### ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-0AR-2006-0133 and EPA-R06-0AR-2005-TX-0025; FRL- 

### 1 Approval and Promulgation ofImplementation 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 NonattainmentNSR SIP requirements for implementation ofthe 1997 8-hourozone 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 ofbest available control technology (BACT) that is used by TCEQ in its Minor NSR SIP permitting program.2



### EPAis not 

### addressing the submittedrevisions 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 particularprovision 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 ofBACT 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

### 3 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 eitherelectronically 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 

### willbe made available 

### by appointment for public inspection in the Region 6 FOIA Review Room between the hours of8:30 am and 4:30 pm weekdays exceptfor legal holidays. Contactthe 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 ofyour visit. There will he a 15 cent per page fee for making photocopies ofdocuments. On the day ofthe visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal, 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 ofAir 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

### 4 700, 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 ofFederal 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.

• "MinorNSR" means NSR established under section 110 ofthe Act and 40 CFR 51.160.

### 5

• "NNSR" means nonattainment

### NSRestablished under TitleI, section 110and 

### partD ofthe Act and 40 CFR 51.165.



### • "PSD" meansprevention ofsignificant

### deterioration ofairquality established under Title I, section 110 and part 

### C ofthe Act and 40 CFR 51.166.



### • "MajorNSR" means any new ormodified source that is subjectto NNSR and/orPSD.

• "TSD" means

### theTechnical Support Document for thisaction.

• "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 CommissiononEnvironmental Quality."

Table ofContents


### I. 

### What Action is EPATaking?

### 6

II. What is the Background?



### Ill. Did We ReceivePublic Comments on theProposed Rulemaking?

IV. What are the Grounds for these Actions?

A. 

### TheSubmitted Minor NSR Definition ofBACT 

### SIP Revision

1. What is theBackground for theSubmitted 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 theSubmitted Minor NSR Definition of BACTSIP Revision?

3. 

### What are theGrounds for Disapproval ofthe 

### Submitted MinorNSR Definition ofBACT 

### SIP Revision?

### 7 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 MajorNonattainmentNSR SIP Requirements for the 1997 8-Hour Ozone NAAQS?

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

### NonattainmentNSR SIP Requirements for the 1997 8-Hour Ozone NAAQS?

### 8 3. What are the Grounds for Disapproval ofthe Submitted Major NonattainmentNSR SIP Requirements for the 1997 8-Hour Ozone NAAQS?



### D. The Submitted MajorNSR Reform SIP revision for MajorNSR 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 

### MajorNSRwith 

### PALProvisions?

E. The SubmittedNon PAL Aspects ofthe Major NSR SIP Requirements



### 1. What is the Background for the SubmittedNon PAL Aspects ofthe Major NSR SIP Requirements?



### 2. What is 

### EPA's Response to Comments on the Submitted Non PAL Aspects ofthe MajorNSR SIP Requirements?

### 9 

### 3. What are theGrounds for Disapproval 

### of theSubmitted 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 MinorNSR Standard Permit for 

### Pollution Control Project SIP Revision?

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

### Standard Permit

### for PollutionControl Project SIP Revision?

3. What are the Grounds for Disapproval ofthe Submitted Minor NSR Standard Permit for Pollution Control ProjectSIP 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 ActiononProvision Relating to Emergency andTemporary Orders.

### 10

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?


### Wearedisapproving the SIPrevisions submitted by 

### Texas on June 10, 2005, and February 1,2006, as not meeting the Act and the 1997 8-hourozone 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 

### byTexas 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 MinorNSR 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

### 11 clearly limitedto minor sources and minormodifications. 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 MinorNSR definition ofBACT, 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 consistentwith EPA's interpretation ofthe relevant provisions. Based upon our evaluation, EPA has concluded that each ofthe six portions ofthe 

### SIPrevision 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 ofa base regulation that is currently undergoing review for appropriate action.

### 12

• The submitted 1997 8-hour ozone NAAQS MajorNonattainment 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 MajorNSR reform SIP revision with no PAL provisions,

• The submitted MinorNSR 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 ofSignificant Deterioration.

### 13 Theaffected provisionthat isbeing acted upon separately intoday's 

### FederalRegister 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 thescopeofthe 

### SIP. Weare alsomaking 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 theSIP because 

### itimplements section 112(g) of theAct, which is outside the scopeof the SIP. In a separate action published April 2, 2010 (75 FR 16671), we inadvertently 

### removed theexplanation that statesthatthisprovision is notpartoftheSIP.

Weare taking no actionon severable portions ofthe 

### June 10,2005, submittal concerning 30TAC 101.1 

### Definitions. Wewill 

### take action on theseportions ofthe 

### submittal in alater rulemaking.
Finally, we are taking no actionon severable portions ofthe 

### February 1, 2006, 

### submittal which relate to 

### Emergency and Temporary Orders. Wewill 

### take action on these portions ofthesubmittal in alater rulemaking.

### 14 

### II. What is theBackground?
A. Summary of OurProposedAction

On September 23, 2009, under DocketNo. EPA-R06-0AR-0133, EPA proposed to 

### disapprove revisions to theSIP submitted by theState 

### 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 MajorNSR 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 ofAir 

### Pollution 

### byPermits for New Construction orModification. EPA alsoproposed on September 23, 2009, under DocketNo. 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 NSRdefinition ofBACT. 

### Theaffecteddefinition that we proposed to disapprove was 30 TAC L

### 16.10(3). 

### See 74 FR 48450, at 48463-48464. EPA 

### finds thateach ofthese six submitted provisions isseverable from each other. EPAalso findsthatthesubmitted definition is severable from theother submittals.

### 15 EPA istaking action in aseparate rulemaking action published intodey's 

### Federal Register

### on theseverable revisions that 

### relate to PreventionofSignificant Deterioration. Theaffected provisionthat is being acted upon separately intoday's 

### FederalRegister is 30 TAC 116.160.

EPA proposed on September 23, 2009, under DocketNo. EPA-R06-0AR-0133, 

### no actionon the followingregulations:
• 30 TAC 116.400, 116.402, 116.404, 116.406, 116.610(d). These regulations 

### implement section 112(g)ofthe 

### CAAand are outside the scopeofthe 

### SIP;

• 30 TAC 116.1200. This regulation relates to 

### Emergency and Temporary 

### Orders and will beaddressed in aseparate action undertheSettlement Agreement in BCCA Appeal Group v. EPA, Case No. 3:08-cv-01491-N (N.D. Tex).
B. Summary 

### of the SubmittalsAddressedin this FinalAction



### Tables 1and 2 belowsummarize thechanges that are in

### the SIPrevision submittals. A summary ofEPA's 

### evaluation ofeachsection and thebasis for thisfinal action is discussed insections III through V ofthis 

### preamble. TheTSD(which is inthe docket) includes adetailed evaluation ofthe 

### submittals.

### 16
db hi f 

### h SIP b . I

### th . 

### aff Table 1. Summary 0 

### eac SU 

### mitta 

### at 15 

### ecte by t 15action. Title ofSIP 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"

Modificationto 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 30TAe 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 

### db 

### tho I . f 

### h 

### T bl 2 S

a e ummary o 

### eac regu anon t at IS 

### ecte 

### DY IS 

### action. Section Title Submittal Description ofChange Final Action Dates Chaoter 116 - Control ofAir Pollution bv Permits for New Construction orModification 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 ABolication 30 TAC 116.121 Actual to Projected 2/112006 New Section Disapproval Actual Test for Emissions Increase

### 17 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 bourozonestandard 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 SubchanterC - 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 ofa 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~~:~ns**  Governing 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), ofparagraph and (d)b <a) - No action on I reraeraoh Id\18

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 SubchapterE. 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. OtherRelevantActions on the Texas PermittingSIP 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, CaseNo. 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 

### SIPrequirements. 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); NonattairunentNSR (NNSR) for the 1997 8-Hour Ozone Standard and the I-Hour Ozone Standard, NSR Reform, and the PCP Standard

### 19 Permit. We will,ofcourse, consideranyrule changes 

### ifand when theyare submitted to EPA forreview. 

### However, therules 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 wehave concluded thatthese current Programs are notapprovable for the reasons set outinthis notice.

III. Did We ReceivePublic Comments on the Proposed Rulemaking?

Inresponse to ourSeptember23, 2009, proposal, we receivedcomments from the 

### following: Association ofElectric Companies ofTexas(AECT); Austin Physicians for Social Responsibility (PSR); Baker Botts, L.L.P., on behalfofBCCA Appeal Group (BCCA); Baker Botts, L.L.P., on behalfofTexas Industrial Project (TIP); Bracewell & 

### Guiliani, L.L.P., on behalfofthe Electric Reliability Coordinating Council (ERCC); Citizens ofGrayson County; GulfCoast Lignite Coalition (GCLC); Office ofthe Mayor - City ofHouston, 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 AssociationBusiness; Members ofthe 

### Texas HouseofRepresentatives; 

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

### at Austin School ofLaw- Environmental Clinic (the Clinic) on behalfofEnvironmental 

### Integrity Project, Environmental Defense Fund, GalvestonHouston Association for Smog Prevention, Public Citizen, Citizens forEnvironmental20 

### Justice, Sierra Club LoneStarChapter, Community-In-Power andDevelopment 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 ofeach

### 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 commentreceived 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 ofBACT 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's21 definition of"BACT," defining it as BACT with consideration given to the technical practicability and economical reasonableness ofreducing 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 ofreducing or eliminating the emissions resulting from the facility." This defmition ofBACT 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 ofthe 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 ofBACT 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 September23, 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.22 

### EPArelied upon this SIP provisionin its 1992original approval of theTexas PSD SIPas meeting the PSD requirement of40 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 aMajorPSD BACTdetermination. Since EPA's approval 

### ofthe Texas PSD SIP in 1992, there 

### has been some confusion 

### about thedistinction betweena State Minor NSR BACTdefinition and a PSDMajor NSR BACTdefinition andtherequirement that asource mustperform therelevant BACT analysis.
TCEQ in 1996 submitted a regulatory definition ofthe TCAA BACT statutory 

### provision but failed to distinguish thesubmitted 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'sJune 7, 2010, comment letter on TCEQ's Qualified FacilitiesProgram, forfurther information.

2. What is EPA's Response to Comments on theSubmitted Minor NSR Definition ofBACT SIP Revision?



### Comment 1: TCEQ commented (under Docket No. EPA-R06-0AR-2005-TX

### 0025) on theproposed disapproval ofBACT 

### in theQualified Facilitiesproposal that it will consider EPA'scomments inconnection with itsdisapproval ofthe 

### definition of

### 23 BACT and plansto reviseits 

### definitionof BACTto correct thedeficiencies identified in the proposal. 

### Response: EPA acknowledges TCEQ's consideration ofour comments regarding
our disapproval ofthe definition ofBACT as well as TCEQ's plans to revise its definition ofBACT to correctthe 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 

### thatthe defmition is for any 

### air contaminantor 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 MinorNSR, to clearly distinguish this BACT definition from the federal PSD BACT definition.

Comment 2: The Clinic commented (underDocketNo. EPA-R06-0AR-2005- TX-0025) on the proposed disapproval and agrees that this definition cannot be substituted for the federal definition ofBACT 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 ofdual definitions ofBACT within the same 

### program is tooconfusing, asevidenced 

### bythe ongoing application

### of TexasBACT 

### in the Texas PSD permitting proceedings. 

### Response: EPAagrees with the Clinicthat the TCAA BACTregulatory 

### definition cannothe substituted forthe federal definition ofPSDBACT. EPA takes note oftheClinic'scomment regarding the dual useofthedefinition 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 DocketNo. 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 ofExistingQualified FacilitiesProgram and General Definitions (underDocketNo. EPA-R06-0AR-2005-TX-0025). 

### See 74 FR 48450, at 48463-48464.



### EPA receivedcomments from TCEQ and theClinicregarding theproposed disapproval ofthis submitted definitionas a revision to the Texas NSR SIP. See our25 

### response to thesecomments in sectionIV.A.2 above. The submitted regulatory BACT definition ofthe TCAA provision at 30 TAC 116.10(3) fails to apply clearlyonly for 

### minorsources and minormodifications at majorstationary sources. See theproposed 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 SubmittedAnti-BackslidingMajor 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-hourozone 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 anti

### backsliding 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 nonattainmentNSR SIP requirements indicated that certain I-hour ozone standard requirements were not part ofthe list ofantibacksliding 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 CoastAir 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 

### NSRapplicability 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 nonattainmentNSRrequirements 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 1 L6.l50(d) introductory paragraph, effective as state law on June 15, 2005, provide that for "the HoustonGalveston-Brazoria, Dallas-Fort Worth, and Beaumont-PortArthur 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 ofVOC 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 nonattainmentNSR 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 ofFederal28 

### Regulations § 

### 81.344." That 

### section includes designations for theone-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 higherthan its nonattainmentclassification 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 ofthe requirements for compliance with the I-hour ozone NAAQS with the

### 29 implementation of the 8-hour ozone NAAQSwas

### delayedby litigation that took several years to becomefinal. TCEQ adoptedchanges to 30 TAC 116.12(18) in June, 2005, prior to theresolution of thelitigation. After the

### South Coastdecision, 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 commitmentto revise its State rules to implement the Major NSR anti-backsliding requirement. However, the 2007 Meyers Memorandum cited in the comment did not indicate 

### thatStates 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

### NSRregulations 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 ofSouth CoastAir Quality ManagementDistrictv. 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 ofAppeals for the District of Columbia Circuit on the Phase I Rule to Implementthe 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-hourozone 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/Schourtransition are neither inconsistent with 

### the CAA, nor the court's 

### decision in South Coast. 

### With its 

### remandto 

### EPA following vacaturofparts ofthe Phase 1 transition rule, the South Coast

### court did not offer specific direction concerning implementationof 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 CoastAir QualityMgmt. 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 Administratorrelaxes a national primary ambient air quality standard
... the Administratorshall, within 

### 12 months after the relaxation, promulgate31 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 stringentthan the controls applicable to areas designated nonattainmentbefore 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 itproceeds 

### with appropriate rule changes to reinstate the majorNNSR applicability thresholds and emission offsetrequirements, and this is not a rational basis tojustify disapproving the state's rules.
Response: EPA disagrees with the claimthat 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 ofcontrol 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 ofa standard in the absence ofan 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 ofEPA rulemaking specifically retaining such obligations. Such a result would be counter to the health-protective goals ofthe CAA

### 33 andinconsistent 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 ofthe 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 ofdesignation for the 1997 8-hour

### 34 standard to include in their SIPs major nonattainmentNSR applicability thresholds and emission offsets pursuant to the area's classifications for the I-hour ozone NAAQS at the 

### time ofdesignation for the 1997 ozoneNAAQS.

In addition, the Court specifically concluded that withdrawing I-hourNSR 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-hourNSR 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 ofhuman 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 nonattainmentNSR 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. Weare disapproving the revisions as notmeeting 

### part D ofthe Act as interpreted

### bythe Court in

### South Coastfor the Major NNSR SIP requirements for the l-hour ozone NAAQS. See the proposal at 74 FR 48467, at 48472- 48473, our 

### background for thesesubmitted SIPrevisionsin 

### sectionIV.B.l above,and 

### our response tocomments onthis these submitted SIPrevisions insection IV.B.2above foradditional information.



### C. TheSubmittedMajor Nonattainment NSR SIPRequirementsfor the 

### 1997 8-Hour 

### OzoneNAAQS



### 1. What is theBackground for theSubmitted Major NonattainmentNSR SIP 

### Requirements for the 1997 8-HourOzone NAAQS?

EPA interprets 

### itsMajorNSR SIP rules torequire thatanapplicability determination regarding whether MajorNSRapplies for apollutant should hebased upon thedesignation ofthearea inwhich the source islocated onthe date of issuance 

### ofthe Major NSR permit. EPA also interprets the Act and itsrules thatif anarea is designated nonattainmenton the dateofissuance ofa MajorNSR permit, then theMajorNSR permit mustbe a NNSRpermit, not a PSD permit. 

### Ifthe 

### area is designated attainment/unclassifiable, thenunderEPA's interpretation ofthe Actand itsrules, the Major NSR permitmust

### bea PSD permit on thedate ofissuance. See the following: 

### sections 160, 165, 172(c)(5) and 173 ofthe Act; 40 CFR51.165(a)(2)(i) and 51.166(a)(7)(i). EPA's interpretation ofthesestatutory 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 ofAir 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 offacilities as follows:
(1) 

### forall 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 ourunderstanding ofState law, that a "facility" can be an "emissions unit," i.e., any part ofa stationary source that emits or may have the potential to emit any air contaminant. A "facility" also can be a piece ofequipment, which is smallerthan 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 setby the date the application is administratively complete and when and where the applicability date will be setby the issuance date ofthe authorization. The rule, adopted and submitted in 2005, applies the date ofadministrative completeness ofa permit application, not the date ofpermit issuance, where setting the date for determination ofNSR applicability after June 15, 2004 (the effective date ofozone nonattainment designations). The submitted 2006 rule adds the date ofpermit issuance. Unfortunately, the submitted 2006 rule 

### byintroducing 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 ofapplication 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 ofany 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 ofpermit issuance, as well as provide for the possibility ofnew nonattainment areas. The 2006 submittal also added a new bifurcated structure to the rule for when applicability is based upon date of submittal ofa 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 commitmentto 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, andTeC 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 MajorNSR 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.



### Comment3: The Clinic commented that TCEQ's rules fail to require all NSR applicability determinations to 

### be based on the applicable attainment status ofan 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.


### Comment4: 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 ofapplication completeness as an applicability date is not inconsistent with Part 51 itself. As a result,

### 41 the applicability cutoffdates, 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 ofthe 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 stringentthan the federal rules in this regard.
Response: EPA disagrees with 

### this comment. The applicability cutoffestablished 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 of issuance ofthe Major NSR pennit. EPA also interprets its rules that ifan area is designated nonattainment on the date ofissuance ofa MajorNSR permit, then the MajorNSR permitmust 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 ofAir Quality Planning and Standard. See section IV.C.1 above for further information. The submitted revision provides the 

### regulatory framework foradministering individual permits, thus it is necessary toensure it is consistent with 

### the equivalent federal requirements. The submitted revision applies 

### the date ofadministrative completeness ofa permit application, not the date ofpermit issuance, where setting the date for determination ofNSR applicability afterJune 15, 2004 (the effective date ofozone nonattainment designations), The submitted revision also appears to apply the date ofpermit 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 MajorNonattainment 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 NonattainmentNSR (NNSR) permit based upon the date ofadministrative completeness, rather than 

### date ofissuance, 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 ofissuance, and thus this submittedrevision will reduce the number ofsources subjectto Major NNSR requirements. The submitted43 

### revised rule does not applythe date of permitissuance in allcases 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 ourresponse 

### tothese comments in section IV.C.2 above. See the proposal at 74 FR 48467, at 48473-48474,
ourbackground 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 SIPRevision/orMajor NSR with PAL Provisions

1. What is the Background for the Submitted MajorNSR Reform SIP Revision for Major NSRwith 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 - Plant

### WideApplicability Limit; 30 TAC 116.190 - Federal NonattainmentandPrevention of Significant Deterioration Review; 30 TAC 116.192 - Amendments and Alterations; 30 TAC 116.194

- Public Notice and Comment; 30 TAC 116.196 - Renewal ofaPlant

### WideApplicability LimitPermit; 

### 30 TAC 116.198- Expiration orVoidance.

We proposed disapproval ofthe 

### PAL Provisionsbecauseofthe 

### following:

• The submittal lacks 

### a provisionwhich limitsapplicability ofa PAL only to an existing 

### major stationary source, and whichprecludes applicability ofa 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 ofa PAL 

### to an existing major stationary


### source. Intheabsence of suchlimitation, this submission would allow a PALto be authorized for the construction ofa 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 PALsare available only for existingmajor stationary sources, becauseactuals PALs arebasedon a source's actualemissions.s Withoutat least 2 yearsofoperating history, a sourcehas notestablished actual emissions uponwhich to base anactuals PAL.

8 The TSD forthe2002 NSR rulemaking is inthedocket forthisaction asdocument no. EPA-R06-0AR2006-0133-0010. You canaccessthisdocument at: http://www.regulations.gov/searchIRegs/home.html#documentDetail?R=09oooo6480a2b968.45 However, for individual emissions units with less than two years ofoperation, allowable emissions would be considered as actual emissions. Therefore, an actuals PAL can be 

### obtainedonly for an existing major stationarysource even

### ifnot all emissions units have at least 2 years ofemissions data. Moreover, 

### the development ofan alternative to provide new major stationary sources with the option ofobtaining 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 ofexisting 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 5I.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 ofa pollutant at the major stationary source. Texas requires the owner or operator to submit a list ofall 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 operatorto submit a list ofall emissions units at the46

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 

### entiremajor 

### stationary sourceandtherefore appearsto be less stringentthan the Federal rules. In the absence ofany demonstration from the State, EPA proposed to disapprove 30 TAC 116.186 and 30 TAC 116.182(1) as not meeting the revised MajorNSR 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 Permit9 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 ofa PAL permit and at least a 30-day period for submittal ofpublic 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 theirrelationship 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 that

### thebaseline shall 

### becalculated as "the rate, in tonsperyear atwhich the unitactually emitted the pollutant during anyconsecutive 24-month period." The submitted definition omits reference to the"average rate." The definition differs from the federal SIP definitionbuttheState failed toprovide ademonstration showinghow the different definition is atleastasstringent as theFederal definition. Therefore, EPA proposed to disapprove the different definition of"baseline 

### actual emissions" found at 30 TAC 116.12(3) as not meetingthe revisedMajor NSR SIPrequirements. On the same grounds for lacking a demonstration, EPA proposed to disapprove 30 TAC 116.182(2) 

### that refers tocalculations ofthebaseline actual emissions foraPAL, as notmeeting the revised MajorNSRSIP requirements.

• TheState alsofailed to include thefollowing specificmonitoring definitions: "Continuous emissions monitoring system (CEMS)" asdefined 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 parametermonitoring 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 therevised MajorNSRSIP requirements are essential for the enforceability ofand providingthemeans fordetermining 

### compliance withaPALs program. Therefore, weproposed todisapprove theState's lack ofthese 

### four monitoring48 

### definitions as not meetingthe revised MajorNSR SIPrequirements. 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 ifthe 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 MajorNSR SIP requirements.

None ofthe provisions and definitions in the February 1, 2006, SIP revision submittal pertaining to the revised MajorNSR 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 MajorNSR 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 MajorNSR 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 definitionof"baseline actual emissions rate. In practice, TCEQ contends that a reading of the entire definition, including parts (a) - (d), results in an average emission 

### ratebeing usedto 

### establish abaseline actual emissionrate. This isbecause 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, ofa federally regulated new source review pollutant.
Response: We appreciate 

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

### definitionof"actual emissions" at 30 TAC 116.12(1) is based upon average emissions but the lackofa specific provision in the definition of"baseline actual emissions" to require such emissions to be 

### calculated as average emissions can 

### beinterpreted to be 

### less stringent than the federal minimum requirements because readers can interpret "the" emissions rate to be the highest rate insteadofan 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 ofEPA'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 equivalentprovision 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 equivalentto 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 limitsapplicability 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 ofexplicit 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 ofa 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 those52 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 cannotbe subjectto a PAL. 67 FR 80186, 80285 (December 31, 2002). 

### The submitted Texas PAL rules 

### donot 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 ofan actuals PAL/or

### any existing majorstationary 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 ofPAL permits only to existing major stationary sources, BCCA, TIP, and TCC commentthat the absence ofa 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 partofthe 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 

### PTEmust 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 permitconsisted ofPSD permit for a major expansion 

### with permitted emissions based on projected future actual emissions in combination with a PSD permitfor 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.

10See 31 Tex. Reg. 516, 527 & 528 (Jan. 27, 2006). II 67 Fed. Reg. 80,186, at 80,208 (Dec. 31, 2002). 121 d.

### 54 Response: EPAdisagrees that 

### Texas's rules areconsistentwith thefederal PAL provisions, and we find theabsence to areference to "existing" majorstationary sources to begrounds fordisapproval. Thefederal 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 ofits 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 correcterrors 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 ofPALs 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 anyemissions reductions usedas offsets. Theabsence 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 shouldbe 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 othercauses 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 Managerfor 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 ofprovisions 

### for PALre-openings is at least as stringent as the federal PALProgram SIPrequirements.

Comment 8: 

### TheClinic comments 

### that Texas illegally allows for ''partial PALs." Federal rules require that all units at a source be subjectto 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 emitthe PAL pollutant. 

### See 30 TAC 116.182(1). EPA stated in its proposal that inclusion ofall units at the source that emitthe PAL pollutantis an "essential feature of the federal PAL." Texas failure to require such provisionjustifies 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 emitthe 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 minorNSR 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 MinorNSR SIP revision. 

### TCEQ did not provide any demonstration, as required for a customized Major NSR SIP revision submittal, showing how the allowing ofan 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 ofprovision 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 ofall 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 ofonly 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 

### specifiedsource 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 

### beapproved.


### 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 analternative program is equivalentormore stringent ineffect. 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 ofPALs in ozone extreme areas. Federal rules prohibit the use ofPALs 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 ofair 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 clearhow thatrequirement applies. We do not need to reach the issue, however, because the scope ofour disapproval, i.e., the entire Texas PALs Program, is not changed even ifwe added this as a basis for disapproval.

Comment J

### 1: 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 onJune 2, 2010; theserules became effective onJune 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 116.740relates to thepublic participation requirements ofthePAL 

### program, this section is notseverable from the 

### PAL program. 

### Because we are disapproving the PALprogram, we are alsodisapproving the submitted 30 TAC 116.194.



### Comment 12: The Cliniccommented thatthe PALrules lack adequate public 

### participation. Texas's rules do notrequire PALs to beestablished, renewed, orincreased 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 ofaPAL permit and atleast 30day period for submittal ofpublic commenton the draft permit as required under 40 CFR 51.165(1)(5) and (11) and 51.166(w)(5) and (11). Furtherthe rules lack provisions for public 

### participation for PAL renewals oremission increases. There is norequirement that TCEQ address allmaterial comments before taking final action on thepermit. 

### Accordingly, these rules are less stringentthan thefederal rules.
Response: 

### EPA agrees with these comments. Thesubmitted rule does notmeet thepublic participation requirements for PAL asrequired in 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11). These rules require that PALs be

### established, renewed, 

### orincreased through aprocedure that is consistent with 40 CFR 51.160and 51.161; and61 

### whichrequire the programto includeprovisions for publicparticipation for PAL renewals or emissionincreases. The federal rulesfurther require that TCEQaddressall materialcomments before taking final action on thepermit, 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 clearthat PALs are subject to public notice and participation. The absence ofa 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 consistentwith 40 CFR 51.160 and 51.161, including the requirementthat the reviewing authority provide the public with notice ofthe proposed approval ofa PAL permit and at least a 30-day period for submittal ofpublic 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 requirementthat 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 toPALs. 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 September23, 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 Cliniccommented that

### Texas fails toinclude required monitoring definitions for PALs. While thefederal regulations define"continuous emissionmonitoring system(CEMS)," 

### "continuous emissionrate monitoring system (CERMS)," "continuousparameter monitoring system(CPMS)," and"predictive emissions monitoring system (PEMS)" 

### (see 40 CFR 51.165(a)(l)(xxxi), (xxxiv), (xxxiii), 

### and {xxxiij), 

### theTexasrules omitdefinitions. Becausethesedefinitions are crucial to enforcing and monitoring PALs,the lackofthese 

### definitions in Texas'sPAL rules make the PALrules less stringentthatthefederal rules.
Response: EPA agrees with this comment. See 74 FR 48467, at 48475, and 

### sectionIV.D.I ofthis 

### action.



### Comment /5: BCCAand TIP commented that EPAappears to beconcerned that themonitoring provisions are natseparately and discretely defined. Theycomment that Texas PALrules in 30 TAC 116.192(c)contain monitoring requirements that are

### 63 equivalentto the federal PAL rules. They also commentthat the absence ofdefinitions of CEMS, CERMS, CPMS and PEMS does not render the rules unenforceable. They 

### maintain that therules themselves identify anddefine eachtype ofmonitoring 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 operatorusing a CEMS to monitor PAL pollutantemissions 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 pollutantemissions. They claim

### that the absence ofseparate definitions does not impactthe 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]1Idefinitions concerning the monitoring systems in the revised Major SIP requirements are essential for the enforceability ofand 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 

### beapproved by EPA as meeting the requirements of40 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 MajorNSR SIP revision

### 64 submittal, showing how theabsence 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 clearthat 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" bemet. Examples include:

• 30 TAC 116.186(c)(I): "The PAL monitoring system 

### mustaccurately determine all emissions ofthe PAL pollutant in terms ofmass per unit of 

### time."

• 30 TAC 116.l86(c)(2) further specifies requirements that 

### shallbe met for any permit holder using mass balance equations, continuous emissions monitoring system ("CEMS"), continuous parametermonitoring 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 statementthat the PAL is rendered invalid unless the permit holder complies with these

### 65 

### requirements is unnecessary in light

### of theclearlymandatory monitoring requirements that 

### are equivalenttofederal requirements.
Response: EPA disagrees

### with thiscomment. Therules referred to by 

### the cornmenters only provide that the required monitoring be met, buthas no provisionthat the PALbecomes invalidwheneveramajor stationary source 

### with a PALPermit or any emissions unitunder such PAL is operated without complying

### with therequired monitoring, as required under 40 CFR 51.l65(f)(12)(i)(D) and 51.166(w)(i)(d). 

### TCEQ 

### didnot 

### provideanydemonstration, as required for a customizedMajorNSR SIPrevision submittal, showing how the lackofa requirement invalidating the PALifthere is no compliance with therequired monitoring, is at least as stringentas thefederal PAL Program 

### SIP requirements.



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

### Revision forMajorNSR 

### withPALProvisions?

EPA is disapproving thesubmitted Major NSR Reform SIP Revision forMajor NSR with PALprovisions. We aredisapproving the followingnon-severable revisions that 

### address the revisedMajorNSR 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 ofSignificantDeterioration Review; 30 

### TAe 116.192

- Amendments and Alterations; 30 TAC 116.194

- Public Notice and Comment; 30 TAC 116.196

- Renewal ofa 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 ofa 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 ofa 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 ofpublic 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 

### becalculated 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 thesesubmitted 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 MajorNSR 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, ourbackground for these submitted SIP revisions in section IV.D.I above, and ourresponse to comments on these submitted SIP revisions in section IV.D.2 above for additional information.



### E. The SubmittedNon-PALAspects of the Major NSR SIP Requirements

I. What is the Background for the SubmittedNon-PAL Aspects ofthe MajorNSR 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 ofState law that a "facility" can be an "emissions unit," i.e., any part ofa 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 otherthan emission control equipment."

## 68 also can be a piece ofequipment, which is smaller than an "emissions unit." A "facility" 

### caninclude morethan 

### one "majorstationary source." It

### caninclude everyemissions point on acompany site,without limiting theseemissions points to onlythosebelonging to the same industrial grouping (SIP code). In ourproposed 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 MajorNSR 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 ofemissions resulting from startups, shutdowns, and malfunctions". Ourunderstanding ofState law is that the
use ofthe term "may" "creates discretionary authority or grants permission or a power.

16The submitted definition of"baseline actual emissions," is as follows: Until March 1,2016, emissions previously demonstrated as emissions events orhistorically 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 beincluded. 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 ofa 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 peryear 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 NSRnon-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 

### MajorNSR SIP Requirements?

Comment 1: TCEQ responded to EPA's request concerning its interpretation of 

### Texas lawand theTexasSIP with 

### respect to theterm 

### "facility." Thedefinition of "facility" is thecornerstone 

### of theTexas

### Permitting Programunderthe TexasClean Air Act. In addition, toprovide 

### clarity and consistency, TCEQ alsoprovides 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 "adiscrete or 

### identifiable structure, device,item, equipment, orenclosure that constitutes orcontains 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 notconsidered to be afacility." A facility maycontain a stationary source - pointof origin ofa contaminant. Tex. Health & 

### Safety Code 382.003(12). As a discrete point, 

### TCEQ contends that, under Federal law, 

### a facility canconstitute butcannot contain a major stationary source as defined by Federal law. 

### A facility is subjecttoMajorand Minor NSRrequirements, depending on thefacts ofthe 

### specificapplication. Under71 MajorNSR, EPA uses the term "emissions unit" (generally) when referring to a part ofa "stationary source," TCEQ translates "emissions 

### unit" to mean "facility,,,17 which TCEQ 

### contends is at leastas stringent as Federal rule. TCEQ and itspredecessor agencies have consistently interpreted facility to preclude inclusion ofmore 

### thanone stationary source, in contrastto EPA's stated understanding. Likewise, TCEQ does not interpret facility to include "every emissions point on a company site, even 

### iflimiting these emission points to only those belonging to the same industrial grouping (SIC Code)." The Federal definition of"major stationary source" is not equivalentto 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 ofa "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 particularmeaning, 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 andjudicial interpretation recognize 

### Chevron l 9and follow similar analysis as

17 The tenn "facility" shall replace the words "emissions unit" in the referenced sections ofthe 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 ofthe 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 ofCongress 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 acertain regulatory area"be 

### givena largedegree oflatitude in themethods it uses to accomplish its 

### regulatory function." 

### PhillipsPetroleum Cov. 

### Comm 'n onEnvtl. Quality, 121 S.W.3d 502, 508 (Tex.App.-Austin 2003, no pet.), which cites Chevron to support the following: "Ourtask is to determine whether an agency's decision is based upon a permissible interpretation ofits statutory scheme." Further, Texas courts construe the test ofan administrative rule under the same principles as if

### it were a statute. 

### Texas Gen. Indem. 

### Co. v. Finance Comm ·n, 

### 36 S.W.3d 635,641 (Tex.App.-Austin 2000, no pet.). Texas Administrative agencies have the powerto 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." 

### ReliantEnergy, 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 benecessary in the absence ofan 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 ofa major stationary source, a "facility" under Texas law can be a part ofa 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 ofdeference 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 

### itsroles unacceptably vague. Texas's use of this term isproblematic because ofits 

### 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 interpretthe general definitions. 

### Ifone cannotuse the Nonattainment NSR definitions to interpretthe 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 oforigin ofair contaminants, whether privately or publicly owned or operated." Pursuantto this reading, a facility is more like
a Federal "emissions unit." 40 CFR 51.l65(a)(I)(vii). "Emissions 

### unit' means any part ofa 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 commenterurges 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 agreeswith 

### this comment. See ourresponse to comment 1 above for further information.



### Comment3: 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 

### partofChapter 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 otherthan 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 similarto 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 otherthan emission control equipment. 

### See 30 TAC 122.10(8). Under the express terms of30 TAC 116.10, the definition of"facility" is clear, and is equivalentto the federal definition of

### 76
"emission unit" in the nonattainment

### NSRnon-PAL rules, as 

### itis throughout Chapter 116.


### Response: EPA disagrees 

### with these comments. See ourresponse 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 ofzero. Further, TCEQ rules do not authorize malfunction emissions. TCEQ has concerns about crediting a major source 

### withan emission associated 

### with malfunctioning ofequipment 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 ofemissions events to 

### be included in the baseline actual emissions will be effective in terms ofenforceability, compliance assurance, and ambient impacts. Second, the Texas definition of"projected actual 

### emissions" does not include emissions from startups, shutdowns and malfunctions in contrastto 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 ofState 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 definitionprovides director discretion whether to include these types ofemissions. 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 ofemissions events to be included in the baseline actual emissions will be effective in terms ofenforceability, compliance assurance, and ambient impacts. This would include a replicable procedure for use ofany 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 revisionsubmittal, that the submittedprovision that may exclude anyemissions from maintenance, startup, and shutdown from the definition ofbaseline 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 acustomized MajorNSRSIP revision, that

### excluding these emissions from projected actual emissions, is atleastasstringent asthe federal non-PALs SIP requirements. (EPA also wishes to note that the submitted definition of baseline actual 

### emissions isunclearhowTCEQ willinclude authorized emissions events asbaseline actual emissions and projected actual emissions onand afterMarch 1,2016.)
With respect to one aspect 

### specifically related toemissions associated with 

### malfunctions, EPAappreciates Texas'sconcern that including malfunction emissions in 

### thebaseline and projected actual emissions would inflate thebaseline and narrow

### thegap betweenbaseline and planned emissions. EPA acknowledges that 

### ithas approved the exclusion ofmalfunction

### emissions from thebaseline calculation inother 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 aspart 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 ofemissions increases associated with the project. 

### Floridais alsoconcerned 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.

Afterreviewing Texas's comments on exclusion ofmalfunctions from its baseline actual emissions and projected actual emissions, we note that TCEQ voices concerns similarto 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 

### beapprovable, 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 bothrequire thatnoncompliant emissions be excluded from the determination ofbaseline actual emissions." Based on the Texas rules' integration ofpending 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 typesofemissions is areasonable 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 ofexcluding malfunction emissions from the calculation ofbaseline emissions." In approving this approach, EPA noted 

### "The intent behind this optional calculation methodology is that 

### it may result in a more accurate estimate ofemission increases. The federal rules allow for some flexibility, and EPA supports EPD's analysis that the Georgiarule 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 ofauthorizing maintenance, startup, and shutdown emissions. Theproposed SIP revision and TCEQ's current approach is sound and reasonable based on historical treatment of 

### maintenance, startup, andshutdown emissions in Texas airpermits. and is notgrounds for disapproval ofthe proposed SIP revision.


### Response: EPA disagrees with this comment. See the response to Comment4 above for more information.



### Comment6: The Clinic comments that Texas definition of"baseline actual emissions" is less stringentthan 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 1 16.12(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 1 16.12(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 largerproblem 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 ofany 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 commentrelated to the inclusion ofemissions associated with authorized maintenance, startup, and shutdown in the baseline actual emissions. See

23 See "Letterto Richard Hyde, TCEQ, DirectorAir Pennits Division" from JeffRobinson, EPA, Region 6, Chief, Air Permits Section (May 21, 2008XAttachment7 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 thisaction.

Comment 7: The Clinic comments that Texas definition of"projected actual emissions" is less stringentthan the federal definition. The federal regulations define "projected actual emissions" to include maintenance, startup, and shutdown emissions. See40 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 limitthe definition of"facility" to an "emissions unit", It 

### is our understanding ofState law that a "facility" can 

### bean "emissions unit," i.e., any 

### partofa 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 ofequipment, which is smallerthan 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 MajorNNSR 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," as submitted in 30TAC 116.12(3)(E), does not require the inclusion ofemissions resulting from startups, shutdowns, and 

### malfunctions asrequired underfederal regulations. Thesubmitted definition ofbaseline 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 ofState 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 ofa demonstration from the State, as is required for a 

### customizedMajor NSR SIP revisionsubmittal, EPA is disapproving thedefinitions 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

### withmalfunctions from the calculation ofbaseline 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 

### becalculated 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 thisdifferentdefinition is at least as stringent as the federal SIP definition. Therefore, EPA is disapproving the submitted definition of "baseline actual emissions" found at 30 TAC 116.12(3) as not meeting the revised major NSR SIP requirements.

EPA received comments from TCEQ. the Clinic, and industry regarding the proposed disapproval 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, ourbackground for these submitted SIP revisions in section IV.E.1 above, and ourresponse to comments on this these submitted SIP revisions in section IV.E.2 above for additional information.

F. 

### The SubmittedMinor NSR StandardPermit for Pollution Control ProjectSIP Revision

1. What is the Background for the Submitted MinorNSR Standard Permit for Pollution Control Project SIP Revision?

## 90

EPA approved Texas's general regulations for Standard Permits in 30 

### TAe SubchapterF 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 

### beadequately 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 ofcertain sources in categories that contain numerous similar sources. 

### EPAapproved theprovisions forissuing andmodifying standardpermitsbecause, among other things, the submitted rules required the following: (1) no major stationary source or major modification subject to part C orpart 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 ofemissions 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 commentperiod, and TCEQ

### 91
mustaddress allcomments received from thepublic before finalizing its actionto issueor reviseastandard permit. Based uponthe above and asfurther described in the TSDfor the approval action, EPA found that the submitted Texas MinorNSR 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 

### beissued for similar
sources. The issuance ofa 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 ofan individual standard permit would be replicable. This is a key componentfor the EPA authorization ofa 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 ofthe Texas MinorNSR 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 ofa new PCP Standard Permit at 30 TAC 116.617

- State Pollution Control

### 92 ProjectStandard 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 of New York. et alv. 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 MajorNSR 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 limitedto new or existing similar sources, such that the affected sources can 

### meet the Standard Permit's 

### standardizedpermit 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 standardizedpermitconditions 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, source24The 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 Subchapterby 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 minorNSR SIP rules, ifthese types ofdeterminations are necessary, under the Texas Minor NSR SIP, the 

### State is requiredto 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 MinorNSR Standard Permit for Pollution Control Project SIP Revision?



### Comment 1.' TCEQ commented that its PCP Standard Permithas 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 ofour 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 Cliniccomments thatthe 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 theminimum 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 anysource type. See 30 TAC 116.617(a). Further, thepermit itself does not haveemission limits or monitoring; instead, a facility is permitted to include site-specificlimitsand monitoring requirements in itsapplication for coverage under a PCPStandard Permit. 

### See 30 TAC 116.617(d)(2). The PCP Standard Permit includes a generic statementthat the pennit 

### mustnotbe 

### usedtoauthorize changes for whichtheExecutive DirectoratTCEQ determines whether "there are health effectsconcerns or thepotential to exceed anational ambient air quality standard criteriapollutant orcontaminantthat results from anincrease in emissionsofany air contaminantuntilthoseconcerns are addressed by theregistrant." See 30 TAC 116.617(a)(3)(B). This provision itself, without specific emission limits and 

### monitoring requirements in thePCP Standard Permit, ininadequate toprotectthe NAAQS,and is anacknowledgementthatprovisions on theface ofthe 

### PCP Standard Permitare notsufficienttoassure protection ofthe 

### NAAQS and PSDincrements. The commenter supports EPAtaking actiontodisapprove and tofurther require facilities that have emissionsauthorized underthe PCPStandard Permitto seek afederally valid authorization.

### 95 Response: EPA agrees with the comments that the submitted PCP Standard 

### Permit does notmeet therequirements of the TexasMinorNSRStandard 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 Directorto 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, butrather to review for impacts on air quality and disallow use ifair 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 

### thatlacks a discretionary denial provision.
Moreover, the PCP is a minorNSR authorization. The CAA does not establish requirements for a state's minorNSR 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."

25In 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 ofPart 

### 51 insuggesting a bar onapproval ofgeneral orstandard permits. The mannerin which TCEQ implements the PCP standard permit is reasonable and practical, and a decision to reject the 

### PCPstandard permit is a decision to reject an important minorNSR 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 

### withthis comment. We are not disapproving the Texas PCP Standard Permitbecause under the Texas MinorNSR 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 MinorNSR 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 ofa 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 MinorNSR SIP. The submitted revision

### 97 

### allowstheExecutive Directorto selectively review for impactson air quality and disallow use ifair quality would be negatively impacted or even revise the emission limit 

### to avoidnegative air qualityimpacts. It 

### grants theExecutive Director too much discretion to act selectively and make site-specific determinations outside the scope ofthe 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 Permitpromulgated 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 Directorfor holders ofa 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 ofa 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 Directorretains the authority to exercise discretion in the evaluation ofeach 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 vehicle01thecase-by-case MinorNSR SIP permit, not using a MinorNSR SIP Standard Permit as the vehicle. While Minor NSR SIP permitprograms are given great flexibility, they cannot interfere with attainment and must meet the requirements for minor NSR. The Executive Director's selective application ofhis 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 Directormay exercise such discretion in casespecific determinations in the absence ofgeneric, 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 Permitto a source. Ifan individual Standard Permitrequires any customizations for a holder, then this particular Standard Permit no longer meets the requirements for the Texas Standard PermitProgram SIP. This customized Standard Permit

### has morphed into a case-by-case MinorNSR SIP permit and must meet the Texas NSR SIP requirements for this type ofpermit.



### 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 thatNAAQS are achieved. TeC also comments that Parts C (PSD) and D (NNSR) are not implicated because PCP Standard Permits are expressly

### 99 madeunavailable to major sources and majormodifications. Allcommenters indicated that narrowing the scope ofprojects that can qualify for the expedited standard permit 

### approval (orrequiring rCEQ to promulgate sourcecategory-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 ofPCPs does not meet the SIP's requirements. 

### The scope of a StandardPermitpromulgated byrCEQ is governed by therCAA and the SIP's generalregulationsfor StandardPermits in 30rAC Subchapter F oDD TAC Chapter 116. These do not provide for the issuance ofa Standard Permitfor dissimilar sources. They provide for the issuance ofa Standard Permitfor similar
sources so that its permitterms 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 PCPauthorizations are notunique to Texas and EPA's concerns with Texas PCP Standard Permit is too broad, is misplaced, and fails 

### torecognize theregulatory restrictions inplace, and thebenefits 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 ofpollution 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. 

### Byproposing disapproval ofthe Texas PCP program, EPA is holding Texas to a vastly more stringent approach and is designed tojudge 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 MajorNSR SIP requirements. See 

### State of New forh. EPA, 413 F 3d. 3 (D.C. Cir. 2005). These exemptions ofPCPs from MajorNSR 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 beenissuing Standard Permits for PCPProjects since 1994. TAB comments that the standard permitprogram was administered for several years with no suggestion ofprogrammatic abuses, and more importantly. no examples given by anyone ofunintended 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 SubchapterF of30 TAC Chapter 116 on November 14, 2003 (68 FR 64548) as meeting the minorNSR 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 isunapprovable becauseit 

### is not limited to a particularnarrowlydefined sourcecategory that the permit is designed to cover and
can 

### beused 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 ofa SIP revision. Any EPA pronouncementthat 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 commenterconcludes that ifEPA wants to disapprove a submitted SIP revision ofa 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 particularnarrowly 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 intentto fill gaps or qualify any provision of40 CFR 51.160. TAB further comments on EPA's cites to a series ofFederal Registers on actions taken on other states' minorNSR programs. The commenter states that these actions offer no explanation ofhow these particular actions illuminate EPA's proposal to disapprove Texas' PCP Standard Permit. TAB further comments on EPA's cites to a series ofFederal Registers on actions taken on other states' minorNSR programs. The

### 103
commenter states that these actions offer no explanation of

### howthese 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 ofa 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 ofa National Ambient Air Quality Standard (NAAQS). The memoranda cited in the proposal were cited for the purpose ofproviding documentary evidence ofhow EPA has exercised its discretionary authority when reviewing general permitprograms similarto the Texas Standard Permits SIP. They also collectively provide an historical perspective on how EPA has exercised its discretion in reviewing regulatory schemes similarto 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 Requirementsfor Limiting Potential to 

### Emit through SIP andsection 112 

### rules and Generalpermits, Memorandum from Kathie A Stein, Office ofEnforcement and Compliance Assurance, January 25,

### 104 1995, discusses on page6 theessential characteristics ofa generalpermit

### thatcoversa homogenous group ofsources.
Again, the 

### Federal Registercitations 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 permitprograms 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 ofpermit schemes ofthis nature. The cited notices address requirements for approval ofgeneral permitprograms submitted as SIP revisions and are illustrative ofregulatory policy applied by EPA in reviewing Standard Permitprograms 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 ofdiscretionary authority in reviewing a variety ofproposed 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 cannotbe used to make site-specific determinations that are outside the scope of this type ofpermit. 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 permitprogram not interfere with the attainment ofthe105 NAAQS. Consequently, the commenter's failure to find relevant information to 

### illuminate EPA's decisionto disapprove the submitted Texas' PCPStandard Permitis not
a reflection on the utility of the citeddocuments.

Comment8: TAB concludes by observing that there is no evidence ofStandard Permit Program failure or adverse comments. The commenter criticizes EPA for not taking action on the 

### PCPStandard 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 ofa PCP Projectthat failed to protectpublic health or welfare, or could not be enforced, or that did not accomplish its valuable purpose ofquickly, but carefully, authorizing emission reduction projects.


### Response: EPA disagrees with this comment. The standard for review in this contextis not the existence ofadverse comments or failure in the implementation ofa 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 Groupv, 

### 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 criteriafor review ofsubmitted revisions. In this particularinstance, EPA's review is limited to Texas's submission ofa SIP revision for a new PCP Standard

### 106 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 

### theminorNSR SIP requirements.

3. Whatare the Grounds for Disapproving the SubmittedMinor NSR Standard 

### Permit for Pollution Control Project SIP Revision?

EPA

### is disapproving thesubmitted Minor NSR Standard Permit 

### forPollution Control Project SIP revision because the PCPStandard Permit, asadopted and submitted by Texasto EPAforapproval into the TexasMinorNSR SIP, does not meet the requirements ofthe 

### TexasMinor NSR Standard Permits Program. It 

### does notapply to similar sources. Because

### itdoes notapply to similar sources, 

### itlackstherequisite replicable standardized permit terms specifyinghow theDirector's discretion is to be 

### implemented forthe case-by-casedeterminations.



### EPAreceived comments from TCEQ, theClinic, and industry regarding the proposed disapproval ofthese 

### submitted SIP revisions. See our response to these comments in sectionIV.F.2 above. Because the PCPStandard Permit, 

### in 30 TAC 116.617,does not meetthe TexasMinor 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 SIP107 

### revisionsin sectionIV.F.l 

### above, and our responseto comments on these submittedSIP revisions in section 

### IV.F.2above for additional information.



### G. NoAction 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, SubchapterA, 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)of the Actand/or RestoringanExplanation that a Portion 0/30 rAC 116.115 

### is not in the SIP Because it ImplementsSection 112(g) of the Act.

Texas originally submitted a new Subchapter C - Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, § 112(g), 40 CFR Part 63) on July 22, 1998. EPA has not taken action upon the 1998 submittal. In the February 1, 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 to108 

### SubchapterE. These SIP revision submittals apply to thereview and permitting 

### of constructed and reconstructed major sources ofhazardous 

### airpollutants (HAP)under section 112 ofthe Act and 40 CFR part 63, subpart B. The process for these provisions is 

### carried outseparately from theSIPactivities. SIPscovercriteriapollutants and their precursors, as regulated by NAAQS. Section 112(g) ofthe Actregulates HAPs, this 

### program is notundertheauspices ofasection 110SIP. and thisprogram should notbe approved into theSIP. These portions ofthe 1998and 2006submittals are severable. Forthesereasons we proposed to takeno actionon thisportion relating to section 112(g) ofthe 

### Act. See 74 FR48467, at48476-48477. We received no comments on this 

### proposal. Accordingly, we are taking noaction on therecodification ofSubchapter C to Subchapter (d) and 30 TAC 116.61O(d).



### In arelated matter, we are making anadministrative correction to anearlieraction 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. 

### Inthisaction, we are making anadministrative correction to restore intothe Codeor Federal Regulations theexplanation that theSIP does notinclude 30 TAe lI6.115(c)(B)(ii)(I).

### 109

1. 

### NoAction on Provision Relating to Emergency and Temporary Orders



### Weproposed totake no actionupon theFebruary 1,2006, SIP revision submittal which recodified theseverable provisions relating to Emergency Orders from 30TAC Chapter 116, Subchapter E to a new Subchapter 

### K. See 74 FR 48467, at 48477. We 

### receivedno comments on thisproposal. Accordingly, we will takeappropriate actionon theEmergency Order requirements in a separate action,according to the ConsentDecree 

### schedule.
J Responses to General Comments on the Proposal



### Comment 1: The followingcommenters support EPA'sproposal todisapprove the Texas NSR Reform Program, I-hour NNSR, 1997 8-hourNNSR, and PCP Standard 

### Permit: HCPHES; several members ofthe 

### Texas HouseofRepresentatives; 

### theSierra Club; the CityofHouston, and theClinic. 

### Response: Generally, thesecomments support EPA'sanalysis ofTexas's NSR Reform Program, I-hour NNSR, 1997 8-hourNNSR, and PCP Standard Permit, as discussed in detail at in the proposal at 74 FR 48467, at 40471-48476, and further support 

### EPA'saction todisapprove the TexasNSR Reform Program submission

### 110 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 acomment 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 ofany new coal fired powerplants; 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 powerplants than any other state in the nation; (2) Is number one in carbon emissions; and (3) Is on the list for the largestincrease 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 ofcommitment by TCEQ to protect air quality, the need for clean energy efficient growth, impacts upon human health, endangerment ofwildlife, impacts on creation offuture 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 ofour 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 ofall EPA comments and propose changes to the rules proposed for disapproval.
TCEQ understands EPA's concerns with issues regarding, among otherthings, applicability, clarity, enforceability, replicable procedures, recordkeeping, and

### 112 compliance assurance. Specifically, theExecutive Directorwillconsider 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 ofnonattainment permitting rules; 

### • Clarifythe 

### definitionofbaseline actual emission rate, and

### clarifythe inclusion ofmaintenance, startup, and shutdown emissions when determining baseline actual emissions; and

• Add

### missingitemsand 

### clarify the existing requirements to obtain and 

### comply with a PAL to meet FNSRrequirements.

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.

### 113
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 ofpermits-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 ofpenn

### itby-rule violates the Act and Texas's approved SIP?7 Yet EPA has failed take action to stop the illegal use ofpermits-by-rule.

26 For example, 30 TAC 106.261, 106.262, 106.263, and 106.264. 27 See "Letterto 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 ofemissions, such as startup or shutdown emissions, or that modify an existing NSR pennit."XAttachment to ofthe Clinic's comments); "Letterto Richard Hyde, TCEQ, Director, Air Permits Division" from JeffRobinson, EPA Region 6, Chief, Air Permits Section (November 16.2007XAttachment 11 ofthen Clinic's comments); "Letterto 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); "Letterto Lola Brown, TCEQ, Office ofLegal Services"

### 114

Response: Any action on Texas's use ofpennits-by-rule, as requested 

### bythe 

### commenter, is outside the scopeof ouractions in thisrulemaking.

Comment 5: Concerned Citizens ofGrayson expressed concerns about a hot mix asphalt plant located near the small town ofPottsboro, 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 Permithas been authorized.


### Response: These comments do not relate 

### tothe submitted Standard Permitfor 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 otherdisapprovals may 

### jeopardize orsubstantially delay theability ofelectric generators toobtain necessary air permits to install pollution controls that will be necessary to comply with current and 

### future rules; and prompt EPAapproval oftheproposed TCEQ NSR SIP Revisions is neededinorderto provide theregulatory certainty necessary for economicdevelopment, 

### creation of critically neededjobs,and generation ofaffordable, reliable electricity in Texas.


### Response: We aredisapproving thesubmitted TexasNSR Reform Program, 1- hour NNSR, and PCP Standard Permit programs because they do not meet applicable 

### requirements oftheAct, asdiscussed herein. EPA isrequired toreviewaSIP revision for its compliance 

### with the Actand 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 thatunder Texas'sintegrated air permitting regime, airquality in the stateis demonstrating strong, sustained improvement. Thecommenters cite to substantial reductions innitrogen oxides and improvements in the ozoneconcentrations in theHouston-Galveston and Dallas-Fort Worth ozonenonattainrnentareas. 

### Response: Weare disapproving thesubmitted TexasNSR Reform Program, 1997 8-hourNNSR, I-hourNNSR, 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 andEPAregulations. 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

### ifthecornmenters' premises are to beaccepted, they fail to substantiate their claim that the Texas NSR Reform Program, I-hourNNSR, 1997 8-hourNNSR, aod PCP 

### Standard Permitprograms have hadasignificant impact onimproving airquality in Texas

### byproducing data showingthat any such gainsare directly attributable to the submitted Programs, and are notattributable to theSIP-approved control strategies (both state and federal programs) orother federal andstateprograms. Theyprovide no 

### explanationorbasis for howtheirnumbers were derived.
Furthermore, since thecommenters thought EPA wasacting inconsistently. they shouldhaveidentified SIPsthat are inconsistent with ouractionsandprovided technical, factual information, 

### notbare assertions.

Comment 8: GCLC, TIP, BCCA, AECT, aod TCC commentthat EPA ignores 

### thefact that the TexasNSR Program hashad asignificant impact onimproving air quality in Texas. TCEQ commented thatsignificantemissionreductions have been achievedby thesubmitted Program through thelarge number ofparticipating

### 117 grandfathered facilities, which resulted in improved air quality 

### baseduponthe monitoring data.
BCCA, TAB, TxOGA, and ERCC commentthat the legal standard for evaluating 

### a SIPrevision forapproval is whether thesubmitted revisionmitigates any effortsto attain compliance with 

### aNAAQS. 

### EPA's failure to assess the single mostimportant factor in thesubmitted Program, thepromotion ofcontinued airquality improvement, is inconsistent 

### with case lawand the Actand is a deviation from the SIPconsistency processandnational policy. EPAshould perform adetailed analysis ofapproved SIP programs through the UnitedStates and initiate the SIP consistency process withinEPA to ensure fairness to Texasindustries.


### Response: EPA

### isrequired to review SIP revisionssubmission fortheir 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 

### tothe TexasNSRSIP submitted by

### theState ofTexas 

### thatrelate to the Nonattainment NSR (NNSR) Program for the I-Hour Ozone Standard and the 1997 8- 

### Hour OzoneStandard, NSR Reform, and a specific Standard Permit. 

### Further, EPA is not required to initiate the SIP consistency process within EPA unless the pending SIP 

### revisionappears to meet

### alltherequirements ofthe 

### Actand EPA's regulations butraises a novel issue. EPA is disapproving thesubmitted revisions becausethey fail to meet the

### 118 Actand EPA'sregulations. Because thesubmitted revisions fail to meetthe requirements for a SIPrevision, theSIP consistency process is notrelevant.

Comment9: TheERCC commentsthatto avoid negativeeconomic consequences EPA shouldexerciseenforcement discretion statewide forsources that obtained 

### government authorization in goodfaith and asrequired byTCEQ. theprimary permitting 

### authority. EPA should notrequire anyinjunctive reliefand should considerpenalty only cases in thisrulemaking.
Response: 

### EPA enforcement 

### of theCAAin 

### Texas isoutside thescopeofour actions.

V. Final Action

Under section 110(k)(3) ofthe Act and for the reasons stated above, EPA is 

### disapproving thefollowing: (1) thesubmitted definition 

### of "bestavailable control technology" in 30 TAe 116.10(3); (2) Major NSR in areas designated nonattainment for 

### the I-hour ozoneNAAQS; (3) MajorNSR inareas designated nonartainment for the 1997 8-hour ozone NAAQS; (4) Major NSR SIP requirements for PALs; (5) Non-PAL 

### aspects MajorNNSR SIP requirements; and(6) submittals for aMinor Standard Permit forPCP. EPA is alsoproposing totake no actiononcertain severable revisions submitted June 10,2005, and February 1,2006.

### 119 

### Specifically, we are disapproving the followingregulations:

• Disapproval ofthe definition ofbest available control technology at 30 TAC 116.10(3), submitted March 13, 1996, and July 22,1998;



### • Disapproval ofrevisions 

### to 30 TAC 30 TAC 116.12and 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.



### Weare alsotaking noaction on theprovisions identified below:

• the revisions to 30 TAC 101.1- Definitions, submitted June 10,2005;



### • therecodification ofthe 

### existingSubchapter Cunder30 TAC Chapter 116 to a
new Subchapter E under 30 TAC Chapter 116;

• the provisions of

## Su TAC 116.610(d); and120 • 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 

### toreinstate 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 subjectto the requirements ofthe federally approved Texas MajorNSR 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 "significantregulatory action" subject to review by the Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October4, 1993).



### B. PaperworkReductionAct

### 121 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 collectionburden, the PaperworkReduction Act does not apply.
C. 

### Regulatory FlexibilityAct

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis ofany 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 governmentaljurisdictions. 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 governmentaljurisdictionthat is a government ofa city, county, town, school district or special district 

### with a population ofless 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 disapprovals122 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 offlexibility 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. UnfundedMandates 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 the123 private sector. This Federal action determines that pre-existing requirements WIderState
or local law should not be approved as part ofthe Federally approved SIP. It imposes no 

### newrequirements. Accordingly, noadditional coststo State, local, or tribalgovernments,
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 

### toinclude 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 ofgovernment."

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 ofpower and responsibilities established in the Clean Air Act. Thus., Executive Order 13132 does not apply to this action.124 

### F. 

### Executive Order 13175, 

### Coordination With Indian Tribal Governments
Thisactiondoes not havetribalimplications, as specified inExecutive 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 orpreempt 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 ofpower and responsibilities between the Federal government and Indian tribes. This action does not involve or impose any requirements 

### that affect Indian Tribes. Thus, Executive Order 13175 does not apply to this action.
G. 

### Executive Order 13045, Protection of 

### Children From EnvironmentalHealth Risks andSafety Risks

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern healthor safety risks, such that the analysis required under section 5-501 ofthe Executive Orderhas 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-ofitselfcreate125 

### any newregulations but simplydisapprovescertain Staterequirements for inclusion into the SIP.



### H Executive Order 13211, 

### Actions That SignificantlyAffectEnergy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because 

### it is not a significantregulatory action under Executive Order 12866.


### L National Technology Transferand 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, testmethods, samplingprocedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTIAA directs EPAto 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 Clean126 Air Act. Today's action does not require the public to perform activities conducive to the


### use ofVCS.

J Executive Order 12898: 

### Federal Actions toAddress EnvironmentalJustice in Minority Populations andLow-Income Populations

Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes Federal executive policy on environmentaljustice. Its main provision directs Federal agencies, to the greatest extentpracticable and permitted by law, to make environmentaljustice 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 environmentaljustice 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 andwill not in-and-ofitselfcreate 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. 

### CongressionalReview 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 "majorrule" as defined 

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



### 1. PetitionsforJudicial Review

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuitby 

### [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication 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 forjudicial review may 

### be filed, and shall not postpone the effectiveness ofsuch rule or 

### action This action may not 

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

### 128 List ofSubjects iu 40 CFR Part 52


### Environmental protection, Air pollution control, Carbon Monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,Particulate matter, Reporting andrecordkeeping requirements, Sulfuroxides, Volatileorganic 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 ofplan. 

### * * * * * (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 revisionsubmittals under 30 TAC Chapter 116 - Control ofAir Pollution

### byPermits forNew Construction andModificationas follows:
(I) 

### The following provisions in 30 TAC Chapter 116, Subchapter A

### Definitions:
(i) 30 TAC 116.10 - General Definitions - the definition of "BACT" in 30 TAC 116.10(3), adopted February 14, 1996, and submitted March 13, 1996; and repealed and readopted June 17, 1998, and submitted July 22, 1998;


### (ii) 

### Therevisions to 30 TAC 116.12- NonattairunentReview Definition, adopted May 25, 2005, and submitted June 10, 2005;


### (iii) The revisions to 30 TAC 116.12 - Nonattainment and Prevention ofSignificantDeterioration Definitions,adopted January 11, 2006, and 

### submitted February 1,2006 (whichrenamed thesectiontitle);

### 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 forEmission Increase, adopted January II, 2006, andsubmitted February 1,2006;
(3) 

### The following sections in 30 TAC Chapter 116, Subchapter B
- New 

### Source ReviewPermits, Division 5 - NonattainmentReview:
(i) Revisions to 30 TAC 116.150 - New Major Source or 

### Modification in OzoneNonattainment Area - revisionsadopted May 25, 2005, and submittedJune 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 

### SignificantDeterioration 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 ofa 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;