27644 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 

1 John Walke, Natural Resources Defense Council, 

EPA–HQ–OAR–2003–0064–0116.1. 

2NRDC v. EPA, No. 09–1103 (DC Cir.). 

The latter action established an effective 

date of May 18, 2010. On the same day 

as the first action delaying the 

effectiveness of the NSR Aggregation 

Amendments, the EPA convened a 

proceeding for reconsideration in 

response to a petition from the Natural 

Resources Defense Council (NRDC).1See 

74 FR 7193 (February 13, 2009). In 

addition to filing a petition for 

reconsideration with EPA, NRDC also 

filed a petition for review of the NSR 

Aggregation Amendments in Federal 

Court.2

On April 15, 2010, we published in 

the Federal Register a notice soliciting 

comments on the NRDC petition for 

reconsideration (75 FR 19567). In that 

notice, we solicited comment on 

revoking the NSR Aggregation 

Amendments and reverting to our 

policies on aggregation as they existed 

prior to the Amendments. We requested 

comment on whether the NSR 

Aggregation Amendments are 

inconsistent with the statute and key 

legal precedent, do not properly resolve 

the relevant policy issues, raise 

implementation concerns, and 

otherwise do not sufficiently clarify our 

aggregation policy to justify abandoning 

our prior policy. Additionally, we 

proposed to further delay the effective 

date for the NSR Aggregation 

Amendments beyond May 18, 2010. 

Under section 705 of the APA, ‘‘an 

agency * * * may postpone the 

effective date of [an] action taken by it 

pending judicial review.’’ The provision 

requires that the agency find that justice 

requires postponing the action, that the 

action not have gone into effect, and 

that litigation be pending. As described 

above, the latter two requirements 

plainly are met. We find that justice 

requires postponing the effectiveness of 

the NSR Aggregation Amendments 

because allowing the rule to become 

effective when the Agency has 

expressed serious concerns about its 

viability and policy soundness would 

lead to confusion in the regulated 

community and the public as well as 

create difficulties for implementing 

agencies administering the program. 

We also note that the comment period 

for the April 15, 2010 notice ends on 

May 17, 2010. We would not be able to 

review and respond to comments on 

that notice before the NSR Aggregation 

Amendments would become effective 

on May 18, 2010. The failure to 

complete the reconsideration or the 

proposed delay in the effective date 

would result in the confusion and 

difficulties noted above. Therefore, we 

find that justice requires postponing the 

effectiveness of the NSR Aggregation 

Amendments in order to allow for 

proper evaluation of the comments on 

the April 15, 2010 notice. 

II. Issuance of a Stay and Delay of 

Effective Date 

Pursuant to section 705 of the APA, 

the EPA hereby postpones the 

effectiveness of the NSR Aggregation 

Amendments until resolution of the 

proceeding for judicial review of this 

rule or the completion of the 

reconsideration process. By this action, 

we are delaying the effective date of FR 

Doc. E9–815, published in the Federal 

Register on January 15, 2009 (74 FR 

2376). This delay of effectiveness will 

remain in place until judicial review is 

no longer pending or EPA completes the 

reconsideration process. 

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Aggregation, Air pollution control, 

Baseline emissions, Intergovernmental 

relations, Major modifications, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Aggregation, Air pollution control, 

Baseline emissions, Intergovernmental 

relations, Major modifications, 

Reporting and recordkeeping 

requirements. 

Dated: May 6, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–11299 Filed 5–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0148; FRL–9151–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Revisions to the Discrete Emission 

Credit Banking and Trading Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving severable 

portions of two revisions to the Texas 

State Implementation Plan (SIP) 

submitted by the State of Texas on 

October 24, 2006, and August 16, 2007. 

These revisions amend existing sections 

and create a new section in Title 30 of 

the Texas Administrative Code (TAC), 

Chapter 101—General Air Quality 

Rules, Subchapter H—Emissions 

Banking and Trading, Division 4— 

Discrete Emission Credit Banking and 

Trading, referred to elsewhere in this 

notice as the Discrete Emission 

Reduction Credit (DERC) Program. The 

October 24, 2006, submittal creates a 

new section for international emission 

reduction provisions and amends 

existing sections to prohibit the 

generation and use of DERCs from 

shutdown activities and further clarify 

procedures for using emission protocols. 

The August 16, 2007, submittal amends 

two sections of the DERC program to 

update cross-references to recently 

recodified 30 TAC Chapter 117 

provisions. Additionally, EPA finds that 

the Texas Commission on 

Environmental Quality (TCEQ) has 

satisfied all elements of our September 

6, 2006, final conditional approval of 

the DERC program with the submittal of 

the October 24, 2006, SIP submittal; and 

as such, the DERC program conditional 

approval is converted to a full approval. 

EPA has determined that these SIP 

revisions comply with the Clean Air Act 

and EPA regulations, are consistent with 

EPA policies, and will improve air 

quality. This action is being taken under 

section 110 and parts C and D of the 

Federal Clean Air Act (the Act or CAA). 

DATES: This final rule will be effective 

June 17, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2010–0148. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 


hsrobinson on DSK69SOYB1PROD with RULES
Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 27645 

1 In this action, when we refer to the program as 

the ‘‘DERC Rule’’ or the ‘‘DERC Program’’ we are 

speaking of the entire Discrete Emission Credit 

Banking and Trading Program, which encompasses 

both DERCs and MDERCs. 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, is also available for public 

inspection at the State Air Agency listed 

below during official business hours by 

appointment: 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

final rule, please contact Ms. Adina 

Wiley (6PD–R), Air Permits Section, 

Environmental Protection Agency, 

Region 6, 1445 Ross Avenue (6PD–R), 

Suite 1200, Dallas, TX 75202–2733. The 

telephone number is (214) 665–2115. 

Ms. Wiley can also be reached via 

electronic mail at wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we’’, ‘‘us’’, or ‘‘our’’ is used, we mean the 

EPA. 

Table of Contents 

I. What final action is EPA taking? 

II. What is the background for this action? 

III. What are EPA’s responses to comments 

received on the proposed action? 

IV. Statutory and Executive Order Reviews 

I. What final action is EPA taking? 

We are fully approving severable 

portions of two revisions to the Texas 

SIP submitted by the TCEQ on October 

24, 2006, and August 16, 2007, specific 

to the DERC Program. The revisions we 

are approving amend existing sections 

and create a new section in the DERC 

Program at Title 30 of the Texas 

Administrative Code (TAC), Chapter 

101—General Air Quality Rules, 

Subchapter H—Emissions Banking and 

Trading, Division 4—Discrete Emission 

Credit Banking and Trading. The 

October 24, 2006, submittal creates a 

new section for international emission 

reduction provisions and amends 

existing sections to prohibit the 

generation and use of discrete emission 

reduction credits from shutdown 

activities and further clarify procedures 

for using emission protocols. 

Additionally, EPA finds that the TCEQ 

has satisfied all elements of our 

September 6, 2006, final conditional 

approval of the DERC program with the 

submittal of the October 24, 2006, SIP 

submittal; and as such, the DERC 

program conditional approval is 

converted to full SIP approval. The 

severable portions of the August 16, 

2007, submittal that we are approving 

non-substantively revise the DERC 

Program to correctly update the crossreferences to the stationary source 

nitrogen oxide (NOX) rules found in the 

Texas SIP at 30 TAC Chapter 117 as a 

result of the non-substantive 

recodification of Chapter 117 approved 

by EPA as part of the Texas SIP on 

December 3, 2008 (see 73 FR 73562). 

Additionally, in both the October 24, 

2006, and August 16, 2007, SIP 

submittals TCEQ has made several nonsubstantive revisions to update grammar 

and document style. Consequently, we 

are approving the revisions to the Texas 

SIP at 30 TAC sections 101.372(a), 

101.372(d), 101.372(f), 101.372(j), 

101.373(a), 101.376(c)(4), and 

101.378(b) and the creation of new 

section 101.375 submitted on October 

24, 2006. Additionally, we are 

approving revisions to the Texas SIP at 

30 TAC sections 101.372(d) and 

101.376(d) submitted on August 16, 

2007, by the TCEQ. 

EPA proposed the above action on 

March 30, 2010, at 75 FR 15648–15655. 

Today, we are approving the DERC 

program revisions as proposed and find 

that they comply with the CAA and EPA 

regulations, are consistent with EPA 

policies, and will improve air quality. 

This final approval is being taken under 

parts C and D of the CAA. 

In a separate rulemaking, EPA is 

approving the severable Emission Credit 

Banking and Trading Program (referred 

to elsewhere in this notice as the 

Emission Reduction Credit (ERC) 

Program) revisions at 30 TAC sections 

101.302, 101.305, and 101.306 

submitted on October 24, 2006, and 30 

TAC sections 101.302 and 101.306 

submitted on August 16, 2007 (see EPA– 

R06–OAR–2010–0417). 

At this time, EPA is not taking action 

on the revisions to the Emissions 

Banking and Trading of Allowances 

Program at 30 TAC sections 101.338 and 

101.339 submitted on October 24, 2006. 

EPA is also not taking action at this time 

on the revisions to the general air 

quality definitions at 30 TAC Section 

101.1 or the revisions to the System Cap 

Trading Program at 30 TAC sections 

101.383, and 101.385 submitted on 

August 16, 2007. These severable 

revisions remain under review by EPA 

and will be addressed in separate 

actions. 

II. What is the background for this 

action? 

The DERC Program, conditionally 

approved by EPA on September 6, 2006, 

establishes an open market trading 

program to provide flexibility for 

sources in complying with certain State 

and Federal requirements. In an open 

market trading program, a source 

generates emission credits by reducing 

its emissions during a discrete period of 

time. These credits, called discrete 

emission credits, or DECs, in the Texas 

program, are quantified in units of mass. 

Discrete emission credit (DEC) is a 

generic term that encompasses 

reductions from stationary sources 

(discrete emission reduction credits, or 

DERCs) and reductions from mobile 

sources (mobile discrete emission 

reduction credits, or MDERCs).1

Generally, discrete emission reductions 

of criteria pollutants (excluding lead) or 

precursors of criteria pollutants may be 

banked and used as DERCs. EPA’s 

September 6, 2006, final conditional 

approval of the DERC program 

addressed the original submission of the 

program on December 23, 1997, and the 

subsequent revisions on January 18, 

2001; April 14, 2002; January 17, 2003; 

and December 6, 2004. 

Since our September 6, 2006, final 

conditional approval, TCEQ has revised 

the DERC program to address the 

commitments of the DERC conditional 

approval. Additionally, the TCEQ 

adopted revisions to the DERC program 

consistent with the requirements of 

Senate Bill 784, adopted during regular 

session, 2005, of the 79th Texas 

Legislature. Senate Bill 784 allows for 

greater flexibility in the generation and 

use of international emission 

reductions. These revisions were 

adopted by the TCEQ on October 4, 

2006, and became effective on October 

26, 2006. The adopted regulations were 

submitted to EPA as a SIP revision on 

October 24, 2006. TCEQ has also 

promulgated revisions to the DERC 

program that update the cross-references 

to the new numbering structure in 30 

TAC Chapter 117. These revisions were 

adopted on July 25, 2007, and became 

effective on August 16, 2007. The 

adopted regulations were submitted to 

EPA as a SIP revision on August 16, 

2007. 

III. What are EPA’s responses to 

comments received on the proposed 

action? 

EPA received no comments on our 

proposed rulemaking. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 


hsrobinson on DSK69SOYB1PROD with RULES
27646 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• 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 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 19, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental Relations, 

Nitrogen oxides, Ozone, Volatile organic 

compounds. 

Dated: April 30, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart SS—Texas 

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

‘‘EPA Approved Regulations in the 

Texas SIP’’ under Chapter 101 is 

amended by: 

■ a. Revising the entries for Sections 

101.372, 101.373, 101.376, and 101.378 

under Subchapter H—Emissions 

Banking and Trading, Division 4— 

Discrete Emission Credit Banking and 

Trading. 

■ b. Adding an entry for Section 

101.375 under Subchapter H— 

Emissions Banking and Trading, 

Division 4—Discrete Emission Credit 

Banking and Trading, in numerical 

order. 

The revisions and additions read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

Chapter 101—General Air Quality Rules 

*******

Subchapter H—Emissions Banking and Trading 

*******

Division 4—Discrete Emission Credit Banking and Trading 


hsrobinson on DSK69SOYB1PROD with RULES
Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 27647 

EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

*******

Section 101.372 ........ General Provisions ..................... 7/25/2007 5/18/2010 [Insert FR page number where document begins]. 

Section 101.373 ........ Discrete Emission Reduction 

Credit Generation and Certification.

10/4/2006 5/18/2010 [Insert FR page number where document begins]. 

*******

Section 101.375 ........ Emission Reductions Achieved 

Outside the United States.

10/4/2006 5/18/2010 [Insert FR page number where document begins]. 

Section 101.376 ........ Discrete Emission Credit Use .... 7/25/2007 5/18/2010 [Insert FR page number where document begins]. 

Section 101.378 ........ Discrete Emission Credit Banking and Trading.10/4/2006 5/18/2010 [Insert FR page number where document begins]. 

*******

[FR Doc. 2010–11681 Filed 5–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2010–0147; FRL–9151–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Revisions to the Emission Credit 

Banking and Trading Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving severable 

portions of two revisions to the Texas 

State Implementation Plan (SIP) 

submitted by the State of Texas on 

October 24, 2006, and August 16, 2007. 

These revisions amend existing sections 

and create a new section in Title 30 of 

the Texas Administrative Code (TAC), 

Chapter 101—General Air Quality 

Rules, Subchapter H—Emissions 

Banking and Trading, Division 1— 

Emission Credit Banking and Trading, 

referred to elsewhere in this notice as 

the Emission Reduction Credit (ERC) 

Program. The October 24, 2006, 

submittal creates a new section for 

international emission reduction 

provisions and amends existing sections 

to further clarify procedures for using 

emission protocols and to update the 

approved list of emission credit uses. 

The August 16, 2007, submittal amends 

two sections of the ERC program to 

update cross-references to recently 

recodified 30 TAC Chapter 117 

provisions. EPA has determined that 

these SIP revisions comply with the 

Clean Air Act and EPA regulations, are 

consistent with EPA policies, and will 

improve air quality. This action is being 

taken under section 110 and parts C and 

D of the Federal Clean Air Act (the Act 

or CAA). 

DATES: This final rule will be effective 

June 17, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2010–0147. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

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

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

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, is also available for public 

inspection at the State Air Agency listed 

below during official business hours by 

appointment: 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

final rule, please contact Ms. Adina 

Wiley (6PD–R), Air Permits Section, 

Environmental Protection Agency, 

Region 6, 1445 Ross Avenue (6PD–R), 

Suite 1200, Dallas, TX 75202–2733. The 

telephone number is (214) 665–2115. 

Ms. Wiley can also be reached via 

electronic mail at wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we’’, ‘‘us’’, or ‘‘our’’ is used, we mean the 

EPA. 

Table of Contents 

I. What final action is EPA taking? 

II. What is the background for this action? 

III. What are EPA’s responses to comments 

received on the proposed action? 

IV. Statutory and Executive Order Reviews 

I. What final action is EPA taking? 

We are fully approving severable 

portions of two revisions to the Texas 

SIP submitted by the Texas Commission 

on Environmental Quality (TCEQ) on 


hsrobinson on DSK69SOYB1PROD with RULES