ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2010-0620; FRL- --.J

Approval and Promulgation of Air Quality Implementation Plans;

Texas; Revisions to the New Source Review (NSR) State Implementation Plan (SIP);

Prevention of Significant Deterioration (PSD)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action approving revisions to the Texas PSD State

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

amended by a SIP revision submitted July 16, 2010. This action makes no substantive changes

to the Texas PSD SIP; it merely approves reorganization and renumbering 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 of publication in the Federal Register],
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IfEPA receives such comments, EPA will publish a timely 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 for submitting comments.

· U.S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm

Please click on "6PD" (Multimedia) and select "Air" before submitting comments.

· E-mail: Mr. Stanley M. Spruiell 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.
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. 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 of 8:00am and 4:00pm weekdays except for

legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R06-0AR-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 of your 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. If you submit an electronic comment,

EPA recommends that you include your name and other contact information in the body of your

comment and with any disk or CD-ROM you submit. 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 of any defects or viruses.
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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 of 8:30am 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. 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 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 of Air Quality,

12124 Park 35 Circle, Austin, Texas 78753.
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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 Disapproval ofthe 2006 j!9t'J'SIP

RevisionSubmittal?

V. What are the Grounds for Approval?
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VI. Final Action

VII. Statutoryand Executive Order Reviews

I. What Action is EPA Taking?

EPA is approving the revisions to the Texas SIP PSD Program (Program) thatamend

Title 30 ofthe Texas Administrative Code (30 TAC) 116.160 - Prevention of Significant

Deterioration Requirements. This includes SIPrevisions to the Program 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.

We are approving these revisions as meetingthe Major NSR PSD SIPrequirements.

Specifically, we are approving the nonsubstantive reorganizing and renumbering of 30

TAC 116.160 as submitted in 2006 and as revisedin 2010. Ourfinal actionensures thatthe

Texas PSD SIPremains the same in substance with improvement in clarity.
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II. What did the State Suhmit?

On September 23, 2009, EPAproposed to disapprove the SIP revisions submittals

relating to Prevention of Significant Deterioration (PSD); Nonattainment NSR (NNSR) for the 1-

Hour Ozone Standard, NNSR for the 1997 8-Hour Ozone Standard, NSR Reform, and a Standard

Permit (under Docket No. EPA-R06-0AR-2006-0133). See the proposal at 74 FR 48467, at

48472. We proposed to disapprove the submitted PSD revisions in 30 TAC 116.160 because:

• This 2006 SIP revision submittal removed from the State rules the incorporation by

reference 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 thatif a project becomes a major stationary source or major

modification solely because of a relaxation of an enforceable limitation on the source

ormodification's capacity to emit a pollutant, then the source ormodification is

subject to PSD as if construction had not yet commenced. The State'sactionin

eliminating that requirement means the State's rules will not regulate these types of
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major stationary sources ormodifications as stringently asthe Federal program orthe

current approved Texas PSD SIP.

The 2006 SIPrevision submittal included a nonsubstantive reorganizing, and

renumbering ofthe State's PSD rules but for the removal ofthe two requirements described

above. The reorganization 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 of anew 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) were reorganized into a new and

revised 30 TAC 116.160(c)(I), (2), and (3);
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• 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 of the

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 the State'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 of 40 CFR 52.2I(r)(4). See 30 TAC

I 16.160(c)(2)(A). This corrects a deficiency identified in the 2009 proposal.
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• Incorporated by reference the requirements of 40 CFR 52.21G)- 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 of a major stationary

source and a major modification that issubject to PSD.

TCEQ adopted and submitted forthe first time, incorporation by reference 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 in attainmentlunclassifiable

designated areas must meet the PSD requirement by performing a PSD BACT analysis. The

Texas NSR SIP includesnot only the federal 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 of 40 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 Major NSR BACT definition andthe requirement that a sourcemust

perform the relevant PSD BACT analysis 1 TCEQ's July 2010 submittal's inclusion ofthe PSD

requirement of 40 CFR 52.21G) is aimed at clarifying the Texas PSD SIP in this respect.

I The January 1972Texas NSRrules, as revised in July 1972, require a proposed newfacility ormodification to

utilize "best available control technology, with consideration to the technical practicability and economic

reasonableness of reducing or eliminating the emissions resulting from thefacility." Thisdefinition of BACT is

from the Texas Clean AirAct. When EPAapproved theTexasPSDprogram SIPrevision submittals, including the
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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 of each 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 be for 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
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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 of Significant Deterioration

Review Permit Rules Requirements.

Reform • The Rule was changed to reorganize existing SIP-approved

rule.

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

CFR 52.21(b)(l2) and 52.21(r)(4) which are critical to

administration and enforcement of PSD requirements.

• The change included the removal of defmitions 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 of Significant Deterioration

Control Technology Requirements.

(BACT) in • Re-instatement of cross-references to 40 CFR 52.21(b)(I2)

Prevention of and 52.21(,)(4).

Significant • Added cross-reference to 40 CFR 52.21G) - 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 of Air Pollution bv Permits New Construction or Modification

Subehanter B New Source Review Permits

Division 6 Prevention of Si"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 of crossRequirements 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 of cross-references to 40 CFR

52.21(b)(12) and52.21(')(4).

• Added cross-reference to 40 CFR 52.21G) - 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).
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IV. What Comments did EPA Receive on the Proposed Disapproval of the 2006 SIP

Revisions Submittal?

In response to our September 23,2009, proposed disapproval ofthe submitted revisions

to Texas' PSD Program, we received comments from the following: Baker Botts, L.L.P., on

behalf ofBCCA Appeal Group (BCCA); Baker Botts, L.L.P., on behalf ofTexas Industrial

Project (TIP); Bracewell & Guiliani, L.L.P., on behalf ofthe 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 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 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.
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Comment 1: TCEQ commented on the lack of a specific definition ofPSD BACT and

the absence of a requirement contained in 40 CFR 52.21(r)(4). TCEQ noted that although these

references are currently missing from 30 TAC 116.160, its permitting actions are implemented in

a manner that does not circumvent federal New Source Review (FNSR) requirements and does

not allow a control technology review to be conducted that results in a technology that is less

than PSD BACT as defined in the federal rule. TCEQ agrees that if a project becomes a major

source or major modification through the relaxation of an enforceable limitation, PSD review is

required, and TCEQ complies with that requirement in its permitting actions. The missing

references are oversights, and TCEQ agreed to adopt revisions to 30 TAC 116.160 to include

these provisions.

Response: EPA acknowledges TCEQ's description of how it implements the submitted

Program. However, our evaluation considers whether a submitted SIP revision that removes a

statutory requirement can still meet the requirements ofthe Act. In the proposal, EPA explained

that the removal of a statutory requirement from a State's program renders a SIP revision

unapprovable because the removal does not meet the requirements 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 of a revision that removes the requirement that all new major

stationary sources or major modifications install, at a minimum, PSD BACT as defined by the

Act creates a situation where the submitted SIP revision violates the Act and also would be a

relaxation ofthe requirements ofthe SIP. In the July 16,2010, SIP submittal, TCEQ revised 30
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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 deficienciesidentified in

the proposal.

Comment 2: The Clinic supported EPA's proposed positions. The Clinic further

comments that instead ofimplementing the top-down approach consistent with EPA's PSD

guidance, TCEQ uses its "three-tier" guidance, a process that does notalways require a detailed

analysis ofthe most effective emissioncontrol alternatives and is less stringent than the topdownprocedure. The Clinic maintains that Texas' definition and implementation ofBACT are

insufficient. This results in Texasimplementing BACT suchthat it fails to fulfill the technology

forcing intent of the Act and results in weaker emission limitations - andthusmore pollution.

EPA musttake immediate actionto ensure that Texas is properly implementing the federal SIPapproved definitionofBACT, including rejection ofTexas' use of its 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 of PSD

BACT into the State's rules, the PSD Program now meets EPA's PSD SIPrequirements and is

consistent with the approved Texas PSD SIP. This final rulemaking only addresses the

approvability ofthe Texas PSD SIPrevisionsubmittals. Therefore, those comments related to
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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 of BACT, 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 of emissions from proposed significant point sources

on regional ozone levels when considering a permit application. Analysis of ozone effects

should include photochemical modeling ofimpacts to downwind areas under typical 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
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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. United States 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 of Appeals, in Hall v. United States EPA, stated that "the objective ofEPA's analysis

is to determine whether the ultimate effect of a 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

2 Id. at 1159.
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the "particular plan revision before it is consistent with the development of an overall plan."! At

the time of EPA's proposal, the anticipated revisions had not been submitted to EPA for approval

as a SIP revision and therefore could not be considered. In this action, EPA has considered the

subsequent revision to Texas' PSD program submitted July 16,2010. Based upon our evaluation

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 of disapproving 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 Jd. at 1160.
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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 compliancewith 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 it has been the

primary guidance document for bothpermittees andprotestant forBACT assessment. Itpredates

theTexas February 2006 submittal by almost five years and continues to he theprimary guidance

document regarding BACT after the submittals; BACT has been consistently applied by the

TCEQ before and after the submitted changes to Chapter 116 of Title 30 ofthe TAC.

Response: EPA disagreeswith the commenters aboutthe term PSD BACT, the flexibility

a statehas in its definitionofPSD BACT andthat EPA has not made a finding that Texas'

BACT definition is contrary or less stringent than the Federal 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 by reference the Federal 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 TCAA
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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.
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Comment 6: GCLC commented that TCEQ's three-tier approach to PSD BACT

determinations meets the requirements ofsection 165 ofthe CAA, ensuring that facilities

receivingPSDpermits in the state are required to utilize PSD BACT.

Response: The issue of how TCEQimplements the Texas PSD SIPto make its PSD

BACTdeterminations is not the subject ofthis rulemaking actionandtherefore outsidethe scope

ofthis action. The 2006 submitted revision, if approved, would have removed the PSD BACT

definition (as defined by the Act) from the Texas PSD SIP. In the July 16, 2010, SIP submittal,

however,TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD

BACT definition in 40 CFR 52.21(b)(l2). Based upon our evaluation ofthe July 2010, SIP

revision, we conclude that Texas has corrected the deficiencies identified inthe proposal.

Comment 7: 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 the federal control technologyreview requirement of Section 52.21G) 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 technologyreview requirement, which requires BACT for PSD applications, was "not

necessary for approval ofthe Texas Program." See 57 FR 28093-28094 (June 24, 1992).
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Response: The 2006 SIP revision submittal 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

52.21GJ. 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. Based upon our evaluation ofthe

July 2010, SIP revision, we concludethat Texashas 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 of PSD at all;

again, the governing law establishes the need for BACT for all permits, major or minor. And the

governing statute does not define BACT beyond its own terms, leaving substantial degrees of

freedom for TCEQ to compel the best available control technology. TCEQ's implementing rules

also do not further define BACT at all, either, other than to emphasize the need for giving
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 of Subtitle 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 of project 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 of a 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 major
24

source or modification is subject to the best available control technology." Congress expressly

left the particulars to each state' Not evenEPA's rules describing its expectations for approvable

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 of course has made that demonstration in its various

SIP submittals over the years, but mostly by decades of actual BACT determinations made

pursuant to its definition. EPA has not identified even one TCEQ BACT determination that

yielded an inadequate result because ofthe different definitions. In fact, EPA has agreed that the

TCEQ BACT review process is perfectly adequate.

Response: EPA disagrees. See response to Comment 5. Furthermore, TCEQ's

implementation ofthe PSD SIP is outside the scope ofthis rulemaking action.

Comment J1: 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 of 40 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 of a 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 an
27

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 ofAlaska 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 by the Environmental Appeals

Board, which has recognized in prior rulings the permitting authority's ability to vary from the

NSR review manual as long as all regulatory criteria are considered and applied appropriately.

ConocoPhillips, PSD Appeal 07-02 slip op. at 30 (EAB June 2, 2008) (citing In re 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 an evaluation of the Texas 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 OUT evaluation 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 of BACT" to all actions subject to PSD, and conversely fails to delimit the minor NSR

definition to activities triggering only minor NSR. But there are no distinctions, legal or practical,

in Texas BACT reviews.

Response: EPA disagrees. See our response to Comment 5. Based upon our evaluation

oftbe July 2010, SIP revision, we conclude that Texas has corrected the deficiencies identified in

the proposal.

Comment 17: BCCA and TIP commented that the preamble to the 2006 revisions to 30

TAC 116.160 in which the incorporations by reference of 40 CFR 52.21 were changed,

demonstrate a consistency with the approach taken by the State in the preceding years. The

preamble explains the incorporation by reference of certain sections of 40 CFR 52.21 and further

states, "[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 of 40 CFR 52.21; they removed two ofthem entirely. The result is

that the submitted 2006 revision did not meetthe Act's PSD requirements and EPA's PSD SIP

regulations. Moreover, the State did not provide the requisite 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 of 40 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 above for further information.

Comment 18: BCCAand TIP commented that the appropriate BACTdefinition exists in

Texas's rules, as demonstrated by EPA's pastapproval of those rules. All permits Texas has

issuedunder the existingpermitting program reflect the current TCEQ SIP-approved approach to

BACT, andare validand enforceable.

Response: EPAdisagrees that the 2006 SIP revisionsubmittal maintained the appropriate

PSD BACTdefinition. See the response to Comment 5. Furthermore, in the July 16, 2010, SIP

submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal PSD

BACT definition in 40 CFR 52.21(b)(12). Based upon our evaluation ofthe July 2010, SIP

revision, we conclude that Texas has corrected 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 of all 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, SIP revision, we conclude 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 of being less stringent, because it limits the factors to be considered. Absent a definition of

BACT beyond its own self-description, TCEQ is free to be even stricter than the wordier federal

definition. Again, the proposed disapproval fails to identify even one determination that (a)

depended on the definition applied, and (b) yielded a determination less strict than would resulted
32

from application ofthe "federal definition."

Response: See response to comment 5.

Comment 21: Tee commented that EPA itself does not follow the "federal definition."

EPA is in a difficult position to insist on word-for-word adoption when it does not 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 of national 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 proof a 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

of BACT to allsources), but disapprove what it perceives to be a lesser definition of BACT.

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 if a project becomes a major stationery source or major

modification solely because or relaxation of an enforceable limitation on the source or

modifications capacity to emit the pollutant, then the source or modification is subject to PSD as

though construction had not commenced. This provision prohibits the use of "sham" operational

limits that a source may take to avoid PSD and provides an extra deterrent to facilities that may
35

take suchlimitsthat theyknowtheycannot achievein order to avoid federal permitting.

Approval ofthis deletion also violates the anti-backsliding provisions in 42 U.S.C. § 7515 and

wouldrender the Texas SIP less stringent that federal requirements and inadequate for preventing

significant deterioration of airquality.

Response: EPA appreciates the Clinic's support for the proposal. Inthe July 16, 2010,

SIP submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD Program the federal

requirements of 40 CFR 52.21(r)(4). Based upon our evaluation ofthe July 2010, SIP revision,

we conclude that Texas has corrected the deficienciesidentified in the proposal. See response to

comment 2 above for further information.
36

V. What are the Grounds for Approval?

A. Adoption ofCross-Reference to 40 CFR 52.21(b}(12), which is the Federal Definition of

Best Available Control Technology (BACT), and the Cross-Reference of40 CFR 52.210)

which Implements the Requirementfor 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 in part to its removal ofthis definition. EPA

observed that under the PSD Program, PSD BACT is a central requirement of the Act and that

the State'ssubmission of a revision that removes the requirement thatall new major stationary

sources and modifications meet, at a minimum, PSD BACT as defined bythe Act creates a

situation where the submitted SIP revisionwould violatethe Act and 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 ofthe reference to the federal definition ofPSD BACTin 40 CFR

52.21(b)(12) corrects a deficiency in the 2006 submittal because it reinstates a requirement that is
37

a central 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 not referenced in

the Texas PSD SIP approved in 1992. Texas chose to reference 40 CFR52.210) because ofthe

confusion overtheyears about the PSD versus theMinor NSR BACTdetermination

requirements. It complements the reinserted federal definition ofPSD BACT. Accordingly,

EPA is approving thereinstatement ofthe reference to federal PSD BACT in 40 CFR

52.21(b)(21) and the addition of a reference to 40 CFR 52.210).

B. Adoption ofCross-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 ofan 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 a project becomes a major stationary source ormajor modification

solelybecause of a relaxation of anenforceable limitation on the source's ormodification's

capacity to emita pollutant, then the source ormodification issubject to PSD as if construction
38

had not yet commenced. The removal ofthis requirement meant thatthe 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 a revision to 30 lAC 116.160 that 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

a deficiency in the 2006 submittal because it reinstates a requirement 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 the reinstatement ofthe

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

C. How EPA's Action does not Affect 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 the approved SIP exceptthat the 2006 submittal omitted references to

the definition ofPSD BACT in 40 CFR 52.2I(b)(l2) and the requirements of 40 CFR 52.21(r)(4)

whichresulted in the 2006 revisions not meeting the federal requirements. See sections IV.Aand

B above. The 2010 SIP revision submittal reinstates theseprovisions into the State'srules and

corrects the above-identified deficiencies. Texas also added a reference to 40 CFR52.21G) -
39

Control technology review- whichcomplements the implementation 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 the docket for this action. Our evaluation ofthese

changes demonstrates that the submitted changes to the Texas PSD Program are insignificant and

withthe changes submitted in 2010 essentially restore theProgram to whatit was in 1992. The

2006 revision also removedthe definitionsof "building, structure, facility, or installation" and

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

definitions is notsignificant because these terms are also defined using the same definitions in

the Texas SIP at 30 TAC 116.12(4) and (17), respectively, as approved at 74 FR 11851 (March

20,2009).

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);

• The proposed 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 this action in sectionIl 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 of Air

Pollution by Permits for New Construction orModification. EPAfinds that the July 16, 2010,

submittal corrects these deficienciesin the February 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 of a reference to 40 CFR

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

covered in these submissions 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 ifrelevant 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 if we 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 of an adverse comment.

VII. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that

complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 741O(k);
42

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve 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 not impose additional requirements

beyond those imposed by State law. For that reason, this action:

• Is not a "significant regulatory action" subject to review by the Office ofManagement

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

• Does not imposean information collection burden under theprovisions ofthe

Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified asnothaving a significant economic impact on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain anyunfunded mandate or significantly 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 on health or safetyrisks
43

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

• Is not a significant regulatory action subject to ExecutiveOrder 13211 (66 FR 28355,

May 22, 2001);

• Is notsubject to requirements of Section 12(d)ofthe National TechnologyTransfer

and Advancement Act of 1995 (15 U.S.c. 272 note) because application ofthose requirements

would be inconsistent with the CleanAir Act; and

• Does notprovide EPAwith thediscretionary authority to address, as appropriate,

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 it will 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 of 1996, generally provides that before a rule maytake

effect, the agencypromulgating the rule mustsubmit a rulereport, which includesa copy ofthe
44

rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

willsubmit a reportcontaining this action and otherrequired information to the U.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 for judicial review ofthis action

must be filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL

REGISTER OFFICE: insert date 60 days from date of publication 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 ofjudicial review nor does it extend the time within which

a petition for judicial review may be filed, 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 of Subjects 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 of Air Pollution by Permits for New Construction or

Modification, Subchapter B - New Source Review Permits, Division 6 - Prevention of

Significant Deterioration Review, by revising the entry for Section 116.160 - Prevention of

Significant Deterioration Review.

The revision reads as follows:

§ 52.2270 Identification of plan.

* * * * *

(c) * * *
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 of Air Pollution bv Permits for New Construction or Modification

• • • • • • •

Subchapter B - New Source Review Permits

• • • • • • •

Division 6 - Prevention of Sii!:nificant Deterioration Review

Section 116.160 Prevention of Significant 6/2/2010 [Insert date of FR

Deterioration publication]

Requirements [Insert FR page number

where document bezmsl

• • • • • • •

* * * * *