ofthe SIP. In the July 16,2010, SIP submittal, TCEQ revised 30

### 15 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(l2) and the requirement contained in 40 CFR 52.21(r)(4). Based upon our evaluation of 

### the July2010, SIPrevision, we concludethat Texas has corrected the deficiencies identified in the proposal.

Comment 

### 2: The Clinicsupported EPA'sproposed positions. The Clinicfurther comments that 

### instead ofimplementing thetop-down approach consistent with EPA's PSD 

### guidance, TCEQ uses its "three-tier" guidance, aprocess that does notalways require adetailed analysis ofthe 

### most effective emissioncontrol alternatives and is less stringent 

### than the topdownprocedure. The Clinicmaintains 

### that Texas' definition and implementation ofBACT 

### are insufficient. Thisresults in Texasimplementing BACT suchthat 

### itfails to fulfill thetechnology forcing intent 

### of the Actand results inweaker emission limitations - andthusmore pollution. EPA musttakeimmediate actionto ensure that Texas is properly implementing thefederal SIPapproved definitionofBACT, 

### including rejection ofTexas' 

### use ofits 

### current BACTguidance.
Response: In 

### the July 16,2010, SIP submittal TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(l2). 

### See 30 TAC 116.160(c)(I)(A), submitted July 16, 2010. By re-instating the federal definition ofPSD 

### BACT into the State'srules, the PSD Program now meets EPA's PSD SIPrequirements and is consistent with theapproved Texas PSD SIP. This finalrulemaking only addresses the approvability ofthe 

### Texas PSD SIPrevisionsubmittals. Therefore, thosecomments related to

### 16 other EPA actions and the State's implementation ofthe PSD SIP are outside the scope ofthis 

### rulemaking action.

Comment 3: Members ofthe Texas House ofRepresentatives commented that Texas is applying a definition ofBACT, and using a BACT determination process that is significantly less stringent 

### thanrequired by federal law. Consequently, Texas industrial facilities emit more pollution than similar facilities in other states. They further comment that use offederal BACT alone will not 

### be sufficient for the State to achieve and maintain attainment ofthe NAAQS and protect the health and welfare offacilities downwind ofthese new sources. They recommend that EPA adopt procedures necessary to ensure that TCEQ has explicit authority and direction to analyze individual and cumulative effects ofemissions from proposed significant point sources
on regional ozone levels when considering a permit application. Analysis ofozone effects should include photochemical modeling ofimpacts to downwind areas undertypical high ozone conditions.


### Response: The comments that (I) the use offederal PSD BACT alone will not be sufficient for the State to achieve and maintain attainment ofthe NAAQS and protect the health and welfare offacilities downwind ofthese new sources, and (2) the suggestion that EPA conduct a rulemaking, are outside the scope ofthis rulemaking action. The issue ofhow TCEQ implements the Texas PSD SIP to make its PSD BACT determinations is not the subject ofthis rulemaking action and therefore outside the scope ofthis action. Based upon TCEQ's July 2010

### 17 SIP revision, which re-instates into the TCEQ rules the federal PSD BACT definition; its PSD BACT definition is 

### EPA's PSD BACT definition.

Comment 

### 4: BCCA, TIP, ERCC, GCLC and TCC commented that Texas submitted a revision to 30 TAC 116.160(a) and a new section 116.160(c)(I) and (2) on February 1, 2006, as a SIP revision to the Texas PSD SIP. This SIP revision reorganized the earlier SIP-approved rules. These commenters refer to TCEQ's plans to address this matter in rulemaking that should resolve EPA concerns regarding the Texas PSD program. See 

### also Hall v. UnitedStates EPA, 

### 273 F.3d 1146, 1160 

### (9th CiT. 2001) stating that EPA must consider anticipated revisions in determining whether the State will achieve attainment.


### Response: EPAreviews a SIPrevision submission for its compliance with the Act

### and EPA regulations. CAA 1l0(k)(3). See 

### also BCCA Appeal Group v. EPA, 

### 355 F 3d. 817, 822 (5th Cir.2003); Natural Resources Defense Council, Inc. v. Browner, 

### 57 F.3d 1122, 1123 (D.C. CiT. 1995). This includes an analysis ofthe submitted regulations for their legal interpretation. The Court ofAppeals, in Hall v. UnitedStates EPA, 

### stated that "the objective ofEPA's analysis is to determine whether the ultimate effect ofa state's choice ofemission limitations is compliance with the NAAQS:,2 The court did not require EPA to consider anticipated revisions when evaluating particular revisions. The court only required that EPA must be able to conclude

2Id. at 1159.18 the "particular plan revision before 

### it is consistent 

### with the development ofan overall plan."! At the time ofEPA's proposal, the anticipated revisions had not been submitted to EPA for approval as a SIP revision and therefore could not be considered. In this action, EPA has considered the subsequent revision to Texas' PSD program submitted July 16,2010. Based upon our evaluation ofthe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal.



### Comment 5: BCCA and TIP commented that the term BACT has been defined by TCEQ in strict accordance with the statutory BACT requirement in the TCAA. Specifically, 30 TAC 116.10(3) defines BACT as "BACT with consideration given to the technical practicability and the economic reasonableness ofreducing or eliminating emissions from the facility." ERCC commented that Texas has an adequate and legally defensible definition ofBACT, which is allowable under case law, EPA guidance, and rulings from the Environmental Appeals Board. Contrary to EPA's statements in the proposed disapprovals, States have flexibility in their definition ofBACT and implementation ofBACT as long as the statutory factors in the BACT definition are present in the state's analysis. The commenters commented that EPA has made no finding that Texas' BACT definition is contrary to, or less stringent than, the Federal definition ofBACT. Nonetheless, EPA is proposing the drastic action ofdisapproving the entire Texas PSD program. Such disapproval would also discard all the benefits ofthe 2002 NSR Reform Rules. They comment that EPA would place Texas permittees at a severe disadvantage to all

3 J

d. at 1160.19 other permittees throughout the country that have the benefit ofthe 2002 NSR reforms rules. GCLC commented that the Texas BACT assessment process is legally valid as it 

### has been and 

### continues to be 

### in 

### full compliance

### with FCAA requirements. Texas has a three-tiered BACT approach that has been previouslyapproved by the EPA. This policy, as demonstrated in the TCEQ guidance document "Evaluating Best Avail able Control Technology (BACT) in Air Permit Applications" outlines BACT policy in the state. Drafted in April 2001 

### ithas been the primary guidance document for bothpermittees andprotestant forBACT assessment. Itpredates 

### theTexas February 2006 submittal by 

### almost fiveyears and continues to he theprimary guidance document regarding BACT after thesubmittals; BACT has been consistentlyapplied by the TCEQ before and after the submitted changes to Chapter 116 ofTitle 30 ofthe TAC.


### Response: EPA disagreeswith thecommenters about

### the term PSD BACT, the flexibility a statehas in its definitionofPSD BACT andthat EPA has not made a findingthat Texas' BACT definition is contrary or less stringent than theFederal definitionofPSD BACT. As discussed

### inthe September 23, 2009, proposed disapproval ofthe 

### submitted 2006 SIP revisions to 30 TAC 116.160, EPA in its original approval ofthe Texas PSD SIP, specifically found that the BACT definition (derived from the TCAA) did not meet the federal PSD BACT definition. 

### See 54 FR 52823 (December 22, 1989) and 57 FR 28093 (July 24, 1992). For proposed and final 

### approval ofthe 

### original Texas PSD SIP, Texas chose 

### to incorporate byreference theFederal PSD BACT definition and submitted it for approval by EPA as part ofthe Texas PSD SIP. Upon 

### EPA's original approval ofthe 

### Texas PSD SIP, both EPA andTexas interpreted the TCAA20 BACT definition as being the Minor NSR BACT definition for Minor NSR permits." 

### See 74 FR 48467, at 48472, footnote 4, and footnote 1 in this action.

EPA's review was in accordance with the requirements ofthe CAA. EPA is not required to base its proposed disapproval on any determination that (a) depended on the definition as applied, and (b) yielded a determination less strict than would result from application ofthe "federal definition."

Under EPA's revised major NSR SIP regulations, as promulgated on December 31, 2002 (67 FR 80186) and reconsidered with minor changes on November 7,2003 (68 FR 63021), to be approved as meeting the 2002 revised major NSR SIP requirements, a State submitting a customized major NSR SIP revision must demonstrate why its program and definitions are in fact at least as stringent as the majorNSR revised base program. 

### See 67 FR 80185, at 80241. Texas did not submit such a demonstration. Furthermore, in the July 16, 2010, SIP revision submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(12). Based upon our evaluation ofthe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal. 

### See response 

### to comment 2 above for further information.

4 ln a separate action published in today's Federal Register, EPA is disapproving the submitted regulatory definition for BACT (derived from the TCAA) in 30 TAC 116.10(3) because it is not clear that this BACT applies only for Minor NSR. See that notice for further information. We wish to note that TCEQ has proposed revisions to the definition to clarify its use is only for Minor NSR but has not submitted it yet to EPA for action as a SIP revision.21 

### Comment 6: GCLC commented that TCEQ's three-tier approach to PSD BACT determinations meets the requirements ofsection 165 ofthe CAA, ensuring that facilities 

### receiving

### PSDpermits in the state are required to utilize PSD BACT.


### Response: The issue ofhow 

### TCEQimplements the Texas PSD SIPto make its PSD BACTdeterminations is not thesubject ofthis 

### rulemaking actionandtherefore outsidethe scope ofthis 

### action. The 2006 submitted revision,ifapproved, 

### would have removed the PSD BACT definition (as defined by the Act) from the Texas PSD SIP. In the July 16, 2010, SIP submittal, 

### however,TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program thefederal PSD BACT definition in 40 CFR 52.21(b)(l2). Based upon our evaluation ofthe July 2010, SIP 

### revision, weconclude that Texas has corrected the deficiencies identified inthe proposal.

Comment7: BCCA, TIP, ERCC, and 

## Tee commented that the Texas regulations have continuously carved out 40 CFR52.210), 

### concerning control technology review, which is the federal BACTrequirement, from the Texas PSD regulations. This is true from 1992 when EPA firstgranted authority to Texas to administer PSD permitting. As part ofthe 1992 approval, EPA explained why thefederal control technologyreviewrequirement ofSection 52.21

### G) could

### be properly excluded by Texas under the federal Clean Air Act. 

### See 54 FR 52824-52825 (Dec. 22, 1989). EPA then stated in the final rule approving the Texas PSD program that the federal 

### control technologyreviewrequirement, whichrequires BACT for PSD applications, was "not necessary for approval ofthe Texas Program." 

### See 57 FR 28093-28094 (June 24, 1992).22 

### Response: The 2006 SIP revisionsubmittal removed fromthe State rules the incorporation by reference ofthe Federal PSD definition of"best available control technology (BACT)" as defined in 52.2I(b)(l2). The currently approved Texas PSD SIP includes the Federal definition ofBACT. 

### See 30 TAC 116.160(a). Thissubmitted SIP revision violates the Act and relaxes the requirements ofthe current Texas SIP. In the July 16,2010, SIP submittal, however, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(l2). TCEQ also incorporated by reference 40 CFR 52.21

## GJ. TCEQ recognized that over the years since EPA's original approval ofthe Texas PSD SIP, there was confusion about the difference between the PSD BACT definition and the requirement to conduct a PSD BACT determination versus the State's BACT definition and the requirement to conduct a Minor NSR BACT determination. Basedupon our evaluation ofthe 

### July 2010, SIPrevision, we concludethat Texas has 

### correctedthe deficiencies identified in 

### the proposal and in addition addressed a potential ambiguity.



### Comment 8: TCC commented that one can search the entire Texas Clean Air Act, which is the sole authority under which TCEQ can issue any permits, and find no mention ofPSD at all; again, the governing law establishes the need for BACT for all permits, major or minor. And the governing statute does not define BACT beyond its own terms, leaving substantial degrees of freedom for TCEQ to compel the best available control technology. TCEQ's implementing rules also do not further define BACT at all, either, other than to emphasize the need for giving

### 23 "consideration ... to the technical practicability and the economic reasonableness ofreducing or 

### eliminatingemissionsfrom the facility."
Response: See responses to Comments 5 and 7.



### Comment 9: Tee commented that Texas accomplishes the PSD reviews required by Part C ofSubtitle I ofthe federal Clean Air Act by including various applicability provisions in its rules, but the only effect of"triggering" PSD review is to require an increment analysis (the "significant deterioration" review) for all preconstruction permits for PSD projects. Again, BACT 

### reviews are universal, and do not depend on triggering PSD. (This is one ofthe great strengths ofTexas's permitting program, not a weakness). The nature ofthe BACT review doesn't change depending on whether the application triggers PSD; TCEQ determines BACT using its 3-tiered process regardless ofthe size ofproject under review.


### Response: EPA disagrees. 

### See response to Comment 5. Furthermore, the implementation by TCEQ ofthe PSD SIP is outside the scope ofthis rulemaking action.



### Comment 10: TCC commented that EPA may not condition approval ofTexas's permitting programs on adherence to specific definitions. SIP approval ofa PSD program is conditioned on accomplishing some very general statutory objectives, as outlined in Section 165(a) ofthe federal Clean Air Act, including mechanisms to ensure that each proposed major24 

### source ormodification is subject to the bestavailable control technology." Congress expressly left theparticulars to eachstate' Not evenEPA's rulesdescribing itsexpectations forapprovable SIPs mandate adoption ofthe exact definitions. Variations are allowed 

### "ifthe State specifically demonstrates that the submitted definition is more stringent, Or at least as stringent, in all respects" as those adopted by EPA.? TCEQ ofcourse has made that demonstration in its various SIP submittals over the years, but mostly by decades ofactual BACT determinations made pursuant to 

### its definition. EPA has not identified even one TCEQ BACT determination that yielded an inadequate result because ofthe different definitions. In fact, EPA has agreed that the TCEQ BACT review process is perfectly adequate. 

### Response: EPA disagrees. 

### Seeresponse to Comment 5. Furthermore, TCEQ's implementation ofthe PSD SIP is outside the scope ofthis rulemaking action.



### Comment J 

### 1: ERCC commented that the proposed deficiencies fall far short of demonstrating an interference with achieving the national standard.


### Response: As noted previously, EPA must evaluate the submitted Program based upon the content ofthe regulations and associated record that have been submitted and are currently before EPA for appropriate approval or disapproval action. Furthermore, Texas, as a state

, CAA § 165(.)(4): 42 U.S.C. § 7475('X4)
. e CAA § 101(.)(3); 42 U.S.C § 7401(.)(3).

, 40 CFR51.l66(b).25 submitting a customized major NSR SIP revision, must demonstrate why its program and definitions are in fact at least as stringent as the major NSR revised base program. 

### See 67 FR 80185, 

### at 80241. Moreover, EPA lacks sufficient information to determine whether the 2006 submittal would not interfere with NAAQS attainment and RFP. 

### See response to comment 5 above for further information. However, in the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.2t(b)(12), the requirements of40 CFR 52.21 (r)(4), and the requirements of40 CFR 52.21G). Based upon our evaluation ofthe July 2010, SIP revision, we conclude 

### that Texas has corrected the deficiencies identified in the proposal. 

### See response to comment 2 above for further information.



### Comment 12: ERCC commented that the mere removal ofa reference to the federal definition ofBACT does not create a permitting deficiency or interfere 

### with attainment. The
mere statement that the Texas BACT definition differs from the federal regulation fails to explain how it interferes with the state SIP. Many States have BACT definitions in their EPA-approved SIPs that do not conform, word for word, to the BACT statutory language. 

### See Connecticut

- CONN. AGENCIES REGS. 

### § 22a-174-1 (EPA effective date, February 27,2003); Maine - 06- 096 ME. CODE R. 

### § 100-17 (EPA effective date, November 21, 2007); New Hampshire

- N.H. CODE ADMIN. R. ANN. ENV-A: §101.13 (EPA effective date, Auguat 14, 1992); and Oklaboma- OKLA. ADMIN. CODE § 252:100-1-3 (EPA effective date, January 7, 2000).

### 26 

### Response: EPAdisagrees. 

### See responses to comments 5 and 11. Furthermore, in the July 16,2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(l2). Based upon our evaluation ofthe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal.

Comment 13: ERCC commented that the both EPA's and Texas' BACT definitions require the consideration oftechnical limitations, such as energy and environmental concerns, as well as the economic reasonableness ofthe emissions limitation, in order to determine BACT. 

### Compore 40 C.F.R. 51.166(b)(12) 

### with 30 TAC 116.111(2)(C). Further, both processes address the same fundamental concepts as expressed in the Clean Air Act. The key question is whether the "state permitting program provides a framework for adequate consideration ofregulatory criteria and consistency within the PSD program." 

### In re ConocoPhillips Co., PSD Appeal 07-02 slip op. at 30 (EAB June 2, 2008) (quoting 

### In re Cordinal, FG Co, 12 E.A.D. 153 at 161 (EAB 2005).


### Response: See the response to comment 5. Based upon our evaluation ofthe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal.



### Comment 14: ERCC commented that to the extent EPA is asserting that the TCEQ staff
was required to follow the exact "top down" approach to BACT analysis, and that such an27 argument has already been disclaimed 

### by EPA and the Environmental Appeals Board and rejected by the 

# u.s. Supreme Court. As stated by EPA when it actually approved the Texas PSD program in 1992, EPA did require Texas to follow EPA's interpretations and guidance issued under the Act in the sense that those pronouncements have independent status as enforceable 

### provisions ofthe Texas PSD SIP. See 57 FR 28095 (June 24, 1992). During this same approval promulgation, EPA expressly confirmed that the State ofTexas is not required to follow the EPA "top down" approach to BACT. 

### Id. at 28095-6. Likewise in the case of

### Alaska Department oj Environmental Conservation v. EPA, 540 U.S. 461, 476 n. 7 (2004), the U.S. Supreme Court 

### wrote: "Nothing in the act or its implementing regulations mandates top-down analysis." The ability to deviate from the top-down analysis is also supported 

### bythe Environmental Appeals Board, which has recognized in prior rulings the permitting authority's ability to vary from the NSR review manual as long as all regulatory criteria are considered and applied appropriately. 

### ConocoPhillips, PSD Appeal 07-02 slip op. at 30 (EAB June 2, 2008) (citing 

### In re KnauJFiber Glass GmbH, 8 E.A.D. 121 at 129-30 n. 14, 135 n.25). Absent a showing from EPA that the Texas definition ofBACT somehow inescapably leads to failure to consider and apply the appropriate regulatory criteria, or inexorably leads to the NAAQS not being protected, EPA must defer to the State's authority under the Clean Air Act to address air quality issues. Texas' BACT definition has resulted in some ofthe most stringent pollution control emission rates in the United States. EPA has not identified one instance where application ofTexas' BACT definition resulted in less pollution control than ifEPA's top down analysis was used. The issue that EPA has identified is non-substantive and solely one ofsemantics.28 

### Response: 

### EPA's proposed disapproval is not basedon anevaluation of theTexas threetier approach; it is based on an evaluation ofthe submitted revision. 

### See our response to Comments 4,5 and 11. The comments on the approaches and implementation ofthe PSD SIP by TCEQ are outside the scope ofthis rulemaking action. Furthermore, in the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(12). Based upon OUTevaluation ofthe July 2010, SIP revision, we conclude that Texas 

### has corrected the deficiencies identified in the proposal.



### Comment 15: GCLC commented 

### that furthermore, EPA has voiced its support for Texas three-tier approach during negotiations with TCEQ over these issues. While responding to TCEQ submittals, the EPA on October 27, 2008, stated that it "agreed with many" ofthe statements made by TCEQ defending their BACT program in a June 13,2008, letter.' TCEQ statements included that, to its understanding, the three-tiered approach is an acceptable and approved approach by the EPA. Ifthe EPA did have concerns with that assessment, the EPA had the opportunity to voice them at that time or since Texas (and other states) began using this 

### type ofthree-tiered approach.


### Response: Implementation by the State ofits PSD SIP is outside the scope ofthis

8 Letter from Carl E. Edlund, Director, EPA Multimedia Planning and Permitting Division to Mark Vickery, Executive Director, Texas Commission on Environmental Quality. (Oct. 27, 2008) available at http://www.tceq.state.tx.us/assets/public/permittinglair/ Announcements/epa_response_10_27_08.pdf.

### 29 rulemaking action.

Comment 16: TCC 

### commented that EPA's proposal to disapprove this rule is based in part on false distinctions between what it refers to as "PSD BACT" and "Minor NSR BACT." Assuming such distinctions, EPA concludes that the Texas rules fail to clearly apply the "PSD definition ofBACT" to all actions subject to PSD, and conversely fails to delimit the minor NSR definition to activities triggering only minor NSR. But there are no distinctions, legal or practical, in Texas BACT reviews. 

### Response: EPA disagrees. 

### See our response to Comment 5. Based upon our evaluation 

### oftbe 

### July 2010, SIPrevision, we conclude that Texas has corrected the deficiencies identified in 

### the proposal.

Comment 17: BCCA and TIP commented that the preamble to the 2006 revisions to 30 TAC 116.160 in which the incorporations by reference of40 CFR 52.21 were changed, demonstrate a consistency with the approach taken by the State in the preceding years. The preamble explains the incorporation by reference ofcertain sections of40 CFR 52.21 and further states, "[0]ther definitions used for the PSD program or visibility in Class I areas program are currently in [TCEQ's] rules."

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

### 30 

### Response: The 2006 revisions to 30 TAC 116.160 did notjust "change" the incorporations by reference of40 CFR 52.21; they removed two ofthem entirely. The result is that

### thesubmitted 2006 revision did not meetthe Act's PSD requirements and EPA'sPSD SIP regulations. Moreover, theState did notprovide therequisite demonstration to show how its customizedMajor NSR SIPrevision was at least as stringent as EPA's PSD SIPrequirements. Furthermore, in the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(12) and the provisions of40 CFR 52.21(r)(4). Based upon our evaluation ofthe July 2010, SIP revision, we 

### conclude that Texashas 

### corrected the deficienciesidentified in theproposal. See 

### response to comment 2 

### abovefor further information.

Comment

### 18: BCCAand TIP commented that theappropriate BACTdefinition exists in Texas's rules, as demonstrated 

### by EPA's pastapproval 

### of thoserules. All permits Texas has issuedunder the existingpermitting program reflect thecurrent TCEQ SIP-approved approach to BACT, andare validand enforceable. 

### Response: EPAdisagrees that the 2006 SIP revisionsubmittal maintained theappropriate PSD BACTdefinition. 

### See theresponse to Comment 5. Furthermore, in theJuly 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into 

### its PSD Program the federal PSD BACT definition in 40 CFR 52.21(b)(12). Based upon our evaluation ofthe July 2010, SIP 

### revision, we conclude that Texas hascorrected the deficienciesidentified in theproposal.31 

### Comments on the implementation by 

### the Stateof the PSD SIP are outside the scope of this rulemaking action.

Comment 

### 19: Tee commented that Texas law does not create two different types of permits, one called a minor NSR permit and one called a PSD permit. There is only one kind of pre-construction permit described in the Texas Clean Air Act, a "preconstruction permit" under Texas Health & Safety Code § 382.05 18(b). The issuance ofall such permits is conditioned on
use of

### "OO5t available control technology."
Response: EPA disagrees. See responses to comments 5 and 18. Based upon our 

### evaluationof the July 2010, SIPrevision, weconclude that Texashas corrected the deficiencies identified in the proposal.

Comment 20: 

## Tee commented that the definitions do not determine stringency. The stringency of

### BACT determinations are not determined 

### by definitions, anyway. Even the far wordier "federal definition" is but a litany offactors that go into what is inevitably a highly discretion-laden determination. A more "specific" definition, 

### it may truly he argued, has the effect ofbeing less stringent, because it limits the factors to be considered. Absent a definition of BACT beyond its own self-description, TCEQ is free to be even stricter than the wordier federal definition. Again, 

### the proposed disapproval 

### fails to identify even one determination that (a) depended on the definition applied, and (b) yielded a determination less strict than would resulted32 from application ofthe "federal definition."


### Response: See response to comment 5.



### Comment 

### 21: Tee commented that 

### EPA itselfdoes not follow the "federal definition." EPA is in a difficult position to insist on word-for-word adoption when 

### it does not itselffollow the federal definition. The definition EPA would impose on the states is not the one that Congress prescribes. Which federal definition would EPA like Texas to follow, the one in its rule
or the one in its governing statute? 

### In what way does either "federal definition" necessarily require BACT determinations any more strict than the Texas definition? 

### Response: The differences between the regulatory definition ofPSD BACT at 40 CFR 52.21(b)(12) and the statutory definition ofthat term in section 169(3) ofthe Act are not significant and the regulatory definition ofPSD BACT is consistent 

### with the statutory definition. We addressed the reasons why the federal BACT definition is more stringent than the Texas definition in the proposal at 74 FR 48467, at 48472. 

### Also see our response to comment 5 above for further information. To the extent this comment relates to TCEQ's implementation ofthe PSD SIP, 

### it is outside the scope ofthis rulemaking action. Finally, based upon our evaluation of the July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal.

### 33 Comment 

### 22: Tee 

### commented that the proposed disapproval drawson distinctions without differences. The definitionis designed to identify relevantfactors that go into what is ultimately a highly discretion-laden determination. No matter the definition, the objective is the same. And no matter the definitions, the resources consulted for each BACT determination are the same. In Texas, for example, all BACT determinations are made using its 3-tier process, which elaborates in detail how TCEQ makes the determinations. All reviews are based on consideration ofnational determinations codified in the RACTIBACTILAER Clearinghouse; EPA has agreed that this process yields results equivalent to its top-down approach, which itself is not compelled 

### by any definition. In both cases., responsible agencies make discretionary determinations based on aggressive efforts to ensure that new technologies are applied when they become available to new sources. Pharisaical parsing over definitions does not accomplish sound BACT determinations, which instead result from good faith efforts by responsible regulators.


### Response: EPA disagrees. 

### See responses to comments 5, 7, 

### and 14. TCEQ's implementation ofthe PSD SIP is outside the scope ofthis rulemaking action. Based upon our evaluation ofthe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in the proposal.



### Comment 23: Tee commented that to the very extent there were differences in a result based on the definition; EPA would be prohibited from disapproving the definition. EPA presumes without proofa difference in result arising out ofTCEQ's BACT definition. But,

### 34 regardless, EPA cannot elect to approve the broader reach ofthe Texas program (e.g., application 

### ofBACT to 

### all sources), butdisapprove what itperceives to be a lesser definition ofBACT. States are the 

### primary architects oftheir implementation plans, and EPA is not free to change the state's choices 

### by selective approvals ofinterrelated elements. Accordingly, the extent to which EPA would make any substantive changes in TCEQ's permitting program 

### by selectively disapproving its BACT definition is the very extent to which 

### it is forbidden to disapprove 

### it. EPA must either accept the permit program or reject it in its entirety, and not cut it to pieces so that 

### it looks like a ransom note. 

### Response: EPA disagrees. 

### See response to Comments 5, 7, and 14. TCEQ's implementation ofthe PSD SIP is outside the scope ofthis rulemaking action. Based upon our evaluation ofthe July 2010, SIP revision, we conclude tpat Texas has corrected the deficiencies identified in the proposal.



### Comment 

### 24: TheClinic conunented (under Docket No. EPA-R06-0AR-2006-0133) on EPA's proposed disapproval ofTCEQ's rules that removed a requirement under 40 CFR 52.21(r)(4) that provides that ifa project becomes a major stationery source or major modification solely because or relaxation ofan enforceable limitation on the source or modifications capacity to emit the pollutant, then the source or modification is subject to PSD as though construction had not commenced. This provision prohibits the use of"sham" operational limits that a source may take to avoid PSD and provides an extra deterrent to facilities that may

### 35 

### take suchlimitsthat theyknowtheycannot achievein order to avoidfederal permitting. Approval ofthis deletion also violates the anti-backsliding provisions in 42 U.S.C. 

### § 7515 and 

### wouldrender the TexasSIP less stringent that federal requirements and inadequate for preventing significant deterioration ofairquality.
Response: 

### EPA appreciates the Clinic's support for theproposal. IntheJuly 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal requirements of40 CFR 52.21(r)(4). Based upon our evaluation ofthe July 2010, SIP revision,


### we conclude that Texashas

### corrected the deficienciesidentified in the proposal. See 

### response to comment 2 

### abovefor further information.

### 36 

### V. What are the Grounds forApproval?
A. Adoption of Cross-Reference to 40 CFR 52.21(b}(12), 

### which is the Federal Definition of Best Available Control Technology (BACT), andthe Cross-Reference of 40 CFR 52.210) which Implements the Requirement for a PSD BACTAnalysis

The February 1, 2006, submittal ofrevisions to 30 lAC 116.160 removed the reference to 

### the definition offederal PSD BACT in 40 CFR 52.21(b)(I2). On September 23, 2009, EPA 

### proposed to disapprove the 2006 submittal due inpart to itsremoval ofthisdefinition. EPA observed that under the PSD Program, PSD BACT is acentral requirement 

### of the Actand that 

### the State'ssubmission of a revision 

### that removes therequirement that

### all newmajor stationary
sources and modifications meet, at aminimum, PSD BACT asdefined 

### bythe Actcreates a situation where thesubmitted SIP revisionwould violatethe Actand also be 

### a relaxation ofthe requirements ofthe Texas PSD SIP. 

### See the proposed disapproval at 74 FR 48467, at 48472. On July 16,2010, Texas submitted a revision to 30 TAC 116.160 that reinstates the federal PSD BACT definition in 40 CFR 52.21(b)(12). 

### See submitted 30 TAC 116.160(c)(I)(A). 

### The revision also includes a reference to 40 CFR52.210) 

### whichimplements the BACTdefinition. See submitted 30 TAC I 16.160(c)(2)(A).



### Theadoption of

### the reference to thefederal definition ofPSD BACTin 40 CFR 52.21(b)(12)corrects adeficiency in the 2006 submittal because itreinstates arequirement that is

### 37 acentral requirement ofthe 

### Act. Approval ofthis 

### 2010 revisionmaintains the Texas PSD SIP as what EPA first approved in 1992.
The TCEQ also submitted on July 16,2010, arevision to 30 TACT 116.160 that adds a 

### reference to 40 CFR 52.21G) - 

### Control technology review. Thisprovision was notreferenced in the Texas PSD SIP approved in 1992. Texas chose to reference 40 CFR52.210) because ofthe confusion overtheyears about the PSD versus theMinorNSR BACTdetermination 

### requirements. It 

### complements thereinserted federal definition ofPSD BACT. Accordingly, EPA is approving thereinstatement ofthereference to federal PSD BACT in 40 CFR 52.21(b)(21) and the addition ofa reference to 40 CFR 52.210).


### B. Adoption of Cross-Reference to 40 CFR 52.21(r)(4), which relates to PSD Reviewfor Projects that become Major Stationary Sources or Major Modifications Solely Because of Relaxation of an Enforceable Limitation on the Source or Modification Capacity to Emit
a Pollutant


### The February I, 2006, submittal ofrevisions to 30 TAC 116.160 also removed the reference to 40 CFR 52.2I(r)(4) that the State had previously incorporated into its PSD SIP. This 

### provision specifies that if aproject becomes amajor stationary source ormajor modification solelybecause ofarelaxation ofanenforceable limitation on thesource's ormodification's capacity to emitapollutant, then the source ormodification is subject to PSD as ifconstruction

### 38 

### had not yetcommenced. Theremoval ofthis 

### requirement meant that

### the State'srules wouldnot 

### regulate these types ofmajor stationary sources ormajor modifications asstringently as the federal program. See the proposed disapproval at 74 FR 48467, at 48472. On July 16,2010, 

### Texassubmitted arevision to 30 lAC 116.160that reinstates thereference to 40 CFR 52.2I(r)(4). See submitted 30 TAC 116.160(c)(2)(C).

The adoption ofthe reference to 40 CFR 52.2I(r)(4) in the July 2010 submittal corrects 

### adeficiency in the 2006 submittal because it reinstates arequirement 

### that is mandated in the federal program. Approval ofthis 2010 revision maintains the Texas PSD SIP to its status when EPA

### first approved the SIP in 1992. Accordingly, EPAis approving thereinstatement ofthe reference to 40 CFR 52.21(r)(4).

C. 

### How EPA's Action does notAffect the Substance oJthe Texas PSD SIP Originally Approved in 1992?



### The 2006 and 2010 SIP revisions to 30 lAC 116.160reorganized the sectionsbut made
no substantive changes to theapproved SIP exceptthat the 2006 submittal omitted references to the definition ofPSD BACT in 40 CFR 52.2I(b)(l2) and the requirements of40 CFR 52.21(r)(4) 

### whichresulted in the 2006 revisions notmeeting thefederal requirements. 

### See sections IV.Aand B above. The 2010 SIP revision submittal reinstates theseprovisions into the State'srules and corrects theabove-identified deficiencies. Texas also added a reference to 40 CFR52.21G) -

### 39 

### Control technology review- whichcomplements theimplementation 

### of the definition PSD BACT. The specific changes are described in section II ofthis notice. A detailed outline ofthe specific changes made to 30 TAC 116.160 by the 2006 and 2010 SIP revisions is available in the 

### Technical Support Document whichis in thedocket for this action. 

### Our evaluation ofthese changes demonstrates that the submitted changes to the Texas PSD Program are insignificant and withthechanges submitted in 2010 essentially restore theProgram to what

### itwas in 1992. The 2006 revision 

### also removedthe definitionsof"building, 

### structure, facility, orinstallation" and "secondary emissions" in 30 TAC 116.160(c)(1) and (2), respectively. The removal ofthese 

### definitions is notsignificant because theseterms 

### are also defined using thesame definitions in the Texas SIP at 30 TAC 116.12(4) and (17), respectively, as approved at 74 FR 11851 (March 20,2009).



### Forfurther information 

### see:

• The 1989 proposed Texas PSD SIP approval at 54 FR 52823, at 52824-52825 (December 22, 1989);

• The final Texas PSD SIP approval at 57 FR 28093, at 28095-28096 (July 24, 1992);



### • Theproposed disapproval ofthe 

### February 1, 2006, submitted revisionsto 30 lAC 116.160 at 74 FR 48467, ar 48472;

### 40

• The submitted SIP revisious to 30 TAC 116.160 dated July 16,2010;



### • Thebackground for thisaction in section Il 

### ofthis 

### preamble;



### • The responses to comments 

### 1 through 

### 26 in section 

### III ofthis 

### preamble; and

• Thetechnical support document for this action.

VI. Final Action

The EPAis approving certain revisionsto the Texas PSD SIP, submitted February 1, 2006, and as amended July 16,2010, which apply to 30 TAC Chapter 116 - Control ofAir 

### Pollution by Permits 

### for New Construction orModification. EPAfinds that the July 16, 2010, submittal corrects these deficienciesin theFebruary 1, 2006, submission identified in the 

### September 23,2009, proposed disapproval 

### ofrevisions to 30 TAC 116.160. These revisions submitted in 2006 werenonsubstantive exceptfor the removal ofthe 

### PSD BACTdefinition and the removal ofthe reference to 40 CFR 52.21(r)(4). With the restoration ofthe PSD BACT definition and the reference to 40 CFR 52.21(r)(4) and the addition ofa reference to 40 CFR 52.210) 

### in the Texas NSR Program, we find that the aspects ofthe submitted PSD Program 

### covered in thesesubmissions meet section 110 and part 

### C ofthe Act.41

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. However, in the 

### proposed rules section ofthis Federal Register 

### publication, we are publishing a separate document that will 

### serve as the proposal to approve the SIP revision if

### relevant adverse comments are received. This rule will be effective on [FEDERAL REGISTER OFFICE, 

### insert date 60 days from date of publication in the Federal Register] without further notice unless we receive relevant adverse comment by 

### IlEDERAL REGISTER OFFICE: insert date 30 days from date of publication in the Federal Rezisterl. If we receive relevant adverse comments, we will 

### publish a timely 

### withdrawal in the Federal Register informing 

### the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that ifwe receive relevant adverse comment on an amendment, paragraph, or section ofthis rule and ifthat provision may 

### be severed from the remainder ofthe rule, we may adopt as final those provisions ofthe rule that are not the subject ofan adverse comment.



### VII. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 741O(k);

### 42 

### 40 CFR 52.02(a). Thus, inreviewing SIP submissions, EPA's role is 

### toapprove state choices, provided that they meet the criteria ofthe Clean Air Act. Accordingly, this action merely 

### approves State law as meeting Federal requirements and does notimpose additional requirements beyond thoseimposed by State law. For that reason, thisaction:

• Is not a "significant regulatory action" subject to review

### bythe Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);


### • Does not imposeaninformation 

### collectionburden under theprovisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 et seq.);



### • Iscertified asnothaving a significanteconomic impact on asubstantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);



### • Does notcontain anyunfunded mandate orsignificantly oruniquely affectsmall governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 

### 104-4);



### • Does nothave Federalism implications as specifiedinExecutive Order 13132 (64 FR 43255, August 10, 1999);



### • Is not aneconomically significant regulatory action based onhealth or safetyrisks

### 43 subject to Executive Order 13045 (62 FR 19885, April 23, 1997);



### • Is not a significant regulatory actionsubject to ExecutiveOrder 13211 (66 FR 28355, May 22, 2001);



### • Is notsubject to requirements ofSection 

### 12(d)ofthe 

### National TechnologyTransfer and Advancement Act of 1995 (15 U.S.c. 272 note) because application 

### ofthose requirements 

### would beinconsistent 

### with the CleanAir Act; and



### • Does notprovide EPAwith thediscretionary authority toaddress, asappropriate, disproportionate human health orenvironmental effects, usingpracticable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).



### In addition, this rule does nothaveTribal implications asspecified 

### byExecutive Order 13175 (65 FR 67249, November 9,2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that

### itwill not impose substantial direct costs on 

### Tribal governments orpreempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business 

### Regulatory Enforcement Fairness Act of1996, generally provides that before a rule maytake effect, the agencypromulgating the rule mustsubmit a rulereport, which includesa copy ofthe44 rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA 

### will submit a reportcontaining this action and otherrequired information to theU.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior

### to publication ofthe rule in the 

### Federal Register. A major rule cannot take effect until 60 days after 

### it is published in the 

### Federal Register. This action is not a "major rule" as defined 

### by 5 U.S.c. 804(2).

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication in the Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis action for the purposes of judicial review nor does it extend the time within which
a petition forjudicial review may 

### befiled, and shall not postpone the effectiveness ofsuch rule or action. This action may not 

### be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

### 45 List ofSubjects iu 40 CFR Part 52


### Environmental protection, Airpollution control, Carbon Monoxide, Hydrocarbons, Intergovernmental relations, Lead, Nitrogenoxides, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.



### Al endanz, 

### Regional Administrator, ReJ!je1>'6

### 46 40 CFR part 

### 52 is amended as follows:

PART 

### 52- [AMENDED]



### 1. The authority citation for part 

### 52 continues to read as follows: 

### Authority: 42 U.S.C. 

### 7401 et seq. 

### Subpart SS - Texas 2. The table in § 

### 52.2270(c) entitled "EPA Approved Regulations in the Texas SIP" is amended under Chapter 

### 116 (Reg 

### 6) - Control ofAir Pollution by Permits for New Construction or Modification, Subchapter B - New Source Review Permits, Division 6 - Prevention of Significant Deterioration Review, by revising the entry for Section 

### 116.160 - Prevention of Significant Deterioration Review.

The revision reads as follows:


### § 52.2270 Identification of plan.



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(c) 

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### 47

EPA Approved Regulations in the Texas SIP State Citation Title / subject State approval / EPA approval date Explanation submittal date 

## • • • • • • • Chapter 116 (Rea 6}-Control ofAir Pollution bv Permits for New Construction or Modification 

## • • • • • • • Subchapter B - New Source Review Permits 

## • • • • • • • Division 6 - Prevention ofSii!:nificant Deterioration Review Section 116.160 Prevention ofSignificant 6/2/2010 [Insert date ofFR Deterioration publication] Requirements [Insert FR page number where document bezmsl 

## • • • • • • •
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