ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2006-0133 and EPA-R06-0AR-2005-TX-0025; FRL- 1

Approval and Promulgation of Implementation Plans; Texas; Revisions to the New

Source Review (NSR) State Implementation Plan (SIP); Nonattainment NSR

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

Standard Permit

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: EPA is taking final action to disapprove submittals from the State of

Texas, through the Texas Commission on Environmental Quality (TCEQ), to revise the

Texas Major and Minor NSR SIP. We are disapproving the submittals because they do

not meet the 2002 revised Major NSR SIP requirements. We are also disapproving the

submittals as not meeting the Major Nonattainment NSR SIP requirements for

implementation ofthe 1997 8-hour ozone national ambient air quality standard (NAAQS)

and the I-hour ozone NAAQS. EPA is disapproving the submitted Standard Permit (SP)

for Pollution Control Projects (PCP) because it does not meet the requirements ofthe

CAA for a minor NSR Standard Permit program. Finally, EPA is also disapproving a

submitted severable definition of best available control technology (BACT) that is used

by TCEQ in its Minor NSR SIP permitting program.
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EPA is not addressing the submitted revisions concerning the TexasMajor PSD

NSR SIP, which will be addressed in a separate action. EPA is taking no action on

severable provisions that implement section 112(g) ofthe Act and is restoring a

clarification to an earlier action that removed an explanation that a particular provision is

not in the SIP because it implements section 112(g) ofthe Act. EPA is not addressing

severable revisions to definitions submitted June 10, 2005, submittal, which will be

addressed in a separate action. We are taking no action on a severable provision relating

to Emergency and Temporary Orders, which we will address in a separate action.

EPA is taking these actions under section 110, part C, and part D, ofthe Federal

Clean Air Act (the Act or CAA).

DATES: This rule is effective on [INSERT DATE 30 DAYS AFTER

PUBLICATION IN THE FEDERAL REGISTERl.

ADDRESSES: EPA has established a docket for this action on New Source Review

(NSR) Nonattainrnent NSR (NNSR) Program for rhe l-Hour Ozone Standard and the

1997 8~Hour Ozone Standard, NSR Reform, and a specific Standard Permit under Docket

ID No. EPA-R06-0AR-2006-0133. The docket for the action on the definition of BACT

is in Docket ID No. EPA-R06-0AR-2005-TX-0025. All documents in these dockets are

listed on the www.regulations.govweb site. Although listed in the index, some

information is not publicly available, e.g., confidential business information or other
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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 www.regulations.govorinhardcopy 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 am and 4:30 pm weekdays except for

legal holidays. Contact the person listed in the FOR FURTHER INFORMATION

CONTACT paragraph below to make an appointment. Ifpossible, please make the

appointment at least two working days in advance of your visit. There will he a 15 cent

per page fee for making photocopies of documents. On the day ofthe visit, please check

in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal, which is part ofthe 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
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700, Dallas, Texas 75202-2733, telephone (214) 665-7212; fax number 214-665-7263; email address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the following tenus have the meanings described below:

• "we," "us," and "our" refer to EPA.

• "Act" and "CAA" means Clean Air Act.

• "40 CPR" means Title 40 ofthe Code of Federal Regulations-. Protection ofthe

Environment.

• "SIP" means State Implementation Plan as established under section 110 ofthe Act.

• "NSR" means new source review, a phrase intended to encompass the statutory and

regulatory programs that regulate the construction and modification ofstationary 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 ofthe Act and 40 CFR

51.160.
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• "NNSR" means nonattainment NSR established under TitleI, section 110 and part D

ofthe Act and 40 CFR 51.165.

• "PSD" means prevention ofsignificant deterioration of airquality established under

Title I, section 110 and part C ofthe Act and 40 CFR 51.166.

• "Major NSR" means any new or modified source that is subject to NNSR and/or PSD.

• "TSD" meanstheTechnical Support Document for this action.

• "NAAQS" means national ambient air quality standards promulgated under section

109 ofthat Act and 40 CFR part 50.

• "PAL" means "plantwide applicability limitation."

• "PCP" means "pollutioncontrol project."

• "TCEQ" means "Texas Commission on Environmental Quality."

Table of Contents

I. What Action is EPATaking?
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II. What is the Background?

Ill. Did We Receive Public Comments on the Proposed Rulemaking?

IV. What are the Grounds for these Actions?

A. The Submitted Minor NSR Definition ofBACT SIP Revision

1. What is theBackground for the Submitted Definition ofBACT under 30

TAC 116.10(3) as Proposed under Docket No. EPA·R06·0AR·2005·TX·

0025?

2. What is EPA's Response to Comments on the Submitted Minor NSR

Definition of BACTSIP Revision?

3. What are theGrounds for Disapproval ofthe Submitted Minor NSR

Definition ofBACT SIP Revision?
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B. The Submitted Anti-Backsliding Major NSR SIP Requirements for the l-Hcur

OzoneNAAQS

I. What is the Background for the Submitted Anti-Backsliding Major NSR SIP

Requirements for the I-Hour Ozone NAAQS?

2. What is EPA's Response to Comments on the Submitted Anti-Backsliding

Major NSR SIP Requirements for the l-Hour Ozone NAAQS?

3. What are the Grounds for Disapproval ofthe Submitted Anti-Backsliding

Major NSR SIP Requirements for the I-Hour Ozone NAAQS?

C. The Submitted Major Nonattainment NSR SIP Requirements for the 1997 8-

Hour Ozone NAAQS

1. What is the Background for the Submitted Major Nonattainment NSR SIP

Requirements for the 1997 8-Hour Ozone NAAQS?

2. What is EPA's Response to Comments on the Submitted Major

Nonattainment NSR SIP Requirements for the 1997 8-Hour Ozone

NAAQS?
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3. What are the Grounds for Disapproval ofthe Submitted Major

Nonattainment NSR SIP Requirements for the 1997 8-Hour Ozone

NAAQS?

D. The Submitted Major NSR Reform SIP revision for Major NSR with PAL

Provisions

1. What is the Background for the Submitted Major NSR Reform SIP revision

for Major NSR with PAL Provisions?

2. What is EPA's Response to Comments on the Submitted Major NSR Reform

SIP revision for Major NSR with PAL Provisions?

3. What are the Grounds for Disapproval ofthe Submitted Major NSR Reform

SIPrevision for MajorNSR with PALProvisions?

E. The Submitted Non PAL Aspects ofthe Major NSR SIP Requirements

1. What is the Background for the Submitted Non PAL Aspects ofthe Major

NSR SIP Requirements?

2. What is EPA's Response to Comments on the Submitted Non PAL Aspects

ofthe Major NSR SIP Requirements?
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3. What are theGrounds for Disapproval of the Submitted Non-PAL Aspectsof

the Major NSR SIP Requirements?

F. The Submitted Minor NSR Standard Permit for Pollution Control Project SIP

Revision

I. What is the Background for the Submitted Minor NSR Standard Permit for

Pollution Control Project SIP Revision?

2. What is EPA's Response to Comments on the Submitted Minor NSR

Standard Permit for PollutionControl Project SIP Revision?

3. What are the Grounds for Disapproval ofthe Submitted Minor NSR

Standard Permit for Pollution Control Project SIP Revision?

G. No Action on the Revisions to the Definitions under 30 TAC \01.1

H. No Action on Provisions that Implement Section 112(g) ofthe Act and for

Restoring an Explanation that a Portion of30 TAC 1\6.115 is not in the SIP

Because it Implements Section 112(g) ofthe Act.

I. No Actionon Provision Relating to Emergency andTemporary Orders.
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J. Responses to General Comments on the Proposal

V. Final Action

VI. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

A. What Regulations is EPA Disapproving?

Weare disapproving the SIPrevisions submitted by Texas on June 10, 2005, and

February 1,2006, as not meeting the Act and the 1997 8-hour ozone Major

Nonattainment NSR SIP requirements, and as not meeting the Act and Major

Nonattainment NSR SIP requirements for the I-hour ozone NAAQS. We are

disapproving the SIP revision submitted by Texas on February 1, 2006, as not meeting

the Major NSR Reform SIP requirements for PAL provisions and the Major NSR Reform

SIP requirements without the PAL provisions. We are disapproving the Standard Permit

for PCP submitted February 1,2006, as not meeting the Act and Minor NSR SIP

requirements. We proposed to disapprove the above SIP revision submittals on

September 23, 2009 (74 FR 48467). We are disapproving the State's regulatory

definition for its Texas Clean Air Act's statutory definition for "BACT" that was

submitted in 30 TAC 116.10(3) on March 13, 1996, and July 22,1998, because it is not
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clearly limitedto minor sources and minor modifications. We proposedto disapprove this

severable definitionof BACT under our action on QualifiedFacilities. See 74 FR 48450,

at 48463 (September 23, 2009). It is EPA's position that each ofthese six identified

portions in the SIP revision submittals, 8-hour ozone, l-hour ozone, PALs, non-PALs,

PCP Standard Permit, and Minor NSR definition of BACT, is severable from each other

and from the remaining portions ofthe SIP revision submittals.

We have evaluated the SIP submissions to determine whether they meet the Act

and 40 CFR Part 51, and are consistent with EPA's interpretation ofthe relevant

provisions. Based upon our evaluation, EPA has concluded that each ofthe six portions

ofthe SIP revision submittals, identified below, does not meet the requirements ofthe

Act and 40 CFR part 51. Therefore, each portion ofthe State submittals is not

approvable. As authorized in sections 11O(k)(3) and 301(a) ofthe Act, where portions of

the State submittal are severable, EPA may approve the portions ofthe submittal that

meet the requirements ofthe Act, take no action on certain portions ofthe submittal', and

disapprove the portions ofthe submittal that do not meet the requirements ofthe Act.

When the deficient provisions are not severable from the all ofthe submitted provisions,

EPA must disapprove the submittals, consistent with section 301(a) and 11O(k)(3) ofthe

Act. Each ofthe six portions ofthe State submittals is severable from each other.

Therefore, EPA is disapproving each ofthe following severable provisions ofthe

submittals:

I In this action, we are taking no action on certain provisions that are either outside the scope ofthe SIP or

which revise an earlier submittal of a base regulation that is currently undergoing review for appropriate

action.
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• The submitted 1997 8-hour ozone NAAQS Major Nonattainment NSR SIP

reVISIOn,

• The submitted I-hour ozone NAAQS Major NNSR SIP revision,

• The submitted Major NSR reform SIP revision with PAL provisions,

• The submitted Major NSR reform SIP revision with no PAL provisions,

• The submitted Minor NSR Standard Permit for PCP SIP revision, and

• The submitted definition of "BACT" under 30 TAC 116.10(3) for Minor

NSR.

The provisions in these submittals for each ofthe six portions ofthe SIP revision

submittals were not submitted to meet a mandatory requirement ofthe Act. Therefore,

this final action to disapprove the submitted six portions ofthe State submittals does not

trigger a sanctions or Federal Implementation Plan clock. See CAA section 179(a).

B. What other actions is EPA taking?

EPA is taking action in a separate rulemaking action published in today's Federal

Register on the severable revisions that relate to Prevention of Significant Deterioration.
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Theaffected provision that is being acted upon separately in today's Federal Register is

30 TAC 116.160.

We are taking no action on 30 TAC 116.400, 116.402, 116.404, and 116.406,

submitted February 1,2006. These provisions implement section 112(g) ofthe Act,

which is outside thescope ofthe SIP. We are also making anadministrative correction

relating to 30 TAC 116.115(c)(2)(B)(ii)(l). In our 2002 approval ono TAC 116.115 we

included an explanation in 40 CFR 52.2270(c) that 30 TAC 116.115(c)(2)(B)(ii)(I) is not

in the SIP because it implements section 112(g) of theAct, which is outside the scope of

the SIP. In a separate action published April 2, 2010 (75 FR 16671), we inadvertently

removed the explanation that statesthat this provision is not part ofthe SIP.

We are taking no actionon severable portions ofthe June 10,2005, submittal

concerning 30TAC 101.1 Definitions. We will take action on theseportions ofthe

submittal in a later rulemaking.

Finally, we are taking no actionon severable portions ofthe February 1, 2006,

submittal which relate to Emergency and Temporary Orders. We will take action on

these portions ofthesubmittal in a later rulemaking.
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II. What is theBackground?

A. Summary ofOur Proposed Action

On September 23, 2009, under Docket No. EPA-R06-0AR-0133, EPA proposed

to disapprove revisions to the SIP submitted by the State of Texasthat relate to revisions

to the New Source Review (NSR) State Implementation Plan (SIP); (I) Prevention of

Significant Deterioration (PSD), (2) Nonattaimnent NSR (NNSR) for the 1997 8-Hour

Ozone Standard, (3) NNSR for the I-Hour Ozone Standard, (4) Major NSR Reform for

PAL provisions, (5) The Major NSR Reform SIP requirements without the PAL

provisions and (6) The Standard Permit for PCP. See 74 FR 48467. These affected

provisions that we proposed to disapprove were 30 TAC 116.12, 116.121, 116.150,

116.151,116.160,116.180,116.182,116.184,116.186, 116.188, 116.190, 116.192,

116.194, 116.196, 116.198, 116.61O(a), and 116.617 under Chapter 116, Control of Air

Pollution byPermits for New Construction or Modification. EPA also proposed on

September 23, 2009, under Docket No. EPA-R06-0AR-2005-TX-0025 (see 74 FR

48450, at 48463-48464), to disapprove a revision to the SIP submitted by the State that

relates to the State'sMinor NSR definition ofBACT. Theaffecteddefinition that we

proposed to disapprove was 30 TAC L16.10(3). See 74 FR 48450, at 48463-48464. EPA

finds that each of these six submitted provisions isseverable from each other. EPAalso

findsthat the submitted definition is severable from the other submittals.
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EPA istaking action in a separate rulemaking action published in todey's Federal

Register on the severable revisions that relate to Prevention of Significant Deterioration.

Theaffected provision that is being acted upon separately in today's Federal Register is

30 TAC 116.160.

EPA proposed on September 23, 2009, under Docket No. EPA-R06-0AR-0133,

no actionon the following regulations:

• 30 TAC 116.400, 116.402, 116.404, 116.406, 116.610(d). These regulations

implement section 112(g) ofthe CAA and are outside the scope ofthe SIP;

• 30 TAC 116.1200. This regulation relates to Emergency and Temporary

Orders and will be addressed in a separate action under the Settlement

Agreement in BCCA Appeal Group v. EPA, Case No. 3:08-cv-01491-N (N.D.

Tex).

B. Summary ofthe Submittals Addressed in this Final Action

Tables 1and 2 below summarize thechanges that are in the SIPrevision

submittals. A summary of EPA's evaluation of eachsection and thebasis for thisfinal

action is discussed in sections III through V ofthis preamble. TheTSD (which is inthe

docket) includes a detailed evaluation ofthe submittals.
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Table 1. Summary 0 f each SIP b . I SU mitta th . at 15 affectedbby thi15 action.

Title of SIP Submittal Date Date of Regulations Affected in tbis Action

Submitted State

to EPA Adonncn

Qualified Facilities and 3/13/1996 2/14/1996 30 TAC 116.10 - definition of "BACT"

Modification to Existing

Facilities

NSR Rule Revisions; section 7/22/1998 6/17/1998 30TAC 116.10(3) definition of "BACT'

112(g) Rule Review for

Chapter 116

New Source Review for 6/10/2005 5/2512005 30 TAe 116.12 and 115.150

Eight-Hour Ozone

Standard

Federal New Source Review 2/112006 1/11/2006 30 TAe 116.12, 116.121, 116.150, 116.151,

Permit Rules Reform 116.180,116.182, 116.184, 116.186,

116.188,116.190,116.192,116.194,

116.196, 116.198, 116.400, 116.402,

116.404,116.406,116.610,116.617, and

116.1200

T bl 2 S a e ummary of each reguI . anon t at IS ectedbDY thoIS action.

Section Title Submittal Description ofChange Final Action

Dates

Chaoter 116 - Control ofAir Pollution bv Permits for New Construction or Modification

Subcha ter A - Definitions

30 TAC 116.10(3) Definition of"BACT' 3/13/1996 Added new definition Disapproval

7/22/1998 Repealed and a new

definition submitted as

par_ph (3)

30TAC 116.12 Nonattainment Review 6/10/2005 Changed several definitions Disapproval

Definitions to implement Federal

phase I rule

implementing 8-hour

ozone standard

Nonattainment Review 2/1/2006 Renamed section and added Disapproval

and Prevention of and revised definitions to

Significant implement Federal NSR

Deterioration Reform regulations.

Definitions

Subchanter B - New Soaree Review Permits

Division 1 Permit A Bolication

30 TAC 116.121 Actual to Projected 2/112006 New Section Disapproval

Actual Test for

Emissions Increase
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Division 5 - Nonattainment Review

30 TAC 116.150 New Major Sourceor 6/1012005 Revised section to Disapproval

Major Modification in implement Federal phase

OzoneNonattainment I rule implementing 8-

Area bourozone standard

2/1/2006 Revised sectionto Disapproval

implement Federal NSR

Reform regulations

30TAC116.1S1 New Major Source or 2/112006 Revised section to Disapproval

Major Modification in implement Federal NSR

Nonattainment Areas Reform regulations

Other Than Ozone

Subchanter C - Plant-Wide Annlicabilitv Limits

Division 1 Plant-Wide Ani Iicabilitv Limits

30 TAC 116.180 ~licabilliY 2/1/2006 New Section Disaeoroval

30TAC 116.182 Plant~Wide 2/112006 New Section Disapproval

Applicability Limit

Permit A......iication

30 TAC 116.184 Application Review 2/112006 New Section Disapproval

Schedule

30 TAC 116.186 General and Special 2/112006 New Section Disapproval

Conditions

30TAC 116.188 Plant-Wide 2/112006 New Section Disapproval

Aoollcabilitv Limit

30 TAC 116.190 Federal Nonattainment 2/1/2006 New Section Disapproval

and Prevention of

Significant

Deterioration Review

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

Alterations

30TAC 116.194 Public Notice and 21112006 New Section Disapproval

Comment

30 TAC 116.196 Renewal of a Plant- 2/112006 New Section Disapproval

Wide Applicability

Limit Permit

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

Voidance

Subchapter E - Hazardous Air po~~u{tlants: Regu~~:~nsGoverning Constructed and Reconstructed

Sources FCAA. s 112 40 CFR Part 63\-

30 TAC 116.400 Applicability 2/112006 Recodification from section No action

116.180

30 TAC 116.402 Exclusions 2/1/2006 Recodification from section No action

116.181

30 TAC 116.404 Application 2/l/2006 Recodification from section No action

116.182

30 TAC 116.406 Public Notice 2/112006 Recodification from section No action

Reauirements 116.183

Subchsnter F Standard Permits

30 TAC 116.610 Applicability 21112006 Revised paragraphs (a), - Disapproval

(,)(1) through (aX5).(b), of paragraph

and (d)b <a)

- No action on

I reraeraoh Id\
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Recodification of former Subchapter C. These provisions are not SIP-approved.

b 30 TAC 116.61O(d) is not SIP-approved.

c 30 TAC 116.617 is not SIP-approved.

d Recodification offanner Subchapter E. These provisions are not Slp-approved.

30 TAC 116.617 State Pollution Control 21112006 Replaced former 30 TAC Disapproval

Project Standard Permit 116.617 - Standard

Permit for Pollution

Control Pro'ects'

Subchanter K - Emeraenev Orders

30 TAC 116.1200 Applicability 2/112006 Recodification from 30 No action

TAC 116.410

• . .

C. Other Relevant Actions on the Texas Permitting SIP Revision Submittals

Final action on the submitted Major NSR SIP elements and the Standard Permit is

required by August 31, 2010, as provided in the Consent Decree entered on January 21,

2010 in BCCA Appeal Group v. EPA, Case No. 3:08-<:v-D1491-N (N.D. Tex). As

required by the Consent Decree, EPA published its final actions for the following SIP

revisions: (1) Texas Qualified Facilities Program and its associatedGeneral Definitions

on April 14, 2010 (See 75 FR 19467); and (2) Texas Flexible Permits Program on July

15, 2010 (See 75 FR 41311).

TCEQ submitted on July 16,2010, a proposed SIP revision addressing the PSD

SIP requirements. We are acting upon the previous PSD SIP revision submittal of

February 1,2006, and the newly submitted PSD SIP revision in a separate rulemaking.

Additionally, EPA acknowledges that TCEQ is developing a proposed rulemaking

package to address EPA's concerns with revisions to the New Source Review (NSR)

State Implementation Plan (SIP); Nonattairunent NSR (NNSR) for the 1997 8-Hour

Ozone Standard and the I-Hour Ozone Standard, NSR Reform, and the PCP Standard
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Permit. We will, of course, consider any rule changes if and when they are submitted to

EPA forreview. However, the rules before ustoday are those ofTexas's current 1997 8-

Hour Ozone Standard NNSR Program, l-Hour Ozone Standard NNSR Program, NSR

Reform Program, PCP Standard Permit, and we have concluded that these current

Programs are notapprovable for the reasons set outin this notice.

III. Did We Receive Public Comments on the Proposed Rulemaking?

In response to ourSeptember 23, 2009, proposal, we received comments from the

following: Association of Electric Companies of Texas(AECT); Austin Physicians for

Social Responsibility (PSR); Baker Botts, L.L.P., on behalfofBCCA Appeal Group

(BCCA); Baker Botts, L.L.P., on behalf ofTexas Industrial Project (TIP); Bracewell &

Guiliani, L.L.P., on behalf ofthe Electric Reliability Coordinating Council (ERCC);

Citizens ofGrayson County; GulfCoast Lignite Coalition (GCLC); Office ofthe Mayor

- City of Houston, Texas (City ofHouston); Harris County Public Health and

Environmental Services (HCPHES); Sierra Club - Houston Regional Group (Sierra

Club); Sierra ClubMembership Services (including2,062 individual comment letters)

(SCMS); Texas Chemical Council (TCC); Texas Commission on Environmental Quality

(TCEQ); Texas Association Business; Members ofthe Texas House ofRepresentatives;

Texas Association of Business (TAB); Texas Oil and Gas Association (TxOGA); and

University ofTexas at Austin School of Law- Environmental Clinic (the Clinic) on

behalf ofEnvironmental Integrity Project, Environmental Defense Fund, GalvestonHouston Association for Smog Prevention, Public Citizen, Citizens forEnvironmental
20

Justice, Sierra Club LoneStarChapter, Community-In-Power and Development

Association, KIDS for Clean Air, Clean Air Institute ofTexas, Sustainable Energy and

Economic Development Coalition, Robertson County: OurLand, OurLives, Texas

Protecting Our Land, Water and Environment, Citizens for a Clean Environment, MultiCounty Coalition, and Citizens Opposing Power Plants for Clean Air.

We respond to these comments in our evaluation and review under this final

action in section IV below.

IV. What are the Grounds for these Actions?

This section includes EPA's evaluation of each part ofthe submitted rules. The

evaluation is organized as follows: (1) A discussion ofthe background ofthe submitted

rules; (2) a summary and response to each comment received on the submitted rule; and

(3) the grounds for final action on each rule.

A. The Submitted Minor NSR State BACT Definition SIP Revision

EPA proposed to disapprove this severable definition of BACT in 30 TAC

116.10(3), submitted March 13, 1996, and July 22, 1998, when EPA proposed to

disapprove the Texas Qualified Facilities Program (under Docket No. EPA-R06-0AR2005-TX-0025). See 74 FR 48450, at 48463-48464. The submittals on March 13, 1996,

and July 22, 1998, include a new regulatory definition for the Texas Clean Air Act's
21

definition of "BACT," defining it as BACT with consideration given to the technical

practicability and economical reasonableness of reducing or eliminating emissions.

1. What is the Background for the submitted Definition ofBACT under 30 TAC

116.10(3) as proposed under Docket No. EPA-R06-0AR-2005-TX-0025?

On July 27,1972, the State ofTexas revised its January 1972 permitting rules,

then Regulation VI at rule 603.16, to add the Texas Clean Air Act statutory requirement

that a proposed new facility and proposed modification utilize BACT, with consideration

to the technical practicability and economical reasonableness ofreducing or eliminating

the emissions from the facility. EPA approved the revised 603.16 into the Texas SIp2

and that provision is presently codified in the Texas SIP at 30 TAC 116.1 I I(a)(2)(C).

The Texas NSR SIP includes not only the PSD BACT definition' but also a

requirement for a source to perform a BACT analysis. See 30 TAC 116.11I(a)(2)(C).

2 The January 1972 Texas NSR rules, as revised in July 1972, require a proposed new facility or

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

and economic reasonableness of reducing or eliminating the emissions resulting from the facility." This

defmition of BACT is from the Texas Clean Air Act. EPA approved this into the Texas NSR SIP possibly

in the 1970's and defmitely on August 13, 1982 (47 FR 35193). When EPA approved the Texas PSD

program SIP revision submittals, including the State's incorporation by reference of the Federal definition

ofPSD BACT, in 1992, both EPA and Texas interpreted the use ofthe TCAA BACT definition to be for

Minor NSR SIP permitting purposes only. EPA specifically found that the State's TCAA BACT defmition

did not meet the Federal PSD BACT defmition. We required the use ofthe Federal PSD BACT definition

for PSD SIP permitting purposes. See the proposal and final approval ofthe Texas PSD SIP at 54 FR

52823 (December 22, 1989) and 57 FR 28093 (June 24, 1992).

3 Texas's current PSD SIP incorporates by reference the federal PSD definition of BACT in 40 CFR

52.21(bXI2). See current SIP at 30 TAC II6.160(a). On February I, 2006, TCEQ submitted a revision

that reorganized 30 TAC 116.160 and removed the reference to the BACT definition. On September 23,

2009, EPA proposed to disapprove the 2006 revision to section 116, because ofthe removal ofthe

reference to the federal PSD BACT definition. On July 16,2010, Texas submitted a revision to section

116.160 that reinstated the reference to the PSD BACT defmition in 40 CFR 52.21(b)(12). See 30 TAC

116.160 (cXIXA), submitted July 16, 2010. EPA is addressing the 2006 and 2010 revisions to 30 TAC

116.160 in a separate action published in today's Federal Register.
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EPA relied upon this SIP provisionin its 1992 original approval of theTexas PSD SIPas

meeting the PSD requirement of 40 CFR 52.2IG). See 54 FR 52823, at 52824-52825,

and 57 FR 28093, at 28096-28096. Both Texas and EPA interpreted this SIP provision to

require either a Minor NSR BACTdetermination or a Major PSD BACTdetermination.

Since EPA's approval of the Texas PSD SIP in 1992, there has been some confusion

about thedistinction betweena State Minor NSR BACTdefinition and a PSD Major

NSR BACTdefinition andthe requirement that a source mustperform the relevant

BACT analysis.

TCEQ in 1996 submitted a regulatory definition ofthe TCAA BACT statutory

provision but failed to distinguish the submitted regulatory BACTdefinition as theMinor

NSR BACT definition. See the proposed disapproval ofthe BACT definition in 30 TAC

116.10(3) at 74 FR 48450, at 40453 (footnote 2), 48463-48464, TCEQ's proposed

revisions to its Qualified FacilitiesProgram rulemaking, and EPA's June 7, 2010,

comment letter on TCEQ's Qualified FacilitiesProgram, for further information.

2. What is EPA's Response to Comments on the Submitted Minor NSR Definition

ofBACT SIP Revision?

Comment 1: TCEQ commented (under Docket No. EPA-R06-0AR-2005-TX0025) on the proposed disapproval ofBACT in theQualified Facilitiesproposal that it

will consider EPA's comments in connection with its disapproval ofthe definition of
23

BACT and plansto revise its definitionof BACTto correct the deficiencies identified in

the proposal.

Response: EPA acknowledges TCEQ's consideration of our comments regarding

our disapproval ofthe definition ofBACT as well as TCEQ's plans to revise its

definition of BACT to correct the deficiencies identified in our proposal. TCEQ

proposed to revise this definition on March 30, 2010. On June 7, 2010, we forwarded

comments to TCEQ on this proposed rule. In our comments, we stated that the definition

ofthe TCAA BACT must be revised to indicate more clearly that the defmition is for any

air contaminant or facility that is not subject to the federal permitting requirements for

PSD. The proposed substantive revisions to the regulatory definition are acceptable.

Nonetheless, as we explained in Our comment letter, we believe that the TCAA BACT

regulatory definition should be given a distinguishable name, e.g., State, Texas, Minor

NSR Best Available Control Technology. We recognize that the State must continue to

use the term BACT since it is in the TCAA; we believe that TCEQ could add before

"BACT" however, Texas, State, or Minor NSR, to clearly distinguish this BACT

definition from the federal PSD BACT definition.

Comment 2: The Clinic commented (under Docket No. EPA-R06-0AR-2005-

TX-0025) on the proposed disapproval and agrees that this definition cannot be

substituted for the federal definition of BACT for purposes ofPSD. The Clinic further

comments that rather than limiting the applicability ofthe defmition of "Texas BACT' to

minor sources and modifications, Texas should use a different acronym for its minor
24

NSR technology requirement. The use of dual definitions of BACT within the same

program is too confusing, as evidenced by the ongoing application of TexasBACT in the

Texas PSD permitting proceedings.

Response: EPAagrees with the Clinic that the TCAA BACT regulatory

definition cannot he substituted forthe federal definition ofPSD BACT. EPA takes note

oftheClinic's comment regarding the dual use ofthedefinition of "Texas BACT" within

the same program and ensuing confusion. See Response to Comment 1 above for further

information.

3. Whatare the Grounds for Disapproval of the SubmittedMinor NSR Defmition of

BACT SIP Revision?

EPA is disapproving the submitted definition ofBACT under 30 TAC 116.10(3)

as proposed under Docket No. EPA-R06-0AR-2005-TX-0025. EPA proposed to

disapprove this severable definition ofBACT in 30 TAC 116.10(3), submitted March 13,

1996, and July 22,1998, when EPA proposed to disapprove the submitted Texas SIP

revisions forModification of ExistingQualified FacilitiesProgram and General

Definitions (under Docket No. EPA-R06-0AR-2005-TX-0025). See 74 FR 48450, at

48463-48464.

EPA receivedcomments from TCEQ and theClinic regarding theproposed

disapproval ofthis submitted definitionas a revision to the Texas NSR SIP. See our
25

response to these comments in sectionIV.A.2 above. The submitted regulatory BACT

definition of the TCAA provision at 30 TAC 116.10(3) fails to apply clearly only for

minorsources and minormodifications at majorstationary sources. See the proposed

disapproval ofthe BACT definition in 30 TAC 116.10(3) at 74 FR 48450, at 40453

(footnote 2), 48463-48464, TCEQ Qualified Facilities proposal, and EPA's Qualified

Facilities comment letter, for further information. Moreover, we strongly recommend, as

suggested in comments from the Clinic, that Texas adopt a prefatory term before its

TCAA BACT definition, e.g., State, Texas, or Minor NSR, to avoid any confusion with

the term BACT as used by the CAA and the major source PSD program.

B. The Submitted Anti-Backsliding Major NSR SIP Requirements for the l-Hour

OzoneNAAQS

1. What is the Background for the Submitted Anti-Backsliding Major NSR SIP

Requirements for the I-Hour Ozone NAAQS?

On July 18, 1997, EPA promulgated a new NAAQS for ozone based upon 8-hour

average concentrations. The 8-hour averaging period replaced the previous I-hour

averaging period, and the level ofNAAQS was changed from 0.12 parts per million

(ppm) to 0.08 ppm (62 FR 38865)4 On April 30, 2004 (69 FR 23951), we published a

4 On March 12,2008, EPA significantly strengthened the 1997 8-hour ozone standard, to a level of

0.075 ppm. EPA is developing rules needed for implementing the 2008 revised 8-hour ozone standard and

has received the States' submittals identifying areas with their boundaries they identify to be designated

nonattainment. EPA is reviewing the States' submitted data.
26

final rule that addressed key elements related to implementation ofthe 1997 8-hour ozone

NAAQS including, but not limited to: revocation ofthe I-hour NAAQS and how antibacksliding principles will ensure continued progress toward attainmentof the 19978-

hour ozone NAAQS. We codified the anti-backsliding provisions governing the

transition from the revoked I-hour ozone NAAQS to the 1997 8-hour ozone NAAQS in

40 CFR 51.905(a). The I-hour ozone major nonattainment NSR SIP requirements

indicated that certain I-hour ozone standard requirements were not part ofthe list of antibacksliding requirements provided in 40 CFR 51.905(f).

On December 22, 2006, the D.C. Circuit vacated the Phase 1 Implementation

Rule in its entirety. South Coast Air Quality Management District, et al., v. EPA, 472

F.3d 882 (D.C. Cir. 2006), reh'g denied 489 F.3d 1245 (2007) (clarifying that the vacatur

was limited to the issues on which the court granted the petitions for review). EPA

requested rehearing and clarification ofthe ruling and on June 8, 2007, the Court clarified

that it was vacating the rule only to the extent that it had upheld petitioners' challenges.

Thus, the Court vacated the provisions in 40 CFR 51.905(e) that waived obligations

under the revoked l-hour standard for NSR. The court's ruling, therefore, maintains

major nonattainment NSR applicability thresholds and emission offsets pursuant to

classifications previously in effect for areas designated nonattainment for the I-hour

ozone NAAQS.

On June 10,2005 and February 1,2006, Texas submitted SIP revisions to 30

TAC 116.12 and 30 TAC 116.150 which relate to the transition from the major
27

nonattainment NSR requirements applicable for the I-hour ozone NAAQS to

implementation ofthe major nonattainment NSR requirements applicable to the 1997 8-

hour ozone NAAQS. Texas's revisions at 30 TAC 116.12(18) (Footnote 6 under Table [

under the definition of "major modification") and 30 TAC 1L6.l50(d) introductory

paragraph, effective as state law on June 15, 2005, provide that for "the HoustonGalveston-Brazoria, Dallas-Fort Worth, and Beaumont-Port Arthur eight hour ozone

nonattainment areas, ifthe United States Environmental Protection Agency promulgates

rules requiring new source review permit applications in these areas to be evaluated for

nonattainment new source review according to the area's one-hour standard

classification," then "each application will be evaluated according to that area's one-hour

standard classification" and '''... the de minimis threshold test (netting) is required for all

modifications to existing major sources of VOC or NOx in that area ...." The footnote 6

and the introductory paragraph add a new requirement for an affirmative regulatory

action by EPA on the reinstatement ofthe I-hour ozone NAAQS major nonattainment

NSR requirements before the legally applicable major nonattainment NSR requirements

under the I-hour ozone standard will be implemented in the Texas l-hour ozone

nonattainment areas.

The currently approved Texas major nonattainment NSR SIP does not require

such an affirmative regulatory action by EPA before the I-hour ozone major

nonattainment NSR requirements come into effect in the Texas I-hour ozone

nonattainment areas. The current SIP states at 30 TAC 116.12(18) (Footnote 1 under

Table I) that "Texas nonattainment area designations are specified in 40 Code of Federal
28

Regulations § 81.344." That section includes designations for the one-hour standard as

well as the eight-hour standard. Moreover, the submitted revisions to 30 TAC 116.12(18)

and lI6.150(d) do not comport with the South Coast decision as discussed above.

The court opinion maintains the lower applicability thresholds and more stringent

offset ratios for a I-hour ozone nonattainment area whose classification under that

standard was higher than its nonattainment classification under the 8-hour standard. In

the submitted rule revision, the lower applicability thresholds and more stringent offset

ratios for a classified I-hour ozone nonattainment area would not he required in a Texas

I-hour ozone nonattainment area unless and until EPA promulgated a rulemaking

implementing the South Coast decision. Although EPA proposed that the Texas revision

relaxes the requirements ofthe approved SIP and we stated that EPA lacks sufficient

information to determine whether this relaxation would not interfere with any applicable

requirement concerning attainment and reasonable further progress, or any other

applicable requirement ofthe Act (see 74 FR 48467, at 48473) we have now determined

that it is unnecessary to reach this issue because the revision nonetheless fails to comply

with the CAA, whereas, the existing approved SIP meets CAA requirements.

2. What is EPA's Response to Comments on the Submitted Anti-Backsliding Major

NSR SIP Requirements for the I-Hour Ozone NAAQS?

Comment 1.. TCEQ commented that the anti-backsliding issue associated with the

status of the requirements for compliance with the I-hour ozone NAAQS with the
29

implementation of the 8-hour ozone NAAQS was delayedby litigation that took several

years to become final. TCEQ adoptedchanges to 30 TAC 116.12(18) in June, 2005, prior

to the resolution of the litigation. After the South Coast decision, EPA subsequently

stated it would conduct rulemaking to address the l-hour ozone NAAQS requiremenra.'

TCEQ commits to work with EPA to ensure that the rule is revised to comply with

current law.

Response: EPA acknowledges TCEQ's commitment to revise its State rules to

implement the Major NSR anti-backsliding requirement. However, the 2007 Meyers

Memorandum cited in the comment did not indicate that States should await EPA

rulemaking before taking any necessary steps to comply with the South Coast decision.

Rather, the memorandum encouraged the Regions to "have States comply with the court

decision as quickly as possible." The memorandum's reference to "rulemaking to

conform our NSR regulations to the court's decision" was not intended to suggest that

States could simply ignore the court's decision until EPA had updated its regulations to

reflect the vacatur.

Comment 2: The Clinic commented that Texas rules limit enforcement ofthe 1-

hour ozone NAAQS in violation of South Coast Air Quality Management District v.

EPA. As a result ofthis decision, states must immediately comply with'the formerly

5 See New Source Review (NSR) Aspects of the Decision ofthe U.8. Court of Appeals for the District of

Columbia Circuit on the Phase I Rule to Implement the 8-Hour Ozone National Ambient Air Quality

Standards (NAAQS), from Robert J. Meyers, Principal Deputy Assistant Administrator, to EPA Regional

Administrators, dated October 3, 2007. This memorandum is in the docket for this action numbered EPA·

R06-0AR-2006-0133-0007 and is available at:

http://www.regu/ations.gov/searchiRegs/home.htm/#documentDetail?R=0900006480J987jJ.
30

revoked l-hour ozone requirements, including NNSR applicability thresholds and

emission offset requirements. Texas rules include two provisions that require EPA to

conduct rulemaking before TCEQ can begin enforcing the one-hour standard

classification requirements for NAAQS. See 30 TAC 116.12(18), Table I, and

116.150(d).

Response: See response to Comment 1.

Comment 3: BCCA, TIP, TCe, commented that the Texas rules regarding the 1-

hour/Schour transition are neither inconsistent with the CAA, nor the court's decision in

South Coast. With its remand to EPA following vacatur of parts ofthe Phase 1 transition

rule, the South Coast court did not offer specific direction concerning implementation of

the backsliding requirements as they apply to NSR. However, the court in its Opinion on

Petitions for Rehearing "urged" EPA "to act promptly in promulgating a revised rule that

effectuates the statutory mandate by implementing the eight-hour standard ...." South

Coast Air Quality Mgmt. Dist. v. EPA, 489 FJd 1245, 1248-49 (D.C. Cir. 2007).

The commenters note that consistent with the court's direction in South Coast, the

language of eAA § 172(e) suggests that EPA must take definite action to implement antibacksliding requirements:

Ifthe Administrator relaxes a national primary ambient air quality standard ...

the Administrator shall, within 12 months after the relaxation, promulgate
31

requirements applicable to all areas which have not attained that standard as of

the date ofsuch relaxation. Such requirements shall provide for controls which

are not less stringent than the controls applicable to areas designated

nonattainment before such relaxation.

42 U.S.C. § 7502(e) (emphasis added). Commenters claim that an October 2007

memorandum from EPA Deputy Administrator Robert Meyers stated that EPA intends to

undertake rulemaking to conform the Agency's NSR regulations to the South Coast

decision and yet EPA has not yet proposed such a rule. The footnote 6 and introductory

paragraph cited in EPA's proposed disapproval are consistent with CAA § 172(e) and not

a basis for disapproval ofthe proposed SIP revision. Tee stated that it is reasonable for

TCEQ to understand that some EPA action is necessary before it proceeds with

appropriate rule changes to reinstate the major NNSR applicability thresholds and

emission offset requirements, and this is not a rational basis to justify disapproving the

state's rules.

Response: EPA disagrees with the claim that States are under no obligation to

take steps to comply with the South Coast decision until EPA updates its regulations.

Neither the court's vacatur ofthe provision that waived States' obligation to include in

their SIPs NSR provisions meeting the requirements for the I-hour standard nor section

172(e) mandate that EPA promulgate a rule before such a requirement applies.
32

As EPA provided in the preamble to the Phase 1 Implementation Rnle and as

recognized by the Court in South Coast, CAA § 172(e) does not apply because the 1997

8-honr NAAQS was a strengthening, rather than a relaxation, ofthe I-hour NAAQS. See

69 FR 23951, at 23972 (April 30, 2004); 489 F.3d at 1248. However, in the preamble to

the Phase I Implementation Rule, we cited to section 172(e) ofthe CAA and stated that

"ifCongress intended areas to remain subject to the same level of control where a

NAAQS was relaxed, they also intended that such controls not be weakened where the

NAAQS is made more stringent." See 69 FR 23951, at 23972 (April 30, 2004). Thus,

even if, as suggested upon revocation of a standard in the absence of an EPA rule

retaining them pursuant to section 172(e), that would hold true only where section 172(e)

directly applied, i.e., where EPA had promulgated a less stringent NAAQS. Regardless,

EPA disagrees with that interpretation ofsection 172(e). Rather, EPA interprets the eM

as retaining requirements applicable to any area, but allowing EPA through rulemaking to

develop alternatives approaches or processes that would apply, so long as such

alternatives ensure that the requirements are no less stringent than what applies under the

Act. Thus, in the case, once the Court vacated EPA determination under the principles of

section 172(e) that NSR as it applied for the I-hour NAAQS should no longer apply, that

requirement, as established under the CAA, once again applied. We do not believe that

the interpretation suggested by the commenters is a reasonable interpretation as it would

allow areas to discontinue implementing measures mandated by Congress with respect to

a revoked standard in the absence of EPA rulemaking specifically retaining such

obligations. Such a result would be counter to the health-protective goals ofthe CAA
33

and inconsistent with the SouthCoastdecision, which upheldEPA's authority to revoke

standards hut only where adequate anti-backsliding requirements were in place.

Nor do we believe that the language cited by the commenter from the South Coast

decision supports their claim that rulernaking is necessary before the statutory I-hour

NSR requirement applies. The quoted language from the court's opinion immediately

follows a sentence that pertains to the classification issue that was decided by the Court.

Specifically, the Court notes that some parties objected to a partial vacatur ofthe rule

because it would "inequitably exempt Subpart 1 areas from regulation while the remand

is pending." See 489 F.3d at 1248. In other words, certain States with areas subject to

subpart 2 claimed it would be inequitable for such areas to remain subject to planning

obligations while subpart 1 areas would be "exempt." The Court responded by saying

that a complete vacatur "would only serve to stall progress where it is most needed" and

then urges EPA "to act promptly in promulgating a revised rule." See 489 F3d at 1248.

Thus, this portion of the opinion expressly addressed the need for EPA to promulgate a

rule quickly so that areas that had been classified as subpart 1 would no longer be

"exempt" from planning requirements for the 1997 ozone NAAQS, which requirements

are linked to whether an area is subject only to subpart I or also subpart 2 and to an

area's classification under subpart 2.

For these reasons, the effect ofthe portion ofthe court's ruling that vacated the

waiver ofthe l-hour NSR obligation is to restore the statutory obligation for areas that

were nonattainment for the l-hour standard at the time of designation for the 1997 8-hour
34

standard to include in their SIPs major nonattainment NSR applicability thresholds and

emission offsets pursuant to the area's classifications for the I-hour ozone NAAQS at the

time of designation for the 1997 ozoneNAAQS.

In addition, the Court specifically concluded that withdrawing I-hour NSR from a

SIP "would constitute impermissible backsliding." See 472 F.3d at 900. Thus, it would

be inconsistent with the South Coast decision for Texas to withdraw the l-hour NSR

applicability thresholds and emission offsets from its SIP. Texas's proposed addition of

SIP language conditioning implementation ofthe I-hour NSR thresholds and offsets on

an affirmative regulatory action by EPA would be equivalent, in terms of human health

impact, to a temporary withdrawal ofthose requirements from the SIP, and therefore

would be inconsistent with the Court's decision.

Finally, we note that the 2007 Meyers Memorandum cited in the comment did not

indicate that States should await EPA rulemaking before taking any necessary steps to

comply with the South Coast decision. Rather, the memorandum encouraged the Regions

to "have States comply with the court decision as quickly as possible." The

memorandum's reference to "rulemaking to conform our NSR regulations to the court's

decision" was not intended to suggest that States could simply ignore the court's decision

until EPA had updated its regulations to reflect the vacatur. EPA proposed to remove the

vacated provisions from its regulations on January 16,2009 (74 FR 2936).
35

3. What are the Grounds for Disapproval ofthe Submitted Anti-Backsliding Major

NSR SIP Requirements for the I-Hour Ozone NAAQS?

EPA is disapproving the submitted Anti-Backsliding Major NSR SIP revisions for

the I-hour ozone NAAQS. This includes the SIP revisions submitted June 10,2005, and

February 1,2006, with changes to 30 TAC 116.12 and 30 TAC 116.150 which relate to

the transition from the major nonattainment NSR requirements applicable for the I-hour

ozone NAAQS to implementation ofthe major nonattainment NSR requirements

applicable to the 1997 8-hour ozone NAAQS. See section B.l, first three paragraphs, for

the information regarding EPA's promulgation ofthe new 1997 8-hour ozone NAAQS,

EPA's Phase 1 Implementation Rule, the court history, and the description ofthe

submitted SIP revisions.

The currently approved Texas major nonattainment NSR SIP does not require

such an affirmative regulatory action by EPA before the l-hour ozone major

nonattainment NSR requirements can be implemented in the Texas I-hour ozone

nonattainment areas. However, the submitted revisions to 30 TAC 116.12(18) and

116.150(d) do not comply with the CAA as interpreted by the Court in the South Coast

decision because the opinion does not require further action by EPA with respect to NSR,

as discussed above.

EPA received comments from TCEQ, the Clinic, and industry regarding the

proposed disapproval ofthese submitted SIP revisions. See our response to these
36

comments insection IV.B.2 above. We are disapproving the revisions as notmeeting

part D ofthe Act as interpretedby the Court in South Coast for the Major NNSR SIP

requirements for the l-hour ozone NAAQS. See the proposal at 74 FR 48467, at 48472-

48473, our background for these submitted SIPrevisionsin sectionIV.B.l above, and

our response to comments on this these submitted SIPrevisions in section IV.B.2 above

for additional information.

C. The Submitted Major Nonattainment NSR SIP Requirementsfor the 1997 8-Hour

OzoneNAAQS

1. What is theBackground for the Submitted Major Nonattainment NSR SIP

Requirements for the 1997 8-HourOzone NAAQS?

EPA interprets itsMajor NSR SIP rules to require that anapplicability

determination regarding whether Major NSR applies for a pollutant should he based upon

thedesignation ofthearea in which the source is located on the date ofissuance ofthe

Major NSR permit. EPA also interprets the Act and its rules that if anarea is designated

nonattainment on the dateof issuance of a Major NSR permit, then the Major NSR

permit mustbe a NNSR permit, not a PSD permit. If the area is designated

attainment/unclassifiable, thenunder EPA's interpretation ofthe Act and its rules, the

Major NSR permit mustbe a PSD permit on the date of issuance. See the following:

sections 160, 165, 172(c)(5) and 173 ofthe Act; 40 CFR 51.165(a)(2)(i) and

51.166(a)(7)(i). EPA's interpretation ofthese statutory and regulatory requirements is
37

guided by the memorandum issued March 11, 1991, and titled "New Source Review

(NSR) Program Transitional Guidance," issued March 11,1991, by John S. Seitz,

Director, Office of Air Quality Planning and Standard. 6

Revised 30 TAC 116.150(a), as submitted June 10,2005 and February 1, 2006,

now reads as follows under state law:

(a) This section applies to all new source review authorizations for new

construction or modification of facilities as follows:

(1) for all applications for facilities that will be located in any area

designated as nonattainment for ozone under 42 United States Code (USC),

§§7407 etseq. on the effective date ofthis section, the issuance date ofthe

authorization; and

(2) for all applications for facilities that will be located in counties for

which nonattainment designation for ozone under 42 USC §§7407 et seq.

becomes effective after the effective date ofthis section, the date the application

is administratively complete. 7

6 You can access this document at: http://www.epa.gov/ttnlnsr/genlnstrans.pdf.

1 It is our understanding of State law, that a "facility" can be an "emissions unit," i.e., any part of a

stationary source that emits or may have the potential to emit any air contaminant. A "facility" also can be

a piece of equipment, which is smaller than an "emissions unit." A "facility" can be a "major stationary

source" as defined by Federal law. A "facility" under State law can be more than one "major stationary

source." It can include every emissions point on a company site, without limiting these emissions points to

only those belonging to the same industrial grouping (SIC code).
38

The submitted rule raises two concerns. First, the revised language in the

submitted 30 TAC 116.150(a) is not clear as to when and where the applicability date

will be set by the date the application is administratively complete and when and where

the applicability date will be set by the issuance date ofthe authorization. The rule,

adopted and submitted in 2005, applies the date of administrative completeness of a

permit application, not the date of permit issuance, where setting the date for

determination ofNSR applicability after June 15, 2004 (the effective date of ozone

nonattainment designations). The submitted 2006 rule adds the date of permit issuance.

Unfortunately, the submitted 2006 rule by introducing a bifurcated structure creates

vagueness rather than clarity. The effective date ofthis new bifurcated structure is

February 1, 2006. It is unclear whether this means under subsection (1) that the permit

issuance date is used in existing nonattainment areas designated nonattainment for ozone

before and up through February 1, 2006. Thus, the proposed revision lacks clarity on its

face and is therefore not enforceable.

Second, to the extent that the date of application completeness is used in certain

instances to establish the applicability date for Nonattainment NSR requirements, such

use is contrary to EPA's interpretation ofthe governing EPA regulations, as discussed

above.

Thus, based upon the above and in the absence of any explanation by the State,

EPA proposed to disapprove the SIP revision submittals for not meeting the Major NNSR
39

SIP requirements for the 19978-hour ozone standard. See the proposal at 74 FR 48467,

at 48473-48474, for additional information.

2. What is EPA's Response to Comments on the Submitted Major Nonattairunent

NSR SIP Requirements for the 1997 8~Hour Ozone NAAQS?

Comment 1.. TCEQ commented that in 2006 it had revised the rule to clarify and

implement EPA interpretation that the applicability date is the date of permit issuance, as

well as provide for the possibility of new nonattainment areas. The 2006 submittal also

added a new bifurcated structure to the rule for when applicability is based upon date of

submittal of a complete application and when applicability is based upon the date of

permit issuance. TCEQ further agrees that this new bifurcated structure is unclear.

TCEQ commits to work with EPA to comply with current rule and practice.

Response: EPA acknowledges TCEQ's commitment to revise the rule to clarify

and implement EPA's interpretation ofthe Act that the applicability date is the date of

permit issuance for all nonattainment areas, including applicability in newly designated

nonattainment areas.

Comment 2: TCEQ, the Clinic, BCe, TIP, and TeC commented on the definition

of ''facility'' as used in its submitted Major Nonattainment NSR SIP Requirements for the

1997 8-hour ozone NAAQS. They also commented on this definition under the
40

evaluation ofthe Submitted Non-PAL Aspects ofthe Major NSR SIP Requirements in

section IV.

Response: See section IV.E.2, Comments 1 through 3, for the comments and

EPA' 5 response on the definition offacility.

Comment 3: The Clinic commented that TCEQ's rules fail to require all NSR

applicability determinations to be based on the applicable attainment status of an area on

the date ofpermit issuance, as required WIder the CAA. Texas rule authorize certain

sources to construct or modify in a nonattaimnent area to comply with PSD requirements

rather than NNSR requirements ifthe facility's permit application is administratively

complete prior to the area's designation to nonattainment. See 30 TAC 116.150(a).

While the rules are vague as to what constitutes the "effective date ofthis section," 30

TAC 116.150(a)(2) clearly is not approvable because it authorizes facilities to base

applicability determination on the area's attainment status as ofthe date their applications

are administratively complete.

Response: EPA agrees with this comment.

Comment 4: BCCA, TIP, TCC, commented that the applicability cutoff

established in TCEQ rules is not inconsistent with the CAA or EPA rules. While it may

be inconsistent with EPA's interpretation ofthat rule language, the use of application

completeness as an applicability date is not inconsistent with Part 51 itself. As a result,
41

the applicability cutoff dates, established in 30 lAC 116.150(a), are not appropriate

grounds for disapproval ofthe proposed SIP revision. EPA concerns regarding

applicability dates are properly addressed through comments on individual permits, and

not through a disapproval of the SIP revision. Tee further commented that TCEQ rules

state that for facilities located in areas that are designated nonattainment areas after the

effective date ofTCEQ rules, the NNSR requirements apply the day the application is

administrative complete. The day the application is determined to be administratively

complete occurs prior to the issuance date ofthe permit; therefore, the state's rules are

more stringent than the federal rules in this regard.

Response: EPA disagrees with this comment. The applicability cutoff established

in the submitted revision is inconsistent with the eAA and EPA rules. EPA interprets

EPA's NSR SIP rules require that an applicability determination regarding whether

Major NSR applies for a pollutant should be based upon the attainment or nonattainment

designation ofthe area in which the source is located on the date ofissuance ofthe Major

NSR pennit. EPA also interprets its rules that if an area is designated nonattainment on

the date ofissuance of a Major NSR permit, then the Major NSR permit must be a NNSR

permit, not a PSD permit. Ifthe area is designated attainmentJunclassifiable, then under

EPA's interpretation ofthe Act and its rules, the Major NSR permit must be a PSD

permit on the date ofissuance. See thefollowing: sections 160, 165, 172(c)(5) and 173

ofthe Act; 40 CFR 51.165(a)(2)(i) and 51.166(a)(7)(i). EPA's interpretation of these

statutory and regulatory requirements is guided by the memorandum issued March 11,

1991, and titled "New Source Review (NSR) Program Transitional Guidance," issued
42

March 11, 1991, by John S. Seitz, Director, Office of Air Quality Planning and Standard.

See section IV.C.1 above for further information. The submitted revision provides the

regulatory framework for administering individual permits, thus it is necessary to ensure

it is consistent with the equivalent federal requirements. The submitted revision applies

the date of administrative completeness of a permit application, not the date of permit

issuance, where setting the date for determination of NSR applicability after June 15,

2004 (the effective date of ozone nonattainment designations), The submitted revision

also appears to apply the date of permit issuance in existing nonattainment areas

designated nonattainment for ozone before and up through February 1, 2006. This

regulatory structure creates ambiguity and lacks clarity. Thus, the proposed revision lacks

clarity on its face and is therefore not enforceable.

3. What are the Grounds for Disapproval ofthe Submitted Major Nonattainment

NSR SIP Requirements for the 1997 8-Hour Ozone NAAQS?

EPA is disapproving the submitted Major Nonattainment NSR SIP requirements

for the 1997 8-hour ozone NAAQS. An applicability determination for a Major

Nonattainment NSR (NNSR) permit based upon the date of administrative completeness,

rather than date of issuance, would allow more sources to avoid the Major NSR

requirements where there is a nonattainment designation between the date of

administrative completeness and the date of issuance, and thus this submitted revision

will reduce the number ofsources subject to Major NNSR requirements. The submitted
43

revised rule does not applythe date of permitissuance in all cases andtherefore violates

the Act, as discussed previously.

The submitted revised 2006 rule by introducing a bifurcated structure creates

vagueness rather than clarity. The effective date ofthis new bifurcated structure is

February 1, 2006. Thus, the proposed revision lacks clarity on its face and is therefore

not enforceable.

EPA received comments from TCEQ, the Clinic, and industry regarding the

proposed disapproval ofthese submitted SIP revisions. See our response to these

comments in section IV.C.2 above. See the proposal at 74 FR 48467, at 48473-48474,

our background for these submitted SIP revisions in section IV.C.1 above, and our

response to comments on this these submitted SIP revisions in section IV.C.2 above for

additional information.

D. The Submitted Major NSR Reform SIP Revision/or Major NSR with PAL

Provisions

1. What is the Background for the Submitted Major NSR Reform SIP Revision for

Major NSR with PAL Provisions?

We proposed to disapprove the following non-severable revisions that address the

revised Major NSR SIP requirements with a Plantwide Applicability Limitation (PAL)
44

provisions: 30 TAC Chapter 116 submitted February I, 2006: 30 TAC 116.12-

Definitions; 30 TAC 116.180 - Applicability; 30 TAC 116.182 - Plant-Wide

Applicability Limit Permit Application; 30 TAC 116.184 - Application Review

Schedule; 30 TAC 116.186 - General and Special Conditions; 30 TAC 116.188 - PlantWide Applicability Limit; 30 TAC 116.190 - Federal Nonattainment andPrevention of

Significant Deterioration Review; 30 TAC 116.192 - Amendments and Alterations; 30

TAC 116.194 - Public Notice and Comment; 30 TAC 116.196 - Renewal ofa PlantWideApplicability LimitPermit; 30 TAC 116.198 - Expiration or Voidance.

We proposed disapproval ofthe PAL Provisionsbecauseofthe following:

• The submittal lacks a provisionwhich limits applicability of a PAL only to an

existing major stationary source, and which precludes applicability of a PALto a new

major stationary source, as required under 40 CFR 51.165(1)(1)(i) and 40 CFR

5l.166(w)(1 )(i), which limits applicability of a PAL to an existing major stationary

source. Inthe absence of such limitation, this submission would allow a PALto be

authorized for the construction of a new major stationary source. In EPA's November

2002 TSD for the revisedMajor NSR Regulations, we respond on pages 1-7-27 and 28

that actuals PALs are available only for existing major stationary sources, becauseactuals

PALs arebasedon a source's actualemissions.s Without at least 2 yearsof operating

history, a sourcehas not established actual emissions uponwhich to base an actuals PAL.

8 The TSD forthe2002 NSR rulemaking is inthedocket forthisaction as document no. EPA-R06-0AR2006-0133-0010. You canaccessthis document at:

http://www.regulations.gov/searchIRegs/home.html#documentDetail?R=09oooo6480a2b968.
45

However, for individual emissions units with less than two years of operation, allowable

emissions would be considered as actual emissions. Therefore, an actuals PAL can be

obtainedonly for an existing major stationarysource even if not all emissions units have

at least 2 years of emissions data. Moreover, the development of an alternative to

provide new major stationary sources with the option of obtaining a PAL based on

allowable emissions was foreclosed by the Court in New York v. EPA, 413 F.Jd 3 at 38-

40 (D.C. Cir. 2005) ("New York I") (holding that the Act since 1977 requires a

comparison of existing actual emissions before the change and projected actual (or

potential emissions) after the change in question is required).

• The submittal has no provisions that relate to PAL re-openings, as required by

40 CFR 51.165(f)(8)(ii), (ii)(A) through (C), and 51.166(w)(8)(ii) and (ii)(a).

• There is no mandate that failure to use a monitoring system that meets the

requirements ofthis section renders the PAL invalid, as required by 40 CFR

51.165(f)(12)(i)(D) and 5 I.l66(w)(12)(i)(d).

• The Texas submittal at 30 TAe 116.186 provides for an emissions cap that

may not account for all ofthe emissions of a pollutant at the major stationary source.

Texas requires the owner or operator to submit a list of all facilities to beincluded in the

PAL, such that not all ofthe facilities at the entire major stationary source may be

specifically required to be included in the PAL. See 30 TAC 116.182(1). However, the

Federal rules require the owner or operator to submit a list of all emissions units at the
46

source. See 40 CFR 51.166(1)(3)(i) and 40 CFR SI.166(w)(3)(i). The Texas submittal is

unclear as to whether the PAL would apply to all ofthe emission units at the entire major

stationary sourceand therefore appearsto be less stringentthan the Federal rules. In the

absence of any demonstration from the State, EPA proposed to disapprove 30 TAC

116.186 and 30 TAC 116.182(1) as not meeting the revised Major NSR SIP

requirements.

• Submitted 30 TAC 116.194 requires that an applicant for a PAL permit must

provide for public notice on the draft PAL permit in accordance with 30 TAC Chapter 39

- Public Notice - for all initial applications, amendments, and renewals or a PAL

Permit 9 Although this submitted rule relates to the public participation requirements of

the PALprogram, it is is not severable from the PAL program. Because we proposed to

disapprove the PAL program, we likewise proposed to disapprove 30 TAC 116.194.

• The Federal definition ofthe "baseline actual emissions" provides that these

emissions must be calculated in tenus of "the average rate, in tons per year at which the

unit actually emitted the pollutant during any consecutive 24-month period." See 40 CFR

51.165(a)(1)(xxxv)(A), (B), (D) and (E) and 5\.I 66(b)(47)(i), (ii), (iv), and {v).

9: "The submittals do not meet the following public participation provisions for PALs: 1) For PALs for

existing major stationary sources, there is no provision that PALs be established, renewed, or increased

through a procedure that is consistent with 40 CFR 51.160 and 51.161, including the requirement that the

reviewing authority provide the public with notice ofthe proposed approval of a PAL permit and at least a

30-day period for submittal of public comment, consistent with the Federal PAL rules at 40 CFR

51.165(f)(5) and (II) and 51.166(wX5) and (II). 2) For PALs for existing major stationary sources, there

is no requirement that the State address all material comments before taking final action on the permit,

consistent with 40 CFR 51.165(f)(5) and 5I.166(w)(5). 3) The applicability provision in section 39.403

does not include PALs, despite the cross-reference to Chapter 39 in Section 116.194." See 73 FR 7200 I

(November 26, 2008) for more information on Texas's public participation rules and their relationship to

PALs. The November 2008 proposal addressed the public participation provisions in 30 TAC Chapter 39,

but did not specifically propose action on 30 TAC 116.194.
47

Emphasis added. Texas'ssubmitted definition of the term"baseline actual emissions"

found at 30 TAC 116.12(3)(A), (B), (D), and (E) differs from the Federal definition by

providing thatthebaseline shall becalculated as "the rate, in tonsper year atwhich the

unit actually emitted the pollutant during anyconsecutive 24-month period." The

submitted definition omits reference to the"average rate." The definition differs from the

federal SIP definition but the State failed to provide a demonstration showing how the

different definition is atleastasstringent as the Federal definition. Therefore, EPA

proposed to disapprove the different definition of "baseline actual emissions" found at 30

TAC 116.12(3) as not meetingthe revised Major NSR SIP requirements. On the same

grounds for lacking a demonstration, EPA proposed to disapprove 30 TAC 116.182(2)

that refers to calculations ofthebaseline actual emissions fora PAL, as notmeeting the

revised Major NSR SIP requirements.

• The State also failed to include thefollowing specificmonitoring definitions:

"Continuous emissions monitoring system (CEMS)" as defined in 40 CFR

51.165(a)(1)(xxxi) and 51.166(b)(43); "Continuous emissions rate monitoring system

(CERMS)" as defined in 40 CFR 51.165(a)(I)(xxxiv) and 51.166(b)(46); "Continuous

parameter monitoring system (CPMS)" as defined in 40 CFR 51.165(a)(1)(xxxiii) and

51.166(b)(45); and "Predictive emissions monitoring system (PEMS)" as defined in 40

CFR 51.165(a)(I)(xxxii) and 51.166(b)(44). All ofthese definitions concerning the

monitoring systems in the revised Major NSR SIP requirements are essential for the

enforceability of and providing themeans fordetermining compliance witha PALs

program. Therefore, we proposed to disapprove the State's lack ofthese four monitoring
48

definitions as not meetingthe revised MajorNSR SIP requirements. Additionally,

where, as here, a State has made a SIP revision that does not contain definitions that are

requiredin the revised MajorNSR SIP program, EPA may approve such a revisiononly

if the State specifically demonstrates that, despite the absence ofthe required definitions,

the submitted revision is more stringent, or at least as stringent, in all respects as the

Federal program. See 40 CFR 51.165(a)(I) (non-attainment SIP approval criteria);

51.166(b) (PSD SIP definition approval criteria). Texas did not provide such a

demonstration. Therefore, EPA proposed to disapprove the lack ofthese definitions as

not meeting the revised Major NSR SIP requirements.

None ofthe provisions and definitions in the February 1, 2006, SIP revision

submittal pertaining to the revised Major NSR SIP requirements for PALs is severable

from each other. Therefore, we proposed to disapprove the portion ofthe February 1,

2006, SIP revision submittal pertaining to the revised Major NSR PALs SIP requirements

as not meeting the Act and the revised Major NSR SIP regulations. See the proposal at

74 FR 48467, at 48474-48475, for additional information.

2. What is EPA's response to comments on the Submitted Major NSR Reform SIP

Revision for Major NSR with PAL Provisions?

Comment 1: TCEQ commented that it does not use a rate that differs from the

federal NSR requirement relating to baseline actual emissions. TCEQ definition of

"actual emissions" includes the modifier "average," and "actual emissions" are included
49

in the definition of "baseline actual emissions rate. In practice, TCEQ contends that a

reading of the entire definition, including parts (a) - (d), results in an average emission

rate being used to establish a baseline actual emission rate. This is because to determine

an actual emission rate in tons per year from a consecutive 24 month period requires

averaging the emissions over 24 months to obtain an annual emission rate (an average

annual emission rate).

TCEQ is willing to work with EPA to address any changes necessary to clarify

the definition, and specifically reference that a baseline actual emission rate is an average

emission rate, in tons per year, of a federally regulated new source review pollutant.

Response: We appreciate the State's willingness to work with EPA to address any

changes necessary to clarify the definition, and specifically reference that a baseline

actual emission rate is an average emission rate, in tons per year, of a NSR regulated.

pollutant, but disagree with TCEQ's comment. We acknowledge that the SIP-approved

definition of "actual emissions" at 30 TAC 116.12(1) is based upon average emissions

but the lack of a specific provision in the definition of "baseline actual emissions" to

require such emissions to be calculated as average emissions can be interpreted to be less

stringent than the federal minimum requirements because readers can interpret "the"

emissions rate to be the highest rate instead of an average rate. It does not necessarily

follow that the reading ofthe entire definition and the requirement to determine an actual

emission rate in tons per year from a consecutive 24-month period to obtain an annual

emission rate would result in an average emission rate.
50

Comment 2: BCCA and TIP commented that the substance of EPA's concern

appears to be that the Texasrules are missingthe word"average." Themissing term is

not grounds for disapproval ofthe Texas definition of "baseline actual emissions." The

omission ofthe term "average" from this phrase in the 30 TAC 116.12(3) definition does

not render the definition invalid or inconsistent with the equivalent provision in 40 CFR

Part 51. EPA cites a distinction without a substantive difference, as application ofthe two

definitions will reach the same conclusion with regard to the tons per year ("tpy")

emission rate over the 24-month baseline period. The Texas definition of "baseline actual

emissions" in the proposed SIP revision is equivalent to the federal definition in this

regard and should be approved.

Response: EPA disagrees with this comment. See the response to comment 1

above.

Comment 3: TCEQ commented on EPA's statements that TCEQ's rules do not

include the following PAL requirements:

• Provisions for PAL re-openings;

• Requirements concerning the use ofmonitoring systems (and associated

definitions);
51

• A provision which limits applicability of a PAL only to an existing major

stationarysource;

• A provision that requires all facilities at a major source, emitting a PAL

pollutant be included in the PAL;

• A provision that a PAL include every emissions point at a site, without

limiting these emissions points to only those belonging to the same industrial

grouping (SIC) code; and

• Notwithstanding the "lack of explicit limitation," i.e., defining facility to equal

emissions unit; that is how TCEQ applies the rule.

TCEQ will address these items in a future rulemaking.

Response: We appreciate the State's willingness to work with EPA to address any

changes necessary to clarify these concerns relating to PAL re-openings; requirements

concerning the use ofmonitoring systems (and associated definitions); a provision which

limits applicability of a PAL only to an existing major stationary source; the lack of

regulatory provisions relating to emissions to be included in a proposed PAL, the lack of

provisions to require that all facilities at a major source, emitting a pollutant for which a

PAL is being requested, be included in the PAL; and the concern that PAL can include

every emissions point at a site, without limiting these emissions points to only those
52

belonging to the same industrial grouping (SIC) code. However, our evaluation is based

on the submitted rule currently before us.

Comment 4: The Clinic comments that Texas illegally allows PALs for new

sources based upon allowable emissions. Federal regulations allow an agency to approve

a PAL for "any existing major stationary source." See 40 CFR 51.l66(f)(I)(i). PALs are

intended to serve as thresholds for determining when emission increases trigger NNSR

and PSD permitting review. As the DC Circuit found in New York v. EPA, "Congress

clearly intended to apply NSR to changes that increase actual emissions. New York v.

EPA, 413 F.3d 3, 38-40 (D.C. Cir. 2005.) Because new sources do not have past actual

emissions, they cannot be subject to a PAL. 67 FR 80186, 80285 (December 31, 2002).

The submitted Texas PAL rules do not limit their applicability to existing major sources.

Response: EPA agrees with this comment. The federal PAL regulations provide

that "[t]he reviewing authority may approve the use of an actuals PAL/or any existing

major stationary source . . . ." See 40 CFR 51.165(f)(1) and 51.l66(w)(I). Emphasis

added. See the discussion in the proposal at 74 FR 48467, at 48474, and section IV.D.l

above, for further information.

Comment 5: Regarding limiting issuance of PAL permits only to existing major

stationary sources, BCCA, TIP, and TCC comment that the absence of a reference to

"existing" facilities is not grounds for disapproval ofthe Texas PAL rules. Even absent a

reference to existing facilities, the Texas PAL rules are substantively similar to and
53

closely track the federal PAL regulations, as TCEQ explained in adopting the Texas PAL

program.l'' The Texas PAL rules' applicability provisions are consistent with the federal

PAL program in 40 CFR Part 51, and should be approved as part ofthe Texas SIP on that

basis. Moreover, the federal scheme contemplates that "new" units may be included

when calculating the baseline actual emissions for a PAL. I I The preamble goes on to

provide, "For any emission unit ... that is constructed after the 24-month period,

emissions equal to its PTE must be added to the PAL level.,,12 Additionally, EPA issued

PALs before NSR reform and these PALs showed a degree offlexibility tailored to the

specific sites. For example, in its flexible permit pilot study, EPA examined a hybrid

PAL issued to the Saturn plant in Spring Hill, Tennessee. This permit consisted of PSD

permit for a major expansion with permitted emissions based on projected future actual

emissions in combination with a PSD permit for existing emissions units with allowable

emissions based on current actual emissions at the existing emissions units. According to

EPA, that plant's hybrid PAL permit enabled Saturn to add and modify new lines "in a

timely manner, while ensuring that best available pollution control technologies are

installed and that air emissions remain under approved limits." Texas's PAL provisions

are consistent with the federal PAL provisions, and so should be approved. EPA concerns

regarding TCEQ's implementation ofthe Texas rules are properly addressed through

comments on individual permits, and not through a disapproval ofthe SIP revision.

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

II 67 Fed. Reg. 80,186, at 80,208 (Dec. 31, 2002).

12 1d.
54

Response: EPAdisagrees that Texas's rules are consistent with the federal PAL

provisions, and we find the absence to a reference to "existing" majorstationary sources

to be grounds for disapproval. The federal regulations generally adhereto the basic tenet

that the PAL level is based on actual, historical operations. Such information is absent

for new major stationary sources, and thus, EPA chose not to allow PALs for new major

stationary sources. The commenters' reference to a hybrid PAL issued to the Saturn

plant in Spring Hill, Tennessee, is not relevant to the approvability ofthe Texas's rules.

This facility was permitted under a flexible permit pilot study, not under the provisions

under 40 CFR 51.165(f) and 51.166(w), which specify the minimum requirements for an

approvable state PAL SIP Program. Moreover, TCEQ provided no demonstration that its

submitted program is at least as stringent as the federal minimum PAL SIP Program

requirements despite its broader applicability. EPA's concerns with the submitted PAL

Program revisions are a result of its evaluation ofthese revisions. EPA disapproval is

due to programmatic deficiencies, not problems associated with individual permits.

Moreover, implementation by the State ofits State PAL program is outside the scope of

this rulemaking action.

Comment 6: The Clinic comments that Texas's rules fail to include adequate

reopening provisions. Federal rules allow a permitting authority to re-open a PAL permit

to correct errors in calculating a PAL or to reduce the PAL based on new federal or state

requirements or changing NAAQS levels or a change in attaimnent status. See 40 CFR

51.165(f)(8). The Texas rules do not provide for such reopening and are less stringent

that federal regulations.
55

Response: EPA agrees with this comment. The federal rules require PAL reopenings as provided under 40 CFR 51.165(1)(8)(ii)) and 51.166(w)(8)(ii). The State did

not provide any demonstration, as required for a customized Major NSR SIP revision

submittal, showing how its submitted program is at least as stringent as the federal PAL

SIP Program requirements.

Comment 7: Regarding PAL re-openings, BCCA, TIP, TCC, and TxOGA

comment that the current provisions of30 TAC 116.192 regarding amendments and

alterations of PALs provide adequate safeguards to ensure that appropriate procedural

requirements are followed, both to increase a PAL through an amendment and to

decrease a PAL through a permit alteration. See, e.g., 30 TAC 116.190(b), requiring the

decrease of a PALfor any emissions reductions usedas offsets. The absence of rule

language using the specific term "reopening" does not prevent TCEQ from implementing

and enforcing the program in a manner consistent with Part 51 and is not an appropriate

basis for disapproval ofthe SIP revision. The Texas PAL rules should be approved as a

revision to the Texas SIP.

Response: EPA disagrees with this comment. The provisions in 30 TAC 116.192

relate to amendments and alterations. The federal rules provide for PAL re-openings for

other causes which include the following: correction oftypographical/calculation errors

in setting the PAL; reduction ofthe PAL to create creditable emission reductions for use

as offsets; reductions to reflect newly applicable Federal requirements (for example,
56

NSPS) with compliance dates after the PAL; PAL reductionconsistentwith any other

requirement, that is enforceable as a practical matter, and that the State may impose on

the major stationarySOllee under the SIP; and PAL reduction if the reviewing authority

determines that a reduction is necessary to avoid causingor contributingto a NAAQS or

PSD incrementviolation, or an adverse impact on an air quality related value that has

been identified for a Federal Class I area by a Federal Land Manager for which

information is available to the general public. See 40 CFR 51.165(f)(4)(i)(A) and

(f)(6)(i), and 51.l66(w)(4)(i)(a) and (w)(6)(i). Texas has submitted no demonstration, as

required for a customized Major NSR SIP revision submittal, that the lack of provisions

for PAL re-openings is at least as stringent as the federal PAL Program SIP requirements.

Comment 8: TheClinic comments that Texas illegally allows for ''partial PALs."

Federal rules require that all units at a source be subject to the PAL cap. See 40 CFR

52.21(aa)(6)(i)-(ii). Texas rules do not require PALs to include all units at the source that

emit the PAL pollutant. See 30 TAC 116.182(1). EPA stated in its proposal that

inclusion of all units at the source that emit the PAL pollutant is an "essential feature of

the federal PAL." Texas failure to require such provision justifies disapproval ofthe

Texas PAL rules.

Response: The 2002 final rules require States to include PALs as a minimum

program element in the SIP-approved major NSR program. The minimum federal

requirement for an approvable PAL regulations must include all emissions units at a

major stationary source that emit the PAL pollutant as provided under 40 CFR
57

51.165(f)(6)(i) and 51.166(w)(6)(i). We reviewed the approvability ofthe Texas

submitted program against these criteria, and determined, inter alia, that the submitted

program does not meetthese minimum program elements.

EPA has not taken a position on whether a State could include a "partial PAL"

program, separate and apart from a PAL program that meets the federal minimum

program requirements, as an element in its major or minor NSR program. Nonetheless,

the State did not submit its PAL Program with a request to have it reviewed by EPA on a

case-by-case basis for approvability as a program, separate and apart from the federal

source-wide PAL program. Nor did it submit it for approval as a Minor NSR SIP

revision. TCEQ did not provide any demonstration, as required for a customized Major

NSR SIP revision submittal, showing how the allowing of an emission cap that does not

include all emissions units at the major stationary source that emit the PAL pollutant is at

least as stringent as the federal PAL Program SIP requirements, nor does the record show

whether Texas's submission will interfere with any applicable requirement concerning

attainment and reasonable further progress or any other CAA requirement.

Comment 9: Concerning the lack of provision that a PAL include all emissions

units at the major stationary source that emit the PAL pollutant, BCCA, TIP, TCe, and

TxOGA commented that EPA's interpretation ofthe Texas PAL rules, which are

consistent with the federal PAL, is not grounds for disapproval ofthe SIP revision. The

Texas PAL rules are substantively similar to and closely track the federal PAL

regulations, as TCEQ explained in adopting the Texas PAL program. EPA concerns
58

regarding TCEQ's implementation ofthe Texas rules are properly addressed through

comments on individual permits and not through a disapproval ofthe SIP revision. The

Texas rules require that applicants for a PAL specify the facilities and pollutants to be

covered by the PAL. Specifically, an applicant must detail "[A] list of all facilities,

including their registration or permit number to be included in the PAL ...." See 30 TAC

116.182. This requirement closely tracks the federal provisions. Moreover, logic dictates,

and the federal rules recognize, that not every facility emits every regulated pollutant.

Under the federal rules "le]ach PAL shall regulate emissions of only one pollutant." See

40 CFR 52.21(aa)(4)(e). Additionally, EPA has recognized that states may implement

PAL programs in a more limited manner. In its 1996 proposal for the PAL concept, EPA

noted "States may choose ... to adopt the PAL approach on a limited basis. For example,

States may choose to adopt the PAL approach only in attainment/unclassifiable areas, or

only in nonattainment areas, for specified source categories, or only for certain pollutants

in these areas." See 61 FR 38250, at 38265 (July 23, 1996)(emphasis added). The Texas

PAL provisions track the federal regulations, and so should be approved.

Response: EPA disagrees with this comment. The federal rules at 40 CFR

51.165(1)(4)(i)(A) and (1)(6)(i), and 51.166(w)(4)(i)(a) and (w)(6)(i) require a PAL to

include each emissions unit at a major stationary source that emits the PAL pollutant.

The federal rules do not require a PAL to include an emissions unit that does not emit, or

has the potential to emit, the relevant PAL pollutant. In 1996, EPA proposed to allow

States to pick and chose from the menu ofreform options. In 2002, we rejected this

proposed approach in favor ofmaking all the reform options minimum program
59

elements. See 67 FR 80185, at 80241, December 31, 2002. Accordingly, our final rule

requires States to adopt the Federal PAL provisions as a minimum program element, or to

demonstrate that an alternative program is equivalent or more stringent in effect. Texas

has submitted no demonstration, as required for a customized Major NSR SIP revision

submittal, that the difference in its program is at least as stringent as the federal PAL

Program SIP requirements.

Comment 10; The Clinic comments that Texas fails to prohibit the use of PALs

in ozone extreme areas. Federal rules prohibit the use of PALs in extreme ozone

nonattairunent areas. See 40 CFR 51.165(1)(1 )(ii). The Texas rules contain no such

prohibition, and are less stringent than the federal rules and not protective of air quality.

Response: EPA agrees that 40 CFR 51.165(1)(1 )(i1) requires the prohibition and

the submittal lacks such a prohibition. Texas currently has no extreme ozone

nonattainment areas so it is not clear how that requirement applies. We do not need to

reach the issue, however, because the scope of our disapproval, i.e., the entire Texas

PALs Program, is not changed even if we added this as a basis for disapproval.

Comment J1: TCEQ commented that it will address EPA's concerns regarding

public participation for PALs in a separate rulemaking regarding public participation for

the NSR permitting program.
60

Response: TCEQ adopted revised rules for public participation on June 2, 2010;

theserules became effective on June 24, 2010. TCEQ submitted theserevised rules to

EPA on July 2, 2010. EPA is reviewing these submitted regulations and will address the

submittal in a separate action. Becausethis 30 TAC 116.740 relates to the public

participation requirements ofthe PAL program, this section is notseverable from the

PAL program. Because we are disapproving the PALprogram, we are also disapproving

the submitted 30 TAC 116.194.

Comment 12: The Clinic commented that the PALrules lack adequate public

participation. Texas's rules do notrequire PALs to be established, renewed, or increased

through a procedure that is consistent with 40 CFR 51.160 and 51.161. In particular, the

PAL rules are missing therequirements that thereviewing authority provide the public

with notice oftheproposed approval of a PAL permit and atleast 30 day period for

submittal of public comment on the draft permit as required under 40 CFR 51.165(1)(5)

and (11) and 51.166(w)(5) and (11). Further the rules lack provisions for public

participation for PAL renewals oremission increases. There is no requirement that

TCEQ address all material comments before taking final action on thepermit.

Accordingly, these rules are less stringent than the federal rules.

Response: EPA agrees with these comments. Thesubmitted rule does notmeet

the public participation requirements for PAL as required in 40 CFR 51.165(f)(5) and

(11) and 51.166(w)(5) and (11). These rules require that PALs be established, renewed,

or increased through a procedure that is consistent with 40 CFR 51.160 and 51.161; and
61

which require the programto includeprovisions for public participation for PAL

renewals or emissionincreases. The federal rulesfurther require that TCEQaddressall

materialcomments before taking final action on the permit, Because the submittedrule

lacks these requirements it is not consistent with the federal rules.

Comment 13: Concerning the lack ofprovisions in the Texas PAL that meet the

public participation requirements in 40 CFR 51.160 and 51.161, BCCA and TIP

commented that EPA appears to be concerned that there is not an explicit reference to

PALs in the public participation provisions. The Texas rules make clear that PALs are

subject to public notice and participation. The absence of a reference to PALs in the

applicability section of30 TAC 39.403 is not significant. Section 116.194 ofthe PAL

rules provides the clear cross-references to the applicable provisions ofChapter 39. A

reference back from Chapter 39 to the PAL rules is redundant and unnecessary, and not

grounds for disapproval ofthe Texas PAL rules.

Response: EPA disagrees with this comment. Submitted 30 TAC 116.194

requires that an applicant for a PAL permit must provide for public notice on the draft

PAL permit in accordance with 30 TAC Chapter 39 - Public Notice - for all initial

applications, amendments, and renewals ofa PAL Permit.l

) See 73 FR 72001

13 "The submittals do not meet the following public participation provisions for PALs: (I) For PALs for

existing major stationary sources, there is no provision that PALs be established, renewed, or increased

through a procedure that is consistent with 40 CFR 51.160 and 51.161, including the requirement that the

reviewing authority provide the public with notice ofthe proposed approval of a PAL permit and at least a

30-day period for submittal of public comment, consistent with the Federal PAL rules at 40 CFR

51.165(f)(5) and (II) and 5t.166(w)(5) and (II). (2) For PALs for existing major stationary sources, there

is no requirement that the State address all material comments before taking final action on the permit,

consistent with 40 CFR 51.165(f)(5) and 51.166(w)(5). (3) The applicability provision in section 39.403

does not include PALs, despite the cross-reference to Chapter 39 in Section 116.194."
62

(November 26, 2008) for more information on Texas's publicparticipation rules and their

relationship to PALs. TheNovember 2008 proposal addressed the publicparticipation

provisions in 30 TAC Chapter 39, but did not specifically propose action on 30 TAC

116.194. In the September 23, 2009, proposal, we proposed to address 30 TAC 116.194.

Because this section relates to the public participation requirements ofthe PAL program,

this sectionis notseverable from the PALprogram. Because we are disapproving the

PAL program, we are also disapproving the submitted 30 TAC 116.194.

Comment 14: The Clinic commented thatTexas fails to include required

monitoring definitions for PALs. While the federal regulations define"continuous

emissionmonitoring system (CEMS)," "continuous emissionrate monitoring system

(CERMS)," "continuous parameter monitoring system(CPMS)," and"predictive

emissions monitoring system (PEMS)" (see 40 CFR 51.165(a)(l)(xxxi), (xxxiv), (xxxiii),

and {xxxiij), theTexas rules omit definitions. Becausethesedefinitions are crucial to

enforcing and monitoring PALs,the lackofthese definitions in Texas's PAL rules make

the PALrules less stringent that the federal rules.

Response: EPA agrees with this comment. See 74 FR 48467, at 48475, and

section IV.D.I ofthis action.

Comment /5: BCCAand TIP commented that EPAappears to be concerned that

themonitoring provisions are natseparately and discretely defined. Theycomment that

Texas PALrules in 30 TAC 116.192(c) contain monitoring requirements that are
63

equivalent to the federal PAL rules. They also comment that the absence of definitions of

CEMS, CERMS, CPMS and PEMS does not render the rules unenforceable. They

maintain that the rules themselves identify and define eachtype of monitoring system,

and identify federal-equivalent requirements that each monitoring system must satisfy.

They cite, as an example, 30 TAC 116.192(c)(2)(B) as providing that an owner or

operator using a CEMS to monitor PAL pollutant emissions shall comply with applicable

performance specifications found in 40 CFR Part 60, Appendix B and sample, analyze,

and record data at least every 15 minutes while the emissions unit is operating. Similar

requirements are included for mass balance calculations, CPMS, PEMS and emissions

factors used to monitor PAL pollutant emissions. They claim that the absence ofseparate

definitions does not impact the enforceability ofTexas PALs. The Texas provisions

adequately address monitoring requirements for PALs, and should therefore be approved.

Response: EPA disagrees with this comment. In the proposal we stated that

"[a]1I definitions concerning the monitoring systems in the revised Major SIP

requirements are essential for the enforceability of and providing the means for

determining compliance with a PALs program." We acknowledge that 40 CFR

51.165(t)(l2)(i)(C) and 51.166(w)(12)(i)(c) allow a state program to include alternative

monitoring, but the alternative monitoring must be approved by EPA as meeting the

requirements of 40 CFR 51.165(t)(12)(A) and 51.166(w)(12)(a). The State did not

provide any request for approval for alternative monitoring. Furthermore, the State did

not provide any demonstration, as required for a customized Major NSR SIP revision
64

submittal, showing how the absence of these PALmonitoring definitions, is at least as

stringent as the federal PAL Program SIP requirements.

Comment 16: BCCA, TIP, TCC, and TxOGAcommented that the Texas PAL

rules make clear that monitoring is mandatory for a PAL. They comment that the rules

establish monitoring requirements in 30 TAC 116.186(c) that are consistent with the

federal PAL monitoring requirements. They also comment the monitoring requirements

are, most importantly, cast in terms ofrequirements that "shall" or "must" be met.

Examples include:

• 30 TAC 116.186(c)(I): "The PAL monitoring system must accurately

determine all emissions ofthe PAL pollutant in terms ofmass per unit of

time."

• 30 TAC 116.l86(c)(2) further specifies requirements that shall be met for any

permit holder using mass balance equations, continuous emissions monitoring

system ("CEMS"), continuous parameter monitoring system ("ePMS")

predictive emissions monitoring system ("PEMS"), or emission factors.

The commenters claim that these provisions adequately address the monitoring

requirements required under the federal PAL provisions. They assert that any additional

statement that the PAL is rendered invalid unless the permit holder complies with these
65

requirements is unnecessary in light of the clearly mandatory monitoring requirements

that are equivalent to federal requirements.

Response: EPA disagreeswith this comment. The rules referred to by the

cornmenters only provide that the required monitoring be met, buthas no provisionthat

the PALbecomes invalidwhenevera major stationary source with a PAL Permit or any

emissions unitunder such PAL is operated without complyingwith the required

monitoring, as required under 40 CFR 51.l65(f)(12)(i)(D) and 51.166(w)(i)(d). TCEQ

did not provideanydemonstration, as required for a customizedMajor NSR SIPrevision

submittal, showing how the lackof a requirement invalidating the PAL ifthere is no

compliance with the required monitoring, is at least as stringent as the federal PAL

Program SIP requirements.

3. What are the Grounds for Disapproval ofthe Submitted Major NSR Reform SIP

Revision forMajor NSR withPALProvisions?

EPA is disapproving the submitted Major NSR Reform SIP Revision forMajor

NSR with PALprovisions. We aredisapproving the following non-severable revisions

that address the revisedMajor NSR SIPrequirements with a PALsprovision: 30 TAC

Cbapter 116 submitted February 1,2006: 30 TAC 116.12 - Definitions; 30 TAC 116.180

- Applicability; 30 TAC 116.182 - Plant-Wide Applicability Limit Permit Application;

30 TAC 116.184 - Application Review Schedule; 30 TAC 116.186 - General and

Special Conditions; 30 TAC 116.188 - Plant-Wide Applicability Limit; 30 TAC 116.190
66

- Federal Nonattainment and Prevention of Significant Deterioration Review; 30 TAe

116.192 - Amendments and Alterations; 30 TAC 116.194 - Public Notice and Comment;

30 TAC 116.196 - Renewal of a Plant-Wide Applicability Limit Permit; 30 TAC

116.198 - Expiration or Voidance.

We are disapproving the submitted PAL revisions for the following reasons: (1)

the submittal lacks a provision which limits applicability of a PAL only to an existing

major stationary source; (2) the submittal has no provisions that relate to PAL reopenings; (3) there is no mandate that failure to use a monitoring system that meets the

requirements ofthis section renders the PAL invalid; (4) the Texas submittal at 30 TAC

116.186 provides for an emissions cap that may not account for all ofthe emissions of a

pollutant at the major stationary source; (5) the submitted 30 TAC 116.194 does not

require that: (a) PALs be established, renewed, or increased through a procedure that is

consistent with 40 CFR 51.160 and 51.161, including the requirement the reviewing

authority provide the public with notice ofthe proposed approval ofa PAL permit and at

least a 30-day period for submittal of public comment; (b) that the State address all

material comments before taking final action on the permit; and (c) include a crossreference to 30 TAC Chapter 39 - Public Notice; (6) the federal definition ofthe

"baseline actual emissions" provides that these emissions must be calculated in terms of

the average rate, in tons per year at which the unit actually emitted the pollutant during

any consecutive 24-month period 14; and (7) the State also failed to include the following

specific monitoring definitions for CEMS, CERMS, CPMS, PEMS.

14 See section IV.E.3 ofthis preamble for further information on the basis for disapproval ofthe submitted

definitions "baseline actual emission" fur not determining baseline emissions as average emissions.
67

EPA received comments from TCEQ, the Clinic, and industry regarding the

proposed disapproval of these submitted SIPrevisions. Seeourresponse to these

comments in section IV.D.2 above. None ofthe provisions and definitions in the

February 1,2006, SIP revision submittal pertaining to the revised Major NSR SIP

requirements for PALs is severable from each other. Therefore, we are disapproving the

portion ofthe February 1,2006, SIP revision submittal pertaining to the revised Major

NSR PALs SIP requirements as not meeting the Act and the revised Major NSR SIP

regulations. See theproposal at 74 FR 48467, at 48474-48475, our background for these

submitted SIP revisions in section IV.D.I above, and our response to comments on these

submitted SIP revisions in section IV.D.2 above for additional information.

E. The Submitted Non-PAL Aspects ofthe Major NSR SIP Requirements

I. What is the Background for the Submitted Non-PAL Aspects ofthe Major NSR

SIP Requirements?

The submitted NNSR non-PAL rules do not explicitly limit the definition of

"facility,,15 to an "emissions unit" as do the submitted PSD non-PAL rules. It is our

understanding of State law that a "facility" can be an "emissions unit," i.e., any part of a

stationary source that emits or may have the potential to emit any air contaminant, as the

State explicitly provides in the revised PSD rule at 30 TAe 116.160(c)(3). A "facility"

IS "Facility" is defined in the SIP approved 30 TAC 116.10(6) as "a discrete or identifiable structure,

device, item, equipment, or enclosure that constitutes or contains a stationary source, including

appurtenances other than emission control equipment."
68

also can be a piece of equipment, which is smaller than an "emissions unit." A "facility"

can include more than one "majorstationary source." It can include everyemissions

point on a company site,without limiting these emissions points to onlythosebelonging

to the same industrial grouping (SIP code). In our proposed action on the Texas

Qualified Facilities State Program, EPA specifically solicited comment on the definition

for "facility" under State law. Regardless, the State clearly thought the prudent legal

course was to limit "facility" explicitly to "emissions unit" in its PSD SIP non-PALs

revision. TCEQ did not submit a demonstration showing how the lack ofthis explicit

limitation in the NNSR SIP non-PALs revision is at least as stringent as the revised

Major NSR SIP requirements. Therefore, EPA is disapproving the submitted definition

and its use as not meeting the revised Major NNSR non-PALs SIP requirements.

Under the Major NSR SIP requirements, for any physical or operational change at

a major stationary source, a source must include emissions resulting from startups,

shutdowns, and malfunctions in its determination ofthe baseline actual emissions (see 40

CFR 51.165(a)(I)(xxxv)(A)(l) and (B)(I) and 40 CFR 51.166(b)(47)(i)(a) and (ii)(a))

and the projected actual emissions (see 40 CFR 51.165(a)(1 )(xxviii)(B) and 40 CFR

51.166(b)(40)(ii)(b». The definition ofthe term "baseline actual emissions," as

submitted in 30 TAC 116.12(3)(E), does not require the inclusion of emissions resulting

from startups, shutdowns, and malfunctions". Our understanding of State law is that the

use ofthe term "may" "creates discretionary authority or grants permission or a power.

16 The submitted definition of "baseline actual emissions," is as follows: Until March 1,2016, emissions

previously demonstrated as emissions events or historically exempted under Chapter 101 ofthis title ...

may be included to the extent they have been authorized, or are being authorized, in a permit action under

Chapter l\6. 30TAC 116.12(3)(E) (emphasis added).
69

See Section 311.016 ofthe Texas Code Construction Act. Similarly, the submitted

definition of "projected actual emissions" at 30 TAC 116.12(29) does not require that

emissions resulting from startups, shutdowns, andmalfunctions be included. The

submitted definitions differ from the Federal SIP definitions and the State has not

provided information demonstrating that these definitions are at least as stringent as the

Federal SIP definitions. Therefore, based upon the lack of a demonstration from the

State, EPA is disapproving the definitions of "baseline actual emissions" at 30 TAe

116.12(3) and "projected actual emissions" at 30 TAC 116.12(29) as not meeting the

revised Major NSR SIP requirements.

The federal definition ofthe "baseline actual emissions" provides that these

emissions must be calculated in terms of "the average rate, in tons per year at which the

unit actually emitted the pollutant during any consecutive 24-month period." The

submitted definition ofthe term "baseline actual emissions" found at 30 TAC 116.12

(3)(A), (B), (D), and (E) differs from the Federal definition by leaving out the word

"average" and instead providing that the baseline shall be calculated as "the rate, in tons

per year at which the unit actually emitted the pollutant during any consecutive 24-month

period."

None ofthe provisions and definitions in the February 1,2006, SIP revision

submittal pertaining to the revised Major NSR SIP requirements for non-PALs is

severable from each other. Therefore, we proposed to disapprove the portion ofthe
70

February 1,2006, SIP revision submittal pertaining to therevisedMajor NSR non-PALs

SIP requirements as not meetingthe Act andthe revisedMajor NSR SIP regulations.

See the proposal at 74 FR 48467, at 48475, for additional information.

2. What is EPA's Response to Comments on the Submitted Non-PAL Aspects ofthe

Major NSR SIP Requirements?

Comment 1: TCEQ responded to EPA's request concerning its interpretation of

Texas law and theTexas SIP with respect to the term "facility." Thedefinition of

"facility" is thecornerstone of theTexasPermitting Program under the TexasClean Air

Act. In addition, to provide clarity and consistency, TCEQ also provides similar

comments in regard to Docket ID No. EPA-R06-0AR-2005-TX-0025 and EPA-R06-

OAR-2005-TX-0032. EPA believes that the State uses a "dual definition" for the term

facility. Under the TCAA and TCEQ rule, "facility" is defined as "a discrete or

identifiable structure, device, item, equipment, or enclosure that constitutes or contains a

stationary source, including appurtenances other than emissioncontrol 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 - pointof

origin of a contaminant. Tex. Health & Safety Code 382.003(12). As a discrete point,

TCEQ contends that, under Federal law, a facility can constitute butcannot contain a

major stationary source as defined by Federal law. A facility is subject to Major and

Minor NSR requirements, depending on the facts ofthe specific application. Under
71

Major NSR, EPA uses the term "emissions unit" (generally) when referring to a part of a

"stationary source," TCEQ translates "emissions unit" to mean "facility,,,17 which TCEQ

contends is at leastas stringent as Federal rule. TCEQ and its predecessor agencies have

consistently interpreted facility to preclude inclusion ofmore than one stationary source,

in contrast to EPA's stated understanding. Likewise, TCEQ does not interpret facility to

include "every emissions point on a company site, even if limiting these emission points

to only those belonging to the same industrial grouping (SIC Code)." The Federal

definition of "major stationary source" is not equivalent to the state definition of

"source." 40 CFR 51.l66(b)(l)(a). A "major stationary source"l' can include more than

one "facility" as defined under Texas law - which is consistent with EPA's interpretation

of a "major stationary source" including more than one emissions unit. The above

interpretation of "facility" has been consistently applied by TCEQ and its predecessor

agencies for more than 30 years. TCEQ's interpretation ofTexas 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 l 9 and follow similar analysis as

17 The tenn "facility" shall replace the words "emissions unit" in the referenced sections of the CFR." 30

TAC tt6.160(o)(3)

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

19Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 387, 842-43 (1984). "When a

court reviews an agency's construction of the statute which it administers, it is confronted with two

questions. First, always is the question whether Congress has directly spoken to the precise question at

issue. Ifthe intent of Congress is clear, that is the end ofthe matter, for the court, as well as the agency,

must give effect to the unambiguously express intent ofCongress. If, however, the court determines
72

discussed below. The Texas Legislature intends an agency created to centralize expertise

in a certain regulatory area "be givena largedegree 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 ofits statutory scheme." Further, Texas courts construe the test

of an administrative rule under the same principles as ifit 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. ld. The agency's construction of

its rule is controlling unless it is plainly erroneous or inconsistent. Id. "When the

construction ofan 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 oflatitude 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 Utii. 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

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 ofthe statute."
73

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

definedunder Texaslaw.

Response: EPA welcomes the clarification concerning TCEQ's interpretation of

Texas law and the Texas SIP with respect to the term "facility." However, we have

determined that Texas's use ofthe term "facility," as it applies to the NNSR non-PALs

rules, is overly vague, and therefore, unenforceable. TCEQ comments that it translates

"emissions unit" to mean "facility." Although Texas's PSD non-PAL rules explicitly

limit the definition of "facility" to "emissions unit," the NNSR non-PALs rules fail to

make such a limitation. See 74 FR 48467, at 48473, footnote 6, and 48475; compare 30

TAC 116.10(6) to 30 TAC 116.160(c)(3). The State clearly thought the prudent legal

course was to limit "facility" explicitly to "emissions unit" in its PSD SIP non-PALs

revision. Furthermore, TCEQ did not submit information sufficient to demonstrate that

the lack ofthis explicit limitation in the submitted NNSR non-PALs is at least as

stringent as the revised definition in the PSD non-PALs definition.

We recognize that TCEQ should be accorded a level of deference to interpret the

State's statutes and regulations; however, such interpretations must meet the applicable

requirements ofthe Act and implementing regulations under 40 CFR part 51 to be

approvable into the SIP as Federally enforceable requirements. The State has failed to

provide any case law or SIP citation that confirms TCEQ's interpretation for "facility"

under the NNSR non-PALs that would ensure Federal program scope.
74

Comment 2: The Clinic comments that Texas's use ofthe term "facility" makes

its roles unacceptably vague. Texas's use of this term is problematic because of its dual

definitions and broad meanings. The commenter compares the Texas's definition of

"facility" in 30 TAC 116.10 with the definition of "stationary source" in 30 TAC 116.12

and the definition of "building, structure, facility, or installation" in 30 TAC 116.12 and

concludes that these definitions are quite similar. The commenter acknowledges that this

argument assumes that one can rely on the Nonattainment NSR rules to interpret the

general definitions. Ifone 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.l65(a)(I)(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 ofthe

definition of "facility" is more like a Federal "emissions unit." The circular nature of

these definitions, and the existence oftwo different definitions of "facility" without clear

description oftheir applicability, makes Texas's rules, including the Qualified Facility

rules, vague. The commenter urges EPA to require Texas to clarify its definition of

"facility" and to ensure that its use ofthe term throughout the rules is consistent with that

definition.
75

Response: EPA agrees with this comment. See our response to comment 1 above

for further information.

Comment 3: Concerning the definition of "facility," BCCA, TIP, and Tee

commented that the term "facility" is defined in Chapter 116 and in the Texas Clean Air

Act, and is used in a consistent manner throughout. The term has identical meaning in the

NNSR non-PAL rules and the PSD non-PAL rules. Any failure to "explicitly limit the

definition" in one part ofChapter 116 is not grounds for disapproval, given the wellestablished definition of "facility" in the context ofTexas air permitting and that it is

comparable to the federal definition of "emissions unit." TCEQ regulations in 30 TAC

116.10(6) defines a facility as: "A discrete or identifiable structure, device, item,

equipment, or enclosure that constitutes or contains a stationary source, including

appurtenances other than emission control equipment. A mine, quarry, well test, or road

is not a facility." See 30 TAC 116.10(6). Section 116.10 states that the definitions

contained in the section apply to all uses throughout Chapter 116. 30 TAC 116.10

("[T]he following words and terms, when used in this chapter, shall have the following

meanings, unless the context clearly indicates otherwise.") This definition is similar to

the definition of "emission unit" in Texas's Title V rules. There, "emissions unit" is

defined as: "A discrete or identifiable structure, device, item, equipment, or enclosure

that constitutes or contains a stationary source, including appurtenances other than

emission control equipment. See 30 TAC 122.10(8). Under the express terms of 30 TAC

116.10, the definition of "facility" is clear, and is equivalent to the federal definition of
76

"emission unit" in the nonattainment NSR non-PAL rules, as it is throughout Chapter

116.

Response: EPA disagrees with these comments. See our response to comment 1

above for further information.

Comment 4: TCEQ comments that TCEQ rules includes maintenance, startup and

shutdown emissions in the development of "baseline actual emissions" to the extent that

the permit reviewer can verify that these emissions occurred, were properly quantified

and reported as part ofthe baseline, and were creditable. Otherwise, startup and

shutdown, as well as maintenance emissions, are treated as unauthorized and, as such,

have a baseline actual emission rate of zero. Further, TCEQ rules do not authorize

malfunction emissions. TCEQ has concerns about crediting a major source with an

emission associated with malfunctioning of equipment when the source determines

baseline actual emissions. TCEQ is concerned that including malfunction emissions

would inflate the baseline and narrow the gap between baseline actual emissions and the

planned emission rate. Therefore, the number of "major" sources Ormodifications would

be reduced. It is unclear how emissions that are not authorized would be considered

creditable within the concept ofNSR applicability.

EPA has approved the exclusion ofmalfunction emissions from the baseline

calculation in other states' rules. TCEQ considers the exclusion ofmalfunction

emissions from baseline actual emissions to be at least as stringent as the federal rule.
77

TCEQ is willing to work with EPA to clarify the inclusion ofstartup and shutdown

emissions when determining baseline actual emissions.

Response: EPA disagrees with this comment. We note two fundamental concerns

with the Texas definitions, as discussed in this response. First, the Texas definition of

"baseline actual emissions" provides discretion to include emissions from malfunctions,

startups, and shutdowns, but does not contain specific, objective, and replicable criteria

for determining whether TCEQ's choice of emissions events to be included in the

baseline actual emissions will be effective in terms of enforceability, compliance

assurance, and ambient impacts. Second, the Texas definition of "projected actual

emissions" does not include emissions from startups, shutdowns and malfunctions in

contrast to the federal definition which includes such emissions.

The federal definition of "baseline actual emissions" requires such emissions to

include emissions associated with startups, shutdowns, and malfunctions. See 40 CFR

51.165(a)(I)(xxxv)(A)(1) and (B)(1) and 51.166(b)(47)(i)(a) and (ii)(a). In contrast,

Texas's submitted definition of "baseline actual emissions" at 30 TAC 116.12(3)(E)

differs from the federal definition by providing that "[u]ntil March I, 2016, emissions

previously demonstrated as emissions events or historically exempted under [30 TAC]

Chapter 101 ofthis title ... may be included the extent they have been authorized, or are

being authorized, in a permit action under Chapter 116. Emphasis added. EPA's

understanding of State law is that the use ofthe term "may" creates discretionary
78

authority or grants permission or power. See section 311.016 ofthe Texas Code

Construction Act.

TCEQ considers emission events as unauthorized emissions associated with the

startup, shutdown, and malfunction related activities. See 30 TAC 101.1(28). Texas has

adopted an affirmative defense approach to handle such emissions. See 30 TAC 101.222.

For emissions associated with the planned maintenance, startup or shutdown activities,

the State rule has adopted a phased-in approach to allow a source to file an application to

permit its planned maintenance, startup or shutdown related emissions in a source's NSR

permit. This approach is based on the source's SIC code, See IOI.222(h) and (i). For

EPA's proposed rulemaking action on the State's Emission Events rule, see May 13,2010

(75 FR 26892). The State's submitted definition provides director discretion whether to

include these types of emissions. Such director discretion provisions are not acceptable

for inclusion in SIPs, unless each director decision is required under the plan to be

submitted to EPA for approval as a single-source SIP revision. This Program does not

contain specific, objective, and replicable criteria for determining whether the Executive

Director's choice of emissions events to be included in the baseline actual emissions will

be effective in terms of enforceability, compliance assurance, and ambient impacts. This

would include a replicable procedure for use of any discretionary decision to determine

which maintenance, startup, and shutdown emissions are properly quantified and reported

as part ofthe baseline, and are creditable; and for determining that maintenance, startup,

and shutdown emissions then do not meet such criteria and can be excluded because they

are unauthorized.
79

The State did not provide any demonstration, as required for a customized Major

NSR SIP revision submittal, that the submittedprovision that may exclude any emissions

from maintenance, startup, and shutdown from the definition of baseline actual

emissions, is at least as stringent as the definition in the federal non-PAL Program SIP

requirements. Texas also includes authorized maintenance emissions in its baseline

actual emissions. Because maintenance emissions are not specifically required in the

federal definition, the State must provide a demonstration, as required for a customized

Major NSR SIP revision submittal, that including these emissions in the baseline actual

emissions is at least as stringent as the definition in the federal non-PAL Program SIP

requirements.

With respect to "projected actual emission," the federal definition of "projected

actual emissions" requires the projected emissions to include emissions associated with

startups, shutdowns, and malfunctions. See 40 CFR 51.165(a)(l)(xxviii)(B)(2) and

51.166(b)(40)(ii)(b). Texas's submitted definition of "projected actual emissions" at 30

lAC 116.12(29) differs from the federal definitions by not including emissions

associated with startups, shutdowns, and malfunctions. The exclusion ofthese emissions

in the projected actual emissions while providing for the possible inclusion ofthese

emissions from baseline actual emissions does not provide a comparable estimation of

emissions increases associated with the project and could narrow the gap between

baseline actual emissions and the projected actual emissions in a way that allows

facilities to avoid NSR requirements. The State did not provide a demonstration, as
80

required for a customized Major NSRSIP revision, thatexcluding these emissions from

projected actual emissions, is atleast asstringent asthe federal non-PALs SIP

requirements. (EPA also wishes to note that the submitted definition of baseline actual

emissions is unclear how TCEQ will include authorized emissions events as baseline

actual emissions and projected actual emissions on and after March 1,2016.)

With respect to one aspect specifically related to emissions associated with

malfunctions, EPAappreciates Texas's concern that including malfunction emissions in

thebaseline and projected actual emissions would inflate thebaseline and narrow thegap

between baseline and planned emissions. EPA acknowledges that it has approved the

exclusion ofmalfunction emissions from thebaseline calculation in other states' rules.

This includes the approval ofsuch exclusions in Florida (proposed April 4, 2008 at 73 FR

18466 and final approval on June 27, 2008 at 73 FR 36435) and South Carolina

(proposed September 12, 2007 at 72 FR 52031 and final approval on June 2, 2008 at 73

FR 31368) and the proposed exclusion in Georgia (proposed September 4, 2008 at 73 FR

51606). EPA'sreviewoftheseactions indicates that in eachState, malfunctions were

excluded from both baseline actual emissions and projected actual emissions. This

exclusionwasbased upon thedifficulty ofquantifying past malfunction emissions and

estimating future malfunction emissions as part oftheprojected actual emissions.

Georgia's rules specify that if malfunction emissions are omitted from projected actual

emissions, they must also be omitted from baseline emissions, and vice-versa, so as to

provide a comparable estimation of emissions increases associated with the project.

Florida is also concerned about the possibility that including malfunction emissions may
81

result in the unintended rewarding ofthe source's poor operation and maintenance, by

allowing malfunction to be included in the baseline emissions that will be used to

calculate emissions changes and emissions credits.

After reviewing Texas's comments on exclusion ofmalfunctions from its baseline

actual emissions and projected actual emissions, we note that TCEQ voices concerns

similar to Florida, Georgia, and South Carolina. Accordingly, we agree with TCEQ's

concern that including malfunction emissions would inflate the baseline and narrow the

gap between baseline actual emissions and the planned emission rate. Therefore, the

number of "major" sources or modifications would be reduced. It is unclear how

emissions that are not authorized would be considered creditable within the concept of

NSR applicability. Nevertheless, we must review the submitted definitions pending

before EPA for action. Both definitions do not exclude malfunctions emissions.

Furthermore, the baseline actual emissions definition allows the discretionary inclusion

ofmalfunction emissions. To be approvable, both defmitions must mandate the

exclusion ofmalfunction emissions.

Comment 5: BCCA, TIP, TeC, and TxOGA commented that the Texas rules'

treatment ofstartups, shutdowns, and malfunctions is not a proper basis for disapproval

ofthe proposed SIP revision. The federal and Texas definitions both require that noncompliant emissions be excluded from the determination ofbaseline actual emissions."

Based on the Texas rules' integration of pending Chapter 101 revisions on startup,

20 30 TAC 116.12(3XD) ("The actual rate shall be adjusted downward to exclude any non-compliant

emissions that occurred during the consecutive 24-month period.")
82

shutdown, and malfunction emissions (as requested by EPA), the proposed SIP revision's

treatment of these typesof emissions is a reasonable approach.

EPA has approved rules for baseline calculations that exclude some ofthe

elements they assert should be included in the Texas's definition. For example, Georgia's

PSD regulations give applicants the option of excluding malfunction emissions from the

calculation of baseline emissions." In approving this approach, EPA noted "The intent

behind this optional calculation methodology is that it may result in a more accurate

estimate of emission increases. The federal rules allow for some flexibility, and EPA

supports EPD's analysis that the Georgia rule is at least as stringent as the federal nl1e.,,22

Similarly, Texas's approach to the baseline calculation attempts for a more accurate

estimate ofemissions.

Moreover, TCEQ is underway in permitting maintenance, startup and shutdown

emissions through Chapter 116 preconstruction permits, and a SIP revision reflecting the

maintenance, startup, and shutdown permitting initiative has been submitted to EPA for

approval. TCEQ is distinguishing between planned and unplanned maintenance, startup,

and shutdown emissions, and working to authorize those planned maintenance, startup,

and shutdown emissions in Texas air permits. It is reasonable and appropriate that the

maintenance, startup. and shutdown permitting initiative be properly integrated with the

definition of "baseline actual emissions." The proposed SIP revision recognizes that such

emissions may be added to the baseline in the future, based on TCEQ's ongoing process

21 GA. COMPo R. & REGS. 391-3- }·.02(7)(a)2.(iiXII)JI (2009).

2273 Fed Reg. 51,606, at 51,609 (Sept. 4, 2008).
83

of authorizing maintenance, startup, and shutdown emissions. The proposed SIP revision

and TCEQ's current approach is sound and reasonable based on historical treatment of

maintenance, startup, and shutdown emissions in Texas air permits. and is not grounds

for disapproval ofthe proposed SIP revision.

Response: EPA disagrees with this comment. See the response to Comment 4

above for more information.

Comment 6: The Clinic comments that Texas definition of "baseline actual

emissions" is less stringent than the federal definition. The federal regulations define

"baseline actual emissions" as "the average rate, in tons per year, at which the unit

actually emitted the pollutant during any consecutive 24-month period." See 40 CFR

51.165(a)(I )(xxxv)(A) and (B). This definition further provided that the average rate

"shall include emissions associated with startups, shutdowns, and malfunctions." See 40

CFR 51. 165(a)(1 )(xxxv)(A)(I).

Texas rules define "baseline actual emissions" as "the rate, in tons per year, at

which the unit actually emitted the pollutant during any consecutive 24-month period."

See 30 TAC 116.12(3)(A). The Texas rules do not require baseline actual emissions to

include emissions associated with maintenance, startups, and shutdowns. Instead, the

rules state that maintenance, startup, and shutdown events "may be included to the extent

they have been authorized, or are being authorized." See 30 TAC 116.12(3)(E). Texas

failure to incorporate the federal definition and the express failure to require
84

incorporation ofmaintenance, startup, and shutdown emissions in the average rate

renders the definition as inconsistent with federal regulations.

The commenter further notes that Texas's failure to include maintenance, startup,

and shutdown emissions is related to a larger problem with Texas's program. Texas is

allowing sources to authorize their maintenance, startup, and shutdown emissions

separately from their routine emissions. For example, Texas allows sources that have

individual major NSR or PSD permits to authorize their maintenance, startup, and

shutdown emissions through a stand-alone permit-by-rule. See 30 TAC 106.263. This

allows sources to avoid considering their maintenance, startup, and shutdown emissions

in determining potential to emit. as well as in determining the magnitude of any emission

increases. EPA has repeatedly informed Texas that its approach for permitting

maintenance, startup, and shutdown emissions violates the Act. 23 EPA should take action

to ensure that Texas follows the Act when permitting maintenance, startup, and shutdown

emissions.

Response: EPA agrees with the comment relating to not calculating baseline

actual emissions as average emission rates. See section IV.D.2, responses to comments 1

and 2 for further information.

EPA agrees with this comment related to the inclusion of emissions associated

with authorized maintenance, startup, and shutdown in the baseline actual emissions. See

23 See "Letter to Richard Hyde, TCEQ, Director Air Pennits Division" from Jeff Robinson, EPA, Region 6,

Chief, Air Permits Section (May 21, 2008XAttachment 7 in the Clinic's comments).
8S

the response to comment 4 above. The comments relating to authorizing maintenance,

startup, and shutdown emissions separately from routine emissions are outside the scope

of this action.

Comment 7: The Clinic comments that Texas definition of "projected actual

emissions" is less stringent than the federal definition. The federal regulations define

"projected actual emissions" to include maintenance, startup, and shutdown emissions.

See 40 CFR 51.165(a)(1 )(xxviii)(b) and 51.166(b)(40)(ii)(b). Texas definition of

"projected actual emissions" fails to include maintenance, startup, and shutdown

emissions. See 30 TAC 116.12(29). Even where such emissions are include in a source's

baseline actual emissions; there is no provision to require such emission in the projected

actual emissions. The commenter states that facilities in Texas often have extremely

large maintenance, startup, and shutdown emissions. See Attachment 8 ofthe comments

(Facility emission event information]. Under Texas's definitions, a source which would

trigger a major modification under federal rules could avoid a major modification by

failing to include maintenance, startup, and shutdown in their projected actual emissions.

The commenter states that any company that includes maintenance, startup, and

shutdown in its baseline actual emissions should be required to include a realistic

estimate ofmaintenance, startup, and shutdown emissions in its projected actual

emISSIOns.

Response: EPA agrees with this comment. See our response to Comment 4

above for further information.
86

3. What are the Grounds for Disapproval ofthe Submitted Non-PAL Aspects of the

Major NSR SIP Requirements?

EPA is disapproving the submitted NNSR non-PAL rules because they do not

explicitly limit the definition of "facility" to an "emissions unit", It is our understanding

of State law that a "facility" can be an "emissions unit," i.e., any part of a stationary

source that emits or may have the potential to emit any air contaminant, as the State

explicitly provides in the revised PSD rule at 30 TAC 116.160(c)(3). A "facility" also

can he a piece of equipment, which is smaller than an "emissions unit." A "facility" can

include more than one "major stationary source." It can include every emissions point on

a company site, without limiting these emissions points to only those belonging to the

same industrial grouping (SIP code). Regardless, the State clearly thought the prudent

legal course was to limit "facility" explicitly to "emissions unit" in its PSD SIP nonPALs revision. TCEQ did not submit a demonstration showing how the lack ofthis

explicit limitation in the NNSR SIP non-PALs revision is at least as stringent as the

revised Major NSR SIP requirements. Therefore, EPA is disapproving the use ofthe

submitted definition as not meeting the revised Major NNSR non-PALs SIP

requirements.

Under the Major NSR SIP requirements, for any physical or operational change at

a major stationary source, a source must include emissions resulting from startups,

shutdowns, and malfunctions in its determination ofthe baseline actual emissions. The
87

definition of the term"baseline actual emissions," assubmitted in 30 TAC 116.12(3)(E),

does not require the inclusion of emissions resulting from startups, shutdowns, and

malfunctions as required underfederal regulations. The submitted definition of baseline

actual emissions provides that until March 1,2016, emissions previously demonstrated as

emissions events or historically exempted under {3D TAC] Chapter 101 ofthis title may

be included the extent they have been authorized, or are being authorized, in a permit

action under Chapter 116. The submitted definition cf"projected actual emissions" at 30

TAC 116.12(29) differs from the federal definitions by not including emissions

associated with startups, shutdowns, and malfunctions. The authorized emission events

under the submitted definition include emissions associated with maintenance, startups,

and shutdowns. Our understanding of State law is that the use ofthe term "may" "creates

discretionary authority or grants permission or a power. See Section 311.016 ofthe

Texas Code Construction Act. Similarly, the submitted definition of ''projected actual . emissions" at 30 TAC 116.12(29) does not require that emissions resulting from startups,

shutdowns, and malfunctions be included. The submitted definitions differ from the

Federal SIP definitions and the State has not provided information demonstrating that

these definitions meet the Federal SIP definitions. Specifically, the State has not

provided: (I) a replicable procedure for determining the basis for which emissions

associated with maintenance, startup, and shutdown will and will not be included in the

baseline actual emissions, (2) the basis for including emissions associated with

maintenance in baseline actual emissions, (3) the basis for not including maintenance,

startup, and shutdown emissions in the projected actual emissions, and (4) provisions for

how it will handle maintenance, startup, and shutdown emissions after March 1, 2016.
88

Therefore, based upon the lack of a demonstration from the State, as is required for a

customizedMajor NSR SIP revisionsubmittal, EPA is disapproving the definitions of

"baseline actual emissions" at 30 TAC 116.12(3) and "projected actual emissions" at 30

TAC 116.12(29) as not meeting the revised Major NSR SIP requirements.

Texas stated that it has excluded emissions associated with malfunctions from the

calculation of baseline actual emissions and projected actual emissions because including

such emissions would inflate the baseline and narrow the gap between baseline and

project emissions. EPA agrees with the reasons Texas uses to exclude malfunction

emissions from baseline actual emissions and projected actual emissions are comparable

to the reasons EPA used for excluding malfunction emissions from other States in which

EPA approved such exclusion. Notwithstanding Texas's exclusion ofmalfunctions from

these definitions, Texas must address the other grounds for disapproval as discussed

above. This includes mandating the exclusion ofmalfunction emissions in both

definitions.

The federal definition ofthe "baseline actual emissions" provides that these

emissions must be calculated in terms of "the average rate, in tons per year at which the

unit actually emitted the pollutant during any consecutive 24-month period." The

submitted definition ofthe term "baseline actual emissions" found at 30 TAC 116.12

(3)(A), (B), (D), and (E) ditTers from the Federal definition by providing that the baseline

shall be calculated as "the rate, in tons per year at which the unit actually emitted the

pollutant during any consecutive 24-month period."
89

Texas has not provided any demonstration, as is required for a customized Major

NSR SIPrevision submittal, showing how this different definition is at least asstringent

as the federal SIP definition. Therefore, EPA is disapproving the submitted definition of

"baseline actual emissions" found at 30 TAC 116.12(3) as not meeting the revised major

NSR SIP requirements.

EPA received comments from TCEQ. the Clinic, and industry regarding the

proposed disapproval ofthese submitted SIP revisions. See our response to these

comments in section IV.E.2 above. None ofthe provisions and definitions in the

February 1, 2006, SIP revision submittal pertaining to the revised Major NSR SIP

requirements for non-PAls is severable from each other. Therefore, we are disapproving

the portion ofthe February 1, 2006, SIP revision submittal pertaining to the revised

Major NSR non-PALs SIP requirements as not meeting the Act and the revised Major

NSR SIP regulations. See the proposal at 74 FR 48467, at 48475, our background for

these submitted SIP revisions in section IV.E.1 above, and our response to comments on

this these submitted SIP revisions in section IV.E.2 above for additional information.

F. The Submitted Minor NSR Standard Permitfor Pollution Control Project SIP

Revision

1. What is the Background for the Submitted Minor NSR Standard Permit for

Pollution Control Project SIP Revision?
90

EPA approved Texas's general regulations for Standard Permits in 30 TAe

Subchapter F 000 TAC Chapter 116 on November 14, 2003 (68 FR 64548) as meeting

the minor NSR SIP requirements. The Texas Clean Air Act provides that the TCEQ may

issue a standard permit for "new or existing similar facilities" ifit is enforceable and

compliance can be adequately monitored. See section 382.05195 ofthe TCAA EPA

approved the State's Standard Permit program as part ofthe Texas Minor NSR SIP

program on November 14, 2003 (68 FR 64548). In the final FRN, EPA noted that the

submitted provisions provide for a streamlined mechanism for approving the construction

or modification of certain sources in categories that contain numerous similar sources.

EPAapproved the provisions forissuing andmodifying standard permitsbecause, among

other things, the submitted rules required the following: (1) no major stationary source or

major modification subject to part C or part D ofthe Act could be issued a standard

permit; (2) sources qualifying for a standard permit are required to meet all applicable

requirements under section III ofthe Act (NSPS), section 112 ofthe Act (NESHAPS

and MACD, and the TCEQ rules (this includes the Texas SIP control strategies); (3)

sources have to register their emissions with the TCEQ and this registration imposes an

enforceable emissions limitation; (4) maintenance ofrecords sufficient to demonstrate

compliance with all the permit's conditions; and (5) periodic reporting ofthe nature and

amounts of emissions necessary to determine whether a source is in compliance. TCEQ

must conduct an air quality impacts analysis ofthe anticipated emissions from the similar

facilities before issuing and modifying any standard pennit. All new or revised standard

permits are required to undergo public notice and a Ju-day comment period, and TCEQ
91

must address all comments received from the public before finalizing its actionto issueor

revisea standard permit. Based uponthe above and asfurther described in the TSDfor

the approval action, EPA found that the submitted Texas Minor NSR Standard Permits

Program was adequate to protect the NAAQS and reasonable further progress (RFP) and

was enforceable.

One ofthe primary reasons why EPA found that the Standard Permits Program

was enforceable is that these types ofMinor NSR permits were to be issued for similar

sources. The issuance of a Minor NSR permit for similar sources eliminates the need for

a case-by-case review and evaluation to ensure that the NAAQS and RFP are protected

and the permit is enforceable. The provisions ofthe Texas Standard Permits Program

also ensured that the terms and conditions of an individual standard permit would be

replicable. This is a key component for the EPA authorization of a generic

preconstruction permit. Replicable methodologies eliminate any director discretion

issues. Otherwise, ifthere are any director discretion issues, EPA requires that they be

addressed in a case-by-case Minor NSR SIP permit.

When EPA approved the Texas Standard Permits Program as part of the Texas

Minor NSR SIP, it explicitly did not approve the Pollution Control Project (PCP)

Standard Permit (30 TAC 116.617). See 68 FR 64543, at 64547. On February 1, 2006,

Texas submitted a repeal ofthe previously submitted PCP Standard Permit and submitted

the adoption of a new PCP Standard Permit at 30 TAC 116.617 - State Pollution Control
92

Project Standard Pennit.24 One of the main reasons Texas adopteda new PCP Standard

Permit was to meet the new Federal requirements to explicitly limit this PCP Standard

Permit only to Minor NSR. In State ofNew York. et al v. EPA, 413 F.3d 3 (D.C. Cir,

June 24, 2005), the Court vacated the federal pollution control project provisions for

NNSR and PSD. Although the new PCP Standard Permit explicitly prohibits the use ofit

for Major NSR purposes, TCEQ has failed to demonstrate how this particular Standard

Permit meets the Texas Standard Permits NSR SIP since it applies to numerous types of

pollution control projects, which can be used at any source that wants to use a PCP, and

is not an authorization for similar sources.

Under the Texas Standard Permits Minor NSR SIP, an individual Standard Permit

must be limited to new or existing similar sources, such that the affected sources can

meet the Standard Permit's standardized permit conditions. This particular PCP Standard

Permit does not lend itselfto standardized, enforceable, replicable permit conditions.

Because ofthe broad types ofsource categories covered by the PCP Standard Permit, this

Standard Permit lacks replicable standardized permit conditions specifying how the

Director's discretion is to be implemented for the individual determinations, e.g., the air

quality determination, the controls, and even the monitoring, recordkeeping, and

reporting. Rather, the types ofsources covered by a Pollution Control Project are better

designed for case-by-case additional authorization, source-specific review, and sourcespecific technical determinations. For case-by-case additional authorization, source24 The 2006 submittal also included a revision to 30 TAC 116.610(d), that is a rule in Subchapter F,

Standard Permits, to change an internal cross reference from Subchapter C to Subchapter E, consistent with

the re-designation ofthis Subchapter by TCEQ. See section IV.H, and 74 FR 48467, at 48476, for further

information on this portion ofthe 2006 submittal.
93

specific review, and source specific technical determinations, under the minor NSR SIP

rules, ifthese types of determinations are necessary, under the Texas Minor NSR SIP, the

State is required to use its minorNSR SIPcase-by-case permitprocess under 30 TAC

116.110(a)(I).

Because ofthe lack ofreplicable standardized permit conditions and the lack of

enforceability. the PCP Standard Permit is not the appropriate vehicle for authorizing

PCPs. EPA proposed to disapprove the PCP Standard Permit, as submitted February 1,

2006. See tbe proposal at 74 FR 48467, at 48475-48476, for additional information.

2. What is EPA's Response to Comments on the Submitted Minor NSR Standard

Permit for Pollution Control Project SIP Revision?

Comment 1.' TCEQ commented that its PCP Standard Permit has been used to

implement control technologies required by regulatory changes, statutory changes, arid/or

EPA consent decree provisions. As such, control devices may be applied to numerous

different facility types and industry types, ranging from storage tanks to fired units.

TCEQ understands EPA's comments and will work with EPA to develop an approvable

authorization(s) that will achieve the same goals and emission reductions.

Response: EPA appreciates TCEQ's understanding of our comments and

intention to work with us to develop an approvable rule revision. However, our

evaluation is based on the submitted rule currently before us.
94

Comment 2: The Clinic comments that the Texas PCPStandard Permit does not

meet federal NNSR and PSD requirements. See New York v. EPA, 413 FJd 4 (D.C. Cir.

2005). ThePCP Standard Permit also fails to meet the minimum standards for minor

authorizations as provided by the Act at 42 U.S.C. § 7410(a)(2)(C) and (C) and at 40

CFR 51.160(a) and (b). Texas's PCP Standard Permit is not limited to a particular

source-category and canapply to various pollution control projects at any source type.

See 30 TAC 116.617(a). Further, the permit itself does not haveemission limits or

monitoring; instead, a facility is permitted to include site-specificlimits and monitoring

requirements in its application for coverage under a PCPStandard Permit. See 30 TAC

116.617(d)(2). The PCP Standard Permit includes a generic statement that the pennit

mustnotbe usedto authorize changes for whichtheExecutive Director at TCEQ

determines whether "there are health effects concerns or the potential to exceed a national

ambient air quality standard criteria pollutant or contaminant that results from an increase

in emissions of any air contaminant untilthose concerns are addressed by the registrant."

See 30 TAC 116.617(a)(3)(B). This provision itself, without specific emission limits and

monitoring requirements in the PCP Standard Permit, in inadequate to protect the

NAAQS, and is an acknowledgement that provisions on the face ofthe PCP Standard

Permit are notsufficient to assure protection ofthe NAAQS and PSD increments. The

commenter supports EPAtaking actionto disapprove and to further require facilities that

have emissionsauthorized under the PCPStandard Permit to seek a federally valid

authorization.
95

Response: EPA agrees with the comments that the submitted PCP Standard

Permit does not meet the requirements of the Texas Minor NSRStandard Permits SIP.

Comment 3: 8CCA, TIP, TCC, GCLC, TxOGA, and TA8 commented that the

PCP standard permit does contain on its face all requirements applicable to its use. See

30 TAC 116.617(d). The rule requires that a permittee make. submittal to TCEQ, but

does not require the Executive Director to act to approve the submittal. Under the rules, if

the Executive Director does not act, the authorization under the permit stands. Review by

the Executive Director is not to make case-by-case determination, but rather to review for

impacts on air quality and disallow use if air quality would be negatively impacted. See

30 TAC 116.617(.)(3)(8). This is an important distinction. The Texas PCP permit is

more stringent than a program that lacks a discretionary denial provision.

Moreover, the PCP is a minor NSR authorization. The CAA does not establish

requirements for a state's minor NSR programs. The federal regulations that govern

minorNSR programs at 40 CFR 51.160-.164 provide states great flexibility in

establishing SIP approvable minor NSR programs. Indeed, EPA's Environmental

Appeals Board ("EAB") has recognized the flexibility provided states in establishing a

non-PSD, non-nonattainment NSR permitting program, noting that federal requirements

do not mandate a particular minor NSR applicability methodology or test."

25 In re Tennessee Va//eyAuthority, 9 EAD 357, 461 (EAB Sept. 15,2000).
96

In light ofthis flexibility, the Texas PCP standard permit is an acceptable part of

the state's minor NSR SIP. Notably, EPA cites no statutory authority or provision of Part

51 in suggesting a bar on approval of general orstandard permits. The mannerin which

TCEQ implements the PCP standard permit is reasonable and practical, and a decision to

reject the PCP standard permit is a decision to reject an important minor NSR tool used

by Texas sources to authorize environmentally beneficial projects in an expedited

fashion. Site-specific traditional NSR permitting for such projects is impractical,

inefficient and detrimental to the environment.

Response: EPA disagrees with this comment. We are not disapproving the Texas

PCP Standard Permit because under the Texas Minor NSR SIP, Texas cannot issue

general or standard permits. In fact, EPA has approved the Texas Standard Permits

Program as part ofthe Texas Minor NSR SIP. EPA's approval authorizes Texas to issue

so-called general permits, i.e., the Texas standard permits. Our approval ofthe Texas

Standard Permit Program as part ofthe Texas Minor NSR SIP was based on the statutory

and regulatory requirements, including section 110 ofthe Act, in particular section

1l0(a)(2)(C), and 40 C.F.R. 51.160, which require EPA to determine that the State has

adequate procedures in place in the submitted Program to ensure that construction or

modification ofsources will not interfere with attainment of a National Ambient Air

Quality Standard (NAAQS) or Reasonable Further Progress (RFP).

This particular submitted individual Standard Permit does not meet the

requirements ofthe Texas Standard Permits Minor NSR SIP. The submitted revision
97

allowsthe Executive Directorto selectively review for impactson air quality and

disallow use if air quality would be negatively impacted or even revise the emission limit

to avoid negative air qualityimpacts. It grants the Executive Director too much

discretion to act selectively and make site-specific determinations outside the scope of the

PCP Standard Permit and fails to include replicable procedures for the exercise ofsuch

discretion. It fails to include replicable procedures for the exercise ofsuch discretion.

Under the Texas Minor NSR Standard Permits SIP, each Standard Permit promulgated by

Texas is required to include replicable standardized permit terms and conditions. Each

Standard Permit is required to stand on its own. No further action on the part ofthe

Executive Director for holders of a Standard Permit is authorized under the SIP because

each individual Standard Permit is required to contain upftont all the replicable

standardized terms and conditions. The replicability of a Standard Permit issued pursuant

to the SIP rules eliminates any director discretion. EPA approval will not be required in

each individual case as the TCEQ evaluates (and perhaps revises) a source's PCP

Standard Permit. Ifthe Director retains the authority to exercise discretion in the

evaluation of each PCP Standard Permit holder's impact on air quality, this undermines

EPA's rationale for approving the Texas Standard Permits Program as part ofthe Texas

Minor NSR SIP. Under the SIP, any case-by-case determination must be made through

the vehicle01the case-by-case MinorNSR SIP permit, not using a MinorNSR SIP

Standard Permit as the vehicle. While Minor NSR SIP permit programs are given great

flexibility, they cannot interfere with attainment and must meet the requirements for

minor NSR. The Executive Director's selective application of his discretion on a caseby-case basis, without specific replicable criteria, exceeds the scope ofEPA's approval of
98

the Standard Permits Program in 30 TAC Subchapter FoOD TAC Chapter 116 as

approved on November 14, 2003 (68 FR 64548).

The submitted PCP Standard Permit revision has no replicable conditions that

specify how the Director's discretion is to be exercised and delineated. We are

particularly concerned that the Executive Director may exercise such discretion in casespecific determinations in the absence of generic, replicable enforceable requirements.

These replicable methodologies and enforceable requirements should be in the submitted

individual Standard Permit itself, not in the Executive Director's after the fact casespecific determinations made in issuing a customized Standard Permit to a source. If an

individual Standard Permit requires any customizations for a holder, then this particular

Standard Permit no longer meets the requirements for the Texas Standard Permit Program

SIP. This customized Standard Permit has morphed into a case-by-case Minor NSR SIP

permit and must meet the Texas NSR SIP requirements for this type of permit.

Comment 4: BCCA, TIP, TCC, GCLC, and TAB commented that the marmerin

which TCEQ has defined pollution control projects is reasonable and practical, and a

decision to reject the PCP Standard Permit is a decision to reject an important minor NSR

tool used by Texas sources to authorize environmentally beneficial projects in an

expedited fashion. Tee further comments that EPA does not, and cannot, question that

the Standard Permit for PCPs provides for the regulation ofstationary sources as

necessary to assure that that NAAQS are achieved. TeC also comments that Parts C

(PSD) and D (NNSR) are not implicated because PCP Standard Permits are expressly
99

made unavailable to major sources and majormodifications. All commenters indicated

that narrowing the scope of projects that can qualify for the expedited standard permit

approval (or requiring rCEQ to promulgate source category-specific PCP standard

permitsfor every source categoryin Texas) is impractical, inefficient, and detrimental to

the environment.

Response: EPA agrees that the submitted PCP Standard Permit does not apply to

major stationary sources and major modifications subject to PSD or NNSR. While the

manner in which TCEQ has defined pollution control projects may be reasonable and

practical, using the Texas Standard Permits SIP to issue one individual Standard Permit

for all types of PCPs does not meet the SIP's requirements.

The scope of a StandardPermit promulgated by rCEQ is governed by the rCAA

and the SIP's generalregulationsfor StandardPermits in 30 rAC Subchapter F oDD

TAC Chapter 116. These do not provide for the issuance ofa Standard Permit for

dissimilar sources. They provide for the issuance of a Standard Permit for similar

sources so that its permit terms and conditions are determined upfront in the

promulgation ofthe individual Standard Permit. There is no need for any director

discretion or customization ofthe individual Standard Permit. This is not to say that

TCEQ is precluded from issuing various individual Standard Permits for PCPs; TCEQ

can issue various individual Standard Permits for PCPs that cover similar sources.
100

Comment 5: ERCCcommented that PCP authorizations are not unique to Texas

and EPA's concerns with Texas PCP Standard Permit is too broad, is misplaced, and fails

to recognize the regulatory restrictions in place, and the benefits that allowefficient

emission reduction projects to proceed in the state. The commenter refers to two states

with pollution control exemptions from the definition ofmodification which allow PCPs

to proceed with significantly fewer limitations than the Texas PCP Standard Permit:

Ohio and Oregon. Neither ofthese states limits PCP by a category of pollution control

techniques or industrial sources. These SIP-approved provisions fail to provide any

guidance for an application, director review, recordkeeping, or monitoring requirements.

The Texas PCP program is highlighted for disapproval because it placed too much

emphasis on the requirements and limitations ofthe PCP program. The Texas program

has more safeguards than Oregon and Ohio. The Texas PCP program is solely a Minor

NSR Program. By proposing disapproval ofthe Texas PCP program, EPA is holding

Texas to a vastly more stringent approach and is designed to judge Texas in a way that

EPA has not proposed for any other state.

Response: See response to Comments 3 and 4. EPA also wishes to note that that

the cited Oregon and Ohio PCP exemptions from Major NSR were approved by EPA

before the court held that EPA lacked the authority to exempt PCPs from the Major NSR

SIP requirements. See State ofNew forh. EPA, 413 F 3d. 3 (D.C. Cir. 2005). These

exemptions of PCPs from Major NSR are not the same as a Minor NSR Standard Permit

for PCPs. Moreover, they have no relationship to the Texas Minor NSR Standard

Permits SIP.
101

Comment 6: TAB commented on the history ofthe PCP programs at EPA and in

Texas and statesthat Texashas been issuing Standard Permits for PCP Projects since

1994. TAB comments that the standard permit program was administered for several

years with no suggestion of programmatic abuses, and more importantly. no examples

given by anyone of unintended consequences. TAB also asserts that 13 years after Texas

adopted its pollution control project standard permit, EPA finally commented on it in the

proposal. TAB asserts that EPA cannot question that TCEQ's Minor NSR program,

including the PCP Standard Permit, meets this provision ofthe Act.

Response: EPA disagrees with the comment. EPA had no need to comment on

the administration ofthe general Standard Permit Program in this action because EPA

approved Texas' general regulations for Standard Permits in 30 TAC Subchapter F of 30

TAC Chapter 116 on November 14, 2003 (68 FR 64548) as meeting the minor NSR SIP

requirements. That approval describes how the Standard Permit rules met EPA's

requirements for new minor sources and minor modifications. The scope ofEPA's

disapproval in this action is limited to Texas's submission ofa SIP revision, on February

1,2006, adopting a Standard Permit for PCPs at 30 TAC 116.617 - State Pollution

Control Project Standard Permit. eAAsection 110 sets out the process for EPA's review

ofState SIP submittals. Nothing in the Act suggests EPA is foreclosed from disapproving

a submittal because it failed to comment on it during the state's rulemaking process. For

further response to the remainder ofthe comment, see response to comments 3 and 4.
102

Comment 7: TAB discussednumerous guidancememoranda that EPA used to

support its position that the PCP Standard Permit is unapprovable because it is not limited

to a particularnarrowlydefined sourcecategory that the permit is designed to cover and

can be used to make site-specific determinations that are outside the scope ofthis type

permit. The commenter states that these memos are not law, and cannot conceivably be

used as an independent basis to deny approval of a SIP revision. Any EPA

pronouncement that purports to be binding must be adopted through notice and comment

rulemaking. SeeAppalachian Power Companyv. EPA, 208 F.3d 1015, 1023 (D.C. Cir.

2000). The commenter concludes that ifEPA wants to disapprove a submitted SIP

revision of a Standard Permit because it is not limited to a particular narrowly defined

sourcecategory and that allow site specificdeterminations, then EPA must adopt a rule

that says so. TAB comments that even ifthe memos could legally support EPA's

position, that the PCP Standard Permit is unapprovable because it not limited to a

particular narrowly defined source category that the permit is designed to cover and can

be used to make site-specific determinations that are outside the scope ofthis type permit,

neither ofthe cited memos actually says so. The commenter reviewed each cited memo

and found nothing to suggest any intent to fill gaps or qualify any provision of 40 CFR

51.160. TAB further comments on EPA's cites to a series of Federal Registers on actions

taken on other states' minor NSR programs. The commenter states that these actions

offer no explanation of how these particular actions illuminate EPA's proposal to

disapprove Texas' PCP Standard Permit. TAB further comments on EPA's cites to a

series of Federal Registers on actions taken on other states' minor NSR programs. The
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commenter states that these actions offer no explanation of how these particular actions

illuminate EPA's proposal to disapprove Texas' PCP Standard Permit,

Response: EPA disagreeswith this comment. Section 110of the Act, in particular

section 110(a)(2)(C), aod 40 C.F.R. 51.160, require the EPA to determine that the State

has adequate procedures to ensure that construction or modification ofsources will not

interfere with attainment of a National Ambient Air Quality Standard (NMQS). The

eAA grants EPA the authority to ensure that the construction or modification ofsources

will not interfere with attainment of a National Ambient Air Quality Standard (NAAQS).

The memoranda cited in the proposal were cited for the purpose ofproviding

documentary evidence of how EPA has exercised its discretionary authority when

reviewing general permit programs similar to the Texas Standard Permits SIP. They also

collectively provide an historical perspective on how EPA has exercised its discretion in

reviewing regulatory schemes similar to the submitted PCP Standard Permit. The utility

ofthese citations is not in the specific subject matter they address, but in their discussion

ofthe regulatory principles to be applied in reviewing permit schemes that adopt

emission limitations created through standardized protocols. For example, the

memorandum titled Approaches to Creating Federally-Enforceable Emissions Limits,

Memoraodum from John S. Seitz, OAQPS, November 3, 1993, on page 5 discusses EPA

recognition that emissions limitations can be created through standardized protocols.

Likewise, the memorandum titled Guidance on Enforceability Requirements for Limiting

Potential to Emit through SIP and section 112 rules and General permits, Memorandum

from Kathie A Stein, Office of Enforcement and Compliance Assurance, January 25,
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1995, discusses on page6 the essential characteristics ofa generalpermitthatcoversa

homogenous group ofsources.

Again, the Federal Register citations provided in the proposal serve to further

highlight EPA's practical application ofthe policies enunciated in the above referenced

memoranda. These documents demonstrate that EPA has consistently applied these

policies with respect to approval ofthe minor source permit programs which feature rules

which are similar to the Texas Standard Permits SIP. For example the Federal Register

at 71 FR 5979, final approval ofWisconsin SIP revision, February 6, 2006, states on page

5981 that EPA regards the prohibitory rules and general permits are essentially similar

and goes on to discuss requirements for approval of permit schemes ofthis nature. The

cited notices address requirements for approval of general permit programs submitted as

SIP revisions and are illustrative ofregulatory policy applied by EPA in reviewing

Standard Permit programs for SIP approval.

The cumulative effect ofthese documents is to provide the public with an insight

to EPA's policy with regard to its application of discretionary authority in reviewing a

variety of proposed general permit schemes. In this instance, EPA interprets the

applicable statutes and rules to require that Standard Permits be limited to similar sources

and they cannot be used to make site-specific determinations that are outside the scope of

this type of permit. This is consistent with EPA's prior policy pronouncements on this

subject as evidenced by the memoranda. EPA's interpretation is circumscribed by the

statutory requirement that such a permit program not interfere with the attainment ofthe
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NAAQS. Consequently, the commenter's failure to find relevant information to

illuminate EPA's decisionto disapprove the submitted Texas' PCP Standard Permitis not

a reflection on the utility of the cited documents.

Comment8: TAB concludes by observing that there is no evidence of Standard

Permit Program failure or adverse comments. The commenter criticizes EPA for not

taking action on the PCP Standard Permit Program which the CAA required action long

before 2009. EPA is further criticized for failing to review the record to determine the

negative impacts ofthe PCP Standard Permit Program during the intervening time during

which TCEQ has been issuing PCP authorizations under this program. EPA offers no

example of a PCP Project that failed to protect public health or welfare, or could not be

enforced, or that did not accomplish its valuable purpose of quickly, but carefully,

authorizing emission reduction projects.

Response: EPA disagrees with this comment. The standard for review in this

context is not the existence of adverse comments or failure in the implementation of a

Standard Permit Program SIP. EPA reviews a SIP revision submission for its compliance

with the Act and EPA regulations. CAA llO(k)(3). See also BCCA Appeal Group v,

EPA, 355 F 3d. 817, 822 (5'" Cir. 2003); Natural ResourcesDefense Council, Inc. v.

Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995). This includes an analysis ofthe

submitted regulations for their legal interpretation. The existence ofadverse comments is

not the exclusive criteria for review ofsubmitted revisions. In this particular instance,

EPA's review is limited to Texas's submission ofa SIP revision for a new PCP Standard
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Permit at 30 TAC 116.617, not a SIP revision for general Standard Permits Program.

EPA has already approved Texas' general regulations for Standard Permits in 30 TAC

Subchapter F of30 TAC Chapter 116 on November 14,2003 (68 FR 64548) as meeting

theminor NSR SIP requirements.

3. Whatare the Grounds for Disapproving the SubmittedMinor NSR Standard

Permit for Pollution Control Project SIP Revision?

EPAis disapproving the submitted Minor NSR Standard Permit for Pollution

Control Project SIP revision because the PCPStandard Permit, as adopted and submitted

by Texasto EPAfor approval into the Texas Minor NSR SIP, does not meet the

requirements ofthe TexasMinor NSR Standard Permits Program. It does not apply to

similar sources. Because it does not apply to similar sources, it lacksthe requisite

replicable standardized permit terms specifyinghow the Director's discretion is to be

implemented forthe case-by-case determinations.

EPAreceived comments from TCEQ, theClinic, and industry regarding the

proposed disapproval ofthese submitted SIP revisions. See our response to these

comments in section IV.F.2 above. Because the PCPStandard Permit, in 30 TAC

116.617,does not meetthe Texas Minor NSR SIP requirements for Standard Permits,

EPA is disapproving the PCP Standard Permit, as submitted February 1, 2006. See the

proposal at 74 FR 48467, at 48475-48476, our background for these submitted SIP
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revisionsin section IV.F.l above, and our responseto comments on these submittedSIP

revisions in section IV.F.2 above for additional information.

G. No Action on the Revisions to the Definitions under 30 TAe 101.1

We proposed to take no action upon the June 10,2005, SIP revision submittal

addressing definitions at 30 TAC Chapter 101, Subchapter A, section 101.1, because

previous revisions to that section are still pending review by EPA. See 74 FR 48467, at

48476. We received no comments on this proposal. Accordingly, we will take

appropriate action on the submittals concerning 30 TAC 101.1 in a separate action. As

noted previously, these definitions are severable from the other portions ofthe two SIP

revision submittals.

H No Action on Provisionsthat ImplementSection 112(g) ofthe Act and/or

Restoringan Explanation that a Portion 0/30 rAC 116.115 is not in the SIP

Because it ImplementsSection 112(g) ofthe Act.

Texas originally submitted a new Subchapter C - Hazardous Air Pollutants:

Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40

CFR Part 63) on July 22, 1998. EPA has not taken action upon the 1998 submittal. In

the February 1, 2006, SIP revision submittal, this Subchapter C is recodified to

Subchapter E and sections are renumbered. This 2006 submittal also includes an

amendment to 30 TAC 116.610(d) to change the cross-reference from Subchapter C to
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Subchapter E. These SIP revision submittals apply to thereview and permitting of

constructed and reconstructed major sources of hazardous airpollutants (HAP) under

section 112 ofthe Act and 40 CFR part 63, subpart B. The process for these provisions is

carried outseparately from theSIPactivities. SIPscover criteria pollutants and their

precursors, as regulated by NAAQS. Section 112(g) ofthe Act regulates HAPs, this

program is notunder the auspices of a section 110 SIP. and thisprogram should notbe

approved into the SIP. These portions ofthe 1998 and 2006 submittals are severable.

Forthese reasons we proposed to takeno actionon this portion relating to section 112(g)

ofthe Act. See 74 FR 48467, at 48476-48477. We received no comments on this

proposal. Accordingly, we are taking no action on the recodification of Subchapter C to

Subchapter (d) and 30 TAC 116.61O(d).

In a related matter, we are making an administrative correction to anearlier action

which inadvertently removed an explanation that 30 TAC 116.115(c)(2)(B)(ii)(I) is not in

the SIP. When we approved 30 TAC 116.115 in the SIP on September 18,2002, we

excluded 30 TAC 116.115(c)(2)(B)(ii)(I) because it implemented the requirements of

section 112(g) ofthe Act. See 67 FR 58679, at 58699. In a separate action, we approved

revisions to 30 TAC 116.115 on April 2, 2010 (75 FR 16671), which are unrelated to the

excluded provisions ono TAC lI6.115(c)(2)(B)(ii)(l). However, that action

inadvertently removed the explanation that excluded 116.115(c)(B)(ii)(l) from the SIP.

Inthis action, we are making an administrative correction to restore intothe Codeor

Federal Regulations the explanation that the SIP does not include 30 TAe

lI6.115(c)(B)(ii)(I).
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1. No Action on Provision Relating to Emergency and Temporary Orders

We proposed to take no actionupon theFebruary 1,2006, SIP revision submittal

which recodified the severable provisions relating to Emergency Orders from 30 TAC

Chapter 116, Subchapter E to a new Subchapter K. See 74 FR 48467, at 48477. We

receivedno comments on this proposal. Accordingly, we will takeappropriate actionon

the Emergency Order requirements in a separate action, according to the Consent Decree

schedule.

J Responses to General Comments on the Proposal

Comment 1: The following commenters support EPA's proposal to disapprove

the Texas NSR Reform Program, I-hour NNSR, 1997 8-hour NNSR, and PCP Standard

Permit: HCPHES; several members ofthe Texas House ofRepresentatives; the Sierra

Club; the City ofHouston, and theClinic.

Response: Generally, these comments support EPA's analysis ofTexas's NSR

Reform Program, I-hour NNSR, 1997 8-hour NNSR, and PCP Standard Permit, as

discussed in detail at in the proposal at 74 FR 48467, at 40471-48476, and further support

EPA's action to disapprove the TexasNSR Reform Program submission
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Comment 2: The SeMS and PSR sent numerous similar letters via e-mail that

relate to this action. These comments include 1,789 identical letters from SeMS (sent via

e-mail) and a comment letterfrom PSR, whichsupport EPA's proposed rulingthat major

portions ofTCEQ air permitting program do not adhere to the CAA and should be

thrown out. While agreeing that the proposed disapprovals are a good first step, the

comrnenters state that EPA should take hold actions such as halting any new air pollution

permits being issued by TCEQ utilizing TCEQ's current illegal policy; creating a

moratorium on the operations of any new coal fired power plants; reviewing all permits

issued since TCEQ adopted its illegal policies and requiring that these entities resubmit

their applications in accordance with the Federal CAA; and putting stronger rules in place

in order to reduce 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

petroleum coke fired power plants than any other state in the nation; (2) Is number one in

carbon emissions; and (3) Is on the list for the largest increase in emissions over the past

five years. Strong rules are needed to make sure the coal industry is held responsible and

that no permits are issued under TCEQ's illegal permitting process. Strong regulations

are vital to cleaning up the energy industry and putting Texas on a path to clean energy

technology that boosts economic growth. createsjobs in Texas, and protects the air

quality, health, and communities.
III

In addition, SCMS sent 273 similar letters (sent via e-mail) that contained

additional comments that Texas should rely on wind power, solar energy, and natural gas

as clean alternatives to coal. Othercomments expressed general concerns related to:

impacts on global warming, lack of commitment by TCEQ to protect air quality, the need

for clean energy efficient growth, impacts upon human health, endangerment of wildlife,

impacts on creation of future jobs in Texas, plus numerous other similar concerns. The

PSR further commented that as health care professionals, they are concerned about the

health effects they are seeing in their patients due to environmental toxins in the air and

water.

Response: To the extent that the SCMS and PSR letters comment on the

proposed disapproval ofthe submitted I-hour ozone standard, 1997 8-hour ozone

standard, and NSR Reform Programs, they support EPA's action to disapprove these

submitted rules. The remaining comments are outside the scope of our actions in this

rulemaking.

Comment 3. TCEQ understands that EPA's review was conducted by applying

the current applicable law. The Executive Director will conduct a review of all EPA

comments and propose changes to the rules proposed for disapproval.

TCEQ understands EPA's concerns with issues regarding, among other things,

applicability, clarity, enforceability, replicable procedures, recordkeeping, and
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compliance assurance. Specifically, the Executive Director will consider rulemaking to

address the following concerns:

• Clarify references for major stationary sources and major modifications to

EPA rules for nonattainment and maintenance area definitions and

removing rule language indicating that the I-hour thresholds and offsets

are not effective unless EPA promulgates rules, and clarifying the

applicability of nonattainment permitting rules;

• Clarify the definition of baseline actual emission rate, and clarifythe

inclusion ofmaintenance, startup, and shutdown emissions when

determining baseline actual emissions; and

• Add missingitems and clarify the existing requirements to obtain and

comply with a PAL to meet FNSR requirements.

New and amended rules will be subject to the statutory and regulatory

requirements for a SIP revision, as interpreted in EPA policy and guidance on SIP

revisions, as well as applicable Texas law. The revised program will ensure protection of

the NAAQS, and demonstrate noninterference with the Texas SIP control strategies and

reasonable further progress.
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In addition, and as noted, TCEQ will address EPA's concerns regarding public

participation in a separate rulemaking action.

Response: EPA appreciates TCEQ's commitment to consider rulemaking to

correct the deficiencies in the submitted l-hour ozone standard, 1997 8-hour ozone

standard, and NSR Reform Programs. However, our evaluation is based on the submitted

rules that are currently before us.

Comment 4: The Clinic further asks that EPA take action to halt Texas's use of

permits-by-rule that, like the PCP standard permit, fail to meet minimum standards for

minor source permitting and for general permits and exclusionary rules. Texas has

adopted and is applying a number of permits-by-rule that are not source specific. do not

include specific emission limitations or monitoring, and are inadequate to protect the

NAAQS. These include the permits-by-rule in Subchapter K ofChapter 106 ofthe Texas

rules. In addition, like the PCP, some ofthese permits - rather than authorizing specific

types ofminor emission source categories - can be used to increase authorized emissions

from any type of'facility.P EPA has repeatedly stated that Texas's current use of pennitby-rule violates the Act and Texas's approved SIP?7 Yet EPA has failed take action to

stop the illegal use of permits-by-rule.

26 For example, 30 TAC 106.261, 106.262, 106.263, and 106.264.

27 See "Letter to Dan Eden, TCEQ Deputy Director" from Carl Edlund, EPA Region 6, Director

Multimedia Planning and Permitting Division (March 12, 2008)("EPA has consistently expressed COncern

about PBRs that authorize a category of emissions, such as startup or shutdown emissions, or that modify

an existing NSR pennit."XAttachment to ofthe Clinic's comments); "Letter to Richard Hyde, TCEQ,

Director, Air Permits Division" from Jeff Robinson, EPA Region 6, Chief, Air Permits Section (November

16.2007XAttachment 11 ofthen Clinic's comments); "Letter to Steve Hagle, TCEQ, Special Assistant, Air

Permits Director" from David Neleigh, EPA Region 6, Chief, Air Permits Section (March 30,

2006XAttachment 12 ofthe Clinic's comments); "Letter to Lola Brown, TCEQ, Office of Legal Services"
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Response: Any action on Texas's use of pennits-by-rule, as requested by the

commenter, is outside the scopeof our actions in thisrulemaking.

Comment 5: Concerned Citizens of Grayson expressed concerns about a hot mix

asphalt plant located near the small town of Pottsboro, TX, which is located near public

schools and private residences and has caused significant disruptions in the lives ofthose

liming nearby because or "the noxious stench repeatedly emitted from the plant." The

commenters are concerned because the plant was authorized under a Standard Permit

issued by TCEQ which only had public participation and comment when TCEQ issued

the Standard Permit for hot mix asphalt plants and there was no opportunity for public

participation and comment on a source that applied for authorization under a Standard

Permit for a specific source after the Standard Permit has been authorized.

Response: These comments do not relate to the submitted Standard Permit for

Pollution Control Projects that EPA is reviewing in this action. These comments, which

relate to a Standard Permit for Hot Mix Asphalt Plants, are outside the scope ofthis

action.

Comment 6: AECT believes that EPA's proposed disapproval has injected

uncertainty into the Texas permitting program, will cause tremendous operational

uncertainty for companies-in light ofsignificant air emission rule proposals considered by

from David Neleigh, EPA Region 6, Chief, Air Permits Section (February 3, 2006XAttachment 13 ofthe

Clinic's comments).
115

EPA (e.g. mercury MACT, PSD Tailoring Rule), this and other disapprovals may

jeopardize orsubstantially delay theability of electric generators to obtain necessary air

permits to install pollution controls that will be necessary to comply with current and

future rules; and prompt EPAapproval ofthe proposed TCEQ NSR SIP Revisions is

neededin order to provide the regulatory certainty necessary for economic development,

creation of critically needed jobs, and generation of affordable, reliable electricity in

Texas.

Response: We aredisapproving the submitted TexasNSR Reform Program, 1-

hour NNSR, and PCP Standard Permit programs because they do not meet applicable

requirements oftheAct, as discussed herein. EPA is required to review a SIP revision

for its compliance with the Act and EPAregulations. See CAA section 11O(k)(3); see

also BCCA Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural Resources

Defense Council, Inc. v. Browner, 57 F.3d 1122,1123 (D.C. Cir 1995).

Comment 7: BCCA and TIP comment that under Texas'sintegrated air

permitting regime, airquality in the stateis demonstrating strong, sustained

improvement. Thecommenters cite to substantial reductions in nitrogen oxides and

improvements in the ozone concentrations in the Houston-Galveston and Dallas-Fort

Worth ozone nonattainrnent areas.

Response: We are disapproving the submitted TexasNSR Reform Program,

1997 8-hour NNSR, I-hour NNSR, and PCP Standard Permit programs because they do
116

not meetapplicable requirements ofthe Act, as discussedherein. EPA is required to

review a SIPrevisionsubmission for its compliance withthe Act andEPA regulations.

CAA 110(k)(3); See also BCCA Appeal Group v. EPA, 355 F 3d. 817,822 (5th Cir.

2003); Narural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D,C

Cir. 1995).

Even if the cornmenters' premises are to be accepted, they fail to substantiate their

claim that the Texas NSR Reform Program, I-hour NNSR, 1997 8-hour NNSR, aod PCP

Standard Permit programs have hada significant impact on improving airquality in

Texas byproducing data showing that any such gains are directly attributable to the

submitted Programs, and are not attributable to the SIP-approved control strategies (both

state and federal programs) or other federal andstateprograms. They provide no

explanation orbasis for howtheir numbers were derived.

Furthermore, since the commenters thought EPA was acting inconsistently. they

shouldhave identified SIPsthat are inconsistent with ouractionsandprovided technical,

factual information, not bare assertions.

Comment 8: GCLC, TIP, BCCA, AECT, aod TCC comment that EPA ignores

the fact that the TexasNSR Program hashad a significant impact on improving air

quality in Texas. TCEQ commented that significantemission reductions have been

achievedby the submitted Program through the large number ofparticipating
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grandfathered facilities, which resulted in improved air quality based upon the monitoring

data.

BCCA, TAB, TxOGA, and ERCC comment that the legal standard for evaluating

a SIPrevision for approval is whether the submitted revision mitigates any effortsto

attain compliance with a NAAQS. EPA's failure to assess the single most important

factor in the submitted Program, thepromotion of continued airquality improvement, is

inconsistent with case law and the Act and is a deviation from the SIPconsistency

processandnational policy. EPA should perform a detailed analysis of approved SIP

programs through the UnitedStates and initiate the SIP consistency process withinEPA

to ensure fairness to Texasindustries.

Response: EPA is required to review SIP revisionssubmission for their

compliance with the Act and EPA regulations. CM 11O(k)(3); See also BCCA Appeal

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

Inc. v. Browner, 57 F.3d 1122, 1123 (D.C Cir. 1995). EPA is not disapproving the entire

Texas NSR SIP. Specifically, on September 23, 2009, EPA proposed to disapprove

revisions to the TexasNSR SIP submitted by the State ofTexas that relate to the

Nonattainment NSR (NNSR) Program for the I-Hour Ozone Standard and the 1997 8-

Hour Ozone Standard, NSR Reform, and a specific Standard Permit. Further, EPA is not

required to initiate the SIP consistency process within EPA unless the pending SIP

revision appears to meet allthe requirements ofthe Act and EPA's regulations butraises

a novel issue. EPA is disapproving the submitted revisions becausethey fail to meet the
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Act and EPA's regulations. Because the submitted revisions fail to meetthe

requirements for a SIPrevision, the SIP consistency process is notrelevant.

Comment9: The ERCC commentsthatto avoid negativeeconomic consequences

EPA shouldexercise enforcement discretion statewide for sources that obtained

government authorization in good faith and as required by TCEQ. the primary permitting

authority. EPA should notrequire any injunctive reliefand should consider penalty only

cases in this rulemaking.

Response: EPA enforcement of the CAA in Texas is outside thescope of our

actions.

V. Final Action

Under section 11 0(k)(3) ofthe Act and for the reasons stated above, EPA is

disapproving the following: (1) the submitted definition of "best available control

technology" in 30 TAe 116.10(3); (2) Major NSR in areas designated nonattainment for

the I-hour ozone NAAQS; (3) Major NSR in areas designated nonartainment for the

1997 8-hour ozone NAAQS; (4) Major NSR SIP requirements for PALs; (5) Non-PAL

aspects Major NNSR SIP requirements; and(6) submittals for a Minor Standard Permit

forPCP. EPA is also proposing to take no actionon certain severable revisions

submitted June 10,2005, and February 1,2006.
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Specifically, we are disapproving the following regulations:

• Disapproval ofthe definition of best available control technology at 30 TAC

116.10(3), submitted March 13, 1996, and July 22,1998;

• Disapproval ofrevisions to 30 TAC 30 TAC 116.12 and 116.150 assubmitted

June 10, 2005;

• Disapproving revisions to 30 TAC 116.12, 116.150, 116.151; and disapproving

new sections at 30 TAC 116.121, 116.180, 116.182, 116.184, 116.186, 116.188, 116.190,

116.192, 116.194, 116.196, 116.198, 116.610(a), and 116.617, as submitted February I,

2006.

We are also taking no action on theprovisions identified below:

• the revisions to 30 TAC 101.1- Definitions, submitted June 10,2005;

• the recodification ofthe existingSubchapter C under 30 TAC Chapter 116 to a

new Subchapter E under 30 TAC Chapter 116;

• the provisions of Su TAC 116.610(d); and
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• the recodification ofthe existing Subchapter E under 30 TAC Chapter 116 to a

new Subchapter K under 30 TAC Chapter 116.

Finally, we are making administrative corrections to reinstate an explanation to

the SIP-approved 30 TAC 116.115, that was inadvertently removed in a separate actions

on April 2, 2010 (75 FR 16671);

Sources are reminded that they remain subject to the requirements ofthe federally

approved Texas Major NSR SIP and subject to potential enforcement for violations ofthe

SIP (See EPA's Revised Guidance on Enforcement During Pending SIP Revisions, dated

March I, 1991).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

This final action has been determined not to be a "significant regulatory action"

subject to review by the Office ofManagement and Budget under Executive Order 12866

(58 FR 51735, October 4, 1993).

B. Paperwork Reduction Act
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This action does not impose an informationcollection burden under the

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

disapproval under section 110and subchapter1, part D ofthe Clean Air Act will not inand-of itself create any new informationcollection burdens hut 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 ofsmall entities. Small entities include small businesses,

small not-for-profit enterprises, and small governmental jurisdictions. For purposes of

assessing the impacts oftoday'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 ofsmall entities because SIP approvals and disapprovals
122

under section 110 and part D ofthe 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 ofthe 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 ofa State submittal does not affect its State enforceability.

After considering the economic impacts oftoday'5 rulemaking on small entities, and

because the Federal SIP disapproval does not create any new requirements or impact a

substantial number ofsmall entities, I certify that this action will not have a significant

economic impact on a substantial number ofsmall entities. Moreover, due to the nature

ofthe Federal-State relationship under the Clean Air Act, preparation of flexibility

analysis would constitute Federal inquiry into the economic reasonableness ofstate

action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co.. v. Us. 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 ofTitle II ofthe

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
123

private sector. This Federal action determines that pre-existing requirements WIder State

or local law should not be approved as part ofthe Federally approved SIP. It imposes no

newrequirements. Accordingly, no additional coststo 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 ofregulatory 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 ofpower 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.
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F. Executive Order 13175, Coordination With Indian Tribal Governments

Thisactiondoes not havetribal 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 ofChildren 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 ofthe 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 ofthe Clean Air Act will not in-and-ofitself create
125

any new regulations but simplydisapprovescertain 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.

L National Technology Transfer and AdvancementAct

Section 12(d) ofthe 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., materialsspecifications, test methods, samplingprocedures,

and business practices) that are developed or adopted by voluntary consensus standards

bodies. NTIAA directs EPA to provide Congress, through the Office ofManagement and

Budget, explanations when the Agency decides not to use available and applicable

voluntary consensus standards.

EPA believes that this action is not subject to requirements ofSection 12(d) of

NITAA because application ofthose requirements would be inconsistent with the Clean
126

Air Act. Today's action does not require the public to perform activities conducive to the

use ofVCS.

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

oftheir mission by identifying and addressing, as appropriate, disproportionately high

and adverse human health or environmental effects oftheir 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 ofthe Clean Air Act. Accordingly, this action merely

disapproves certain State requirements for inclusion into the SIP under section 110 and

subchapter I, part D ofthe Clean Air Act and will not in-and-ofitself 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
127

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

SmallBusinessRegulatory 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 ofthe rule, to each House ofthe Congress and to the Comptroller

General ofthe United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House ofRepresentatives, and the

Comptroller General ofthe United States prior to publication ofthe rule in the Federal

Register. A major rule cannot take effect until 60 days after it is published in the Federal

Register. This action is not a "major rule" as defined by 5 U.S.c. 804(2).

1. Petitionsfor Judicial Review

Under section 307(b)(1) ofthe Clean Air Act, petitions for judicial review ofthis

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

[FEDERAL REGISTER OFFICE: insert date 60 days from date of publication of

this document in the Federal Register]. Filing a petition for reconsideration by the

Administrator ofthis final rule does not affect the finality ofthis 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 ofsuch rule or action This action may

not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
128

List of Subjects iu 40 CFR Part 52

Environmental protection, Air pollution control, Carbon Monoxide,

Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter,

Reporting andrecordkeeping requirements, Sulfuroxides, Volatile organic compounds.

g sl/6

Dat : Al Annendariz~,-----:::::S.-­

RegionalAdministrator, gion
129

40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart SS-Texas

2. The table in § 52.2270(c) entitled "EPA-Approved Regulations in the Texas SIP" is

amended by revising the entry for section 116.115 to read as follows:

§ 52.2270 Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the Texas SIP

State Title / Subject State EPA approval date Explanation

citation approval/

submittal

date

• • • • • • •

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

• • • • • • •

Subchapter B-New Source Review Permits

• • • • • • •

Division I-Permit Application

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

116.115 Conditions subsection

116.115(c)(2)(BXii)(I)

• • • • • • •

* * * * *
130

3. Section 52.2273 is amended by adding a new paragraph (d) to read as follows:

§ 52.2273 Approval status.

* ... ... ... ...

(d) EPA is disapproving the Texas SIP revision submittals under 30 TAC Chapter

116 - Control ofAir Pollutionby Permits forNew Construction andModificationas

follows:

(I) The following provisions in 30 TAC Chapter 116, Subchapter ADefinitions:

(i) 30 TAC 116.10 - General Definitions - the definition of

"BACT" in 30 TAC 116.10(3), adopted February 14, 1996, and submitted March 13,

1996; and repealed and readopted June 17, 1998, and submitted July 22, 1998;

(ii) Therevisions to 30 TAC 116.12- Nonattairunent Review

Definition, adopted May 25, 2005, and submitted June 10, 2005;

(iii) The revisions to 30 TAC 116.12 - Nonattainment and

Prevention of SignificantDeterioration Definitions, adopted January 11, 2006, and

submitted February 1,2006 (whichrenamed the section title);
131

(2) The following section in 30 TAC Chapter 116, Subchapter B - New

Source Review Permits, Division 1 - Permit Application: 30 TAC 116.121 - Actual to

Projected Actual Test for Emission Increase, adopted January II, 2006, andsubmitted

February 1,2006;

(3) The following sections in 30 TAC Chapter 116, Subchapter B - New

Source Review Permits, Division 5 - Nonattainment Review:

(i) Revisions to 30 TAC 116.150 - New Major Source or

Modification in OzoneNonattainment Area - revisionsadopted May 25, 2005, and

submitted June 10, 2005; and revisions adopted January 11,2006, and submitted

February 1,2006;

(ii) Revisions to 30 TAC 116.151 - New Major Source or

Modification inNonattainment Areas Other Than Ozone - revisions adopted January 11,

2006, and submitted February 1,2006;

(4) The following sections in 30 TAC Chapter 116, Subchapter C - PlantWide Applicability Limits, Division 1 - Plant-Wide Applicability Limits:

(i) 30 TAC 116.180 - Applicability - adopted January 11,2006,

and submitted February 1,2006;
132

(ii) 30 TAC 116.182 - Plant-Wide Applicability Limit Permit

Application - adopted January 11, 2006, and snbmitted February 1, 2006;

(iii) 30 TAC 116.184 - Application Review Schedule - adopted

January 11,2006, and submitted February 1,2006;

(iv) 30 TAC 116.186 - General and Special Conditions - adopted

January 11, 2006, and submitted February 1,2006;

(v) 30 TAC 116.188 - Plant-Wide Applicability Limit - adopted

January 11, 2006, and submitted February 1, 2006;

(vi) 30 TAC 116.190 - Federal Nonattainment and Prevention of

Significant Deterioration Review- adopted January 11, 2006, and submitted February 1,

2006;

(vii) 30 TAC 116.192 - Amendments and Alterations - adopted

January 11, 2006, and submitted February 1, 2006;

(viii) 30 TAC 116.194 - Public Notice and Comment - adopted

January 11, 2006, and submitted February 1,2006;
133

(ix) 30 TAC 116.196 - Renewal of a Plant-Wide Applicability

Limit Permit - adopted January II, 2006, and submitted February 1,2006;

(x) 30 TAC 116.198 - Expiration and Voidance - adopted January

11,2006, and submitted February 1, 2006;

(5) The following sections in 30 TAC Chapter 116, Subchapter FStandard Permits:

(i) Revisions to 30 TAC 116.610 - Applicability - paragraphs

(a)(I) through (a)(5) and (b) - revisions adopted January 11, 2006, and submitted

February 1, 2006;

(ii) 30 TAC 116.617 - State Pollution Control Project Standard

Permit - adopted January 11,2006, and submitted February 1, 2006;