Wednesday, 

April 14, 2010 

Part II 

Environmental 

Protection Agency 

40 CFR Part 52 

Approval and Promulgation of 

Implementation Plans; Texas; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Modification 

of Existing Qualified Facilities Program 

and General Definitions; Final Rule 


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ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0025; FRL–9135– 

7] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Modification of Existing Qualified 

Facilities Program and General 

Definitions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final Rule. 

SUMMARY: EPA is taking final action to 

disapprove revisions to the SIP 

submitted by the State of Texas that 

relate to the Modification of Existing 

Qualified Facilities (the Qualified 

Facilities Program or the Program). EPA 

is disapproving the Texas Qualified 

Facilities Program because it does not 

meet the Minor NSR SIP requirements 

nor does it meet the NSR SIP 

requirements for a substitute Major NSR 

SIP revision. 

EPA is also approving three 

definitions that are severable from the 

Qualified Facilities submittals. These 

three definitions we are approving are, 

‘‘grandfathered facility,’’ ‘‘maximum 

allowable emission rate table (MAERT),’’ 

and ‘‘new facility.’’ Moreover, we are 

making an administrative correction to 

the SIP-approved definition of ‘‘facility.’’ 

We are taking this action under 

section 110, part C, and part D of the 

Federal Clean Air Act (the Act or CAA). 

DATES: This rule is effective on May 14, 

2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2005–TX–0025. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal, which is part of 

the EPA record, is also available for 

public inspection at the State Air 

Agency listed below during official 

business hours by appointment: Texas 

Commission on Environmental Quality, 

Office of Air Quality, 12124 Park 35 

Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–7212; fax number 

214–665–7263; e-mail address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the 

following terms have the meanings 

described below: 

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

• ‘‘Act’’ or ‘‘CAA’’ means Federal 

Clean Air Act. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations—Protection 

of Environment. 

• ‘‘SIP’’ means State Implementation 

Plan as established under section 110 of 

the Act. 

• ‘‘NSR’’ means new source review, a 

phrase intended to encompass the 

statutory and regulatory programs that 

regulate the construction and 

modification of stationary sources as 

provided under CAA section 

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

and 40 CFR 51.160 through 51.166. 

• ‘‘Minor NSR’’ means NSR 

established under section 110 of the Act 

and 40 CFR 51.160. 

• ‘‘Major NSR’’ means any new or 

modified source that is subject to NNSR 

and/or PSD. 

• ‘‘NNSR’’ means nonattainment NSR 

established under Title I, section 110 

and part D of the Act and 40 CFR 

51.165. 

• ‘‘PSD’’ means prevention of 

significant deterioration of air quality 

established under Title I, section 110 

and part C of the Act and 40 CFR 

51.166. 

• ‘‘Program’’ means the SIP revision 

submittals from the TCEQ concerning 

the Texas Qualified Facilities Program. 

• ‘‘NAAQS’’ means any national 

ambient air quality standard established 

under 40 CFR part 50. 

Table of Contents 

I. What Action Is EPA Taking? 

II. What Submittals Is EPA Taking No Action 

On? 

A. Subparagraph (F) under the definition of 

‘‘federally enforceable’’ 

B. Definition of ‘‘best available control 

technology (BACT)’’ 

C. Subparagraphs (A) and (B) of the 

submitted definition of ‘‘modification of 

existing facility’’ 

D. Subparagraph (G) of the submitted 

definition of ‘‘modification of existing 

facility’’ 

E. Trading Provision in 30 TAC 116.116(f) 

III. What Is the Background for This Action? 

A. Summary of Our Proposed Action 

B. Summary of the Submittals Addressed 

in this Final Action 

C. Other Relevant Actions on the Texas 

Permitting SIP Revision Submittals 

IV. What Are the Grounds for This 

Disapproval Action of the Texas 

Qualified Facilities Program? 

A. Why the Qualified Facilities Program 

Submittal Is Unclear Whether It Is for a 

Major or Minor NSR SIP Revision 

B. Why the Submitted Texas Qualified 

Facilities Program Is Not Approvable as 

a Substitute Major NSR SIP Revision 

C. Why the Submitted Texas Qualified 

Facilities Program Is Not Approvable as 

a Minor NSR SIP Revision 

D. Definition of ‘‘facility’’ 

V. Response to Comments 

A. General Comments 

B. Comment That This Action Is 

Inconsistent With the CAA 

C. Comments Addressing Whether the 

Qualified Facilities Rules Allow Sources 

to ‘‘Net Out’’ of Major and Minor NSR 

Through Rules that Are Not Adequate To 

Protect the NAAQS and State Control 

Strategies 

D. Comments Addressing Whether the 

Qualified Facilities Rules Are Practically 

Enforceable 

E. Comments Addressing Whether the 

Qualified Facilities Rules Meet Federal 

Requirements for Major NSR 

F. Comments Addressing Whether the 

Qualified Facilities Rules Meet Federal 

Requirements for Minor NSR 

G. Comments Addressing Whether Existing 

Qualified Facilities Have Undergone an 

Air Quality Analysis 

H. Comments on the Definitions of 

‘‘Grandfathered Facility,’’ ‘‘Maximum 

Allowable Emission Rate Table,’’ and 

‘‘New Facility’’ 

I. Comments on the Definitions of ‘‘Actual 

Emissions,’’ ‘‘Allowable Emissions,’’ 

‘‘Modification of Existing Facility’’ at (E), 

and ‘‘Qualified Facility’’ 

J. Comments on the Definition of ‘‘Best 

Available Control Technology’’ (‘‘BACT’’) 

K. Comments on Severable Portions of the 

Definition of ‘‘Modification of Existing 

Facility’’ at 30 TAC 116.10(11)(A) and (B) 

L. Comments on the Definition of 

Severable Subsection of ‘‘Modification of 


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Existing Facility’’ at 30 TAC 

116.10(11)(G) 

M. Comments on the Reinstatement of the 

Previously Approved Definition of 

‘‘Facility’’ 

N. Comments on the Definition of the Term 

‘‘Air Quality Account Number’’ 

O. Comments on Whether the Qualified 

Facilities Rules Meet NSR Public 

Participation Requirements 

VI. Final Action 

VII. Statutory and Executive Order Reviews 

I. What Action Is EPA Taking? 

EPA is taking final action to 

disapprove the Texas Qualified 

Facilities Program, as submitted by 

Texas on March 13, 1996, and July 22, 

1998, in Title 30 of the Texas 

Administrative Code (30 TAC) at 30 

TAC Chapter 116—Control of Air 

Pollution by Permits for New 

Construction or Modification. This 

includes the following regulations 

under Chapter 116: 30 TAC 116.116(e), 

30 TAC 116.117, 30 TAC 116.118, and 

the following definitions under 30 TAC 

116.10—General Definitions: 30 TAC 

116.10(1)—definition of ‘‘actual 

emissions,’’ 30 TAC 116.10(2)— 

definition of ‘‘allowable emissions,’’ 30 

TAC 116.10(11)(E) under the definition 

of ‘‘modification of existing facility,’’ 

and 30 TAC 116.10(16)—definition of 

‘‘qualified facility.’’ These regulations 

and definitions do not meet the 

requirements of the Act and EPA’s NSR 

regulations. It is EPA’s position that 

none of these identified elements for the 

submitted Qualified Facilities Program 

is severable from each other. 

Secondly, in an action separate from 

the above action on the submitted Texas 

Qualified Facilities Program, we are 

approving the following severable 

definitions: 30 TAC 116.10(8)— 

definition of ‘‘grandfathered facility,’’ 30 

TAC 116.10(10)—definition of 

‘‘maximum allowable emission rate table 

(MAERT),’’ and 30 TAC 116.10(12)— 

definition of ‘‘new facility.’’ It is EPA’s 

position that these definitions are 

severable from those in the submitted 

Texas Qualified Facilities Program; 

moreover, each is severable from each 

other. 

EPA proposed the above actions on 

September 23, 2009 (74 FR 48450). We 

accepted comments from the public on 

this proposal from September 23, 2009, 

until November 23, 2009. A summary of 

the comments received and our 

evaluation thereof is discussed in 

section V below. In the proposal and in 

the Technical Support Document (TSD), 

we described our basis for the actions 

identified above. The reader should 

refer to the proposal, the TSD, section 

IV of this preamble, and the Response 

to Comments in section V of this 

preamble for additional information 

relating to our final action. 

We are disapproving the submitted 

Texas Qualified Facilities Program as 

not meeting the requirements for a 

substitute Major NSR SIP revision. Our 

grounds for disapproval as a substitute 

Major NSR SIP revision include the 

following: 

• It is not clearly limited to Minor 

NSR thereby allowing major 

modifications to occur without a Major 

NSR permit; 

• It has no regulatory provisions 

clearly prohibiting the use of this 

Program from circumventing the Major 

NSR SIP requirements thereby allowing 

changes at existing facilities to avoid the 

requirement to obtain preconstruction 

permit authorizations for projects that 

would otherwise require a Major NSR 

preconstruction permit; 

• It does not require that first an 

applicability determination be made 

whether the modification is subject to 

Major NSR thereby exempting new 

major stationary sources and major 

modifications from the EPA Major NSR 

SIP requirements; 

• It does not include a demonstration 

from the TCEQ, as required by 40 CFR 

51.166(a)(7)(iv), showing how the use of 

‘‘modification’’ is at least as stringent as 

the definition of ‘‘modification’’ in the 

EPA Major NSR SIP program 

• It does not include the requirement 

to make Major NSR applicability 

determinations based on actual 

emissions and on emissions increases 

and decreases (netting) that occur 

within a major stationary source; 

• It fails to meet the statutory and 

regulatory requirements for a SIP 

revision; 

• It is not consistent with applicable 

statutory and regulatory requirements as 

interpreted in EPA policy and guidance 

on SIP revisions; and 

• EPA lacks sufficient available 

information to determine that the 

requested relaxation to the Texas Major 

NSR SIP will not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (RFP), or any other applicable 

requirement of the Act. 

In addition to the failures to protect 

Major NSR SIP requirements, EPA 

cannot find that the submitted Program, 

as an exemption to the State’s Minor 

NSR SIP program, will ensure 

noninterference with NAAQS 

attainment, and there will not be a 

violation of applicable portions of a 

Texas SIP control strategy, as required 

by section 110(a)(2)(D) and 40 CFR 

51.160(a)–(b). EPA cannot approve the 

exempting of certain modifications from 

obtaining a Minor NSR SIP permit as 

part of the Texas Minor NSR SIP 

because the Act and EPA regulations are 

not met and the State has not shown 

that the sources will have only a de 

minimis effect. The Program fails to 

include legally enforceable procedures 

to ensure that the State will not permit 

a modification that will violate the 

control strategies or interfere with 

NAAQS attainment. Our grounds for 

disapproval as a Minor NSR SIP 

revision include the following: 

• It is not clearly limited to Minor 

NSR thereby allowing major 

modifications to occur without a Major 

NSR permit; 

• It has no regulatory provisions 

clearly prohibiting the use of this 

Program from circumventing the Major 

NSR SIP requirements thereby allowing 

sources to avoid the requirement to 

obtain preconstruction permit 

authorizations for projects that would 

otherwise require a Major NSR 

preconstruction permit; 

• It does not require that first an 

applicability determination be made 

whether the modification is subject to 

Major NSR thereby exempting new 

major stationary sources and major 

modifications from the EPA Major NSR 

SIP requirements; 

• It fails to meet the statutory and 

regulatory requirements for a SIP 

revision; 

• It is not consistent with applicable 

statutory and regulatory requirements as 

interpreted in EPA policy and guidance 

on SIP revisions; 

• It is not an enforceable Minor NSR 

permitting program; 

• It lacks legally enforceable 

safeguards to ensure that the exempted 

changes will not violate a Texas control 

strategy and will not interfere with 

NAAQS attainment; 

• EPA lacks sufficient available 

information to determine that the 

requested relaxation to the Texas Minor 

NSR SIP will not interfere with any 

applicable requirement concerning 

attainment and RFP, or any other 

applicable requirement of the Act. 

The provisions in these submittals 

relating to the Texas Qualified Facilities 

State Program that include the Chapter 

116 regulatory provisions and the 

nonseverable definitions in the General 

Definitions were not submitted to meet 

a mandatory requirement of the Act. 

Therefore, this final action to 

disapprove the submitted Texas 

Qualified Facilities State Program does 

not trigger a sanctions or Federal 

Implementation Plan clock. See CAA 

section 179(a). 


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1EPA made this determination in a separate 

proposed action published at 74 FR 48467, 

September 23, 2009. This proposal relates to 

Prevention of Significant Deterioration (PSD), 

Nonattainment NSR (NNSR) for the 1997 8-Hour 

Ozone Standard, NSR Reform, and a Standard 

Permit. 

2Petitions, August 28, 2008, from the 

Environmental Integrity Project on behalf of the 

Galveston-Houston Association for Smog 

Prevention, Environmental Integrity Project, Texas 

Campaign for the Environment, Sierra Club, and 

Public Citizen; and January 5, 2009, supplementing 

the August 28, 2008, petition (the supplemental 

petition added the Environmental Defense Fund as 

an additional petitioner). 

II. What Submittals Is EPA Taking No 

Action On? 

A. Subparagraph (F) Under the 

Definition of ‘‘Federally Enforceable’’ 

On September 18, 2002 (67 FR 58697), 

EPA approved the definition of 

‘‘federally enforceable’’ in 30 TAC 

116.10(7), introductory paragraph and 

subparagraphs (A) through (E), as 

submitted July 22, 1998. We proposed to 

take no action on the submitted 

severable new subparagraph (F) under 

the SIP-approved definition of ‘‘federally 

enforceable,’’ submitted September 11, 

2000, because it is outside the scope of 

the SIP. See 74 FR 48450, at 48466. EPA 

is not finalizing action today on the 

proposal concerning the submitted 30 

TAC 116.10(7)(F). This subparagraph (F) 

is severable from the final rulemaking 

on the Qualified Facilities Program 

B. Definition of ‘‘Best Available Control 

Technology (BACT)’’ 

On September 23, 2009, EPA 

proposed to disapprove the definition 

‘‘best available control technology 

(BACT)’’ under 30 TAC 1161.10(3). 74 

FR 48450, at 48463–48464. EPA is still 

reviewing approvability of this 

definition; therefore, we are not taking 

final action on the proposal today. This 

definition is severable from the final 

rulemaking on the Qualified Facilities 

Program. We will take final action on 

the definition of BACT when we take 

action on Texas’s submission 

concerning NSR Reform (Rule Project 

Number 2005–010–116–PR), which also 

addresses BACT. See 74 FR 48450, at 

48472.1 Under the Consent Decree 

entered on January 21, 2010 in BCCA 

Appeal Group v. EPA, Case No. 3:08– 

cv–01491–N (N.D. Tex), EPA’s final 

action concerning NSR Reform will be 

finalized by August 31, 2010. 

C. Subparagraphs (A) and (B) of the 

Submitted Definition of ‘‘Modification of 

Existing Facility’’ 

Also, on September 23, 2009, EPA 

proposed to disapprove 30 TAC 

116.10(11) subparagraphs (A) and (B) of 

the submitted definition of 

‘‘modification of existing facility,’’ 

which are severable from the other 

submissions addressed in this notice but 

not severable from each other. 74 FR 

48450, at 48464–48465. EPA is not 

taking final action today on the 

proposed disapproval of these 

submitted subparagraphs under the 

submitted definition of ‘‘modification of 

existing facility’’ at 30 TAC 116.0(11)(A) 

and (B). We are still reviewing the 

proposed disapproval of these 

subparagraphs 30 TAC 116.10(11)(A) 

and (B) which relate to ‘‘insignificant 

increases.’’ These subparagraphs are 

severable from this final rulemaking on 

the Qualified Facilities Program. We 

will take final action on 30 TAC 

116.10(11)(A) and (B) when we act on 

Texas’s submission concerning Air 

Permits (SB 766) Phase II (Rule Project 

Number 99029B–116–A1). Under the 

Settlement Agreement in BCCA Appeal 

Group v. EPA, Case No. 3:08–cv–01491– 

N (N.D. Tex), that action will be 

finalized by December 31, 2012. 

Additionally, we have received 

petitions requesting EPA review of the 

State’s implementation of Texas 

Commission on Environmental 

Quality’s (TCEQ) permit by rule (PBR) 

program under Subchapter K (30 TAC 

Chapter 106).2 EPA intends to review 

TCEQ’s PBR program and its 

implementation in response to those 

petitions. 

D. Subparagraph (G) of the Submitted 

Definition of ‘‘Modification of Existing 

Facility’’ 

On September 23, 2009, EPA 

proposed to disapprove the 

subparagraph (G) at 30 TAC 116.10(11) 

of the submitted definition of 

‘‘modification of existing facility.’’ See 

74 FR 48450, at 48465. EPA is not taking 

final action today on the proposed 

disapproval of the submitted 

subparagraph (G) of the definition of 

‘‘modification of existing facility.’’ We 

are still reviewing the proposed 

disapproval of this definition. This 

subparagraph states that changes to 

certain natural gas processing, treating, 

or compression facilities are not 

modifications if the change does not 

result in an annual emissions rate of any 

air contaminant in excess of the volume 

emitted at the maximum design capacity 

for grandfathered facilities. This 

definition is severable from this 

rulemaking on the Qualified Facilities 

Program. See 74 FR 48450, at 48452. We 

will take final action on 30 TAC 

116.10(11)(G) when we act on Texas’s 

submission concerning Air Permits (SB 

766) Phase II (Rule Project Number 

99029B–116–A1). Under the Settlement 

Agreement in BCCA Appeal Group v. 

EPA, Case No. 3:08–cv–01491–N (N.D. 

Tex), that action will be finalized by 

December 31, 2012. 

E. Trading Provision in 30 TAC 

116.116(f) 

EPA proposed to take no action on the 

submitted portion of 30 TAC 116.116(f) 

that includes, among other things, a 

trading provision containing a crossreference that is no longer in Texas’s 

rules. See 74 FR 48450, at 48465–48466. 

EPA is not taking final action today on 

this submitted portion because we are 

still reviewing approvability of the 

provision. This portion of the provision 

is severable from this rulemaking on the 

Qualified Facilities Program. We will 

take final action on 30 TAC 116.116(f) 

when we take action on Texas’s 

submission concerning NSR Rules 

Revisions; 112(g) Revisions (Rule 

Project No. 98001–116–AI). Under the 

Settlement Agreement in BCCA Appeal 

Group v. EPA, Case No. 3:08–cv–01491– 

N (N.D. Tex), that action will be 

finalized by October 31, 2011. 

III. What Is the Background? 

A. Summary of Our Proposed Action 

Also on September 23, 2009 (74 FR 

48450), EPA proposed to disapprove 

revisions to the SIP submitted by the 

State of Texas that relate to the 

Modification of Qualified Facilities. 

These affected provisions include 

regulatory provisions at 30 TAC 

116.116(e) and definitions of ‘‘actual 

emissions,’’ ‘‘allowable emissions,’’ a 

nonseverable portion of the definition at 

subparagraph (E) of ‘‘modification of 

existing facility,’’ and ‘‘qualified facility’’ 

under Texas’s General Definitions in 

Chapter 116, Control of Air Pollution by 

Permits for New Construction or 

Modification. See 30 TAC 116.10(1), (2), 

(11)(E), and (16), respectively. EPA finds 

that these submitted provisions and 

definitions in the submittals affecting 

the Texas Qualified Facilities Program 

are not severable from each other. 

In the September 23, 2009, EPA also 

proposed to take action on revisions to 

the SIP submitted by Texas that relate 

to the General Definitions in Chapter 

116. EPA proposed to approve three of 

these submitted definitions, 

‘‘grandfathered facility,’’ ‘‘maximum 

allowable emissions rate table 

(MAERT),’’ and ‘‘new facility’’ at 30 TAC 

116.10(8), (10), and (12), respectively. 

These definitions are severable from the 

Qualified Facilities Program. 

EPA proposed to make an 

administrative correction to the 

severable submittal for the SIP-approved 


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definition of ‘‘facility’’ under 30 TAC 

116.10(6). Consistent with our proposal, 

EPA is finalizing this administrative 

correction in today’s action. 

Specifically, EPA corrects a 

typographical error at 72 FR 49198 

(August 28, 2007), to clarify that the 

definition of ‘‘facility,’’ as codified at 30 

TAC 116.10(6), was approved as part of 

the Texas SIP in 2006 and remains part 

of the Texas SIP. 74 FR 48450, at 48465. 

See Sections I and IV for further 

information on EPA’s final action on the 

above submittals. 

Further, EPA proposed to disapprove 

the following severable definitions: (1) 

the submitted definition of ‘‘best 

available control technology (BACT)’’ 

and (2) subparagraphs (A) and (B) of the 

submitted definition of ‘‘modification of 

existing facility,’’ which are severable 

from the other submissions but not 

severable from each other, and (3) 

subparagraph (G) of the submitted 

definition of ‘‘modification of existing 

facility.’’ EPA proposed to take no action 

on the severable submitted 

subparagraph (F) for the SIP-approved 

severable definition of ‘‘federally 

enforceable’’ under 30 TAC 116.10(7) 

because the submitted paragraph relates 

to a federal program that is 

implemented separately from the SIP. In 

addition, EPA proposed to take no 

action on the severable submitted 

portion of a provision at 30 TAC 

116.116(f) that includes, among other 

things, a trading provision containing a 

cross-reference that no longer is in 

Texas’s rules. See Section II for further 

information on why EPA is not taking 

final action today on these submittals. 

B. Summary of the Submittals 

Addressed in this Final Action 

Table 1 below summarizes the 

changes that are in the SIP revision 

submittals. A summary of EPA’s 

evaluation of each section and the basis 

for this action is discussed in Sections 

IV through VI of this preamble. The 

Technical Support Document includes a 

detailed evaluation of the submittals. 

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

Section Title Submittal 

dates Description of change Proposed action 

30 TAC 116.10 ....................... General Definitions 

30 TAC 116.10(1) .................. Definition of ‘‘actual emissions’’.3/13/1996 Added new definition ...................... Disapproval. 

7/22/1998 Repealed and a new definition submitted as paragraph (1).

30 TAC 116.10(2) .................. Definition of ‘‘allowable 

emissions’’.

3/13/1996 Added new definition ...................... Disapproval. 

7/22/1998 Repealed and a new definition submitted as paragraph (2).

9/11/2000 Revised paragraphs (2)(A) through 

(D).

30 TAC 116.10(6) .................. Definition of ‘‘facility’’ ........... 3/13/1996 Added new definition ...................... Administrative correction to 

clarify the definition of 

‘‘facility’’ is in the SIP. 

7/22/1998 Repealed and a new definition submitted as paragraph (4). Approved 9/6/2006 (71 FR 52698).

9/4/2002 Redesignated to paragraph (6). Inadvertently identified as non-SIP 

provision in 8/28/2007 SIP revision.

30 TAC 116.10(8) .................. Definition of ‘‘grandfathered 

facility’’.

3/13/1996 Added new definition ...................... Approval. 

7/22/1998 Repealed and a new definition submitted as paragraph (6).

7/31/2002 Revised definition.

9/4/2002 Redesignated to paragraph (8).

30 TAC 116.10(10) ................ Definition of ‘‘maximum allowable emission rate 

table’’.

3/13/1996 Added new definition ...................... Approval. 

7/22/1998 Repealed and a new definition submitted as paragraph (8).

9/4/2002 Redesignated to paragraph (10).

30 TAC 116.10(11) ................ Definition of ‘‘modification of 

existing facility’’.

3/13/1996 Added new definition ...................... Disapproval of subparagraph (E). 

7/22/1998 Repealed and a new definition submitted as paragraph (9).

9/4/2002 Redesignated to paragraph (11).

30 TAC 116.10(12) ................ Definition of ‘‘new facility’’ ... 3/13/1996 Added new definition ...................... Approval. 

7/22/1998 Repealed and a new definition submitted as paragraph (10).

9/04/2002 Redesignated to paragraph (12).

30 TAC 116.10(16) ................ Definition of ‘‘qualified facility’’.3/13/1996 Added new definition ...................... Disapproval. 

7/22/1998 Repealed and a new definition submitted as paragraph (14).

9/4/2002 Redesignated to paragraph (16).

30 TAC 116.116 ..................... Changes to Facilities ........... 3/13/1996 Added subsection (e) ...................... Disapproval. 

7/22/1998 Repealed and a new 116.116(e) 

submitted.

Disapproval. 


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3The Standard Permits rules require a Major NSR 

applicability determination at 30 TAC 116.610(b), 

and prohibit circumvention of Major NSR at 30 

TAC 116.610(c). Likewise, the Permits by Rule 

provisions require a Major NSR applicability 

determination at 30 TAC 106.4(a)(3), and prohibit 

circumvention of Major NSR at 30 TAC 106.4(b). 

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

Section Title Submittal 

dates Description of change Proposed action 

30 TAC 116.117 ..................... Documentation and Notification of Changes to Qualified Facilities.3/13/1996 Added new section ......................... Disapproval. 

7/22/1998 Repealed and a new 116.117 resubmitted.

30 TAC 116.118 ..................... Pre-Change Qualification .... 3/13/1996 Added new section ......................... Disapproval.

7/22/1998 Repealed and a new 116.118 submitted.

C. Other Proposed Relevant Actions on 

the Texas Permitting SIP Revision 

Submittals 

The Settlement Agreement in BCCA 

Appeal Group v. EPA, Case No. 3:08– 

cv–01491–N (N.D. Tex), as amended, 

currently provides that EPA will take 

final action on the State’s Public 

Participation SIP revision submittal on 

October 29, 2010. EPA intends to take 

final action on the submitted Texas 

Flexible Permits State Program by June 

30, 2010, and the NSR SIP by August 31, 

2010, as provided in the Consent Decree 

entered on January 21, 2010 in BCCA 

Appeal Group v. EPA, Case No. 3:08– 

cv–01491–N (N.D. Tex). 

Additionally, EPA acknowledges and 

appreciates that TCEQ is developing a 

proposed rulemaking package to address 

EPA’s concerns with the current 

Qualified Facilities rules. We will, of 

course, consider any rule changes if and 

when they are submitted to EPA for 

review. However, the rules before us 

today are those of the current Qualified 

Facilities program, and we have 

concluded that the current program is 

not approvable for the reasons set out in 

this notice. 

IV. What Are the Grounds for This 

Disapproval Action of the Texas 

Qualified Facilities Program? 

EPA is disapproving revisions to the 

SIP submitted by the State of Texas that 

relate to the Modification of Qualified 

Facilities, identified in the above Table 

1. Sources are reminded that they 

remain subject to the requirements of 

the Federally- approved Texas SIP and 

may be subject to enforcement actions 

for violations of the SIP. See EPA’s 

Revised Guidance on Enforcement 

During Pending SIP Revisions, (March 

1, 1991). However, because the 

Qualified Facilities Program is a 

permitting exemption, not a permit 

amendment, this final disapproval 

action does not affect Federal 

enforceability of Major and Minor NSR 

SIP permits. 

The provisions affected by this 

disapproval action include regulatory 

provisions at 30 TAC 116.116(e), 

116.117, and 116.118; and definitions at 

30 TAC 116.10(1), (2), (11)(E), and (16) 

under 30 TAC Chapter 116, Control of 

Air Pollution by Permits for New 

Construction or Modification. EPA finds 

that these submitted provisions and 

definitions in the submittals affecting 

the Texas Qualified Facilities Program 

are not severable from each other. 

Specifically, EPA is making the 

following findings and taking the 

following actions as described below: 

A. Why the Qualified Facilities Program 

Submittal Is Unclear Whether it Is for a 

Major or Minor NSR SIP Revision 

While the TCEQ and other 

commenters asserted that the program 

was intended to be limited to Minor 

NSR, we continue to be concerned that 

the program is not explicitly limited to 

Minor NSR. Specifically, EPA finds that 

the submittals contain no applicability 

statement or regulatory provision that 

limits applicability to minor 

modifications. The Program is 

analogous to two other Minor NSR 

programs in Texas’s SIP because 

although they do not exempt facilities 

from NSR, as does the Qualified 

Facilities Program, they do exempt 

facilities from obtaining source-specific 

(i.e., case-by-case) permits. However, 

both of the State’s other Minor NSR 

programs include an applicability 

statement and a regulatory provision 

that expressly limits applicability to 

minor modifications.3 Moreover, the 

Texas Clean Air Act clearly prohibits 

the use of these two other Minor NSR 

programs for Major NSR. See Texas 

Health and Safety Code 382.05196 and 

.057. Therefore, the absence of these 

provisions in the Qualified Facilities 

rules creates an unacceptable ambiguity 

in the SIP. Without a clear statement of 

applicability of the Program, the 

Program as submitted is confusing to the 

public, regulated sources, government 

agencies, or a court, because it can be 

interpreted as an alternative to 

evaluating the new modification as a 

major modification under Major NSR 

requirements. Because of the overbroad 

nature of the regulatory language in the 

State’s SIP revision submittal, we find 

that the State has failed to limit its 

submitted Program only to Minor NSR. 

See 74 FR 48450, at 48456–48457 and 

Section V.E.1 below for further 

information. 

Consequently, we evaluated this 

submitted Program as being a substitute 

for the Texas Major NSR SIP. We also 

evaluated it for approvability as a Minor 

NSR SIP. Accordingly, we evaluated 

whether the submitted Program meets 

the requirements for a Major NSR SIP 

revision, the general requirements for 

regulating construction of any stationary 

sources contained in Section 

110(a)(2)(C) of the CAA, and the 

applicable statutory and regulatory 

requirements for an approvable SIP 

revision. See 74 FR 48450, at 48457. 

B. Why the Submitted Texas Qualified 

Facilities Program Is Not Approvable as 

a Substitute Major NSR SIP Revision 

EPA finds that the State failed to 

submit information sufficient to 

demonstrate that the submitted 

Program’s regulatory text explicitly 

prevents the circumvention of Major 

NSR. Therefore, EPA is disapproving 

the Program as not meeting the Major 

NSR SIP requirements to prevent 

circumvention of Major NSR. See 74 FR 

48450, at 48458; Sections V.C.2. and E. 

below for further information. 

EPA finds that that the State failed to 

submit information sufficient to 

demonstrate that the submitted 

Program’s regulatory text requires an 

evaluation of Major Source NSR 

applicability before a change is 

exempted from permitting. Therefore, 

EPA is disapproving the Program as not 

meeting the Major NSR SIP 

requirements that require the Major NSR 

applicability requirements be met. See 


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4However, our analysis of the netting provisions 

in the Qualified Facilities Program under Minor 

NSR is not intended to create a binding Agency 

position on evaluating the approvability of Minor 

NSR netting. 

74 FR 48450, at 48458; Section V.C.2 

below for further information. 

We find that the Program is deficient 

for Major NSR netting for two main 

reasons. First, the Program may allow an 

emission increase to net out by taking 

into account emission decreases outside 

of the major stationary source and, in 

other circumstances, allow an 

evaluation of emissions of a subset of 

units at a major stationary source. 

Therefore, the Program does not meet 

the CAA’s definition of ‘‘modification’’ 

and the Major NSR SIP requirements 

and is inconsistent with Alabama Power 

v. Costle, 636 F.2d 323, 401–403 (DC 

Cir. 1980) and Asarco v. EPA, 578 F.2d 

320 (DC Cir. 1978). 74 FR 48450, at 

48458–48459; Section V.C.1 below. 

Second, the Program authorizes existing 

allowable emissions, rather than actual 

emissions, to be used as a baseline to 

determine applicability. This use of 

allowables is inconsistent with the 

requirements of the Act for Major NSR 

and is contrary to New York v. EPA, 413 

F.3d 3, 38–40 (DC Cir. 2005) (‘‘New York 

I’’). 74 FR 48450, at 48459; Section V.C.1 

below. 

EPA finds that it lacks sufficient 

available information to determine, 

pursuant to section 110(l) that the 

requested relaxation to the Texas NSR 

SIP would not interfere with any 

applicable requirement concerning 

attainment and RFP, or any other 

applicable CAA requirement. See 74 FR 

48450, at 48459 for further information. 

C. Why the Submitted Texas Qualified 

Facilities Program Is Not Approvable as 

a Minor NSR SIP Revision 

EPA finds that the Program is not 

clearly limited to Minor NSR. The 

submitted Program also does not 

prevent circumvention of the Major NSR 

SIP requirements. The Program lacks 

requirements necessary for enforcement 

of the applicable emissions limitations, 

including a permit application and 

issuance process. Overall, the Program 

fails to include sufficient legally 

enforceable safeguards to ensure that the 

NAAQS and control strategies are 

protected. Furthermore, the Program 

provides a de minimis exemption from 

the Texas Minor NSR SIP, and therefore, 

it is a SIP relaxation, which creates a 

risk of interference with NAAQS 

attainment, RFP, or any other 

requirement of the Act. EPA lacks 

sufficient information to determine that 

this SIP relaxation would not interfere 

with these requirements. 74 FR 48450, 

at 48463. Additionally, the legal test for 

whether a de minimis threshold can be 

approved is whether it is consistent 

with the need for a plan to include 

legally enforceable procedures to ensure 

that the State will not permit a source 

that will violate the control strategy or 

interfere with NAAQS attainment, as 

required by 40 CFR 51.160(a)–(b). 74 FR 

48450, at 48460. The State failed to 

demonstrate that this exemption will 

not permit changes that will violate the 

Texas control strategies or interfere with 

NAAQS attainment. Therefore, we are 

disapproving the submitted Qualified 

Facilities Program as a Minor NSR SIP 

revision because it does not meet 

sections 110(a)(2)(C) and 110(l) of the 

Act and 40 CFR 51.160. 

The Qualified Facilities Program does 

not ensure protection of the NAAQS 

and prevent violations of any State 

control strategy. First, the Program fails 

to ensure that all participating Qualified 

Facilities must have obtained a Texas 

NSR SIP permit. Without the assurance 

that all Qualified Facilities have 

obtained a Texas NSR SIP permit, EPA 

cannot determine that all Qualified 

Facilities must have Federally 

enforceable emission limitations based 

on the chosen control technology, and 

that the Qualified Facility will not 

interfere with attainment and 

maintenance of the NAAQS or violate 

any control strategy. Therefore, EPA 

finds that the Qualified Facilities 

Program is inadequate to ensure that all 

Qualified Facilities have an appropriate 

allowable limit to prevent interference 

with attainment and maintenance of the 

NAAQS or violations of any State 

control strategy that is required by the 

Texas NSR SIP. See Section V.G.1 for 

further information. In addition, the 

Program does not require the owner or 

operator to maintain the information 

and analysis showing how it concluded 

that there will be no adverse impact on 

ambient air quality before undertaking 

the change. Therefore, EPA finds that 

the Qualified Facilities Program is 

inadequate to ensure that all changes 

under the Program that are exempted 

from permitting will not prevent 

interference with attainment and 

maintenance of the NAAQS or 

violations of any State control strategy 

that is required by the Texas NSR SIP. 

74 FR 48450, at 48462; Section V.F.1. 

Regarding the State’s use of minor 

source netting in the Qualified Facilities 

Program, EPA makes the following 

findings: 

The Qualified Facilities Program is 

inadequate because it fails to provide 

clear and enforceable requirements for a 

basic netting program. Therefore, this 

Program, as submitted, does not meet 

the fundamental requirements for an 

approvable Minor NSR netting program. 

To analyze the Program’s Minor NSR 

netting for approvability, we used the 

fundamental principles of Major NSR 

and NSR netting because these 

principles are designed to ensure that 

there is no interference with the 

NAAQS and control strategies.4 The 

Major NSR netting program requires the 

following: (1) An identified 

contemporaneous period, (2) the 

reductions must be contemporaneous 

and creditable, (3) the reductions must 

be of the same pollutant as the change, 

(4) the reductions must be real, (5) the 

reductions must be permanent, and (6) 

the reductions must be quantifiable. See 

40 CFR 51.165(a)(1)(vi) (the definition of 

‘‘net emissions increase’’); 40 CFR 

51.166(b)(3). To be considered 

creditable, the reduction’s old level of 

emissions must exceed the new level of 

emissions, the reduction must be 

enforceable as a practical matter at and 

after the time the actual change begins, 

and the reduction must have 

approximately the same qualitative 

significance for public health and 

welfare as that attributed to the increase 

from the particular change. See 74 FR 

48450, at 48461. 

As discussed below, the Program’s 

netting provisions do not meet all of the 

requirements; therefore, the Qualified 

Facilities netting is disapproved as a 

Minor NSR netting program. 

• The Program fails to define a 

contemporaneous or other period for the 

netting and that the emission reductions 

must occur within that specified period. 

74 FR 48450, at 48461; Section V.C.1 

below. 

• Emissions reductions under the 

Qualified Facilities program are not 

enforceable as a practical matter at and 

after the time of the actual change 

begins; and therefore, not sufficiently 

creditable. First, the Program fails to 

ensure a separate netting analysis is 

performed for each proposed change 

because the rules are not clear that 

reductions can only be relied upon 

once. Therefore, we find that the 

Program fails to prevent double 

counting; and consequently these types 

of reductions are not creditable. Second, 

the Program does not require that each 

Qualified Facility involved in the 

netting transaction must submit a 

permit application and obtain a permit 

revision reflecting all of the changes 

made to reduce emissions (relied upon 

in the netting analysis) as well as 

reflecting the change itself that 

increased emissions. As a result, 

emissions reductions are not 

enforceable; and therefore, not 


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5See 40 CFR 51.165(a)(1)(vi)(A) and 

51.166(b)(3)(i), which define net emissions increase 

‘‘with respect to any regulated NSR pollutant.’’ 

Emphasis added. 

sufficiently creditable. 74 FR 48450, at 

48462; Section V.C.1. 

• EPA proposed to find that the 

State’s ‘‘interchange’’ methodology, 

submitted 30 TAC 116.116(e)(3), is 

consistent with the Federal requirement 

that reductions must be of the same 

pollutant as the change.5 74 FR 48450, 

at 48461. However, after evaluation of 

received comments, EPA finds that the 

term ‘‘sulfur compounds’’ in 30 TAC 

116.116(e)(3)(F), is broad enough to 

include hydrogen sulfide. Hydrogen 

sulfide is a regulated NSR pollutant (see 

40 CFR 52.21(b)(23)(i) and 52.21(i)(5)(i)) 

and, in certain instances, may require 

separate analysis from sulfur oxides in 

a netting analysis. Therefore, the 

interchange methodology may not 

ensure the health impacts of all sulfur 

compounds will be equal. The State 

failed to demonstrate that such use of 

hydrogen sulfide would protect the 

sulfur dioxides NAAQS. Additionally, 

this provision allows PM–2.5 to be 

interchanged with PM–10. However, 

because PM–10 and PM–2.5 are two 

separate pollutants and the State failed 

to demonstrate that such use of PM–10 

would protect the PM–2.5 NAAQS, this 

interchange is inappropriate. Therefore, 

this provision is unapprovable for the 

sulfur dioxides and PM NAAQS. 

Section V.C.1 below. 

• The Program also lacks any 

provisions that require the reductions to 

be permanent. Specifically, the 

submitted Program does not include 

provisions that either prohibit future 

increases at the Qualified Facility, or 

ensure that any future increase at a 

Qualified Facility at which a previous 

netting reduction occurred is analyzed 

in totality to assure that the NAAQS 

remains protected from the original 

increase. 74 FR 48450, at 48461; Section 

V.C.1 below. 

Section 30 TAC 116.117(b) lacks any 

provisions that require a permit 

application to be submitted to TCEQ for 

a change under the Program. There are 

no provisions in 30 TAC 116.117(b) that 

clearly indicate that TCEQ must issue a 

revised permit for the changes made by 

all of the participating Qualified 

Facilities. Thus, EPA finds that the 

Program is not approvable because it 

lacks this requirement and therefore is 

not enforceable. See 74 FR 48450, at 

48462, Section V.D.1 below. 

The Qualified Facilities SIP submittal 

is a relaxation under CAA section 110(l) 

because it provides an exemption from 

NSR permitting not previously available 

to facilities. As such, this revision 

creates a risk of interference with 

NAAQS attainment, RFP, or any other 

requirement of the Act. EPA lacks 

information sufficient to make a 

determination that the requested SIP 

revision relaxation does not interfere 

with any applicable requirements 

concerning attainment and RFP, or any 

other applicable requirement of the Act, 

as required by section 110(l). See 74 FR 

48450, at 48463. 

For the reasons discussed above in 

this section and as further discussed 

below in Section V (Response to 

Comments), EPA is disapproving the 

submitted Qualified Facilities Program 

as not meeting section 110(a)(2)(C) and 

110(l) of that Act and 40 CFR 51.160. 

See 74 FR 48450, at 48462. 

D. Definition of ‘‘Facility’’ 

EPA proposed to make an 

administrative correction to the 

severable submittal for the SIP-approved 

definition of ‘‘facility’’ under 30 TAC 

116.10(6). Consistent with our proposal, 

EPA is finalizing this administrative 

correction in today’s action. 

Specifically, EPA corrects a 

typographical error at 72 FR 49198 to 

clarify that the definition of ‘‘facility,’’ as 

codified at 30 TAC 116.10(6), was 

approved as part of the Texas SIP in 

2006 and remains part of the Texas SIP. 

74 FR 48450, at 48465. 

However, EPA wishes to note that 

each part of the Texas NSR program 

depends greatly upon the definition of 

‘‘facility’’ that is applicable to it and 

upon how that definition is used in 

context within each part of the program. 

There are instances where a specific 

part of the Texas NSR program does not 

meet the Act and EPA regulations due 

to the definition of ‘‘facility’’ that applies 

to that part of the program. For example 

Texas’s PSD non-PAL rules explicitly 

limit the definition of ‘‘facility’’ to 

‘‘emissions unit,’’ but the NNSR nonPAL rules fail to include such a 

limitation. 74 FR 48450, at 48475; 

compare 30 TAC 116.10(6) to 30 TAC 

116.160(c)(3). TCEQ did not provide 

information to demonstrate that the lack 

of this explicit limitation in the NNSR 

SIP non-PALs revision is at least as 

stringent as the revised Major NSR SIP 

requirements. 74 FR 48450, at 48455; 

Section V.M. below. 

V. Response to Comments 

In response to our September 23, 

2009, proposal, we received comments 

from the following: Sierra Club— 

Houston Regional Group; Sierra Club 

Membership Services (including 2,062 

individual comment letters); Harris 

County Public Health and 

Environmental Services; Texas 

Commission on Environmental Quality; 

Members of the Texas House of 

Representatives; Office of the Mayor— 

City of Houston, Texas; University of 

Texas at Austin School of Law— 

Environmental Clinic; Baker Botts, 

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

Group; Baker Botts, L.L.P., on behalf of 

Texas Industrial Project; Bracewell & 

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

Reliability Coordinating Council; Gulf 

Coast Lignite Coalition; Texas Chemical 

Council. 

A. General Comments 

1. Comments Generally Supporting 

Proposal 

Comment: Harris County Public 

Health & Environmental Services 

(HCPHES) acknowledges that EPA takes 

issue with the TCEQ regulations 

because of the lack of specificity 

regarding definitions and general lack of 

checks and balances to ensure that 

Federal requirements are met during the 

State’s permitting processes, and 

because they do not meet the Minor 

NSR SIP and Major NSR SIP, including 

the Major NSR Nonattainment SIP 

requirements. Those concerns, currently 

unaddressed by the TCEQ, have 

ultimately resulted in EPA’s proposed 

disapproval of portions of the TCEQ’s 

most recent SIP submittal. HCPHES 

views a TCEQ program that meets the 

Federal requirements as being critical to 

ensuring that air quality in the Houston 

Galveston Brazoria (HGB) area returns to 

levels compliant with the NAAQS. 

HCPHES is very concerned that the 

TCEQ programs fall short of Federal 

requirements and encourages EPA to 

aggressively pursue the timely 

correction of these deficiencies to 

ensure the health, safety, and well being 

of the citizens of Harris County. 

HCPHES supports EPA’s conclusion to 

disapprove portions of the SIP as 

proposed until such time as TCEQ 

addresses all of the specifics noted in 

the Federal Register. 

Comment: Several members of the 

Texas House of Representatives support 

EPA’s proposed disapproval of the 

Qualified Facilities Program. While the 

Qualified Facilities Program was a 

legislative creation, these members of 

the Texas House recognize that the 

statutory language and associated 

regulations are inconsistent with current 

CAA requirements regarding 

modifications and public participation. 

Particular concerns are: 

• Inadequate TCEQ oversight. The 

rules authorize many changes at 

facilities without any pre-approval by 

TCEQ or procedures for denial for 


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cause. These off-permit changes are 

difficult to track and enforce and may 

threaten ambient air quality. 

• The lack of understandable and 

traceable permits. Texas industry, 

regulators, and the public should be 

able to obtain a permit, read it, and 

know what quantity of what pollutants 

the facility is authorized to emit. The 

off-permit changes authorized through 

the Qualified Facilities rules prevent 

such transparency. 

Comment: Houston Regional Group of 

the Sierra Club (Sierra Club) supports 

EPA’s analysis and agrees that all of the 

September 23, 2009, proposals 

(including the Qualified Facilities 

Program) should be disapproved. The 

commenter generally supported EPA’s 

proposed disapproval of the Qualified 

Facilities Program; Flexible Permits 

Program; and Texas Major and Minor 

NSR SIP for 1997 8-hour and 1-hour 

ozone NAAQS, Prevention of 

Significant Deterioration (PSD) SIP, and 

Standard Permit for Pollution Control 

Projects. The commenter provided 

additional comments on our proposed 

disapproval of the Flexible Permits 

Program, which EPA will address in its 

separate action on the Flexible Permits 

Program. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Qualified Facilities Program as 

discussed in detail at 74 FR 48450, at 

48455–48463, and further support EPA’s 

action to disapprove the Qualified 

Facilities submission. 

Comment: The Sierra Club 

Membership Services (SCMS) sent 

numerous similar letters via e-mail that 

relate to this action. These comments 

include 1,789 identical letters (sent via 

e-mail), which included the following 

comments: 

• The TCEQ is broken and the 

commenters applaud EPA’s proposed 

ruling that major portions of the TCEQ 

air permitting program does not adhere 

to the CAA and should be thrown out; 

• While agreeing that the proposed 

disapprovals are a good first step, the 

commenters state that EPA should take 

bold actions as follows: 

—Halting any new air pollution permits 

being issued by TCEQ utilizing 

TCEQ’s current illegal policy; 

—Creating a moratorium on the 

operations of any new coal fired 

power plants in Texas until TCEQ 

cleans up its act by operating under 

the Federal CAA; 

—Requiring coal companies clean up 

their old, dirty plants—no exceptions, 

no bailouts, and no special 

treatment—by reviewing all permits 

issued since TCEQ adopted its illegal 

policies and requiring that these 

entities resubmit their applications in 

accordance with the Federal CAA; 

and 

—Put stronger rules in place in order to 

reduce global-warming emissions and 

to make sure new laws and rules do 

not allow existing coal plants to 

continue polluting with global 

warming emissions. 

• The commenters further state that 

Texas: (1) Has more proposed coal and 

pet coke fired power plants than any 

other state in the nation; (2) Is number 

1 in carbon emissions; and (3) Is on the 

list for the largest increase in emissions 

over the past five years. 

• The commenters do not want coal 

to stand in the way of a clean energy 

future in Texas. Strong rules are needed 

to make sure the coal industry is held 

responsible for their mess and that no 

permits are issued under TCEQ’s illegal 

permitting process. Strong regulations 

are vital to cleaning up the energy 

industry and putting Texas on a path to 

clean energy technology that boosts 

economic growth, creates jobs in Texas, 

and protects the air quality, health, and 

communities. 

In addition, SCMS sent 273 similar 

letters (sent via e-mail) that contained 

additional comments. These additional 

comments include the following: 

• Commenters suggest that Texas rely 

on wind power, solar energy, and 

natural gas as clean alternatives to coal. 

• Other comments expressed general 

concerns related to: Impacts on global 

warming, lack of commitment by TCEQ 

to protect air quality, the need for clean 

energy efficient growth, impacts of upon 

human health, endangerment of 

wildlife, impacts on creation of future 

jobs in Texas, plus numerous other 

similar concerns. 

Response: To the extent the SCMS 

letters comment on the proposed 

disapproval of the Qualified Facility 

program, they support EPA’s action to 

disapprove the Qualified Facilities 

submission. The remaining comments 

are outside the scope of our proposed 

action relating to the Qualified Facilities 

Program. 

Comment: The Environmental Clinic, 

the University of Texas at Austin School 

of Law (UT Environmental Clinic) 

commented that EPA should disapprove 

several other sections of 30 TAC 

Chapter 116. 

Response: This final rulemaking only 

addresses the Qualified Facilities 

Program. Therefore, issues related to 

other portions of Texas’s regulations are 

outside the scope of this rulemaking. 

2. Comments Generally Opposing 

Proposal 

Comment: TCEQ provided several 

general comments on the proposal. The 

TCEQ commented that the Qualified 

Facilities Program was developed by the 

74th Texas Legislature through Senate 

Bill (SB) 1126, which became effective 

May 19, 1995. SB 1126 amended the 

Texas Clean Air Act by revising the 

definition of ‘‘modification of existing 

facility,’’ which changed the factors used 

to determine whether a modification for 

State permitting (i.e. Minor NSR) has 

occurred. In 1996, 30 TAC Chapter 116 

was revised to incorporate this 

legislative directive. These changes 

provide that modifications may be made 

to existing facilities without triggering 

the State’s Minor NSR requirements 

whenever: (1) The facility to be 

modified has received a permit, permit 

amendment, or has been exempted from 

permitting requirements no earlier than 

120 months from when the change will 

occur; or (2) uses air pollution control 

methods that are at least as effective as 

the Minor NSR SIP best available 

control technology (BACT) that the 

Commission required 120 months before 

the change will occur. Such facilities are 

designated as ‘‘qualified facilities.’’ 

TCEQ has always considered the 

Qualified Facilities Program to be 

applicable only to Minor NSR and not 

applicable to Major NSR, although this 

is not specifically stated in the rule. In 

summary, under the Qualified Facilities 

Program, TCEQ: (1) Determines Federal 

applicability as a first step in processing 

a Qualified Facilities request; and uses 

actual emissions, not allowable 

emission rates; (2) applies Federal NSR 

requirements when triggered; (3) does 

not circumvent Federal requirements 

applicable to major stationary sources or 

major modifications; (4) considers the 

use of ‘‘modification’’ to be separate and 

severable from the Federal definition of 

‘‘modification’’ as reflected in the SIPapproved Major NSR Program; and (5) 

does not violate the approved SIP with 

regard to Major NSR or Minor NSR 

Program requirements. 

Comment: The Texas Chemical 

Council (TCC) comments that it would 

be short-cited to analyze the three 

programs (Qualified Facilities, Flexible 

Permits, and NSR Reform) apart from 

the dramatic improvements in the air 

quality in Texas in the past 15 years. 

TCC goes on to describe these 

improvements. TCC supports full 

approval of Qualified Facilities. The 

Qualified Facilities Program is not 

intended to shield a source from major 

NSR. The Program is a robust, Federally 

enforceable program. The Qualified 


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Facilities Program is authorized by the 

TCAA, promotes flexibility, and allows 

sources to make certain changes without 

triggering NSR. If Major NSR is 

triggered, a facility cannot be a 

Qualified Facility. The definition of a 

Qualified Facility makes it clear that a 

Qualified Facility is an existing facility. 

A Qualified Facility may make a 

physical change in or change the 

operation of that facility as long as the 

change does not result in a net increase 

in allowable emissions of any air 

contaminant and does not result in the 

emission of any air contaminant not 

previously emitted. Additionally, the 

facility must be using equipment at least 

as effective as the BACT required by 

TCEQ. TCC supports full approval of the 

three Texas air permitting program 

submittals. The SIP revisions submitted 

to EPA by TCEQ over the last 15 years 

are critical components to Texas air 

permitting program. Texas should not 

be punished for EPA’s failure to act 

within the statutory timeframe in the 

CAA. EPA offers little or no legal 

justification for proposing disapproval 

of these programs. EPA’s proposed 

action will have an enormous impact on 

the country’s largest industrial state. 

The SIP revision submittals for these 

programs are at least as stringent as the 

applicable Federal requirements and 

should be fully approved. 

Comment: Bracewell & Giuliani LLP, 

counsel to the Electric Reliability 

Coordinating Council (ERCC), 

commented that Qualified Facilities 

provides incentives to implement 

pollution reduction measures at existing 

facilities. EPA’s proposed disapproval 

does not provide any evidence that this 

authorization is actually used for major 

modifications or in fact interferes with 

air quality improvements. 

Discontinuance of this program could 

deter or delay many pollution reduction 

measures because the cost and resources 

associated with a full notice and 

comment case-by-case permit would 

outweigh the economic benefits of the 

additional controls. EPA should 

determine that the Qualified Facilities 

Program satisfies the CAA requirements 

for a state minor source program and 

retract the SIP disapproval and approve 

this SIP revision. EPA should recognize 

the validity of permits issued under the 

Texas permitting program and refrain 

from taking enforcement actions to 

address EPA concerns. 

Comment: Jackson Walker, LLP, 

counsel to Gulf Coast Lignite Coalition 

GCLC, provided the following general 

comments on all three proposed 

disapprovals (Qualified Facilities, 

Flexible Permits, and NSR Reform): (1) 

Commenters disagree with all the 

proposed disapprovals because the SIP 

as implemented by TCEQ meets or 

exceeds CAA requirements and has met 

the goals of the CAA; (2) EPA has a 

history of focusing on results; so, EPA 

should look beyond immaterial 

differences in the rule provisions and 

focus on the positive results that Texas 

has achieved under the TCAA and the 

State’s submittals; (3) Texas sources 

have relied on the submitted rules for as 

long as 15 years in some cases. To 

disapprove the submittals after so long 

puts too much burden on the regulated 

community, creates regulatory 

uncertainty, hurts the vulnerable 

economy by potentially increasing 

compliance costs, and may discourage 

future business expansion; and (4) 

GCLC requests that EPA work 

collaboratively, not combatively, with 

TCEQ to resolve any issues under the 

CAA. 

Comment: Baker Botts, LLP, counsel 

for Texas Industry Project (TIP) and 

Business Coalition for Clean Air (BCCA) 

provided the following comments. TIP 

and BCCA support full approval of 

Qualified Facilities because the 

submittal will strengthen Texas’s 

permitting program. EPA should work 

expeditiously with TCEQ to approve the 

Qualified Facilities Program. Further, 

under Texas’s integrated air permitting 

regime, air quality in the state is 

demonstrating strong, sustained 

improvement. Commenters describe the 

air quality improvements in Texas in 

the recent past. Finally, commenters 

describe their understanding of how the 

Qualified Facilities Program operates. 

Qualified Facilities is a Minor NSR 

applicability trigger that allows existing 

emissions facilities that employ BACT 

to make changes without Minor NSR 

review as long as the changes do not 

result in net emissions increases. The 

Qualified Facilities Program is 

authorized by the TCAA and applies 

only to existing facilities. The term 

‘‘facility’’ is analogous to the Federal 

definition of ‘‘emissions unit,’’ under 

Texas’s Title V program. See 30 TAC 

122.10(8). The Texas Legislature created 

the Qualified Facilities Program as an 

incentive for sites to implement BACT. 

To be ‘‘qualified,’’ the source must (1) 

have a permit or permit amendment or 

exempt from pre-construction permit 

requirements no earlier than 120 

months before the change will occur, or 

(2) use air pollution control methods 

that are at least as effective as the BACT 

that was required or would have been 

required for the same class or type of 

facility by a permit issued 120 months 

before the change will occur. See 30 

TAC 116.116(e). A qualified facility may 

lose its status as ‘‘qualified’’ if its permit, 

exemption, or control method falls 

outside the 10-year window. See Texas 

Nat’l Res. Conservation Comm’n, 

Modification of Existing Facilities under 

Senate Bill 1126: Guidance for Air 

Quality, (April 1996), 5 [hereinafter 

Modification of Existing Facilities 

Guidance]. 

Comment: Texas Oil & Gas 

Association (TxOGA) is encouraged that 

EPA is taking action to provide certainty 

in the regulatory process for businesses. 

TxOGA supports the ongoing goal of 

improved air quality; however, 

commenters do not believe that the 

proposed disapproval does anything to 

improve air quality in Texas. Further, 

the proposal may discourage future 

business expansion in Texas. 

Response: EPA understands TCEQ’s 

explanation of the origination of the 

Program in SB 1126. Nonetheless, the 

Qualified Facilities Program must meet 

all Federal requirements under the CAA 

in order to be approvable. The fact that 

EPA failed to act on the Qualified 

Facilities Program SIP revision within 

the statutory timeframe does not dictate 

the action EPA must take on the 

Program at this time. We cannot 

approve a program that fails to meet the 

requirements of the CAA. As discussed 

throughout our proposal and this final 

notice, the current Qualified Facilities 

Program fails to meet all requirements. 

We disagree with commenters that the 

Qualified Facilities Program is 

exclusively a Minor NSR program, 

based upon the ambiguities in the 

Program’s rules. Furthermore, EPA need 

not prove that the Program is actually 

used for major modifications. EPA is 

required to review a SIP revision 

submission for its compliance with the 

Act and EPA regulations. CAA 

110(k)(3); Natural Resources Defense 

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

1123 (DC Cir. 1995); American 

Cyanamid v. EPA, 810 F.2d 493, 495 

(5th Cir. 1987). This includes an 

analysis of the submitted regulations for 

their legal interpretation. The Program’s 

rules are ambiguous and therefore do 

not adequately prohibit use under Major 

NSR. We recognize that TCEQ considers 

the Program to be a Minor NSR Program; 

however, the State admits that its rules 

are insufficient to limit the Program to 

Minor NSR. See 74 FR 48450, at 48456– 

48457; Section V.F. below for further 

information. 

EPA enforcement of Federal 

requirements in Texas is outside the 

scope of this rulemaking. Additionally, 

comments on the Flexible Permits 

Program and the NSR Reform submittal 

are outside the scope of this notice. EPA 

will address the comments on its 


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proposed disapprovals of Flexible 

Permits and NSR Reform in separate 

actions on these programs. 

B. Comments That This Action Is 

Inconsistent With the CAA 

Comment: ERCC commented that 

EPA’s proposed disapprovals are not 

rationally supported by case law and are 

inconsistent with the CAA. Congress 

placed primary responsibility for 

developing SIPs on the states, so 

permitting programs among states can 

vary greatly. EPA determines whether 

the state SIP satisfies the minimum 

requirements of the CAA. Union Electric 

Co. v. EPA, 427 U.S. 246 (1976), 

rehearing denied 429 U.S. 873 (1976); 

Train v. NRDC, 421 U.S. 60 (1975); 

Florida Power and Light Co. v. Costle, 

650 F.2d 586 (5th Cir. 1979); 71 FR 

48696, 486700 (August 21, 2006) 

(Proposed rule to promulgate a FIP 

under the CAA for tribes in Indian 

country). The Fifth Circuit Court of 

Appeals recently stated that ‘‘EPA has 

no authority to question the wisdom of 

a State’s choice of emission limitations 

if they are part of a SIP that otherwise 

satisfies the standards set for in 42 

U.S.C. 7410(a)(2).’’ Clean Coalition v. 

TXU Power, 536 F.3d 469 Fn.3 (5th Cir. 

Tex. 2008). Texas’s permitting programs 

are based on the recognized Minor NSR 

flexibility and consistent with prior EPA 

approvals of other state SIPs. EPA must 

review other approved state programs to 

ensure that Texas’s sources are not put 

at a competitive disadvantage. See 

Memorandum from John Seitz, Director, 

OAQPS, SIP Consistency Process (April 

4, 10, 1996). EPA’s proposed 

disapprovals could have dramatic 

impact on industries in Texas. EPA 

should solicit comments from all EPA 

regions on whether the proposed actions 

are inconsistent with other state SIPs 

and compare the stringency of the Texas 

programs to those of other states. ERCC 

is confident that EPA will realize that 

the Texas programs are consistent and 

possibly more stringent than other 

permitting programs throughout the 

country. 

Response: EPA continues to recognize 

that permitting programs among states 

can vary greatly and provide some 

flexibility for Minor NSR SIP programs. 

However, in order to be approved as 

part of the SIP, the Qualified Facilities 

Program must meet all applicable 

Federal requirements. Here, the 

commenter’s reliance on the Fifth 

Circuit’s dicta in Clean Coalition is 

misplaced because the Qualified 

Facilities Program does not meet the 

standard set in 42 U.S.C. 7410(a)(2)(C). 

Section 42 U.S.C. 7410(a)(2)(C) requires 

the State to have a permitting program 

that complies with PSD and 

Nonattainment New Source Review 

(NNSR) permit requirements (at 42 

U.S.C. 7475 and 7503, respectively), as 

well as Minor NSR permit requirements. 

As part of the State’s permitting 

program, the Qualified Facilities 

Program fails to meet these 

requirements of the Act. As discussed 

throughout our proposal and this final 

action, the submitted Program fails to 

meet all requirements for an approvable 

permitting program, including 

submitting information sufficient to 

demonstrate that the Program is 

restricted only to Minor NSR. 

Commenters argue that the Qualified 

Facilities Program is consistent with 

other SIP approved programs; however, 

they fail to cite any specific examples. 

C. Comments Addressing Whether the 

Qualified Facilities Rules Allow Sources 

to ‘‘Net Out’’ of Major and Minor NSR 

Through Rules That Are Not Adequate 

To Protect the NAAQS and State 

Control Strategies 

1. Comments Generally Supporting 

Proposal 

Comment: UT Environmental Clinic 

commented that the Qualified Facilities 

Program fails to meet the netting 

requirements for several reasons. The 

commenter notes that the Qualified 

Facilities Program netting calculations 

can be based on allowable emissions. 

Allowables netting violates Major NSR 

because it is inconsistent with State of 

New York v. EPA, 413 F.3d 3, 40 (DC 

Cir. 2005) and violates the CAA; it 

violates Minor NSR because it fails to 

require an evaluation of the actual 

emissions impacts on maintenance of 

the NAAQS. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Qualified Facilities Program as a 

substitute for a Major NSR SIP program 

as discussed in detail at 74 FR 48450, 

at 48459, and further support EPA’s 

action to disapprove the Qualified 

Facilities submission. 

We find that the Program authorizes 

existing allowable, rather than actual 

emissions, to be used as a baseline to 

determine applicability. This use of 

allowables violates the Act for Major 

NSR SIP requirements and is contrary to 

New York v. EPA, 413 F.3d 3, 38–40 (DC 

Cir. 2005) (‘‘New York I’’). 74 FR 48450, 

at 48459. Under the submitted Program, 

the project’s increases in emissions are 

calculated based upon its projected 

allowable emissions. The baseline uses 

the permitted allowable emission rate 

(lowered by any applicable state or 

Federal requirement) if the facility 

‘‘qualified’’ under 30 TAC 

116.10(11)(E)(i). If the facility 

‘‘qualified’’ under 30 TAC 

116.10(11)(E)(ii), the baseline uses the 

actual emission rate (minus any 

applicable state or Federal requirement). 

In the applicability netting analysis, the 

baseline for all the other participating 

minor and major existing Qualified 

Facilities is calculated in the same way. 

The emission reductions are calculated 

similarly, i.e., reductions beyond the 

permitted allowable or actual emission 

rates (minus the applicable state and 

Federal requirements). Thus, this 

submitted Program allows an evaluation 

using allowable, not actual emissions, as 

the baseline to calculate the project’s 

proposed emission increase and for 

many of the netting emission 

reductions, thereby in many cases 

possibly circumventing the major 

modification applicability requirements 

under the Major NSR rules. Therefore, 

the Program fails to meet the CAA and 

Major NSR requirements to use baseline 

actual emissions for major source 

netting as the starting point from which 

the amount of creditable emission 

increases or decreases is determined. 74 

FR 48450, at 48459. 

EPA agrees that the reductions in the 

Program’s netting are not based on 

actual emissions. Such netting may be 

permissible for a Minor NSR Program; 

provided that the netting provisions 

assure protection of the NAAQS and the 

SIP control strategies as required by 

section 110(a)(2)(C) of the CAA. 

Allowables netting is acceptable 

because CAA section 110(a)(2)(c) does 

not explicitly prohibit the use of 

allowables netting for Minor NSR 

programs. However, Texas failed to 

submit sufficient information to 

demonstrate that the use of allowable 

emissions in a Minor NSR netting 

program continues to protect the 

NAAQS and control strategies; 

therefore, EPA cannot determine if this 

requirement is met. Today’s rulemaking 

disapproves netting under the Qualified 

Facilities Program as a Minor NSR 

program, in part because the Program 

fails to ensure that ambient air is 

protected in consideration of all changes 

in the netting. 

Comment: UT Environmental Clinic 

commented that the definitions in 

section 116.10 do not adequately specify 

how to calculate emissions reductions 

for purposes of the netting analysis. For 

example, the Texas definition of actual 

emissions is the ‘‘highest rate’’ actually 

achieved within the past 10 years. It is 

unclear whether this is the highest 

emission rate achieved at a single point 

in time or averaged over some period. 

Response: We disagree that the 

reductions are not quantifiable. The 


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6The Texas SIP defines an ‘‘account’’ to include 

an entire company site, which could include more 

than one plant and certainly more than one major 

stationary source. SIP rule 30 TAC 101.1(1), second 

sentence. 

7Under the submitted Program, not all emission 

points, units, facilities, major stationary sources, or 

minor modifications at the site or their increases in 

emissions are required to be evaluated in the 

applicability netting analysis. So the Program fails 

to require the evaluation of emissions changes at 

the entire major stationary source correctly as 

required by the Major NSR SIP regulations. 74 FR 

48459. 8See 21 Tex. Reg. 1573 (February 27, 1996). 

netting is based on the most stringent of 

the permitted emissions rate (which 

includes the highest achievable actual 

emission rate) or any applicable state or 

Federal rule. Nothing in the State’s 

definition of ‘‘actual emissions’’ implies 

at all that there is any averaging 

involved in the calculations. The 

reduction is based upon the highest rate 

the facility achieved at a single point in 

time, looking back the past 10 years. 

While we proposed to find that the 

reductions were quantifiable, we 

requested comments on two aspects of 

the Program as it relates to this 

principle. 74 FR 48450, at 48461–48462. 

First, we requested comment on 

whether the regulatory provisions at 30 

TAC 116.10(1) and (2) provide clear 

direction on the appropriate calculation 

procedures sufficient to ensure the 

reductions are quantifiable. As stated 

above, we disagree with the 

commenter’s argument that the 

definitions in section 116.10 do not 

adequately specify how to calculate 

emissions reductions for purposes of the 

netting analysis. 

Second, the submitted rules provide 

that a Qualified Facility nets its 

emissions increase on the same basis as 

its allowable emissions limitation. 30 

TAC 116.116(e)(3)(A). We requested 

comment on whether netting on such a 

basis is sufficiently quantifiable, and 

whether any additional provisions are 

necessary to ensure that the entire 

emissions increase is properly netted 

against reductions from the other 

Qualified Facility. We did not receive 

any comments on this second aspect of 

quantifiability under the Program. 

Because no comments were submitted 

showing the basis was not sufficiently 

quantifiable, we continue to believe that 

netting for a Minor NSR SIP program on 

the adequacy of the Program’s netting of 

emissions increases on the same basis as 

its allowable emissions limitation, is 

sufficiently quantifiable. 

Comment: UT Environmental Clinic 

commented that the Qualified Facilities 

rules allow all emission reductions at 

the same account number to be 

considered in the net emission 

calculation. In fact, the rules could be 

read to allow the ‘‘offsetting’’ of 

emissions above allowables by 

decreases in emissions at any ‘‘different 

facility.’’ 30 TAC 116.110(3). Because an 

account number can include multiple 

sources, the Texas rules allow 

consideration of emission decreases 

from outside the major stationary source 

in violation of 42 U.S.C. 7411(a). 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Qualified Facilities Program as a 

substitute for a Major NSR SIP program 

as discussed in detail at 74 FR 48450, 

at 48458–48459, and further support 

EPA’s action to disapprove the 

Qualified Facilities submission. 

We find the Program is deficient for 

Major NSR netting because it may allow 

an emission increase to net out by 

taking into account emission decreases 

outside of the major stationary source 6

and, in other circumstances, allow an 

evaluation of emissions of a subset of 

units at a major stationary source.7 The 

State failed to submit information 

sufficient to demonstrate that the 

Program includes the necessary 

replicability and accountability to 

prevent such circumvention. Therefore, 

the Program does not meet the CAA’s 

definition of ‘‘modification’’ and the 

Major NSR SIP requirements and is 

inconsistent with Alabama Power v. 

Costle, 636 F.2d 323, 401–403 (DC Cir. 

1980) and Asarco v. EPA, 578 F.2d 320 

(DC Cir. 1978). 74 FR 48450, at 48458– 

48459. 

Comment: UT Environmental Clinic 

commented that the Qualified Facilities 

netting rules only allow consideration of 

the increase in allowable emissions 

from the Qualified Facility undergoing a 

change, but consider the decreases from 

any other Qualified Facilities at the 

same account number. There is no 

consideration of all the emission 

increases so there is no adequate 

impacts analysis from the source. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Qualified Facilities Program as a 

substitute for a Major NSR SIP program 

as discussed in detail at 74 FR 48450, 

at 48458–48459, and further support 

EPA’s action to disapprove the 

Qualified Facilities submission. 

Major NSR netting is based upon all 

contemporaneous increases and 

decreases at the same major stationary 

source that occur within a reasonable 

period that the states must define in 

their approved SIPs. The submitted 

Program’s netting is not based upon all 

contemporaneous increases at the same 

major stationary source and not all 

decreases at the same major stationary 

source. However, the State contends 

that the Program is not intended to 

apply for Major NSR netting but only for 

Minor NSR netting. Moreover, the 

Program is not intended to allow 

contemporaneous netting. Instead, one 

looks to the increases from the proposed 

change and to decreases made at the 

same time as the proposed change. Such 

an approach, if fully delineated in the 

State’s Program rules, would satisfy the 

minimum requirements for an 

approvable Minor NSR netting program 

provided that the ambient air is 

protected in consideration of all changes 

in the netting. Today’s rulemaking 

disapproves netting under the Qualified 

Facilities Program as a Minor NSR 

program, in part because the Program 

fails to ensure that ambient air is 

protected. 

Comment: UT Environmental Clinic 

commented that the Qualified Facilities 

rules do not define a contemporaneous 

period nor require that emission 

reductions occur within a specified 

period. EPA notes in the Federal 

Register that Texas intended that any 

relied-upon reductions occur 

simultaneously with the increase. 

However, the commenter argues that 

nothing in the rule requires this. 

Response: We agree with the 

comment insofar as it asserts that the 

Program fails to define a 

contemporaneous period or require that 

emission reductions occur within a 

specified period. EPA finds that, while 

Texas intended that any relied-upon 

reductions occur simultaneously at the 

time of the increase,8 the Program is 

deficient because it does not expressly 

define the applicable period in which 

the reductions must occur. See our 

response to the previous comment. 74 

FR 48450, at 48461. 

Comment: UT Environmental Clinic 

commented that because the Qualified 

Facilities rules allow reductions to be 

based upon allowable emissions, they 

do not ensure that reductions are real. 

Response: We disagree that just 

because the reductions are based upon 

allowable emissions, these reductions 

are not real. For example, reviewing 

authority may presume that sourcespecific allowable emissions may be 

equivalent to the actual emissions. See 

40 CFR 51.165(a)(1)(xii)(C) and 

51.166(b)(21)(iii). The commenter fails 

to discuss why the use of allowable 

emissions makes the reductions not real. 

Comment: The UT Environmental 

Clinic commented that the rules fail to 

ensure that netted reductions are 

permanent. 

Response: We agree with the 

commenter that the Program lacks any 

provisions that require that the 


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9See 74 FR 48455, n.3. 

reductions are permanent. For 

reductions to meet the netting 

requirement to be permanent, the rules 

must include a prohibition against 

future increases at the Qualified 

Facility, or include regulatory language 

that assures that any future increase at 

a Qualified Facility at which a previous 

netting reduction occurred is analyzed 

in totality to assure that the NAAQS 

remains protected from the original 

increase. However, the submitted 

Program does not include such 

provisions. Consequently, the Qualified 

Facilities rules are inadequate because 

they fail to ensure that the reductions 

are permanent. 

Comment: UT Environmental Clinic 

commented that the rules do not 

prevent double counting of emission 

reductions. 

Response: For an additional separate 

project, it appears that the state 

intended that the reductions must occur 

at the time of that additional project that 

will need to obtain additional 

reductions to net out. If the regulatory 

text was consistent with this approach, 

this limitation would prevent double 

counting of the netting reductions. The 

State’s intent is that the holder of the 

permit is required to perform a new, 

separate netting analysis and rely upon 

reductions not relied upon in the first 

netting analysis. See 74 FR 48450, at 

48461 (citing 21 Tex. Reg. 1573 

(February 27, 1996); page 154 of the 

1996 SIP revision submittal). We agree 

that the rules are not clear that a 

subsequent change at a Qualified 

Facility that previously relied upon 

netting must conduct a separate netting 

analysis that relies upon reductions that 

were not relied upon in the first netting 

analysis. EPA cannot find any 

provisions in the Program to ensure a 

separate netting analysis performed for 

each proposed change. Therefore, the 

Program fails to prevent double 

counting; and consequently these types 

of netting reductions are not enforceable 

as a practical matter at and after the 

time of the actual change begins; and 

therefore, not sufficiently creditable. 74 

FR 48450, at 48461. 

Comment: UT Environmental Clinic 

commented that the Qualified Facilities 

rules fail to ensure that the emission 

reductions are enforceable. Facilities 

provide notice of changes to Qualified 

Facilities on Form PI–E, which is not 

enforceable, and Qualified Facility 

changes that affect permitted facilities 

are not required to be incorporated into 

a permit until renewal or amendment. 

TCEQ noted in its Qualified Facility 

guidance that the form is not Federally 

enforceable ‘‘but is simply a form to 

provide information to demonstrate that 

the change meets qualified facility 

flexibility.’’ Consequently, Qualified 

Facility reductions are allowed to 

remain unenforceable for years. Further, 

Texas rules make it unclear whether 

emission reductions are ever made 

enforceable because a portion of the 

definition of ‘‘allowable emissions’’ 

states that ‘‘[t]he allowable emissions for 

a qualified facility shall not be adjusted 

by the voluntary installation of 

controls.’’ 30 TAC 116.10(2)(F). This 

portion of the definition of ‘‘allowable 

emissions’’ states that ‘‘[t]he allowable 

emissions for a qualified facility shall 

not be adjusted by the voluntary 

installation of controls.’’ Additionally, 

there are no monitoring requirements in 

the Qualified Facilities rules to track 

compliance with commitments to 

reduce emissions of limitations on 

emissions increases. 

Response: We agree that the Qualified 

Facilities rules fail to ensure that the 

emission reductions relied upon in a 

netting analysis are enforceable. We 

noted at 74 FR 48450, at 48462 that the 

rules do not require permits for these 

relied-upon reductions. We also agree 

that the Program does not require 

monitoring because no permit is 

required for each change. See Section 

V.D.1 below. 

We disagree that 30 TAC 116.10(2)(F) 

makes the rules vague as to 

enforceability. This provision of the rule 

is defining how to calculate the baseline 

from which reductions occur. When 

calculating the allowable emissions for 

a Qualified Facility participating in the 

Program, one cannot count any 

reductions occurring as a result of the 

voluntary installation of controls. 

However, a facility can become 

‘‘qualified’’ to use the Program by 

voluntarily installing controls. The 

reductions achieved by this voluntary 

installation of controls are not counted 

in the Qualified Facility’s allowable 

emissions. 

Comment: UT Environmental Clinic 

states that the Qualified Facilities rules 

do not ensure that emission reductions 

have the same health and welfare effects 

as the emission increase. Because the 

program allows the emission increase to 

be offset inside and outside the facility, 

it allows for emission increases close to 

the fence line, potentially affecting 

health and welfare of the surrounding 

community. 

Moreover, the Qualified Facilities 

Program allows Qualified Facilities to 

offset emissions increases of one 

pollutant with emission decreases of 

another pollutant, as long as the 

pollutants are in the same ‘‘air 

contaminant category.’’ The interchange 

methodology established by TCEQ 9 to 

ensure that compounds within the 

VOCs air contaminant category, as 

interchanged, will have an equivalent 

impact on air quality, is not included in 

the Texas rules or statute. The rule 

merely defines an ‘‘air contaminant 

category’’ as a group of related 

compounds, such as volatile organic 

compounds, particulate matter, nitrogen 

oxides, and sulfur compounds. 30 TAC 

116.116(e)(3)(F). Clearly emissions of all 

sulfur compounds, say sulfur dioxide 

and hydrogen sulfide, are not equal in 

terms of health impacts. Likewise, the 

health impacts of fine PM emissions are 

of significantly greater concern than the 

impacts of larger particles. 

Response: With regard to VOCs and 

nitrogen oxides, EPA disagrees with the 

comment above that the Program is 

deficient because the State’s rules allow 

an offset of an emission increase 

pollutant with emission decrease of 

another pollutant, as long as the 

pollutants are in the same ‘‘air 

contaminant category.’’ The State’s 

interchange methodology goes beyond 

the fundamental principle to determine 

whether the interchange of different 

compounds within the same air 

contaminant category will result in an 

equivalent decrease in emissions; e.g., 

one VOC for another VOC; for VOCs and 

nitrogen oxides. See 74 FR 48450, at 

48461. 

On the other hand, the term ‘‘sulfur 

compounds’’ in 30 TAC 116.116(e)(3)(F), 

is broad enough to include hydrogen 

sulfide. The State failed to demonstrate 

that use of hydrogen sulfide would 

protect the sulfur dioxides NAAQS. 

Therefore, we agree with the commenter 

that the interchange methodology does 

not ensure the health impacts of all 

sulfur compounds will be equal. With 

regard to the comment concerning 

particulate matter, the definition of ‘‘air 

contaminant category’’ allows PM–2.5 to 

be interchanged with PM–10. However, 

because PM–10 and PM–2.5 are two 

separate pollutants and the State failed 

to demonstrate that such use of PM–10 

would protect the PM–2.5 NAAQS, this 

interchange is inappropriate. Therefore, 

we agree that the interchange 

methodology does not ensure the health 

impacts of all particulate matter will be 

equal. 

We, however, disagree with the 

comment above that the Program fails to 

ensure that emission reductions have 

the same health and welfare effects as 

the emission increases. The State has 

established a methodology to use 

whenever there is a different location of 

emissions because of the intraplant 


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trading. For example, where the netting 

has the effect of moving emissions 

closer to the plant property line than the 

Qualified Facility to be changed, the 

State uses this methodology to analyze 

whether there could be an increase in 

off-site impacts. See 30 TAC 

116.117(b)(5). We continue to believe 

that this will ensure the reductions have 

approximately the same qualitative 

significance for public health and 

welfare, which is required to ensure the 

reductions are creditable. Nevertheless, 

as stated above, we are disapproving the 

Qualified Facilities netting program as a 

substitute for a Major NSR SIP program 

and as a Minor NSR SIP program 

because the Program is inadequate to 

protect ambient air quality. 

Comment: The UT Environmental 

Clinic commented that the Qualified 

Facilities netting Program does not 

adequately protect air quality under 

Minor NSR. Specifically, the Qualified 

Facilities netting provisions do not meet 

Federal netting standards, which are in 

place precisely to ensure that air quality 

is protected. The Program’s failure to 

meet almost all of those basic netting 

requirements renders the rules 

inadequate. 

Response: Generally, these comments 

support EPA’s analysis of Texas’s 

Qualified Facilities Program as a Minor 

NSR SIP program as discussed in detail 

at 74 FR 48450, at 48460–48462, and 

further support EPA’s action to 

disapprove the Qualified Facilities 

submission. 

Comment: The UT Environmental 

Clinic commented that the Program is 

clearly inadequate to ensure protection 

of the NAAQS and to prevent violations 

of control strategies. The rules cannot be 

approved as an exemption from Minor 

NSR permitting because they in no way 

ensure that the emission increases 

authorized pursuant to the rules will 

have a de minimis impact on air quality. 

Response: We agree with the 

commenter that the Program is 

inadequate to ensure protection of the 

NAAQS for several reasons. As 

discussed below in Section V.G.1, we 

find that the Qualified Facilities rules 

are not clear that all Qualified Facilities 

must have obtained a Texas NSR SIP 

permit. Without the assurance that all 

Qualified Facilities have obtained a 

Texas NSR SIP permit, EPA cannot 

make the finding that each permit for a 

Qualified Facility includes an emission 

limitation based on the chosen control 

technology, with a determination that 

the Qualified Facility will not interfere 

with attainment and maintenance of the 

NAAQS or violate any control strategy. 

Therefore, the Program fails to ensure 

that all Qualified Facilities can operate 

up to a permitted allowable limit such 

that they do not interfere with 

attainment and maintenance of the 

NAAQS and do not violate any State 

control strategy, as required by the 

Texas NSR SIP. 

Additionally, the Program fails to 

ensure that the NAAQS are protected 

because 30 TAC 116.117 lacks language 

requiring the owner or operator to 

maintain the information and analysis 

showing how it concluded that there 

will be no adverse impact on ambient 

air quality before undertaking the 

change. 

We agree with the commenter that the 

Program does not qualify as a de 

minimis exemption from Minor NSR. 

The State has not provided sufficient 

information to demonstrate that the 

exempted changes from the Minor NSR 

requirements will have only a de 

minimis effect. See Section V.D.1 below 

for more information. 

2. Comments Generally Opposing 

Proposal 

Comment: TCEQ commented that the 

Qualified Facilities Program can only be 

used if a physical or operational change 

complies with Federal NSR 

requirements. In order to make a 

physical or operational change to a 

Qualified Facility, an owner or operator 

must demonstrate that the change does 

not result in a net increase in allowable 

emissions of any air contaminant 

previously authorized under state minor 

source review. 30 TAC 116.116(e)(1). 

Keeping in mind the State definition of 

‘‘facility,’’ 30 TAC 116.116(e)(2) and (3) 

allow a Qualified Facility to 

demonstrate that a state modification 

has not occurred by comparing 

allowable emissions to allowable 

emissions before and after a proposed 

change. Allowable emissions (both 

hourly and annual rates) are one of the 

criteria to provide ‘‘state qualified’’ 

flexibility because the facilities must 

exist and be authorized, and thereby 

have undergone appropriate permit 

review. In addition, no existing level of 

control can be reduced. 30 TAC 

116.116(e)(8). The commenter states that 

for major sources, in addition to State 

requirements, the evaluation of 

emissions related to physical and/or 

operational changes is conducted on a 

baseline actual to either a projected 

actual or potential to emit base if 

applicable. 30 TAC 116.116(e)(4). This 

comparison is used to determine if an 

emission increase above the appropriate 

significance threshold for a particular 

Federal permitting program has 

occurred. From the Federal NSR 

standpoint, if a proposed physical or 

operational change would result in an 

emissions increase that exceeds a 

significance threshold, the appropriate 

analysis (netting) is triggered. If the 

results of the netting analysis indicate 

that a major modification has occurred, 

the appropriate Federal program(s) is 

triggered and Federal authorization 

must be obtained. In such a case, the 

Qualified Facilities Program would not 

be an applicable authorization pathway, 

and a State Minor NSR amendment 

must be obtained, along with the 

appropriate Federal NSR authorization. 

The exemption from the definition of 

‘‘modification of an existing facility’’ 

under the Qualified Facilities Program 

does not relieve an owner or operator 

from conducting an evaluation to 

determine if a Federal major 

modification has occurred. TCEQ states 

that from the Federal standpoint, only 

the project’s emission increases are 

evaluated (without consideration of 

emission decreases) to determine if a 

Federal applicability analysis (netting) 

has been triggered. If the project 

increases equal or exceed the netting 

threshold for the pollutant and this 

program, then a full contemporaneous 

netting exercise is conducted in an 

effort to determine if the modification is 

a major modification. If the project is a 

major modification, then the 

appropriate Federal NSR program, 

either PSD or nonattainment review, is 

triggered. A permit holder cannot use 

the ‘‘no net emissions increase’’ concept 

that is described in the Qualified 

Facilities Program rules as a mechanism 

to avoid a Federal NSR applicability 

analysis (netting). 

Comment: TxOGA commented that 

the Qualified Facilities Program 

establishes an allowables-based trigger 

and has no effect on a permit holder’s 

compliance obligations under Federal 

requirements. Texas rules clearly 

require compliance with Federal 

requirements. 30 TAC 116.117(a)(4) and 

(d). This interpretation is also supported 

by TCEQ guidance. 

Comment: The TCC commented in 

response to EPA’s assertion that a Major 

NSR applicability determination must 

be based on actual emissions, not 

allowables. TCC argues that the 

Qualified Facilities rules do not 

circumvent any Federal requirements 

for major stationary sources. TCC 

reiterates that a qualified facility must 

demonstrate that the change does not 

result in a net increase in allowables, 

the source must follow notification 

requirements, and the source cannot 

relax controls at the qualified facility. 

Response: We acknowledge TCEQ’s 

description of how the State intends to 

implement the Qualified Facilities 

Program; however, we have determined 


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that TCEQ’s current rules are 

insufficient to prevent circumvention of 

Major NSR. EPA disagrees with the 

comments from TxOGA and TCC. The 

submitted Program lacks specific 

requirements that would require an 

owner or operator who proposes a 

change under the Qualified Facilities 

program to first conduct a Major NSR 

applicability analysis (netting) prior to 

receiving (or asserting) authorization 

under the Qualified Facilities Program. 

Comment: TCEQ commented that for 

facilities undergoing an intraplant trade, 

where the allowable emissions at one 

facility are increased while allowable 

emissions at another facility are reduced 

an allowable-to-allowable comparison is 

used only to determine if a new 

emissions increase has occurred for 

State purposes. The emissions are 

reviewed simultaneously, which is more 

stringent than the Federal requirement 

that only requires contemporaneous 

emissions. If a net emissions increase 

has occurred, an owner or operator 

cannot use the Qualified Facilities 

Program to authorize the proposed 

project, and must find another State 

mechanism to obtain proper 

authorization. In addition, the 

commenter states that the owner or 

operator must submit pre-change 

notification if the intraplant trade moves 

emissions from the interior of a plant 

site closer to a property line. This gives 

TCEQ staff the ability to evaluate public 

protectiveness and evaluate any 

potential changes in off property 

impacts as they relate to all 

contaminants and pollutants with 

national standards, i.e. the NAAQS. 

This intraplant trade capability only 

exists to the extent that the project is a 

Minor NSR action, and does not apply 

if a major modification has been 

triggered under Federal NSR 

requirements. 

Response: EPA disagrees with the 

commenter that under the Texas rules 

the Program’s intraplant trading does 

not apply if a major modification has 

been triggered. As stated above, the 

program fails to require a Major NSR 

applicability analysis and is insufficient 

to prevent circumvention of Major NSR. 

Intraplant trading based on allowables 

to allowables netting is prohibited 

under Major NSR. See State of New 

York et al., v. EPA, 413 F.3d 3, 40 (DC 

Cir. 2005). However, such netting may 

be permissible for a Minor NSR 

program, provided that the netting 

provisions assure protection of the 

NAAQS. See 74 FR 48450, at 48462. As 

discussed above, Texas’s Qualified 

Facilities Program does not meet this 

requirement. EPA also finds that the 

Program does not adequately define a 

contemporaneous (or simultaneous) 

period or require that emission 

reductions occur within a specified 

period. As discussed above, we find that 

the Program fails to meet the Minor NSR 

netting requirement for a defined period 

in which the reductions must occur. 

Comment: TIP and BCCA commented 

that the Qualified Facilities program 

exceeds Federal benchmarks for 

allowable-based Minor NSR triggers. 

This program is one of the mechanisms 

that EPA encouraged in its Flexible Air 

Permitting Rule (FAP) (74 FR 51418, 

15423). Further, the program is more 

stringent than the Federal FAP Program 

because it requires up-to-date BACT. 

The Qualified Facilities Program is also 

comparable to the proposed allowablesbased minor NSR trigger in EPA’s 

proposed Indian Country rule, in which 

EPA allows the use of allowables to 

allowables netting. To justify the use of 

an allowables test, EPA distinguished 

the definition of ‘‘modification’’ under 

Minor NSR from that used for Major 

NSR. 71 FR 48696, 48701 (citing State 

of New York, et al., v. EPA (DC Cir. Jun. 

24, 2005)). The Qualified Facilities rules 

meet these criteria and are more 

stringent than the Federal model 

because it only extends this flexibility to 

well-controlled facilities. 

The commenter reiterates that the 

Qualified Facilities Program does not 

effect a permit holder’s obligation to 

comply with Federal requirements. An 

allowables-based trigger is permissible 

because the CAA and Federal 

regulations do not mandate a method for 

determining minor NSR. The 

Environmental Appeals Board 

confirmed that there is no mandated 

methodology for the emissions test used 

for minor NSR. In re Tennessee Valley 

Authority, 9 EAD 357, 461 (EAB 

September 15, 2000). Again, EPA 

employed an allowables-to-allowables 

test in its proposed Indian Country rule. 

States have great flexibility to determine 

applicability for Minor NSR and that 

includes the authority to use an 

allowables-based trigger. TCEQ rules 

articulate an overriding obligation to 

comply with Federal requirements. 30 

TAC 116.117(a)(4) and (d). Therefore, 

the current Qualified Facilities rules 

prevent circumvention of Major NSR. 

Response: EPA disagrees with the 

commenter. This rulemaking 

disapproves netting under the Qualified 

Facilities Program for Major NSR, in 

part because the Program fails to first 

require a Major NSR applicability 

demonstration to show that a proposed 

change does not trigger Major NSR 

before the source can take advantage of 

the Program. In contrast to the Qualified 

Facilities Program, under the proposed 

Indian Country rule, 40 CFR 49.153 

would explicitly require the proposed 

new source or modification to 

determine applicability to Major NSR 

before taking advantage of the program. 

The source could only use allowables 

netting under the proposed Indian 

County rule after a Major NSR 

applicability determination. See 71 FR 

48696, at 48705, 48728–48729. The 

Qualified Facilities rules are deficient 

because they lack such a requirement. 

Further, as described above, the 

Program fails to meet several other 

netting requirements for an approvable 

Minor NSR netting program. 

EPA’s FAP rule is an Operating 

permit under Title V, not Title I. 74 FR 

51418, 51419. While the FAP rule 

recognizes the use of advance approval 

programs under Minor NSR, the use of 

such programs must ensure 

environmental protection and 

compliance with applicable laws. 

‘‘[FAPs] cannot circumvent, modify, or 

contravene any applicable requirement 

and, instead, by their design must 

assure compliance with each one as it 

would become applicable to any 

authorized changes.’’ See 74 FR 51418, 

51422. Further, advance approval under 

the FAP must be made at the time of 

permit issuance, and consider the 

alternate operating scenarios for air 

quality impacts, control technology, 

compliances with applicable 

requirements, etc. Under Major and 

Minor NSR, advance approval must 

ensure compliance with control strategy 

and non-interference with attainment 

and maintenance of NAAQS for each 

operating scenario as required by 40 

CFR 51.160. We do not see how the 

Texas Qualified Facility Rule meets 

these requirements. 

D. Comments Addressing Whether the 

Qualified Facilities Rules Are 

Practically Enforceable 

1. Comments Generally Supporting 

Proposal 

Comment: The UT Environmental 

Clinic commented that the rules fail to 

ensure that netted reductions are 

enforceable. 

Response: We agree with the 

commenter that the Program is 

unenforceable because it fails to 

explicitly require that a permit 

application must be submitted for the 

change and for any relied-upon 

emissions reductions in the netting 

analysis. Because the Program is an 

exemption from a preconstruction 

permit, and does not require a permit, 

the Program must qualify as a de 

minimis exemption to be approvable. 

We find that the Program does not 


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qualify as a de minimis exemption from 

Minor NSR. The legal test for whether 

a de minimis threshold can be approved 

is whether it is consistent with the need 

for a plan to include legally enforceable 

procedures to ensure that the State will 

not permit a source that will violate the 

control strategy or interfere with 

NAAQS attainment, as required by 40 

CFR 51.160(a)–b). 74 FR 48450, at 

48460. The State failed to demonstrate 

that this exemption will not permit 

changes that will violate the Texas 

control strategies or interfere with 

NAAQS attainment. Therefore all of the 

requirements under 40 CFR 51.160(a)– 

(b) apply to the Program. 

Additionally, the Program allows too 

long of a lag time before a revised 

permit is issued in certain 

circumstances that can lead to a 

violation of a NAAQS, RFP, or control 

strategy without the TCEQ becoming 

aware of it in a timely manner. We 

proposed that the lag time for reporting 

a change under the Program should be 

no longer than six months, rather than 

a year, but we requested comment on 

whether six months is an acceptable 

lapse of time to ensure noninterference 

with the NAAQS and control strategies. 

74 FR 48450, at 48462. We received no 

comments on this issue except that 

TCEQ stated they will consider this 

change during rulemaking. Therefore, 

we find that the Program allows too long 

of a lag time before reporting ‘‘qualified’’ 

changes. 

Comment: The UT Environmental 

Clinic commented that the Program is 

clearly inadequate to ensure protection 

of the NAAQS and PSD increments and 

to prevent violations of control 

strategies. 

Response: EPA agrees a Minor NSR 

SIP must include legally enforceable 

procedures enabling the State to 

determine whether construction or 

modification would violate a control 

strategy or interfere with attainment or 

maintenance of the NAAQS. 40 CFR 

51.160(a)–(b). Furthermore, any Minor 

NSR SIP revision submittal that is a SIP 

relaxation, such as this Qualified 

Facilities Program, must meet section 

110(l). The Qualified Facilities SIP 

submittal is a relaxation under CAA 

section 110(l) because it provides an 

exemption from NSR permitting not 

previously available to sources. This SIP 

relaxation creates a risk of interference 

with NAAQS attainment, RFP, or any 

other requirement of the Act. EPA lacks 

sufficient available information to 

determine that this SIP relaxation would 

not interfere with any applicable 

requirement concerning attainment and 

RFP, or any other requirement of the 

Act. See 74 FR 48450, at 48463. 

2. Comments Generally Opposing 

Proposal 

Comment: ERCC commented that the 

Qualified Facilities Program is 

enforceable for several reasons. The 

program’s regulations include 

enforceable registration and 

recordkeeping requirements. 

Documentation must be maintained for 

all Qualified Facility changes that 

describes the change and demonstrates 

compliance with the Qualified Facility 

Program as well as state and Federal 

law. See 30 TAC 116.117(a). TCEQ 

regulations also require that, at a 

minimum, an annual submission is 

made to the agency documenting any 

qualified facility changes not 

incorporated into a facility permit. See 

30 TAC 116.117(b). Pre-change 

qualification and approval are required 

for certain changes including: changes 

that affect BACT or where MAERT is 

not available (30 TAC 116.118); certain 

intraplant trading (30 TAC 116.117(4)); 

or if the change will affect compliance 

with a permit condition (30 TAC 

116.117(3)). EPA’s general comments 

questioning the proper permit 

application or registration for qualified 

facility authorization are unclear given 

the minor source nature of the program 

and its function as an exemption from 

a preconstruction permit. See 74 FR 

48450, at 48462. The Program 

adequately imposes recordkeeping, 

reporting, notification and approval 

regulations to satisfy the minor NSR 

enforceability requirements. 

Comment: TIP and BCCA also 

commented in response to EPA’s 

argument that the Qualified Facilities 

Program is not enforceable because 

changes are not reflected in a permit. 

The program is a minor NSR triggering 

program. Instead of permit revision, a 

facility qualified to invoke the program 

must notify TCEQ of changes under the 

Qualified Facilities rules. 30 TAC 

116.118. The commenters explain the 

scenarios when notification is required 

and the requirements for effective 

notification under the rules. 

Commenters also state that if a change 

implicates a permit special condition, 

the permit holder must revise its permit 

special condition using the procedures 

specified in Chapter 116, New Source 

Review. 30 TAC 116.116(b)(3). 

Comment: The TxOGA commented 

that the Qualified Facilities Program is 

a minor NSR triggering provision that 

requires facilities to retain 

documentation and notify TCEQ of 

changes under the program. A facility 

must be qualified at the time the change 

is to occur. The program is enforceable 

because the rules contain notification 

and recordkeeping requirements. 

Response: EPA disagrees with the 

commenters. The Program does not 

meet the Federal requirements for 

practical enforceability. To be 

approvable, a Minor NSR program must 

include enforceable emissions limits. 

See 74 FR 48450, at 48462. The Program 

is not clear that each Qualified Facility 

involved in the netting transaction must 

submit a permit application and obtain 

a permit revision reflecting all of the 

changes made to reduce emissions 

(relied upon in the netting analysis) as 

well as reflecting the change itself that 

increased emissions. See 74 FR 48450, 

at 48462. Therefore, the Program is 

unenforceable. Additionally, the 

Program allows too long of a lag time 

before a revised permit is issued in 

certain circumstances that can lead to a 

violation of a NAAQS, RFP, or control 

strategy without the TCEQ becoming 

aware of it in a timely manner. Because 

the Program is an exemption from a 

preconstruction permit, and does not 

require a permit, the Program must 

qualify as a de minimis exemption to be 

approvable. We find that the Program 

does not qualify as an approvable de 

minimis exemption from Minor NSR. 

See 74 FR 48450, at 48462; Section 

V.D.1. above. Therefore all of the 

requirements under 40 CFR 51.160(a)– 

(b) apply to the Program. As described 

throughout this notice, the Qualified 

Facilities Program fails to meet all of 

these requirements. See 74 FR 48450, at 

48460. As stated above, the Program 

fails to require a permit that reflects all 

of the changes that occurred in the 

netting process and provides 

enforceable emissions limits. The 

notification and recordkeeping 

requirements, while beneficial, are not 

sufficient under Federal requirements to 

ensure enforceability. 

E. Comments Addressing Whether the 

Qualified Facilities Rules Meet Federal 

Requirements for Major New Source 

Review 

1. Comments Generally Supporting 

Proposal 

Comment: The UT Environmental 

Clinic comments that nothing in the 

Qualified Facility statute or rules limits 

applicability to minor modifications. 

The rules require documentation at the 

plant site sufficient to comply with 

Nonattainment NSR and PSD, but do 

not clarify that changes that constitute 

a major modification cannot be made 

through a Qualified Facility change. 

The commenter further stated that 

because the Qualified Facilities rules 

can be used to authorize major 


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10 In a separate SIP submittal dated February 1, 

2006, Texas recodified the provisions of Subchapter 

C into Subchapter E. TCEQ’s rules also state that 

nothing in the rules governing the Program shall 

limit the applicability of any Federal requirement. 

30 TAC 116.117(d). 

modifications, the rules fail to meet the 

substantive requirements of 

Nonattainment NSR and PSD. For 

emission increases associated with PSD, 

the Qualified Facilities rules fail to 

require: (1) Best Available Control 

Technology; (2) an air quality analysis 

of impacts on the NAAQS and PSD 

increments; and (3) additional impact 

analysis associated with the 

implementation of the new source or 

modification. For emission increases 

associated with Nonattainment NSR, the 

Qualified Facilities rules fail to require: 

(1) Lowest Achievable Emission Rate; 

(2) emission offsets; and (3) 

demonstration of compliance by other 

facilities in the State. 

Response: These comments are 

consistent with EPA’s analysis 

concluding that Texas’s Qualified 

Facilities Program does not meet Major 

NSR Substantive requirements as 

discussed at 74 FR 48450, at 48458– 

48459. 

EPA agrees that the Program is 

deficient because it lacks provisions that 

require a Major NSR applicability 

determination for a change at a 

Qualified Facility before it is exempted 

from the permitting requirements. The 

Program’s regulations do not contain 

any emission limitations, applicability 

statement, or regulatory provision 

restricting the change to Minor NSR. 

This lack of such express provisions 

distinguishes the Qualified Facilities 

Program from the Texas Minor NSR SIP 

rules for Permits by Rule in Chapter 106 

and Standard Permits in Chapter 116, 

Subchapter F. The Standard Permits 

rules require a Major NSR applicability 

determination at 30 TAC 116.610(b), 

and prohibit circumvention of Major 

NSR at 30 TAC 116.610(c). Likewise, the 

Permits by Rule provisions require a 

Major NSR applicability determination 

at 30 TAC 106.4(a)(3), and prohibit 

circumvention of Major NSR at 30 TAC 

106.4(b). The absence of these 

provisions in the Qualified Facilities 

rules creates an unacceptable ambiguity 

in the SIP. Therefore, the Program could 

allow circumvention of Major NSR. See 

74 FR 48450, at 48456–48458. 

EPA also agrees that the Program fails 

to address the required air quality 

impacts analysis. The comments 

concerning BACT, LAER, emissions 

offsets and a demonstration of 

compliance by other facilities in the 

State go beyond EPA’s analysis in the 

proposal and are outside the scope of 

this rulemaking. 

Additionally, section 110(l) of the Act 

prohibits EPA from approving any 

revision of a SIP if the revision would 

interfere with any requirement 

concerning attainment and RFP, or any 

other requirement of the Act. There is 

not sufficient available information to 

enable EPA to determine that the 

submitted Program would not interfere 

with any requirement concerning 

attainment and RFP, or any other 

requirement of the Act. See 74 FR 

48450, at 48459; and response above. 

Comment: The Office of the Mayor, 

City of Houston, Texas, recognizes that 

the Qualified Facilities Program has no 

regulatory provisions that clearly 

prevent the Program from 

circumventing Major NSR SIP 

requirements thereby allowing changes 

at existing facilities to avoid the 

requirement to obtain preconstruction 

authorizations. Therefore, major sources 

of emissions are making major 

modifications to their facilities without 

going through the permitting process. 

The commenter states that this is a fatal 

flaw in the program, it is inconsistent 

with the CAA and should not be 

included in the SIP. 

Response: The comments by the 

Office of the Mayor, City of Houston, 

Texas, are consistent with EPA’s 

conclusions as discussed at 74 FR 

48450, at 48456–48457 and response 

above. 

2. Comments Generally Opposing 

Proposal 

Comment: The TCC comments that 

Qualified Facilities is a Minor NSR 

Program because TCEQ’s rules clearly 

require sources making changes under 

the Program to submit specific 

documentation, including ‘‘sufficient 

information as necessary to show that 

the project will comply with 40 CFR 

116.150 and 116.151 of this title 

(relating to Nonattainment Review) and 

40 CFR 116.160–116.163 of this title 

(relating to Prevention of Significant 

Deterioration Review) and with 

Subchapter C of this Chapter 116 

(relating to Hazardous Air Pollutants: 

Regulations Governing Constructed or 

Reconstructed Major Sources (CAA 

112(g), 40 CFR Part 63)).’’ 30 TAC 

116.117(a)(4).10

Response: As stated in the above, 

TCEQ’s rules for Qualified Facilities are 

insufficient to prevent circumvention of 

major NSR. See 74 FR 48450, at 48456– 

48458. 

Comment: ERCC commented that the 

Qualified Facilities Program is limited 

to Minor NSR. Qualified Facilities 

mandates compliance with 40 CFR 

51.165 and 51.166, by clearly stating 

that any change authorized by Qualified 

Facilities shall not ‘‘limit the application 

of otherwise applicable state or Federal 

requirements.’’ TCAA 382.0512(c). 

TCEQ regulations require that Qualified 

Facilities changes must be documented 

minor source modifications. See 30 TAC 

116.117(a)(4); 30 TAC 116.117(d). EPA’s 

dismissal of Section 116.117(a)(4) as a 

recordkeeping provision is unjustified. 

74 FR 48450, at 48457. This Qualified 

Facilities regulatory reference to the 

PSD and NNSR programs requires the 

regulated entity to document that the 

change is in compliance with the 

Federal major source permitting 

programs and in compliance with state 

and Federal law. 

Response: As stated above, the 

Qualified Facilities rules are insufficient 

to prevent circumvention of Major NSR. 

74 FR 48450, at 48456–48458. 

Although there are recordkeeping 

requirements in the Program at 

submitted 40 TAC 116.117(a)(4) 

requiring owners and operators to 

maintain documentation containing 

sufficient information as may be 

necessary to demonstrate that the 

project will comply with the Federal 

CAA, Title I, parts C and D, these are the 

same general provisions as those in the 

SIP at 30 TAC 116.111(a)(2)(H) and (I) 

for Minor and Major NSR SIP permits. 

These recordkeeping requirements, 

although necessary for NSR SIP 

approvability, cannot substitute for clear 

and enforceable provisions, consistent 

with Texas’s other Minor NSR 

programs, that limit applicability in the 

submitted Program to Minor NSR only. 

74 FR 48450, at 48456–48457. 

Comment: TIP and BCCA comment 

that sources cannot use the Qualified 

Facilities Program to circumvent Major 

NSR. 30 TAC 116.117(a)(4) and (d); 

Modification of Existing Facilities 

Guidance, at 2. Senate Bill 1126, which 

authorized the Qualified Facilities 

program, does not supersede any 

Federal requirements. Further, ‘‘[i]f a 

change made under the qualified facility 

flexibility would result in the violation 

of a permit special condition, the permit 

holder must revise the permit special 

conditions to stay in compliance with 

the permit,’’ through either the permit 

alteration process under 30 TAC 

116.116(c) or the notification process of 

30 TAC 116.117(d). Modification of 

Existing Facilities Guidance, at 9. 

Therefore, any changes to a facility must 

comply with Federal NSR and PSD 

rules. To further show that the current 

Qualified Facilities rules are sufficient 

to prevent circumvention, commenter 

cites to EPA’s proposed Indian Country 

rule and recently approved state SIPs 

that do not contain explicit language 


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11 30 TAC § 116.117(b). See regulation text on 

pages 23–24 of the TSD for this action, which refer 

to 30 TAC 116.117(b)(2) and (4). 

12Although the commenter refers to ‘‘interplant’’ 

trading, the Texas rules referred to by the 

commenter relates to ‘‘intraplant’’ trading. 

calling for a major NSR applicability 

determination before use of the minor 

NSR tools. ALASKA ADMIN. CODE tit. 18, 

§ 50.502, approved 72 FR 45378 (August 

14, 2007); 7 DEL. CODE REGS. § 1102, 65 

FR 2048 (January 13, 2000) (granting 

limited approval based on EPA’s 

concerns about public participation 

provisions). Further, no Federal 

requirement mandates such language. 

Therefore, it is arbitrary for EPA to 

require Texas to include additional 

language. CleanCoalition v. TXU Power, 

536 F.3d 469, 472 (5th Cir. 2008). 

Response: As stated above, EPA finds 

that the Qualified Facilities regulatory 

provisions are inadequate to prevent 

circumvention of Major NSR and limit 

the Program to minor modifications. 

TCEQ’s rules and guidance are not clear 

on their face that circumvention of 

Major NSR requirements is prohibited. 

EPA does not understand how the 

permit alteration and notification 

requirements are relevant to the issue of 

circumvention of Major NSR. EPA 

disagrees with the commenter’s analogy 

to the proposed Indian Country Minor 

NSR rule. Today’s rulemaking 

disapproves the Qualified Facility 

Program for Major NSR, in part because 

the Program fails to first require a Major 

NSR applicability demonstration to 

show that a proposed change does not 

trigger Major NSR before the source can 

take advantage of the Program. In 

contrast, under the proposed Indian 

Country rule, 40 CFR 49.153 would 

explicitly require the proposed new 

source or modification to determine 

applicability to Major NSR before taking 

advantage of the program. 71 FR 48696, 

at 48705, 48728–48729. The source 

could only use allowables netting under 

the proposed Indian Country rule after 

it determined that Major NSR does not 

apply to the project. The Qualified 

Facilities rules are deficient because 

they lack such a requirement, i.e., that 

Major NSR does not apply to the 

change. 

Comment: The ERCC commented that 

EPA sent a comment letter on the 

Qualified Facilities proposed rule and 

agreed that it ‘‘adequately addresses the 

applicability of major sources and major 

modifications with respect to PSD and 

NA permitting requirements.’’ 21 Tex. 

Reg. 1569 (February 27, 1996). 

Response: We acknowledge our 1995 

comment letter stating that Texas 

adequately satisfied our concern that the 

Qualified Facilities Program, as 

proposed, would not circumvent or 

supersede any Major NSR SIP 

requirements. Since we sent that letter, 

however, the Texas Legislature has 

revised the Texas Clean Air Act 

significantly. Specifically, in 1999, the 

Texas legislature added an explicit 

statutory prohibition against the use of 

an Exemption or Permit by Rule or a 

Standard Permit for major 

modifications. See Texas Health and 

Safety Code 382.05196 and .057. These 

1999 legislative actions required a new 

legal review of the statutory definition 

for ‘‘modification of existing facility’’ to 

see if it was still limited to minor 

modifications. It is EPA’s interpretation 

that the 1999 legislative changes made 

this statutory definition ambiguous. 74 

FR 48450, at 48456–48457. 

F. Comments Addressing Whether the 

Qualified Facilities Rules Meet Federal 

Requirements for Minor New Source 

Review 

1. Comments Generally Supporting 

Proposal 

Comment: The UT Environmental 

Clinic commented that the CAA 

requires SIPs to include a program for 

‘‘regulation of the modification and 

construction of any stationary source.’’ 

42 U.S.C. 110(a)(2)(C). The program 

must prohibit any sources, including 

minor sources, from emitting pollution 

in amounts that contribute significantly 

to nonattainment and maintenance of 

the NAAQS or interfere with measures 

included in the SIP. 42 U.S.C. 

110(a)(2)(D)(i)(I)–(II). EPA has 

recognized the valuable role that Minor 

NSR programs play in ensuring that air 

quality is protected from emissions that 

are not subject to Major NSR. Technical 

Support Document for the Prevention of 

Significant Deterioration and 

Nonattainment Area New Source 

Review Regulations, U.S. EPA, Nov. 

2002, at I–5–I–12. The Qualified 

Facilities Program is deficient as a 

Minor NSR program because: 

• The Qualified Facility rules do not 

require enforceable limits. Qualified 

Facilities provide notification of 

‘‘qualified’’ changes on form PI–E,11

which TCEQ acknowledges is not 

enforceable. TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY Guidance for 

Air Quality, Qualified Changes Under 

Senate Bill 1126 (Dec. 2000), 27 

[hereinafter Qualified Facilities 

Guidance]. Without enforceable limits, 

facilities can use emission reductions as 

part of a netting analysis and 

subsequently increase those emissions 

or rely on these reductions to offset 

other increases. Some Qualified Facility 

representations are consolidated into a 

preexisting permit upon revision or 

renewal at the discretion of the source. 

Even if representations in the PI–E were 

enforceable, there are no monitoring or 

reporting requirements to demonstrate 

compliance. 30 TAC 116.117(a). See 74 

FR 48450 (Sept. 23, 2009), Docket, 

Technical Support Document, pg. 22. 

• The Qualified Facility Rules do not 

include a pre-approval mechanism for 

all authorized emission increases. The 

rules have no mechanism that prevents 

implementation of Qualified Facility 

changes that may violate a control 

strategy or interfere with attainment or 

maintenance of the NAAQS. The 

Program only requires Qualified 

Facilities to obtain pre-approval of a 

Qualified Facility change if it involves 

interplant 12 trading above a ‘‘reportable 

limit.’’ 30 TAC 116.117(b)(4). Facilities 

that do not rely on interplant trading are 

only required to report their changes on 

an annual basis. 30 TAC 116.117(b)(1). 

Response: As stated above at Section 

V.D.1, EPA agrees with the first point 

that the submitted rules are practically 

unenforceable because the reductions 

are not incorporated into a permit. 74 

FR 48450, at 48462. 

EPA agrees with the commenter that 

the Program does not include a preapproval mechanism for all authorized 

emission increases. Under section 

110(a)(2)(A) and (C) of the Act, a Minor 

NSR SIP must require enforceable 

emission limits for all minor 

modifications. The Texas Program is not 

clear that for each Qualified Facility 

involved in the netting transaction, the 

owner or operator must submit a permit 

application and obtain a permit revision 

reflecting all of the changes made to 

reduce emissions (relied upon in the 

netting analysis) as well as reflecting the 

change itself that increased emissions. 

Furthermore, the Program’s rules at 30 

TAC 116.116(e)(4) and 116.117(b)(1)–(4) 

are not clear that the PI–E form is a 

permit application or registration that 

must be submitted and that a revised 

permit must be issued by TCEQ to 

reflect the changes made by all of the 

participating Qualified Facilities. There 

is no discussion of when TCEQ issues 

the revised permit. See the submittals at 

30 TAC 116.117(b); 74 FR 48450, at 

48462. 

2. Comments Generally Opposing 

Proposal 

Comment: The TCEQ commented that 

it has always considered the Qualified 

Facilities Program to be a Minor NSR 

Program although it is not stated in the 

rule. The rule requires the person 

making a change to maintain sufficient 

documentation to demonstrate that the 


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13 40 CFR 51.165(a)(1)(v). 

project will comply with 30 TAC 

116.150 and 116.161 (Nonattainment 

NSR), 116.160–116.163 (Prevention of 

Significant Deterioration Review), and 

Chapter 116, Subchapter C (relating to 

implementing section 112(g) of the Act. 

30 TAC 116.117(a)(4). A major 

modification may not occur without 

going through nonattainment or PSD 

review. If a project is determined to be 

a major modification, under PSD and/or 

nonattainment rules,13 the owner/ 

operator must obtain a Federal NSR 

permit/major modification. Then 

Qualified Facilities Program does not 

impair TCEQ’s authority to control air 

pollution and take action to control a 

condition of air pollution if TCEQ finds 

that such a condition exists. Texas 

Water Code section 5.514. TCEQ 

commits to work with EPA to improve 

and clarify the rule language to ensure 

that the Qualified Facilities Program is 

specifically limited to Minor NSR 

changes. Texas comments that it does 

not apply the Qualified Facilities 

program to projects that are subject to 

Major NSR or subject to section 112(g) 

of the Act. 

Response: We appreciate TCEQ’s 

willingness to work with EPA to 

improve and clarify its rules to ensure 

that the Qualified Facilities Program 

does not apply to projects that are 

subject to Major NSR or subject to 

section 112(g). However, the Program is 

deficient because it fails to include 

specific provisions in its rules that 

assure that the Qualified Facilities 

Program does not apply to projects that 

are subject to Major NSR or subject to 

section 112(g). See 74 FR 48450, at 

48456–48457. 

Comment: ERCC commented that EPA 

has failed to demonstrate the proposed 

revisions interfere with Texas’s ability 

to achieve the NAAQS. Specifically: 

• Texas requires all air emissions 

from stationary sources (including 

minor sources) receive authorization 

from the State. Texas has developed an 

extensive program to meet the 

permitting and resource challenges of 

this requirement and the State’s 

numerous and varied emission sources. 

States have discretion under the CAA to 

implement the state minor source 

program as long as it does not ‘‘interfere 

with attainment of the NAAQS. Aside 

from this requirement, which is stated 

in broad terms, the Act includes no 

specifics regarding the structure or 

functioning of minor NSR programs 

* * * as a result, SIP-approved minor 

NSR programs can vary quite widely 

from State to State.’’ Operating Permit 

Programs; Flexible Air Permitting Rule; 

Final Rule, 74 FR 51,418 at 51,421 (Oct. 

6, 2009). Therefore, ERCC requests that 

EPA re-evaluate and withdraw the 

proposed disapprovals. Texas air quality 

has shown dramatic improvement 

because of the three submitted 

programs. EPA fails to recognize that 

these programs are similar to other 

approved state minor NSR programs. 

• EPA’s proposed disapprovals do not 

meet Congress’ or the Courts’ 

documented standards for SIP 

disapproval. The CAA grants EPA 

authority to disapprove a SIP revision if 

such revision would interfere with the 

state’s SIP. A revision interferes with 

the SIP if it impedes the state’s ability 

to achieve the NAAQS. 42 U.S.C. 

7410(l); S. Rep. No. 101–228, at 9, 1990 

U.S.C.C.A.N. 3385, 3395; and Train v. 

NRDC, 421 U.S. 60, 79 (1975). The 

commenter argues that EPA has the 

burden to demonstrate that the 

submittals interfere with the NAAQS, 

but EPA’s proposals shift this burden to 

Texas. See Hall v. EPA, 273 F.3d 1146, 

1161 (9th Cir. Cal. 2001) (citing Train, 

421 U.S. at 93 and Ober v. Whitman, 

243 F.3d 1190, 1195 (9th Cir. 2001)) 

(requiring EPA’s analysis to ‘‘rationally 

connect’’ approval of a revision to an 

area’s likelihood of meeting the 

NAAQS). 

• Since their submittal to EPA, the 

State’s implementation of these rules 

has significantly reduced statewide 

emissions. These improvements can be 

demonstrated by reviewing both the 

records of emissions reductions and the 

reductions measured by Texas ambient 

air quality monitors. 

ERCC further commented that 

Qualified Facilities is protective of air 

quality by limiting the use of this 

authorization under 30 TAC 116.116(e) 

and 30 TAC 116.10 (11)(E) and 

providing incentives to implement 

emission reductions. Like the Qualified 

Facilities Program, EPA’s proposed 

Indian Country Minor NSR program is 

based upon an increase of allowable and 

not actual emissions. 71 FR 48696, at 

48701. The EPA-developed Minor NSR 

program also utilizes emission rates in 

lieu of air quality impacts to determine 

exemptions from the Minor NSR 

definition of modification because 

‘‘applicability determinations based on 

projected air quality impacts would be 

excessively complex and resource 

intensive.’’ Id. at 48701. 

Response: We agree that states have 

great flexibility to create their own 

Minor NSR SIP programs. However, at 

a minimum, those Minor NSR SIP 

programs must meet all of the Federal 

requirements. Likewise, the Qualified 

Facilities Program must meet all Federal 

requirements under the CAA in order to 

be approvable. Section V.C.1–2. As 

discussed throughout our proposal and 

this final notice, the current Qualified 

Facilities Program fails to meet all 

requirements. Moreover, the Qualified 

Facilities Program would be an 

exemption from the Texas Minor NSR 

SIP. The Program does not provide an 

alternative Minor NSR permit 

authorization process but instead 

exempts facilities from obtaining a NSR 

permit for changes. The State failed to 

demonstrate that this exemption is de 

minimis and thus that the exempted 

changes will not violate the Texas 

control strategies or interfere with 

NAAQS attainment, as required by 

section 110(a)(2)(c) and 40 CFR 51.160. 

74 FR 48450, at 48460; see also Section 

V.C.1–2, D.1, and G. of this Response to 

Comments. Additionally, EPA lacks 

sufficient available information to 

determine that the requested SIP 

revision relaxation does not interfere 

with any applicable requirements 

concerning attainment and RFP, or any 

other applicable requirement of the Act, 

as required by section 110(l) of the Act. 

74 FR 48450, at 48463; see also Section 

V.D.1. 

EPA disagrees with the commenter’s 

analogy to the proposed Indian Country 

Minor NSR rule. Today’s rulemaking 

disapproves netting under the Qualified 

Facilities Program for Minor NSR, in 

part because the Program fails to first 

require a Major NSR applicability 

demonstration to show that a proposed 

change does not trigger Major NSR 

before the Qualified Facility can take 

advantage of the Program. The proposed 

Indian Country rule would explicitly 

require the proposed new source or 

modification first determine 

applicability to Major NSR before taking 

advantage of the program. 71 FR 48696, 

at 48705, 48728–48729. The source 

could only use allowables netting under 

the proposed Indian Country rule after 

it determined that Major NSR does not 

apply to the project. The Qualified 

Facilities rules are deficient because 

they lack the requirement for a Major 

NSR applicability determination, not 

because the Program allows allowables 

netting under Minor NSR. Further, 

while the commenter is correct that the 

proposed Indian Country rule would 

allow the use of emissions rates in lieu 

of air quality impacts, the use of 

emissions rates is only to establish 

applicability under Minor NSR. Such an 

approach is acceptable as long as the 

program assures protection of the 

NAAQS. 71 FR 48696, at 48701. 

Comment: TIP and BCCA commented 

that SIP revisions are approvable if they 

do not interfere with the NAAQS. States 

have the primary responsibility for 


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developing plans for attainment and 

maintenance of the NAAQS. See 

CleanCOALition v. TXU Power, 536 

F.3d 469, 472 n.3 (5th Cir. 2008) (stating 

that ‘‘EPA has no authority to question 

the wisdom of a State’s choices of 

emissions limitations if they are part of 

a SIP that otherwise satisfies the 

standards set forth in 42 U.S.C. 

7401(a)(2)’’). The last ten years have 

seen unprecedented improvement in 

Texas air quality, and Texas has been 

implementing the Qualified Facilities 

program during that time. The submittal 

does not raise interference concerns 

because it strengthens the existing SIP; 

therefore the Qualified Facilities 

program should be fully approvable. 

The proposal states that Qualified 

Facilities lacks safeguards to prevent 

interference with attainment and 

maintenance of the NAAQS. The 

commenters correlate this deficiency 

with EPA’s comments on two facets of 

the submittal that EPA proposed to find 

approvable as long as ambient air is 

protected in the trading: (1) netting is 

not based on contemporaneous trading; 

and (2) the Program’s netting is not 

based totally on changes in actual 

emissions. TIP states that the existing 

Qualified Facilities rules contain 

adequate safeguards of the NAAQS. 

Additionally, changes are sufficiently 

documented and quantified to ensure 

that a decrease at a facility will only be 

used in one netting analysis. The 

provision requires that sources must 

document compliance with Federal 

requirements safeguards the NAAQS. 

Commenter states that Qualified 

Facilities could be viewed as an 

exemption to Minor NSR requirements; 

however, the rules prevent changes that 

will violate the Texas control strategies 

or interfere with NAAQS attainment. 

Qualified Facilities flexibility is only 

allowed where the change will not 

result in a net increase above existing 

BACT, and BACT limits were set to 

protect the NAAQS. Qualified Facilities 

incorporates Texas’s control strategies, 

and therefore, safeguards the NAAQS. 

Response: As stated above, in order to 

be approved as part of the SIP, the 

Qualified Facilities Program must meet 

all applicable Federal requirements. 

Here, the commenter’s argument is not 

supported by the Fifth Circuit’s 

language in CleanCOALition, 536 F.3d 

at 472 n.3, because the Qualified 

Facilities Program does not meet 42 

U.S.C. 7410(a)(2)(C). EPA agrees with 

the commenter that the Qualified 

Facilities Program is an exemption to 

the Texas Minor NSR SIP (and can be 

construed to be an exemption to the 

Texas Major NSR SIP). A requirement 

for approval of an exemption to a Minor 

NSR SIP is a demonstration that the 

exemption will not permit changes that 

will violate a state’s control strategies or 

interfere with NAAQS attainment. 

Texas failed to submit such a 

demonstration. In addition, EPA lacks 

sufficient available information to 

determine that this SIP relaxation would 

not interfere with NAAQS attainment, 

RFP, or any other requirement of the 

Act. See Section V.D.1 above. 

Furthermore, EPA cannot find any 

provisions in the Program that require a 

separate netting analysis be performed 

for each such change. See 74 FR 48450, 

at 48461–48462. We also find that the 

Program does not prohibit future 

increases at a Qualified Facility, or 

include regulatory language that assures 

that any future increase at a Qualified 

Facility at which a previous netting 

reduction occurred is analyzed in 

totality to assure that the NAAQS are 

protected. The Qualified Facilities rules 

are deficient to protect the NAAQS for 

the reasons stated above, not because 

the Program allows allowables netting 

under Minor NSR. The commenter 

asserts that these safeguards exist in the 

Qualified Facilities Program but 

provides no citation or other basis to 

support its assertion. Finally, EPA finds 

that the Texas rules do not specifically 

require maintenance of information and 

analysis showing how a source 

concluded that there will be no adverse 

impact on air quality. 74 FR 48450, at 

48462. The commenter provides no 

citation or other basis to show how the 

Qualified Facilities Program meets this 

requirement. 

Comment: TxOGA commented that 

the documentation and notification 

requirements of 30 TAC 116.117 

provide safeguards to ensure that 

changes will not violate the control 

strategy or interfere with attainment and 

maintenance of the NAAQS. Also, 

Qualified Facilities flexibility is only 

available where the change will not 

result in a net increase above BACT 

levels at well controlled facilities. 

Response: As stated above, there is 

not sufficient available information to 

enable EPA to make a determination 

pursuant to section 110(l) that the 

Qualified Facilities Program, as a whole, 

would not interfere with any applicable 

requirement concerning attainment and 

RFP or any other requirement of the Act. 

Additionally, as required by section 

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

State failed to submit information to 

demonstrate that the Program, as an 

exemption from the Texas Minor NSR 

SIP, would not permit a source that will 

violate the control strategy or interfere 

with NAAQS attainment. See Section 

V.D.1 above for more information. 

G. Comments Addressing Whether 

Existing Qualified Facilities Have 

Undergone an Air Quality Analysis 

Comment: The UT Environmental 

Clinic disagrees with EPA’s statement in 

the proposal that any Qualified Facility 

will have a Major or Minor NSR SIP 

permit, will have been subject to an air 

quality analysis, and will have 

demonstrated that its emissions have no 

adverse air quality impact. 74 FR 48450, 

at 48560 (Sept. 23, 2009). A facility can 

qualify as a Qualified Facility if it uses 

technology at least as effective as 10- 

year old BACT, ‘‘regardless of whether 

the facility has received a 

preconstruction permit or permit 

amendment or has been exempted 

under the TCCA, 382.057.’’ 30 TAC 

116.11(E)(ii). Likewise, the Qualified 

Facility rules specifically provide for 

preapproval of Qualified Status of those 

facilities that do not have an allowable 

emissions limit in a permit, PI–8 or PI– 

E form. 

The commenter further states that, 

while Texas rules generally require 

emissions to have some sort of 

authorization, the rules do exempt some 

increases from the definition of 

‘‘modification,’’ thereby allowing these 

emissions to avoid any review. 30 TAC 

116.10(11). For emissions that must be 

permitted, TCEQ’s rules allow the use of 

various permitting mechanism that do 

not assure protection of the NAAQS and 

control strategy requirements. 30 TAC 

116.110(a). 

The commenter states that the rules 

additionally provide that unless one 

‘‘facility’’ at an account has been subject 

to public notice under the Chapter 116 

permitting or renewal provisions, total 

emissions from all facilities permitted 

by rules at an account shall not exceed 

the limits referenced in 30 TAC 

106(a)(4). Because it is rare that at least 

one facility at an account has not been 

through public notice, companies are 

allowed to use multiple permits-by-rule 

to authorize emissions at a source. See 

UT Environmental Clinic Comment 

Letter, Attachment 5: Chart of facility 

PBR authorizations. TCEQ does not 

analyze the cumulative air quality 

impact of these multiple authorizations. 

TCEQ rules require permits-by-rule and 

standard permits to be ‘‘incorporated’ 

into the facility’s permit after the permit 

is renewed or amended; and there are 

no rules regarding procedures or 

modeling for such ‘‘incorporation.’’ 

Finally, the commenter stated that 

TCEQ has issued guidance that requires 

standard permits and PBRs that 

‘‘directly affect the emissions of 


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permitted facilities’’ to be ‘‘consolidated 

by reference’’ at renewal or amendment. 

Texas Commission on Environmental 

Quality, Permit by Rule and Standard 

Permit Consolidation Into Permits (Sept 

1, 2006), 3. Any PBRs and standard 

permits that do not affect emissions 

permitted facilities can be incorporated 

at the discretion of the permittee. Id at 

4. The TCEQ guidance requires such 

PBRs and standard permits that are 

consolidated by incorporation to 

undergo an impacts review. Because 

these permits are renewed every ten 

years, this review may not occur for 

many years. Furthermore, PBRs do not 

require Texas BACT. 

Response: We agree with the 

commenter’s assertion that the 

submitted regulations do not explicitly 

require an air quality impacts analysis 

whenever a facility uses technology at 

least as effective as 10-year old Minor 

NSR BACT, ‘‘regardless of whether the 

facility has received a preconstruction 

permit or permit amendment or has 

been exempted under the TCCA 

382.057.’’ Further, facilities ‘‘qualified’’ 

using technology at least as effective as 

10-year old Minor NSR BACT, must use 

actual emissions as a baseline. See 30 

TAC 116.10(2) and 116.116(e)(2)(C). 

Presumably, this provision exists 

because facilities ‘‘qualified’’ under 30 

TAC 116.10(11)(E)(ii), would not have a 

permitted allowable emissions limit 

because they lack an underlying permit. 

If a facility could be ‘‘qualified’’ without 

having a pre-construction permit, then 

the facility could net-out of permit 

requirements without ever having an air 

quality analysis of the baseline 

allowables limit. TCEQ’s comments, 

which are summarized below, imply 

that State law requires all sources in 

Texas to get an underlying permit, and 

therefore, receive an air quality impact 

analysis. However, we view the State’s 

comment to be vague as to whether a 

permit is a pre-requisite under the 

Program itself. Therefore, the Qualified 

Facilities rules are deficient because 

they fail to require an underlying Texas 

NSR SIP permit and air quality impact 

analysis in order to be ‘‘qualified’’ under 

the Program. 

Comments concerning the State’s 

permit-by-rule and standard permit 

programs are outside the scope of this 

rulemaking. 

Comment: TCEQ commented that the 

Texas Legislature created the Qualified 

Facilities Program to provide flexibility 

to permitted facilities and to provide a 

means by which grandfathered facilities 

could apply control technology and 

become ‘‘qualified’’ grandfathered 

facilities without triggering Federal 

NSR. Subsequently, in 2001, the 

legislature required all grandfathered 

facilities to obtain authorization or 

shutdown. The program remains in 

effect as emissions are controlled, no 

new emissions above existing allowable 

limits are allowed, and Federal 

requirements are considered and met. 

In summary, the Program reinforced 

the TCEQ’s duties under the Texas 

Clean Air Act to protect air quality and 

control air contaminant emissions by 

practical and economically feasible 

methods. Tex. Health & Safety Code 

382.002, 382.003(9)(e). Therefore, the 

environment has benefitted from the 

Program because emissions were 

controlled prior to the Texas Legislature 

mandating shut down or obtaining 

authorization; air quality benefitted as 

demonstrated by monitoring which 

measured continued improvement; 

regulated entities benefitted because 

they were given flexibility; and the State 

benefitted by reasonable regulation that 

encourages responsible economic 

development. 

TCEQ also commented that allowable 

emissions (both hourly and annual 

rates) are one of the criteria used to 

provide ‘‘state qualified’’ flexibility 

because the facilities must exist and be 

authorized, and thereby undergone 

appropriate permit review. 

Response: As stated above, we find 

that the Qualified Facilities rules fail to 

explicitly require a permit before a 

facility can be ‘‘qualified’’ under the 

Program. While TCEQ asserts that to 

become a Qualified Facility, a facility 

must undergo permit review and be 

authorized, the State does not cite to 

any regulatory provision in the Program 

that explicitly requires such permitting 

authorization. EPA recognizes that State 

legislation subsequent to the Qualified 

Facilities Program required 

grandfathered facilities to obtain permit 

authorizations or shut down. There is 

nothing sufficiently explicit, however, 

in the Qualified Facilities Rules that 

ensures all Qualified Facilities received 

an air quality impacts analysis through 

an initial permit application review 

process. It is commendable that TCEQ 

intends to implement its Qualified 

Facilities Program in a manner that may 

benefit the environment, but Texas 

failed to incorporate these procedures 

into its regulations; therefore, these 

procedures are not Federally 

enforceable. 

H. Comments on the Definitions of 

‘‘Grandfathered Facility,’’ ‘‘Maximum 

Allowable Emission Rate Table,’’ and 

‘‘New Facility’’ 

Comment: TCEQ and TCC agree with 

EPA’s proposal to approve the 

definitions of ‘‘grandfathered facility,’’ 

‘‘maximum allowable emission rate 

table,’’ and ‘‘new facility.’’ The TCEQ 

urges EPA to take final action to 

approve these definitions. 

Response: These comments further 

support EPA’s action to approve these 

definitions. 

I. Comments on the Definitions of 

‘‘Actual Emissions,’’ ‘‘Allowable 

Emissions,’’ ‘‘Modification of Existing 

Facility’’ at (E), and ‘‘Qualified Facility’’ 

Comment: TCEQ confirmed that 

Senate Bill 1126 amended the Texas 

Clean Air Act by revising the definition 

of ‘‘modification of existing facility,’’ 

which changed the factors used to 

determine whether a modification for 

State permitting (i.e. Minor NSR) has 

occurred. In 1996, 30 TAC Chapter 116 

was revised to incorporate this 

legislative directive. These changes 

provide that modifications may be made 

to existing facilities without triggering 

the State’s Minor NSR requirements 

whenever: 

• Authorization for the facility to be 

modified was issued a permit, permit 

amendment, or was exempted from 

permitting requirements within 120 

months from when the change will 

occur; or 

• Uses air pollution control methods 

that are at least as effective as the BACT 

that was required within 120 months 

from when the change will occur. 

Such facilities are designated as 

‘‘qualified facilities.’’ TCEQ considers 

the use of ‘‘modification’’ to be separate 

and severable from the Federal 

definition of ‘‘modification’’ as reflected 

in the SIP-approved Major NSR 

Program. 

TCEQ further asserts that the 

definitions of ‘‘actual emissions,’’ 

‘‘allowable emissions,’’ ‘‘modification of 

existing facility’’ at (E) ‘‘qualified 

facility,’’ respectively at 30 TAC 

116.10(1), (2), (11)(E), and (16), meet 

Federal requirements. 

Response: We are disapproving these 

definitions because they are not 

severable from the Qualified Facilities 

Program, and the State failed to submit 

information sufficient to demonstrate 

how these definitions meet Federal 

requirements. The definitions of ‘‘actual 

emissions’’ and ‘‘allowable emissions’’ 

include a statement that limits these 

definitions only when determining 

whether there has been a net increase in 

allowable emissions under 30 TAC 

116.116(e), which implements the 

Qualified Facilities Program, and thus 

makes these definitions not severable 

from the Program. Subsection (E) of the 

definition of ‘‘modification of existing 

facility’’ only applies to changes that do 

not result in a net increase in allowable 


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14The term ‘‘facility’’ shall replace the words 

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

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

emissions, which implements the 

Qualified Facilities Program, and thus 

makes this subsection not severable 

from the Program. The definition of 

‘‘qualified facility’’ defines a term that is 

used in the Qualified Facilities Program, 

which makes it not severable from the 

Qualified Facilities Program. 

Furthermore, the State did not 

provide sufficient information to 

demonstrate how these definitions meet 

Federal requirements. Additionally, 

State legislative actions in 1999 made 

the statutory definition of ‘‘modification 

of existing facility’’ ambiguous as to 

whether the definition is still limited to 

minor modifications. The State did not 

submit any legal support for TCEQ’s 

assertion that the use of ‘‘modification’’ 

in the Texas Clean Air Act is for Minor 

NSR only; and therefore separate and 

severable from the definition of 

‘‘modification’’ in the Texas Major NSR 

SIP. See 74 FR 48450, at 48456–48457 

and Section V.E.2 above for further 

information. 

J. Comments on the Definition of ‘‘Best 

Available Control Technology’’ (‘‘BACT’’) 

Comment: The UT Environmental 

Clinic, TCC, TIP, BCCA, TxOGA, GCLC, 

and TCEQ provided comments on EPA’s 

proposed disapproval of TCEQ’s 

definition of BACT. 

Response: We are not taking final 

action on the definition of BACT in 

today’s rulemaking; therefore, these 

comments are outside the scope of our 

rulemaking. They will be considered, 

however, in our final action on this 

definition. 

K. Comments on Severable Portions of 

the Definition of ‘‘Modification of 

Existing Facility’’ at 30 TAC 

116.10(11)(A) & (B) 

Comment: The UT Environmental 

Clinic, TxOGA, TIP, BCCA, and TCEQ 

provided comments on EPA’s proposed 

disapproval of TCEQ’s changes to the 

definition of ‘‘modification of existing 

facility’’ at 30 TAC 116.10(11)(A) and (B) 

regarding insignificant increases. 

Response: We are not taking final 

action on 30 TAC 116.10(11)(A) and (B) 

of the definition of ‘‘modification of 

existing facility’’ in today’s rulemaking; 

therefore, these comments are outside 

the scope of our rulemaking. They, 

however, will be considered in our final 

agency action on these two definitions. 

L. Comments on the Definition of 

Severable Subsection of ‘‘Modification of 

Existing Facility’’ at 30 TAC 

116.10(11)(G) 

Comment: The UT Environmental 

Clinic and TCEQ provided comments on 

the proposed disapproval of 30 TAC 

116.10(11)(G) of the definition of 

‘‘modification of existing facility.’’ 

Response: We are not taking final 

action on 30 TAC 116.10(11)(G) of the 

definition of ‘‘modification of existing 

facility’’ in today’s rulemaking; 

therefore, these comments are outside 

the scope of our rulemaking. They will 

be considered, however, in our final 

agency action on this definition. 

M. Comments on the Reinstatement of 

the Previously Approved Definition of 

‘‘Facility’’ 

Comment: The TCEQ acknowledges 

that EPA proposes to correct a 

typographical error in 72 FR 49198 to 

clarify that the definition of ‘‘facility,’’ as 

codified at 30 TAC 116.10(6), was 

approved as part of the Texas SIP in 

2006 and remains part of the Texas SIP. 

74 FR 48450, at 48455 at n.6. 

Response: EPA thanks TCEQ for its 

acknowledgement that the definition of 

‘‘facility’’ at 30 TAC 116.10(6) was 

approved as part of the Texas SIP in 

2006 and remains part of the Texas SIP. 

We are making the administrative 

change to correct the typographical error 

in the Code of Federal Regulations. 

In our proposed rule notice, we 

requested comments on the State’s legal 

meaning of the term ‘‘facility.’’ See 30 

TAC 116.10(6). We stated that the 

interpretation of this term is critical to 

our understanding of the Texas 

Permitting Program. We received the 

following comments on this issue: 

1. Comments Generally Supporting 

Proposal 

Comment: The UT Environmental 

Clinic understands that EPA’s proposal 

is only to correct a typographical error 

that inadvertently removed the 

definition of ‘‘facility’’ from the SIP. The 

commenter notes, however, that Texas’s 

use of this term is problematic because 

of its dual definitions and broad 

meanings. The commenter compares 

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

TAC 116.10 with the definition of 

‘‘stationary source’’ in 30 TAC 116.12 

and the definition of ‘‘building, 

structure, facility, or installation’’ in 30 

TAC 116.12 and conclude that these 

definitions are quite similar. The 

commenters acknowledge that this 

argument assumes that one can rely on 

the Nonattainment NSR rules to 

interpret the general definitions. If one 

cannot use the Nonattainment NSR 

definitions to interpret the general 

definition of ‘‘facility,’’ then one must 

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

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

point of origin of air contaminants, 

whether privately or publicly owned or 

operated.’’ Pursuant to this reading, a 

facility is more like a Federal ‘‘emissions 

unit.’’ 40 CFR 51.165(a)(1)(vii). 

‘‘‘Emissions unit’ means any part of a 

stationary source that emits or would 

have the potential to emit any regulated 

NSR pollutant ...’’ At least in the 

Qualified Facility rules, it appears that 

TCEQ use of the definition of ‘‘facility’’ 

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

The circular nature of these definitions, 

and the existence of two different 

definitions of ‘‘facility’’ without clear 

description of their applicability, makes 

Texas’s rules, including the Qualified 

Facility rules, vague. Commenters urge 

EPA to require Texas to clarify its 

definition of ‘‘facility’’ and to ensure that 

its use of the term throughout the rules 

is consistent with that definition. 

2. Comments Generally Opposing 

Proposal 

Comment: TCEQ responded to EPA’s 

request concerning its interpretation of 

Texas law and the Texas SIP with 

respect to the term ‘‘facility.’’ The 

definition of ‘‘facility’’ is the cornerstone 

of the Texas Permitting Program under 

the Texas Clean Air Act. In addition, to 

provide clarity and consistency, TCEQ 

also provides similar comments in 

regard to Docket ID No. EPA–R06–OAR– 

2005–TX–0032 and EPA–R06–OAR– 

2006–0133. EPA believes that the State 

uses a ‘‘dual definition’’ for the term 

facility. Under the TCAA and TCEQ 

rule, ‘‘facility’’ is defined as ‘‘a discrete 

or identifiable structure, device, item, 

equipment, or enclosure that constitutes 

or contains a stationary source, 

including appurtenances other than 

emission control equipment. Tex. 

Health & Safety Code 382.003(6); 30 

TAC 116.10(6). A mine, quarry, well 

test, or road is not considered to be a 

facility.’’ A facility may contain a 

stationary source—point of origin of a 

contaminant. Tex. Health & Safety Code 

382.003(12). As a discrete point, a 

facility can constitute but cannot 

contain a major stationary source as 

defined by Federal law. A facility is 

subject to Major and Minor NSR 

requirements, depending on the facts of 

the specific application. Under Major 

NSR, EPA uses the term ‘‘emissions 

unit’’ (generally) when referring to a part 

of a ‘‘stationary source,’’ TCEQ translates 

‘‘emissions unit’’ to mean ‘‘facility,’’ 14

which is at least as stringent as Federal 

rule. TCEQ and its predecessor agencies 

have consistently interpreted facility to 

preclude inclusion of more than one 

stationary source, in contrast to EPA’s 

stated understanding. Likewise, TCEQ 


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15Tex. Health & Safety Code § 382.003(12). 

16Chevron U.S.A., Inc. v. Natural Resources 

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

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

the statute which it administers, it is confronted 

with two questions. First, always is the question 

whether Congress has directly spoken to the precise 

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

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

as the agency, must give effect to the 

unambiguously express intent of Congress. If, 

however, the court determines Congress has not 

directly addressed the precise question at issue, the 

court does not simply impose its own construction 

on the statute, as would be necessary in the absence 

of an administrative interpretation. Rather, if the 

statute is silent or ambiguous with respect to the 

specific issue, the question for the court is whether 

the agency’s answer is based on a permissible 

construction of the statute.’’ 

17Additionally, the definition of ‘‘facility’’ is 

similar to the definition of ‘‘emission unit’’ in 

Texas’s Title V rules. 30 TAC 122.10(8). 

18 30 TAC 101.1(1) Account—For those sources 

required to be permitted under Chapter 122 of this 

title * * *, all sources that are aggregated as a site. 

For all other sources, any combination of sources 

under common ownership or control and located on 

one or more contiguous properties, or properties 

contiguous except for intervening roads, railways, 

rights-of-way, waterways, or similar divisions. 

Approved as part of the Texas SIP at 70 FR 16129 

(March 30, 2005). 

does not interpret facility to include 

‘‘every emissions point on a company 

site, even if limiting these emission 

points to only those belonging to the 

same industrial grouping (SIC Code).’’ 

The Federal definition of ‘‘major 

stationary source’’ is not equivalent to 

the state definition of ‘‘source.’’ 40 CFR 

51.166(b)(1)(a). A ‘‘major stationary 

source’’ 15 can include more than one 

‘‘facility’’ as defined under Texas law— 

which is consistent with EPA’s 

interpretation of a ‘‘major stationary 

source’’ including more than one 

emissions unit. The above interpretation 

of ‘‘facility’’ has been consistently 

applied by TCEQ and its predecessor 

agencies for more than 30 years. The 

TCEQ’s interpretation of Texas statutes 

enacted by the Texas Legislature is 

addressed by the Texas Code 

Construction Act. More specifically, 

words and phrases that have acquired a 

technical or particular meaning, 

whether by legislative definition or 

otherwise, shall be construed 

accordingly. Tex. Gov’t Code 311.011(b). 

While Texas law does not directly refer 

to the two steps allowing deference 

enunciated in Chevron U.S.A., Inc. v. 

Natural Resources Defense Council, 

Inc., Texas law and judicial 

interpretation recognize Chevron 16 and 

follow similar analysis as discussed 

below. The Texas Legislature intends an 

agency created to centralize expertise in 

a certain regulatory area ‘‘be given a 

large degree of latitude in the methods 

it uses to accomplish its regulatory 

function.’’ Phillips Petroleum Co. v. 

Comm’n on Envtl. Quality, 121 S.W.3d 

502, 508 (Tex.App.—Austin 2003, no 

pet.), which cites Chevron to support 

the following: ‘‘Our task is to determine 

whether an agency’s decision is based 

upon a permissible interpretation of its 

statutory scheme.’’ Further, Texas courts 

construe the test of an administrative 

rule under the same principles as if it 

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

Finance Comm’n, 36 S.W.3d 635,641 

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

Administrative agencies have the power 

to interpret their own rules, and their 

interpretation is entitled to great weight 

and deference. Id. The agency’s 

construction of its rule is controlling 

unless it is plainly erroneous or 

inconsistent. Id. ‘‘When the construction 

of an administrative regulation rather 

than a statute is at issue, deference is 

even more clearly in order.’’ Udall v. 

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

particularly true when the rule involves 

complex subject matter. See Equitable 

Trust Co. v. Finance Comm’n, 99 

S.W.3d 384, 387 (Tex.App.—Austin 

2003, no pet.). Texas courts recognize 

that the legislature intends an agency 

created to centralize expertise in a 

certain regulatory area ‘‘be given a large 

degree of latitude in the methods it uses 

to accomplish its regulatory function.’’ 

Reliant Energy, Inc. v. Public Util. 

Comm’n, 62 S.W.3d 833,838 

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

State v. Public Util. Comm’n, 883 

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

summary, TCEQ translates ‘‘emissions 

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

‘‘emissions unit’’ under Federal law is 

construed by EPA as part of a major 

stationary source, a ‘‘facility’’ under 

Texas law can be a part of a major 

stationary source. However, a facility 

cannot include more than one stationary 

source as defined under Texas law. 

Comment: TCC, BCCA, TIP, and 

TxOGA commented that Texas rules are 

clear that ‘‘facility,’’ as defined in 30 

TAC 116.10(6) is equivalent to the 

TCEQ term ‘‘emissions unit.’’17 TCC also 

stated that the definition of ‘‘facility’’ is 

so broad that it requires every possible 

source of air contaminants to obtain 

some type of approval from TCEQ. 

Response: We have determined that 

Texas’s use of this term ‘‘facility,’’ as it 

applies to the State’s Qualified Facilities 

Program, is overly vague, and therefore, 

unenforceable. TCEQ comments that it 

translates ‘‘emissions unit’’ to mean 

‘‘facility.’’ Yet, Texas’s PSD non-PAL 

rules explicitly limit the definition of 

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

Qualified Facilities rules fail to make 

such a limitation. 74 FR 48450, at 

48475; compare 30 TAC 116.10(6) to 30 

TAC 116.160(c)(3). The State clearly 

thought the prudent legal course was to 

limit ‘‘facility’’ explicitly to ‘‘emissions 

unit’’ in its PSD SIP non-PALs revision. 

However, TCEQ did not submit 

information sufficient to demonstrate 

that the lack of this explicit limitation 

in the submitted Qualified Facilities 

revisions is at least as stringent as the 

revised definition in the PSD non-PALs 

definition. 

We recognize that TCEQ should be 

accorded a level of deference to 

interpret the State’s statutes and 

regulations; however, such 

interpretations must meet applicable 

requirements of the Act and 

implementing regulations under 40 CFR 

part 51 to be approvable into the SIP as 

Federally enforceable requirements. The 

State has failed to provide any case law 

or SIP citation that confirms TCEQ’s 

interpretation for ‘‘facility’’ under the 

Qualified Facilities Program that would 

ensure Federal enforceability. 

Nevertheless, as stated above, the 

definition of ‘‘facility’’ at 30 TAC 

116.10(6) was approved as part of the 

Texas SIP in 2006 and remains part of 

the Texas SIP. Therefore, EPA is 

obligated to correct the typographical 

error and reinstate the definition of 

‘‘facility’’ into the Code of Federal 

Regulations. 

However, today’s final disapproval of 

the Qualified Facilities Program is based 

in part on the lack of clarity of the 

definition of ‘‘facility’’ as it applies 

specifically to this Program. 

Additionally, EPA has proposed 

disapproval of the State’s Flexible 

Permit Program and NSR Reform SIP 

submittals partially based on the need 

for clarity of the definition of ‘‘facility’’ 

as it applies to those programs. 

N. Comments on the Definition of the 

Term ‘‘Air Quality Account Number’’ 

Comment: The TCEQ commented that 

it no longer uses the term ‘‘air quality 

account number’’ and now uses the term 

‘‘account,’’ which is a SIP-approved 

definition.18 Administrative changes to 

the Qualified Facilities Program are 

planned to reflect the change in terms. 

Response: EPA’s evaluation of 

‘‘account’’ and ‘‘air quality account 

number’’ were based upon the SIPapproved definition of ‘‘account.’’ 74 FR 

48450, at 48455, n.7. The State’s 

comment that it no longer uses ‘‘air 

quality account number’’ but uses 

‘‘account’’ does not change EPA’s final 

decision to disapprove the Qualified 

Facilities Program SIP revision 

submittal. In fact, the State’s using a 

different definition that is not in the 

Qualified Facilities Program’s rules 


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provides additional grounds for 

disapproval. The Qualified Facilities 

Program’s rules must be clear about 

which sources on a site can participate 

in the netting process. This goes to the 

heart of whether the changes are made 

outside a major stationary source. If 

TCEQ makes the planned changes noted 

in the comment letter, the changes must 

be adopted and submitted to EPA for 

approval as a SIP revision. Upon 

receipt, we would review the regulatory 

changes and evaluate whether they meet 

the Act and EPA regulations. 

The Texas SIP defines an ‘‘account’’ to 

include an entire company site, which 

could include more than one plant and 

more than one major stationary source. 

SIP rule 30 TAC 101.1(1), second 

sentence. It does not limit the 

combination of sources to a SIC code. 

As stated above, EPA interprets the 

Program to allow an emission increase 

to net out by taking into account 

emission decreases outside of the major 

stationary source. Therefore, the 

Program does not meet the CAA’s 

definition of ‘‘modification’’ and the 

Major NSR SIP requirements and is 

inconsistent with Asarco v. EPA, 578 

F.2d 320 (DC Cir. 1978). 74 FR 48450, 

at 48458–48459; Section IV.B. above. 

O. Comments on Whether the Qualified 

Facilities Rules Meet New Source 

Review Public Participation 

Requirements 

1. Comments Generally Supporting 

Proposal 

Comment: HCPHES commented that 

the State’s public participation rules are 

not user friendly with regards to 

timeliness of initial notification and the 

time restrictions for public comment. 

Specifically, it is not uncommon for a 

permit modification or amendment 

notification to be delayed on occasion, 

which results in a shorter period for 

citizens as well as HCPHES to respond. 

These situations have unduly limited 

the opportunities for the public and 

affected agencies to be able to provide 

meaningful reviews and submit 

appropriate comments. The commenter 

supports EPA’s conclusion to 

disapprove portions of the SIP as 

proposed until such time as TCEQ 

addresses all of the specifics noted in 

the Federal Register. In addition, 

HCPHES strongly supports 

strengthening public participation rules 

such that Texas citizens are able to 

participate meaningfully in the process. 

Comment: Several members of the 

Texas House commented that while the 

Qualified Facilities Program was a 

legislative creation, these members of 

the Texas House recognize that the 

statutory language and associated 

regulations are inconsistent with current 

CAA requirements regarding 

modifications and public participation. 

A particular concern is inadequate 

public participation. 

Comment: HCPHES strongly supports 

strengthening public participation rules 

such that Texas citizens are able to 

participate meaningfully in the process. 

Response: General comments on 

Texas’s public participation 

requirements are outside the scope of 

this rulemaking. However, in a separate 

action, EPA has proposed a limited 

approval/limited disapproval of Texas’s 

SIP submittal for public participation 

(73 FR 72001 (Nov. 26, 2008)). In 

addition, TCEQ has proposed revisions 

to these rules and EPA is working with 

TCEQ to strengthen its rules for public 

participation to ensure the State’s rules 

comply with all Federal requirements. 

2. Comments Generally Opposing 

Proposal 

Comment: The UT Environmental 

Clinic commented that the Qualified 

Facilities Rules allow industrial plants 

to make changes that can affect 

neighboring residents with absolutely 

no notice or opportunity for 

participation. These rules allow 

modifications without meeting the 

Federal public participation 

requirements that are applicable to 

Nonattainment NSR and PSD permits 

under the Act, 40 CFR 51.161, and 40 

CFR 51.166(q). TCEQ’s Qualified 

Facilities guidance specifically states 

that the qualified facility notification 

process may be used instead of the 

alteration process to change permit 

special conditions. Qualified Facilities 

Guidance, at 14. 

Response: EPA agrees with the 

commenter that the Qualified Facilities 

rules do not meet the Federal public 

participation requirements for each 

individual change, either for a Major or 

Minor NSR SIP revision. As discussed 

in more detail in Section V.D.1 above, 

the Program does not clearly require a 

permit for each change. Therefore, the 

Program does not provide an 

opportunity for public review, which 

circumvents public participation 

requirements in 40 CFR 51.161. See 74 

FR 48450, at 48459–48460. 

Comment: The UT Environmental 

Clinic comments that the Texas rules 

also allow sources to amend terms and 

conditions of a Major NSR or Minor 

NSR permit without public 

participation. EPA has already 

expressed concerns to Texas about using 

methods other than permit amendment 

for making changes to individual NSR 

permits. Letter to Dan Eden, TCEQ, 

Deputy Director, from Carl Edlund, 

EPA, Region 6, Director, Multimedia 

Planning and Permitting Division 

(March 12, 2008), p. 8. Letter to Richard 

Hyde, TCEQ, Director Air Permits 

Division from Jeff Robinson, EPA, Chief, 

Air Permits Section (May 21, 2008), p. 

6. 

Response: The comments that TCEQ’s 

rules allow sources to amend terms and 

conditions of a Major NSR or Minor 

NSR permit without public 

participation and the use of methods 

other than permit amendments are 

outside the scope of this rulemaking. 

Comment: GCLC provided comments 

on Texas’s public participation program 

because the public participation issues 

are implicated throughout the three 

Federal Register notices (Qualified 

Facilities, Flexible Permits, and NSR 

Reform). GCLC considers these 

comments timely and appropriate 

because EPA’s proposal directs the 

public to read the three pending notices 

and the November 2008 public 

participation proposal ‘‘in conjunction’’ 

with each other. 

Response: We recognize the need to 

read the notices in conjunction with 

each other because the permits issued 

under these State programs are the 

vehicles for regulating a significant 

universe of the air emissions from 

sources in Texas and thus directly 

impact the ability of the State to achieve 

and maintain attainment of the NAAQS 

and to protect the health of the 

communities where these sources are 

located. 74 FR 48450, at 48453. 

However, this final rulemaking only 

addresses the Qualified Facilities 

Program. Therefore, specific issues 

related to the public participation 

submittal package are outside the scope 

of this rulemaking. 

Comment: The ERCC commented that 

public review requirements have been 

met because the implementing 

regulations for Qualified Facilities were 

subject to notice and comment. 

Proposed on 20 Tex. Reg. 8308 (October 

10, 1995) finalized on 21 Tex. Reg. 1569 

(February 27, 1996). 

Response: EPA agrees with the 

commenter that the Qualified Facilities 

rules met the public participation 

requirements for SIP revision 

submittals. EPA, however, disagrees 

with the commenter that the permit 

application public participation 

requirements of this submitted 

Qualified Facilities program meets the 

NSR public participation requirements 

for individual permit applications. 

Where the adopted State rules fail to 

provide for the minimum public 

participation required under Federal 

law for individual permit applications, 


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Federal public participation 

requirements cannot be considered met 

just because the deficient State rules 

were adopted after public notice and 

comment. Please see our comments 

above. 

VI. Final Action 

EPA is disapproving revisions to the 

SIP submitted by the State of Texas that 

relate to the Modification of Qualified 

Facilities, identified in the Table in 

section III.B of this action. These 

affected provisions include the 

following regulations under Chapter 

116: 30 TAC 116.116(e), 30 TAC 

116.117, 30 TAC 116.118, and the 

following definitions under 30 TAC 

116.10—General Definitions: 30 TAC 

116.10(1)—definition of ‘‘actual 

emissions,’’ 30 TAC 116.10(2)— 

definition of ‘‘allowable emissions,’’ 30 

TAC 116.10(11)(E) under the definition 

of ‘‘modification of existing facility,’’ 

and 30 TAC 116.10(16)—definition of 

‘‘qualified facility.’’ EPA finds that these 

submitted provisions and definitions in 

the submitted Texas Qualified Facilities 

Program are not severable from each 

other. 

EPA is disapproving the submitted 

Texas Qualified Facilities Program as a 

substitute Major NSR SIP revision 

because it does not meet the Act and 

EPA’s regulations. We are also 

disapproving the submitted Qualified 

Facilities Program as a Minor NSR SIP 

revision because it does not meet the 

Act and EPA’s regulations. 

The Qualified Facilities Program 

submittals do not meet the requirements 

for a substitute Major NSR SIP revisions 

because (1) the Program does not 

prevent circumvention of Major NSR; 

(2) the State failed to submit 

information sufficient to demonstrate 

that the Program’s regulatory text 

requires an evaluation of Major NSR 

applicability before a change is 

exempted from permitting; (3) the 

Program is deficient for Major NSR 

netting because (a) it authorizes the use 

of allowable, rather than actual 

emissions, to be used as a baseline to 

determine applicability. This use of 

allowables violates the Act and Major 

NSR SIP requirements and is contrary to 

New York v. EPA, 413 F.3d 3, 38–40 (DC 

Cir. 2005) (‘‘New York I’’) and (b) it 

could allow an emission increase to net 

out by taking into account emission 

decreases outside of the major stationary 

source and, in other circumstances, 

allow an evaluation of emissions of a 

subset of units at a major stationary 

source; and (4) there is not sufficient 

available information to enable EPA to 

make a determination that the requested 

SIP revision relaxation would not 

interfere with any applicable 

requirements concerning attainment, 

RFP, or any other applicable CAA 

requirement, as required by section 

110(l). 

The Qualified Facilities Program 

submittals do not meet the requirements 

for a Minor NSR SIP revision. The 

submitted Program (1) fails to ensure 

that the Major NSR SIP requirements 

continue to be met; (2) is not limited 

only to Minor NSR; (3) fails to include 

sufficient legally enforceable safeguards 

to ensure that the NAAQS and control 

strategies are protected; (4) the State 

failed to demonstrate that the Program’s 

exemption from the Texas Minor NSR 

SIP includes legally enforceable 

procedures to ensure that the State will 

not permit a source that will violate the 

NAAQS or the State’s control strategies, 

(5) the submitted Program does not 

provide clear and enforceable 

requirements for a basic Minor NSR 

netting program; and (6) EPA lacks 

sufficient information to make a 

determination that the requested SIP 

revision relaxation does not interfere 

with any applicable requirements 

concerning attainment and RFP, or any 

other applicable requirement of the Act, 

as required by section 110(l). Therefore, 

we are disapproving the submitted 

Qualified Facilities Program as a Minor 

NSR SIP revision because it does not 

meet sections 110(a)(2)(C) and 110(l) of 

the Act and 40 CFR 51.160. 

EPA is approving the submitted 

definitions for ‘‘grandfathered facility,’’ 

‘‘maximum allowable emissions rate 

table (MAERT),’’ and ‘‘new facility.’’ 

Finally, EPA is finalizing an 

administrative correction in today’s 

action by specifically correcting a 

typographical error at 72 FR 49198 to 

clarify that the definition of ‘‘facility’’ as 

codified at 30 TAC 116.10(6) was 

approved as part of the Texas SIP in 

2006 and remains part of the Texas SIP. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

This final action has been determined 

not to be a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

SIP disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

information collection burdens but 

simply disapproves certain State 

requirements for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

Because this final action does not 

impose an information collection 

burden, the Paperwork Reduction Act 

does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. This rule will not 

have a significant impact on a 

substantial number of small entities 

because SIP approvals and disapprovals 

under section 110 and part D of the 

Clean Air Act do not create any new 

requirements but simply approve or 

disapprove requirements that the States 

are already imposing. 

Furthermore, as explained in this 

action, the submissions do not meet the 

requirements of the Act and EPA cannot 

approve the submissions. The final 

disapproval will not affect any existing 

State requirements applicable to small 

entities in the State of Texas. Federal 

disapproval of a State submittal does 

not affect its State enforceability. After 

considering the economic impacts of 

today’s rulemaking on small entities, 

and because the Federal SIP disapproval 

does not create any new requirements or 

impact a substantial number of small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Moreover, due to the nature of the 

Federal-State relationship under the 

Clean Air Act, preparation of flexibility 

analysis would constitute Federal 

inquiry into the economic 

reasonableness of state action. The 

Clean Air Act forbids EPA to base its 

actions concerning SIPs on such 


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19492 Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations 

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

EPA, 427 U.S. 246, 255–66 (1976); 42 

7410(a)(2). 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 ‘‘for State, local, or tribal 

governments or the private sector.’’ EPA 

has determined that the disapproval 

action does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

State, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action determines that preexisting requirements under State or 

local law should not be approved as part 

of the Federally approved SIP. It 

imposes no new requirements. 

Accordingly, no additional costs to 

State, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ ‘‘Policies that have 

Federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have Federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely disapproves certain State 

requirements for inclusion into the SIP 

and does not alter the relationship or 

the distribution of power and 

responsibilities established in the Clean 

Air Act. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (59 FR 22951, November 9, 

2000), because the SIP EPA is 

disapproving would not apply in Indian 

country located in the State, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. This final rule does 

not have tribal implications, as specified 

in Executive Order 13175. It will not 

have substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

This action does not involve or impose 

any requirements that affect Indian 

Tribes. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is not 

an economically significant regulatory 

action based on health or safety risks 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997). This SIP 

disapproval under section 110 and 

subchapter I, part D of the Clean Air Act 

will not in-and-of itself create any new 

regulations but simply disapproves 

certain State requirements for inclusion 

into the SIP. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through the Office 

of Management and Budget, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

The EPA believes that this action is 

not subject to requirements of Section 

12(d) of NTTAA because application of 

those requirements would be 

inconsistent with the Clean Air Act. 

Today’s action does not require the 

public to perform activities conducive 

to the use of VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

(February 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

state choices, based on the criteria of the 

Clean Air Act. Accordingly, this action 

merely disapproves certain State 

requirements for inclusion into the SIP 

under section 110 and subchapter I, part 

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

requirements. Accordingly, it does not 

provide EPA with the discretionary 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

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

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 


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Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Rules and Regulations 19493 

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

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

L. Petitions for Judicial Review 

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by June 14, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon Monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: March 31, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

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

‘‘EPA-Approved Regulations in the 

Texas SIP’’ is amended by revising the 

entry for section 116.10 to read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

* * * * * * * 

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

Subchapter A—Definitions 

Section 116.10 ........ General Definitions 8/21/2002 4/14/2010 [Insert FR page number 

where document begins].

The SIP does not include paragraphs 

(1), (2), (3), (7)(F), (11), and (16). 

* * * * * * * 

■ 3. Section 52.2273 is amended by 

designating the existing text as 

paragraph (a) and by adding a new 

paragraph (b) to read as follows: 

§ 52.2273 Approval status. 

* * * * * 

(b) EPA is disapproving the Texas SIP 

revision submittals as follows: 

(1) The following definitions in 30 

TAC 116.10—General Definitions: 

(i) Definition of ‘‘actual emissions’’ in 

30 TAC 116.10(1), submitted March 13, 

1996 and repealed and re-adopted June 

17, 1998 and submitted July 22, 1998; 

(ii) Definition of ‘‘allowable 

emissions’’ in 30 TAC 116.10(2), 

submitted March 13, 1996; repealed and 

re-adopted June 17, 1998 and submitted 

July 22, 1998; and submitted September 

11, 2000; 

(iii) Portion of the definition of 

‘‘modification of existing facility’’ in 30 

TAC 116.10(11)(E), submitted March 13, 

1996; repealed and re-adopted June 17, 

1998 and submitted July 22, 1998; and 

submitted September 4, 2002; and 

(iv) Definition of ‘‘qualified facility’’ in 

30 TAC 116.10(16), submitted March 13, 

1996; repealed and re-adopted June 17, 

1998 and submitted July 22, 1998; and 

submitted September 4, 2002; 

(2) 30 TAC 116.116(e)—Changes at 

Qualified Facilities—submitted March 

13, 1996 and repealed and re-adopted 

June 17, 1998 and submitted July 22, 

1998; 

(3) 30 TAC 116.117—Documentation 

and Notification of Changes to Qualified 

Facilities—submitted March 13, 1996 

and repealed and re-adopted June 17, 

1998 and submitted July 22, 1998; 

(4) 30 TAC 116.118—Pre-Change 

Qualification—submitted March 13, 

1996 and repealed and re-adopted June 

17, 1998 and submitted July 22, 1998. 

[FR Doc. 2010–8019 Filed 4–13–10; 8:45 am] 

BILLING CODE 6560–50–P 


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