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[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66641-66651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26315]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0808; FRL-9912-50-OAR]

Approval and Promulgation of Air Quality Implementation Plans; 
Withdrawal of Federal Implementation Plan; Texas; Prevention of 
Significant Deterioration; Greenhouse Gas Tailoring Rule Revisions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to rescind a Federal Implementation Plan (FIP) for Texas for 
greenhouse gas (GHG) Prevention of Significant Deterioration (PSD) 
permitting, with three limited circumstances for retained federal 
permitting authority. We are removing the majority of the GHG PSD FIP 
because in a separate but simultaneous action being published elsewhere 
in this issue of the Federal Register, we are finalizing approval of 
the majority of revisions to the Texas State Implementation Plan (SIP) 
submitted by the Texas Commission on Environmental Quality (TCEQ) to 
the EPA on October 5, 2010, and April 16, 2014, that address the 
state's authority to regulate GHGs and establish an approvable GHG PSD 
permitting program. The EPA is finalizing this action under Section 110 
and Part C of the Clean Air Act (CAA).

DATES: This final rule is effective on November 10, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2013-0808. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at the Air Planning Section (6PD-L), Environmental 
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. Contact the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below to make an appointment.

FOR FURTHER INFORMATION CONTACT: Adina Wiley, Air Permits Section (6PD-
R), telephone (214) 665-2115, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background
II. Recent UARG v. EPA U.S. Supreme Court Decision
    A. Overview of the Decision and Implications for this Action
    B. Changes to the Transition Process as a Result of the UARG v. 
EPA Decision
III. Response to Comments
IV. Effective Date of Final Action
V. Final Action
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That

[[Page 66642]]

Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)
    L. Petitions for Judicial Review

I. Background

    The background for today's final action to rescind the Texas GHG 
PSD FIP, but for three limited circumstances, and the background for 
the separate but simultaneous final action also being published today 
to approve the majority of revisions to the Texas SIP, are discussed in 
detail in our February 18, 2014, proposal (79 FR 9123). In that 
document, we proposed to approve portions of two revisions to the Texas 
SIP submitted by the TCEQ on October 5, 2010, and December 2, 2013. The 
December 2, 2013, submittal was a request for parallel processing of 
revisions proposed by the TCEQ on October 23, 2013. Our February 18, 
2014, proposed approval and accompanying Technical Support Document 
provide the EPA's evaluation of the October 5, 2010, and December 2, 
2013, revisions to the Texas SIP that would provide for the regulation 
of GHG emissions in the Texas PSD program and clarify the applicability 
of BACT for all PSD permit applications. We preliminarily determined 
that the revisions were consistent with the CAA and the EPA's 
regulations and guidance for the permitting of GHG emissions in the PSD 
program. Therefore, we proposed approval of the SIP revisions and 
simultaneously proposed to rescind the GHG PSD Federal Implementation 
Plan (FIP) for Texas with the exception of the three limited 
circumstances for retained federal permitting authority.
    The December 2, 2013, submittal was a request for parallel 
processing; meaning that the EPA proposed a rulemaking action on a 
proposed SIP revision concurrently with the State's public review 
process. As discussed in our separate but simultaneous final approval 
action on the Texas SIP revisions published elsewhere in this issue of 
the Federal Register, the EPA evaluated the April 16, 2014, final Texas 
SIP submittal and determined that the changes made by the TCEQ at 
adoption are not material changes to the regulations that we proposed 
to approve; and therefore do not alter our rationale presented in the 
February 18, 2014 proposed approval. By extension, the underlying 
rationale for the proposed rescission of the majority of the Texas GHG 
PSD FIP remains unchanged from proposal. However, as discussed in 
Section II of this final FIP rescission and the separate but 
simultaneous final SIP approval, the EPA is not acting on certain 
sections of the April 16, 2014, submittal that are no longer necessary 
after the recent United States Supreme Court decision, UARG v. EPA.
    In this action, the EPA is finalizing only the rescission of the 
majority of the Texas GHG PSD FIP. We are also finalizing in a separate 
but simultaneous action published elsewhere in this issue of the 
Federal Register the approval of the majority of the above referenced 
revisions to the Texas PSD SIP. Therefore, as of the effective date of 
this final action, the TCEQ becomes the primary permitting authority 
for GHGs, except in the three limited circumstances described this 
final action. As explained in our separate but simultaneous final SIP 
action, we explain in the final notice the recent United States Supreme 
Court decision, Utility Air Regulatory Group (UARG) v. Environmental 
Protection Agency (EPA) (No. 12-1146). We discuss in that notice that 
we are finalizing the majority of the proposed approval of the Texas 
SIP revisions but are not acting on certain sections of the submittal 
that appear no longer necessary after the decision. Please see that 
notice for further discussion.

II. Recent UARG v. EPA U.S. Supreme Court Decision

A. Overview of the Decision and Implications for This Action

    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of stationary source permitting requirements 
to GHGs in Utility Air Regulatory Group (UARG) v. Environmental 
Protection Agency (EPA) (No. 12-1146). The Supreme Court held that the 
EPA may not treat GHGs as an air pollutant for purposes of determining 
whether a source is a major source required to obtain a PSD permit, but 
that the EPA could continue to require that PSD permits, otherwise 
required based on a source's emissions of conventional pollutants 
(``anyway'' sources), contain limitations on GHG emissions based on the 
application of the BACT.
    The Supreme Court reversed in part and affirmed in part the 
decision of the D.C. Circuit Court that upheld several EPA actions 
addressing PSD permitting requirements for greenhouse gases including 
the Tailoring Rule.\1\ Although the Supreme Court concluded that ``EPA 
exceeded its statutory authority when it interpreted the Clean Air Act 
to require PSD and Title V permitting for stationary sources based on 
their greenhouse gas emissions,'' 134 S.Ct. at 2449, it did not 
specifically identify particular provisions of the EPA regulations it 
was striking down. Thus, pending further action by the United States 
Court of Appeals for the District of Columbia Circuit (the D.C. 
Circuit) and EPA action to revise the regulations in accordance with a 
more specific remedy ordered by the D.C. Circuit, the provisions of 40 
CFR 51.166 that provide criteria for EPA approval of state PSD permit 
programs remain in the Code of Federal Regulations. This includes 40 
CFR 51.166(b)(48)(v), which addresses permitting of ``Step 2'' sources 
that emit greenhouse gases in excess of 100,000 tons per year and no 
other pollutants over the major source thresholds. In light of UARG, 
the EPA is not requiring PSD permits, either directly or through state 
implementation plans for sources emitting greenhouse gases at any level 
unless a source emits a regulated pollutant other than greenhouse gases 
above the statutory major source thresholds. That means that the EPA 
will not apply or enforce regulations that would require states to 
include in their SIPs a requirement that ``Step 2'' sources obtain PSD 
permits. Thus, despite the fact that 40 CFR 51.166(b)(48)(v) remains in 
the Code of Federal Regulations at this time, in light of the Supreme 
Court's decision the EPA is not taking action on the provisions of the 
Texas SIP that would require a stationary source to obtain a PSD permit 
if GHGs are the only pollutant (i) that the source emits or has the 
potential to emit above the major source thresholds, or (ii) for which 
there is a significant emissions increase and a significant net 
emissions increase from a modification.
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    \1\ See ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 June 3, 
2010. See also our February 18, 2014, Proposal (79 FR 9123) for a 
full background discussion.
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    The Supreme Court also affirmed the lower court's decision that the 
BACT requirement applies to GHG emissions from new and modified sources 
that trigger PSD permitting obligations on the basis of their emissions 
of air pollutants other than GHG (also known as ``Step 1'' or 
``anyway'' sources). The Court concluded that ``EPA may continue to 
treat greenhouse gases as a `pollutant subject to regulation under [the 
Clean Air Act]' for purposes of requiring BACT for `anyway' sources.'' 
134 S.Ct. at 2449. Accordingly, the PSD BACT requirement continues to 
apply to greenhouse gas emissions from any new

[[Page 66643]]

or modified source that is otherwise subject to PSD requirements as a 
result of its emissions of a criteria pollutant (i.e. to an ``anyway'' 
source), and EPA will continue to implement existing regulations that 
limit application of the statutory BACT requirement to greenhouse gases 
where the construction project to be completed would emit at or above a 
level of 75,000 tpy of CO2e as provided in 40 CFR 
51.166(b)(48)(iv).
    The EPA and D.C. Circuit have long recognized, and the D.C. 
Circuit's decision affirmed by the Supreme Court further confirmed, 
that PSD requirements apply to emissions of PSD pollutants ``by 
automatic operation of'' the Clean Air Act. Coalition for Responsible 
Regulation v. EPA, 684 F.3f 102, 115 (D.C. Cir. 2012). The Supreme 
Court rejected ``a greenhouse-gas-inclusive interpretation of the PSD 
and Title V triggers,'' because the CAA does not allow the Agency to 
``treat greenhouse gases as a pollutant for purposes of defining a 
`major emitting facility' (or a `modification' thereof) in the PSD 
context.'' 134 S.Ct. at 2442, 2449. But the Court did not question the 
longstanding interpretation of the EPA and the D.C. Circuit court that 
the CAA PSD permitting requirements automatically apply to major source 
emissions of pollutants that are ``subject to regulation'' under the 
Act. 134 S.Ct. at 2442 n. 6. See also UARG, 134 S.Ct. at 2435 (``it is 
unlawful to construct or modify a `major emitting facility' in `any 
area to which [the PSD program] applies' without first obtaining a 
permit.''). To the contrary, UARG affirmed the portion of the D.C. 
Circuit's decision holding that the BACT requirement clearly applies to 
greenhouse gas emissions from ``anyway'' sources and that such PSD 
requirements apply to sources automatically by operation of the Clean 
Air Act. Accordingly, the EPA does not interpret UARG to alter the 
settled understanding that the BACT requirement automatically applies 
to a pollutant (including greenhouse gases) once it becomes subject to 
regulation under the Clean Air Act. Thus, consistent with the Supreme 
Court's holding that EPA can ``continue to'' require compliance with 
the BACT requirement in the Clean Air Act, 134 S.Ct. 2449, the EPA will 
continue to apply the BACT requirement to greenhouse gases under its 
existing regulations applicable to EPA's review of state implementation 
plans, including 40 CFR 51.166(j), 40 CFR 51.166(b)(12), 40 CFR 
51.166(b)(49), and 40 CFR 51.166(b)(48)(i)-(iv).
    The Supreme Court noted that the EPA could exercise its discretion 
to limit application of BACT to sources with the potential to emit 
greenhouse gases above a de minimis threshold, but that if EPA wished 
to do so, it would need to justify such threshold for application of 
BACT to GHGs on proper grounds. The Court observed that when EPA 
established the existing 75,000 tpy threshold the Agency did not 
characterize it as a de minimis level. 134 S.Ct. at 2449. Rather, that 
threshold represents a level that EPA determined to be both 
administratively feasible for permitting authorities to implement and 
reasonable for sources to comply with. 75 FR 31514, 31560 (June 3, 
2010). EPA is considering additional action to establish a de minimis 
threshold for application of the BACT requirement to GHGs. Pending 
additional action by EPA addressing the threshold for application of 
the BACT requirement to greenhouse gases, the Agency will continue to 
apply the existing regulations that require a state PSD program to 
apply the PSD BACT requirement to GHG emissions from ``anyway'' sources 
that emit or have the potential to emit 75,000 tons per year tpy or 
more of GHG on a carbon dioxide (CO2e) basis. With respect 
to modified ``anyway'' sources, the EPA is presently reading its 
regulations to require that state PSD programs apply the PSD BACT 
requirements to GHG if both of the following circumstances are present: 
(1) The modification is otherwise subject to PSD for a pollutant other 
than GHG; (2) the modification results in a GHG emissions increase and 
a net GHG emissions increase equal to or greater than 75,000 tpy 
CO2e and greater than zero on a mass basis.
    Based on information submitted by TCEQ, EPA concluded in its Notice 
of Proposed Rulemaking that TCEQ had provided sufficient assurance that 
it has the legal authority, personnel, and funding to implement PSD 
permitting requirements for greenhouse gases. Following the UARG 
decision, the State of Texas has argued in litigation before the D.C. 
Circuit that GHGs are not presently subject to regulation under the PSD 
program and that EPA must conduct additional rulemaking to establish a 
de minimis level before the BACT requirement can be applied to 
greenhouse gas emissions in PSD permits required for construction at 
anyway sources. Nevertheless, the TCEQ has communicated to the EPA that 
it ``continues to pursue EPA approval of [its] SIP submittal . . . so 
our agency has the full authority to implement the greenhouse gas 
permitting program in Texas.'' \2\ The State has further stated that 
``[r]egardless of litigation positions, we are currently advocating and 
might pursue in the future, we think it is necessary for TCEQ to assume 
this permitting role and issue PSD permits for greenhouse gas 
emissions.'' Based on information supplied by TCEQ before the proposed 
rule and this additional assurance, EPA concludes that Texas intends to 
implement the PSD permitting requirements for greenhouse gases 
consistent with EPA's understanding of those requirements, as 
articulated above, and that TCEQ continues to have sufficient legal 
authority to do so. Furthermore, TCEQ has provided sufficient assurance 
that it will commit the personnel and funding necessary to issue PSD 
permits addressing greenhouse gases, notwithstanding the State's 
ongoing efforts to persuade the court that such permits are not 
required under the Clean Air Act until EPA conducts further rulemaking. 
EPA's rescission of the majority of the FIP and its approval of the 
majority of the Texas GHG SIP are predicated on the understanding that 
the State of Texas will implement the PSD program requirements for 
greenhouse gases in accordance with TCEQ's representations.
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    \2\ On October 1, 2014, the TCEQ sent EPA Region 6 a 
clarification letter in light of the UARG v. EPA decision. That 
letter is also posted in the public docket to this rulemaking.
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    In sum, therefore, the EPA is taking no action on the portion of 
the Texas SIP submittal requiring sources to obtain PSD permits based 
solely on their emissions of GHGs, but is otherwise finalizing its 
rescission of the majority of the FIP and its approval of the majority 
of the Texas SIP submittals as discussed in the separate final SIP 
action published elsewhere in this issue of the Federal Register.

B. Changes to the Transition Process as a Result of the UARG v. EPA 
Decision

    The EPA must also consider how the July 23, 2014, Supreme Court 
decision in UARG v. EPA will impact our final FIP rescission and 
simultaneous SIP actions. In our February 18, 2014, proposed rulemaking 
we identified the following three possible circumstances for retaining 
federal GHG PSD permitting authority: (1) The EPA would retain 
permitting authority for any pending permit application where the 
permit applicant submitted a written request to remain with EPA for 
permit issuance, (2) the EPA would retain permitting authority for any 
pending permit applications where the permit

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applicant did not submit a written request regarding permit authority 
and the EPA had made a proposed determination through a public-noticed 
draft permit upon the signature date of the EPA's rescission of the GHG 
PSD FIP, and (3) the EPA would retain permitting authority over any 
permit that was issued but had not yet completed the administrative and 
judicial review process. In conjunction with our February 18, 2014, 
proposal we issued the ``Transition Process for Pending GHG PSD Permit 
Applications and Issued GHG PSD Permits Upon Rescission of the GHG PSD 
FIP'' (the Transition Process). As specified in this Transition 
Process, the EPA sent letters to each existing pending permit applicant 
requesting a written response by May 15, 2014, regarding whether EPA 
should retain responsibility for processing the permitting application 
or transfer it to the TCEQ. We received such a response by the May 15, 
2014 deadline from all of the initial GHG PSD permit applicants.
    Since the time of our proposed rulemaking, we have received 
additional GHG PSD permit applications. For the purposes of the 
Transition Process and our final action today rescinding the Texas GHG 
PSD FIP, these GHG permit applicants would be considered pending permit 
applications. According to our February 18, 2014, proposed action, the 
EPA would retain authority over any of these permit applications where 
we had not proposed a draft permit at the time of final signature on 
the FIP rescission. However, because of the Supreme Court's UARG v. 
EPA, this has created some delay in the issuance of a final action on 
the proposed Texas SIP approval and FIP rescission. As such, these 
pending permit applicants were not afforded the same opportunity to 
communicate with the EPA that was provided to the other permit 
applications, submitted to the EPA, at the time of our February 18, 
2014, proposed approval. We believe it is appropriate to modify our 
retained FIP authorities such that the EPA will retain permitting 
authority for any pending permit application submitted after our 
February 18, 2014, proposal that did not respond in writing to the EPA 
by May 15, 2014, regardless of whether the EPA has published public 
notice of a proposed permit. We will retain the permitting authority 
and proceed with our evaluation and processing of the permit 
application until the applicant submits a written request to be 
transferred to the TCEQ, withdraws its application, or the EPA issues a 
final and effective permit.
    In this circumstance, the EPA will consider a request for transfer 
to be a withdrawal of the application that removes the application from 
review and further action by EPA Region 6. As discussed in our February 
18, 2014, proposed rulemaking, the EPA's permitting authority ``will 
cease upon an applicant's written request to the EPA withdrawing the 
pending permit application before a final determination is made.'' See 
79 FR 9123, 9133. For those applications transferred to the TCEQ for 
which the EPA has not proposed a draft permit, the Texas SIP-approved 
public notice process will involve two opportunities for public comment 
under 30 TAC Sections 39.418 and 39.419 for the Notice of Receipt of 
Application and Intent to Obtain Permit (NORI) and the Notice of 
Application and Preliminary Decision (NAPD). In the instances where a 
permit applicant requests that EPA transfer the permit application to 
the TCEQ and Region 6 has already public noticed a draft permit, an 
additional public notice will be necessary to initiate and complete the 
permitting process in accordance with the process required under Texas 
procedures approved in the SIP. If the EPA has received any public 
comments on its draft permit, the EPA intends to contact each commenter 
to advise them to resubmit comments to the TCEQ pursuant to 30 TAC 
Sections 39.412 and 55.152.
    The EPA's Region 6 will consider such a request to transfer a 
permit application until the time that Region 6 issues a final permit 
decision under 40 CFR 124.15(b) of the EPA's regulations. After this 
point in the permitting process, interested parties who commented on 
the draft permit will have 30 days to request an administrative appeal 
of the permit before the EPA Environmental Appeals Board (EAB) under 40 
CFR 124.19. During this 30 day period, the EPA will retain authority 
over the permit and will no longer consider any requests to transfer a 
permit application. If no party petitions the EAB for review, the 
permit will become final and effective under 40 CFR 124.15(b). At this 
point, Region 6 will transfer administration of the final and effective 
permit to TCEQ. If a party petitions the EAB for review of a final 
permit decision by Region 6, the EPA will retain authority over the 
permit until administrative and judicial review proceedings are 
exhausted with one exception. If a petition for review has been filed 
with the EAB, the permit does not become final and effective, and EPA 
Region 6 will still have the opportunity to withdraw the permit or 
request that the EAB grant a voluntary remand under 40 CFR 124.19(j). 
An applicant that wishes to withdraw a permit under EAB review must 
provide written notice to the EAB that it is doing so. If an applicant 
wishes for Region 6 to initiate this withdrawal process while 
administrative review of a permit is pending before the EAB, the 
applicant will need to communicate with Region 6 in writing that it 
seeks to withdraw its permit application. The applicant may submit a 
new permit application to TCEQ after withdrawing its application from 
the EPA in this manner, but the EPA will not transfer a permit 
application at this point in the process. If a permit decision is 
remanded to Region 6 by the EAB, the permit applicant may also request 
withdrawal of its permit application prior to Region 6 issuing a final 
permit after remand, but Region 6 will also not transfer a permit 
application at this point in the process. Once the final permit 
decision is issued under 40 CFR 124.19(i)(2), the EPA would retain 
authority under the FIP until the period for seeking judicial review 
has expired or any judicial review proceedings are completed.
    Under the UARG v. EPA decision, the U.S. Supreme Court stated that 
the EPA may not treat GHG as an air pollutant for purposes of 
determining whether a source is a major source required to obtain a PSD 
permit. Therefore, consistent with our understanding of the Supreme 
Court's decision, the EPA will no longer process pending permit 
applications for ``non-anyway'' sources or modifications. The EPA will 
also not transfer the permitting authority for ``non-anyway'' sources 
or modifications or any issued ``non-anyway'' permits to the TCEQ. 
After the completion of the GHG litigation in the D.C. Circuit, the EPA 
will determine the best course of disposition of these issued ``non-
anyway'' permits.
    In summary, the EPA is finalizing retained permitting authority in 
the following circumstances:
    (1) The EPA will continue to be the permitting authority for a 
pending permit application for an ``anyway'' source or ``anyway'' 
modification where the permit applicant submitted a written request by 
May 15, 2014, that the EPA remain as the permitting authority.
    (2) The EPA will continue to be the permitting authority for any 
pending permit applications for ``anyway'' sources or ``anyway'' 
modifications submitted after the February 18, 2014, rulemaking. The 
EPA will continue to evaluate and process the pending permit 
applications unless the applicant submits a written request to transfer

[[Page 66645]]

permitting authority to TCEQ prior to Region 6 issuing a final permit 
decision under 40 CFR 124.15(b).
    (3) The EPA will retain authority over any permit for ``anyway'' 
sources or ``anyway'' modifications that was issued by the EPA or for 
``anyway'' permit applications denied by the EPA for which either the 
time for filing an administrative appeal has not expired or all 
administrative and judicial appeals processes have not been completed. 
Except that, the EPA will not retain authority over a permit if an 
applicant submits a written request to the EPA to withdraw the permit 
application while an administrative appeal is pending and Region 6 then 
withdraws the permit under 40 CFR 124.19(j) or the EAB grants a 
voluntary remand under 40 CFR 124.19(j) or another appropriate remedy.

III. Response to Comments

    We received comments from Air Alliance Houston, the Greater Houston 
Partnership (GHP), the House Bill 788 Working Group (HB 788 Working 
Group), Sierra Club, Texas Chemical Council (TCC), Texas Commission on 
Environmental Quality (TCEQ), Texas Industry Project (TIP), the Texas 
Oil and Gas Association (TXOGA), the Texas Pipeline Association (TPA), 
and public citizens on our February 18, 2014 proposal. All comments 
received on the February 18, 2014, proposed action are available in the 
public docket to this rulemaking. Following is our summary of each 
comment relating to the FIP action and our response. The EPA notes that 
the comments and our responses to comments that relate solely to the 
SIP action are in the separate but simultaneous final approval notice 
of those revisions. Comments and responses that relate to both actions 
are found in both final documents.
    Comment 1: The TCEQ, GHP, HB 788 Working Group, TCC, TIP, and TPA 
submitted comments supportive of our proposed action and urge the EPA 
to proceed with final approval and rescind the associated FIP.
    Response 1: The EPA appreciates the support of the commenters. No 
changes have been made to the final FIP action as a result of these 
comments.
    Comment 2: The TCC encouraged the EPA to make the FIP rescission 
effective immediately upon approval of the SIP. As support, the 
commenters referenced the EPA's final approval action of the Wyoming 
GHG PSD Program at 78 FR 69998, November 22, 2013.
    Response 2: The EPA interprets the comment as a request that the 
EPA make the final approval of the rescission of the GHG PSD FIP and 
final approval of the GHG PSD SIP effective immediately upon 
publication in the Federal Register pursuant to the Administrative 
Procedure Act Section (APA), 5 U.S.C. Section 553(d). As explained more 
fully in Section IV of this document and in Comment/Response 3, the EPA 
finds that today's final FIP action and the separate but simultaneous 
final SIP approval action be made effective immediately upon 
publication in the Federal Register.
    The EPA also wishes to clarify that the Wyoming action, cited in 
the comment as precedent for an immediate effective action, does not 
utilize Section 553(d) of the APA. The EPA's November 22, 2013 final 
approval of the Wyoming GHG PSD Program and FIP rescission were both 
effective 30 days after publication in the Federal Register. 
Specifically, the Wyoming action was published on November 22, 2013, 
and the SIP approval and FIP rescission were effective on December 23, 
2013.
    Comment 3: TXOGA requested that the final SIP approval and the FIP 
rescission be effective on the date of Federal Register publication 
rather than waiting 30 days after publication. TIP commented that the 
EPA should invoke the ``good cause'' exception in the APA to make the 
final approval and FIP rescission immediately effective upon 
publication. TIP suggested that using the good cause exception would: 
(1) ``level the playing field'' between Texas GHG permitting and GHG 
permitting in states with EPA-approved GHG permitting programs; (2) 
provide economic benefits by allowing consolidation of air permitting 
for Texas GHG sources at the TCEQ; (3) relieve a restriction imposed by 
the FIP; and (4) is procedural in nature and does not change 
substantive requirements for GHG PSD permitting.
    Response 3: The EPA agrees that this is an appropriate circumstance 
to make this rule effective immediately upon publication, pursuant to 5 
U.S.C. Section 553(d) of the APA. As detailed in Section III of the 
final FIP action and in Section III of the separate but simultaneous 
final SIP approval, we have determined that both the final rescission 
of the GHG PSD FIP and the separate but simultaneous approval of the 
GHG PSD SIP be effective immediately upon publication in the Federal 
Register. An immediate effective date is authorized under the APA at 5 
U.S.C. Sections 553(d)(1) and 553(d)(3). Section 553(d)(1) provides 
that rulemaking actions may become effective less than 30 days after 
publication if the rule ``grants or recognizes an exemption or relieves 
a restriction,'' and Section 553(d)(3) allows an effective date less 
than 30 days after publication ``as otherwise provided by the agency 
for good cause found and published with the rule.'' First, an immediate 
effective date is authorized for the rescission of the GHG PSD FIP 
under Section 553(d)(1), because this rulemaking relieves the 
requirement that sources obtain both a federal permit and a state 
issued permit. The immediate effective date helps to relieve the 
restriction on TCEQ's ability to issue single GHG PSD permits and will 
eliminate the dual EPA/TCEQ PSD permit system, which in turn, promotes 
a more efficient single permitting authority process. Second, we have 
determined there is ``good cause'' under Section 553(d)(3) to make this 
rule effective immediately because it will allow Texas to begin 
processing complete PSD GHG applications that meet the appropriate 
federal PSD requirements immediately and it will allow the regulated 
community to receive PSD permits containing GHG limits, issued by 
Texas, as soon as possible. An immediate effective date provides Texas 
with undelayed authority to regulate GHG emissions in PSD permits 
issued to ``anyway'' sources and allows Texas to become the sole PSD 
permitting authority in the State, except in three limited 
circumstances, as described above. In addition, an expedited transition 
of the GHG PSD program from the EPA to Texas creates a more efficient 
use of EPA and State resources, and creates certainty for the regulated 
community and public. The EPA and the TCEQ have worked closely to 
ensure Texas has adequate authority and resources to administer the GHG 
PSD permitting program without a 30 day delay, which is normally the 
time required for affected parties to adjust their behavior and prepare 
before the final rule takes effect. The EPA has determined that moving 
as expeditiously as practicable to consolidate GHG PSD permitting with 
the TCEQ PSD permitting program is supported here as the State has the 
authority and resources to administer the GHG PSD permitting program. 
The EPA finds that the above reasons support an effective date prior to 
30 days after the date of publication under 5 U.S.C. Section 553(d) of 
the APA for both today's final FIP action and the separate but 
simultaneous final SIP approval action. We have revised the effective 
date of our final FIP action as a result of these comments.
    Comment 4: The EPA should state for the record that GHG permits 
issued by the EPA may be amended by the TCEQ once permitting authority 
is delegated.
    Response 4: As stated in our proposed approval, the TCEQ submitted 
a letter

[[Page 66646]]

on January 13, 2014, (available in the docket for this rulemaking) that 
provided clarity and assurances that the TCEQ has the general authority 
under the Texas Clean Air Act to administer the EPA-issued GHG PSD 
permits, including revising or amending those permits in the future. 
Specifically, the ``TCEQ will assume full PSD responsibility for the 
administration and implementation of final GHG PSD permits issued by 
the EPA upon notification from the EPA that all administrative and 
judicial appeal processes have expired or have been completed or 
concluded . . . assuming full PSD responsibility includes the authority 
to . . . process and issue any and all subsequent PSD permit actions 
relating to such permits (e.g., amendments).'' See 79 FR 9123, 9132. 
February 18, 2014. The EPA addresses the commenter's statement about 
delegation of permitting authority in our separate but simultaneous 
final SIP approval also published elsewhere in this issue of the 
Federal Register. No changes were made to the final FIP action as a 
result of these comments.
    Comment 5: One commenter found it difficult to provide specific 
comments due to the pending Supreme Court decision on GHG and asked 
that the EPA discuss the impact, if any, of the pending Supreme Court 
decision around GHG.
    Response 5: See Section II of today's final action for a detailed 
discussion. Although not specifically referenced in the comment, we 
believe the commenter's reference to ``pending supreme court decision 
around GHG'' refers to the following case before the Supreme Court of 
the United States: Case 121146; Utility Air Regulatory Group v. The 
Environmental Protection Agency and consolidated cases. The Supreme 
Court of the United States decided this case on June 23, 2014. In 
summary, the Supreme Court affirmed in part and reversed in part the 
lower court's decision on the applicability of the PSD Program to GHGs, 
rejecting the application of the PSD program to additional sources 
based only on GHG emissions but affirming the applicability of BACT to 
GHGs emitted by sources otherwise required to obtain PSD permits based 
on emissions of other pollutants. Accordingly, the decision has 
influenced our final action on the April 16, 2014 SIP submittal. In our 
separate but simultaneous SIP action, the EPA is proceeding with the 
finalization of the majority of the revisions to the Texas SIP. 
However, in order to proceed consistent with the Court's decision, the 
EPA is taking no action at this time on portions of the April 16, 2014 
submittal that provided for the permitting of ``Step 2,'' ``non-
anyway'' sources. Please see our final separate but simultaneous SIP 
final notice for a more detailed discussion.
    Comment 6: Public citizens submitted several comments regarding the 
EPA's proposed approval of the GHG PSD SIP, the rescission of the GHG 
PSD FIP, and the transition process to be used when transferring 
permitting authority to the TCEQ. Specifically, the commenters are 
concerned that the transition process is lacking the ``voice'' of the 
people on whether the public feels it is the right of the applicant/
company to be able to choose the EPA or the TCEQ as the permitting 
authority without the public's input on pending applications. The 
commenters urged the EPA to retain the FIP permitting authority in 
sensitive nonattainment areas such as in Brazoria County, Texas. 
Finally, the commenters submitted information regarding ozone monitor 
siting and air quality in Clute, water quality impacts in the Galveston 
Bay, and maps identifying locations of proposed GHG PSD permits.
    Response 6: While the EPA appreciates the commenter's concerns 
about the public having a voice in the selection of a permit authority, 
we believe the appropriate regulatory and permit transition procedures 
are in place to ensure any GHG PSD permit, whether issued by the EPA or 
the TCEQ, complies with all federal PSD requirements, including 
opportunities for public input. Further, the EPA offered an opportunity 
for review and comment on our proposed determination that the TCEQ has 
the requisite authority to address GHGs in the PSD program in Texas 
upon approval of the SIP and corresponding rescission of the majority 
of the FIP for GHGs. We received no comments on this specific issue. In 
the separate, but simultaneous final SIP action published elsewhere in 
this issue of the Federal Register, we are approving the majority of 
revisions to the Texas PSD SIP, except with the noted exceptions where 
we are taking no action at this time on certain revisions that appear 
to no longer be appropriate after the Supreme Court's UARG v. EPA 
ruling. Because of this, the EPA finds the TCEQ has the necessary legal 
and regulatory provisions in place to successfully implement the 
appropriate federal requirements for GHG PSD permitting. Therefore, we 
are simultaneously rescinding the Texas GHG PSD FIP but for three 
limited circumstances for retained federal permitting authority, and 
approving the majority of revisions to the Texas SIP in a separate but 
simultaneous final action published elsewhere in this issue of the 
Federal Register. Upon the effective date of both of these actions, the 
TCEQ will have the authority to process applications and issue GHG PSD 
permits except for the three limited circumstances where the EPA is 
retaining federal permitting authority. As stated in the EPA's February 
18, 2014, proposal and transition document referenced in that action, 
the EPA contacted each GHG PSD permit applicant who had submitted an 
application to the EPA at the time of our proposed approval. We 
provided these permit applicants the opportunity to elect either the 
EPA or the TCEQ as the issuer of its GHG permit by May 15, 2014. All 
permit applicants submitted a request for permitting authority by the 
deadline of May 15, 2014. For the permit applications that have been 
submitted since the EPA's proposed approval, the EPA is retaining 
permitting authority and will continue evaluating and processing these 
permit applications unless and until the applicant submits a written 
request to transfer to the TCEQ, the EPA issues a final permit, or the 
applicant withdraws the permit application from the EPA's 
consideration. The EPA Region 6 GHG Web site has been updated to 
identify which permit applications have been retained by the EPA for 
processing and those which have been transferred to the TCEQ. We will 
continue to update this Web site as applicants make their decisions 
regarding permitting authority. Upon the effective date of our final 
SIP approval and simultaneous FIP rescission, the EPA will no longer 
accept applications for GHG PSD permits in Texas. From that point 
forward, the TCEQ will be the only permitting authority for GHG PSD 
permits in Texas, with the exception of the three limited circumstances 
where the EPA retained authority over a permit application or issued 
permit that has not exhausted all administrative and judicial appeals. 
Both the EPA and the TCEQ are required to issue GHG PSD permits that 
satisfy federal requirements for PSD permitting. In the instances where 
a permit applicant elected to transfer the permitting authority to the 
TCEQ and the EPA has already public noticed a draft permit and received 
comments, the EPA intends to contact each commenter to advise them to 
resubmit comments to the TCEQ pursuant to 30 TAC Sections 39.412 and 
55.152.
    Second, in our separate but simultaneous final PSD SIP action 
published elsewhere in this issue of the Federal Register, we are 
finding the

[[Page 66647]]

TCEQ has adopted regulations sufficient to regulate emissions of GHGs 
from ``anyway'' major emitting sources under the Texas PSD program. As 
part of the Texas PSD SIP approval final action, a GHG PSD permit 
application will be subject to the Texas SIP-approved public notice and 
comment procedures that are consistent with the EPA's federal PSD 
public notice requirements at 40 CFR 51.166(q). For new GHG PSD permit 
applications processed by the TCEQ and those applications transferred 
to the TCEQ for which the EPA has not proposed a draft permit, the 
Texas SIP-approved public notice process will involve two opportunities 
for public comment under 30 TAC Sections 39.418 and 39.419 for the 
Notice of Receipt of Application and Intent to Obtain Permit (NORI) and 
the Notice of Application and Preliminary Decision (NAPD). For the 
subset of permit applications that are transferred to the TCEQ after 
the EPA has already proposed a draft permit, these applications will 
either use the NORI and NAPD or will go through a Combined Public 
Notice under 30 TAC Section 39.412. Opportunity for public review and 
comment will be provided in all instances where the TCEQ is the 
permitting authority for a GHG PSD permit application.
    We would like to correct one statement from the commenter 
concerning nonattainment permitting, which is that the EPA should 
retain the GHG PSD FIP permitting authority in sensitive nonattainment 
areas. There are no GHG nonattainment areas; the EPA was the permitting 
authority only for GHG PSD permits. The TCEQ has been, and continues to 
be, the permitting authority for Nonattainment New Source Review (NNSR) 
permits in Texas. In Brazoria County, the EPA was the permitting 
authority for the GHG PSD permits but the TCEQ was the permitting 
authority for the NNSR permitting program and all other non-GHG PSD 
pollutants.
    After review and consideration of the additional materials 
submitted by the citizens, the EPA has determined that the data 
submitted regarding ozone monitors and air quality in Clute, water 
quality in Galveston Bay, and maps identifying locations of the 
proposed GHG PSD permit applications, are beyond the scope of our 
review and are not relevant to our rescission of the GHG PSD FIP.
    No changes were made to the final FIP action as a result of these 
comments.
    Comment 7: Several commenters submitted comments regarding the 
EPA's document titled ``Transition Process for Transferring GHG PSD 
Permitting Authority to TCEQ.'' These comments are summarized below:
    A. Comments about notification to companies regarding the 
Transition Process:
    [cir] TCC suggests that the EPA clarify that letters sent to 
applicants will not be mailed until the final rule has been published 
in the Texas Register, on or about April 17, 2014.
    [cir] TCC requests that the EPA post a message or announcement on 
its Web site indicating that letters concerning the transition process 
have been submitted to any of the GHG applicants.
    B. Comments about the deadline for selecting a permitting authority 
under the Transition Process:
    [cir] TCC suggests the EPA not impose a firm 30-day decision 
deadline because of concerns that permit applicants selecting the TCEQ 
as the permitting authority may experience delay in processing of 
applications if the FIP rescission is delayed.
    [cir] TCC requests that the EPA clarify whether a permit applicant 
will have the opportunity to request additional time beyond 30 days to 
submit a response regarding permitting authority.
    C. Comments about the Transition Process for Issued Permits: TCC, 
TIP, and TXOGA requested that the EPA reconsider the transition 
process, such that permit applications currently being reviewed in the 
Environmental Appeals Board (EAB) could be transferred to TCEQ.
    Response 7: The EPA appreciates the comments on the Transition 
Process we will be using to transfer GHG PSD permitting authority to 
the TCEQ upon the effective date of rescission of the GHG PSD FIP and 
our simultaneous approval of the majority of the Texas GHG PSD SIP. 
After consideration of the comments and in light of the recent UARG v. 
EPA decision, we have determined it necessary to amend, in part, our 
Transition Process and EPA's proposed retained authority under the FIP. 
Below are our specific responses to the comments raised regarding the 
Transition Process and how the EPA finds it necessary to amend, in 
part, our retained authority under today's final FIP rescission.
    Response 7A: For permit applicants with applications submitted at 
the time of our February 18, 2014 proposal, we are making no changes to 
the Transition Process. The EPA has provided adequate notice to those 
initial permit applicants regarding the Transition Process. The EPA 
mailed letters to each GHG permit applicant on file with the EPA on 
March 27, 2014, requesting a response no later than May 15, 2014. Those 
letters are available for public access in the docket for this 
rulemaking action. By communicating with our initial permit applicants 
immediately following the March 26, 2014 TCEQ Commissioners vote to 
adopt the GHG PSD revisions, we provided our initial permit applicants 
with a reasonable amount of time to weigh individual business 
considerations and respond with a permitting authority request. The 
letters were delivered to the applicants via the U.S. Postal delivery 
and email, ensuring multiple means of communication with each 
applicant. Additionally, our Region 6 GHG Web site was updated to 
indicate the availability for review and comment on the EPA's proposed 
approval of the Texas GHG PSD SIP, rescission of the Texas GHG PSD FIP, 
and Transition Process. No changes were made to the final FIP action as 
a result of these comments.
    The EPA recognizes that since the time of our proposed rulemaking, 
we have received additional permit applications and those permit 
applicants were not afforded a similar opportunity to select a 
permitting authority by the May 15, 2014, deadline specified in the 
Transition Process. For these permit applications submitted after the 
February 18, 2014, proposal, the EPA is retaining the permitting 
authority until the EPA either issues a final permit and all subsequent 
administrative and judicial appeals are exhausted, or the applicant 
submits a written request to be transferred to the TCEQ, or the 
applicant withdraws the permit application from the EPA's 
consideration.
    Response 7B: The EPA does not believe it is necessary to extend the 
deadline for requesting a transfer of permitting authority beyond the 
May 15, 2014 deadline, as specified in our Transition Process for the 
initial permit applications that were submitted at the time of our 
February 18, 2014 proposed action. We received written permit authority 
requests from all permit applicants, submitted to the EPA, at the time 
of the proposed notice by the specified May 15, 2014, deadline.
    However, in consideration of these comments and in light of the 
UARG v. EPA decision, we have decided that for any permit application 
that was submitted after our proposed rulemaking, the EPA will retain 
permitting authority and continue to process and evaluate any pending 
permit application for an ``anyway'' source or modification unless or 
until the applicant submits a written request to transfer the authority 
to the TCEQ or the applicant withdraws the application from the EPA's 
consideration. There is

[[Page 66648]]

no 30-day time period for decision imposed on these permit applicants. 
Rather the applicant can make an informed business decision through 
consultation with the EPA and the TCEQ, up until the EPA has issued a 
final permit. The EPA's retained authority under the FIP was revised as 
a result of these comments.
    Response 7C: At this time, we intend to transfer all initial permit 
applications and related materials to the TCEQ where a permit applicant 
requested the transfer in writing by May 15, 2014, as specified in the 
Transition Process. Additionally, as discussed above in Responses 6A 
and 6B, for any permit application submitted after our February 18, 
2014, proposed rulemaking, the EPA will transfer the permit application 
and related materials to the TCEQ where the permit applicant submits a 
written request to the EPA to transfer to the TCEQ. The EPA will 
confirm the transfer of the permit application by providing a letter to 
the TCEQ and the permit applicant wherein we transfer the permit 
application, related materials, and state that we consider the request 
for transfer a withdrawal of the application that removes the 
application from review and further action by the EPA. As discussed in 
our February 18, 2014, proposed rulemaking, the EPA's permitting 
authority ``will cease upon an applicant's written request to the EPA 
withdrawing the pending permit application before a final determination 
is made.'' See 79 FR 9123, 9133. A final determination on the permit is 
made when all administrative and judicial appeals processes have been 
exhausted. The EPA will retain permitting authority for ``anyway'' GHG 
PSD permits that are issued or for ``anyway'' permit applications 
denied by the EPA for which either the time for filing an 
administrative appeal has not expired or all administrative and 
judicial appeals processes have not been completed. As stated in our 
Transition Process, a GHG PSD permit applicant has the ability to 
withdraw the permit application before the EPA and submit a new 
application to the TCEQ at any time until the permit becomes final. 
Because a permit does not become final until agency review procedures 
are exhausted, an applicant can withdraw an application while a permit 
is under EAB review. No changes were made to the final FIP action as a 
result of these comments, but we have modified the authority retained 
by EPA in the FIP for certain permit applications for other reasons.
    Comment 8: Sierra Club submitted several comments and supporting 
exhibits requesting that the EPA not approve the GHG PSD SIP and 
rescind the FIP until the TCEQ submits clarifications regarding access 
to judicial review for GHG PSD permits. First, Sierra Club commented 
that if the commission acts on a GHG permit, then the Texas regulations 
appear to require a party to go through the contested case hearing 
process in order to exhaust administrative remedies, which is necessary 
to later seek judicial review. However, HB 788 removes the opportunity 
for a contested case hearing for GHG permits. As a result, the TCEQ has 
not adequately clarified the process to exhaust all administrative 
remedies before seeking judicial review when the commission acts on a 
GHG permit.
    Response 8: Because judicial review of PSD permits is important and 
necessary under the Act, we have reevaluated the Texas judicial review 
process as it applies to GHG PSD permits issued by the TCEQ. 77 FR 
65305, at 65307 (Oct. 26, 2012).\3\ The TCEQ provided a letter to the 
EPA dated May 30, 2014 \4\ to clarify the judicial review process and 
the associated administrative remedies with respect to the GHG PSD 
permits issued by Texas. This letter explains the processes to exhaust 
administrative remedies and confirms that Texas law provides an 
opportunity for judicial review of all GHG PSD permits issued by the 
TCEQ. Texas regulations do not require a party to go through the 
contested case hearing process in order to exhaust administrative 
remedies when the commission acts on a GHG permit. Section 50.119(b) 
provides that ``[i]f the commission acts on an application, Sec.  
80.272 [Motion for Rehearing] of this title applies.'' Further, Section 
50.119(c)(3) provides that motions for rehearing may be filed on ``the 
commission's decision on an application.'' Section 80.272 is a 
procedural provision that sets out the process for filing a motion for 
rehearing after the commission makes a decision on a permit. State law 
allows the TCEQ to establish a motion for rehearing via regulation, 
even when there is no statutory right to a contested case hearing.\5\ 
Section 50.119(c) does not require a contested case hearing for a 
motion for rehearing to be available. We recognize that the judicial 
review process under Texas law differs from the administrative and 
judicial review processes available for PSD permit decisions under 40 
CFR Part 124 (opportunity to petition for administrative review by the 
EPA's Environmental Appeals Board (EAB)) and section 307(b) of the CAA 
(opportunity to seek review before the federal Circuit Court of 
Appeals) when the EPA or a delegated agency under 40 CFR 52.21 is the 
PSD permit issuer. However, the CAA does not require that the process 
for judicial review of the grant or denial of a PSD permit issued under 
a SIP approved PSD program be identical to that provided when the EPA 
or a delegated agency is the PSD permit issuer under 40 CFR 52.21. 77 
FR 65305 at 65307 (Oct. 26, 2012). No revisions were made to the final 
FIP action as a result of this comment.
---------------------------------------------------------------------------

    \3\ ``[W]e interpret the CAA to require an opportunity for 
judicial review of a decision to grant or deny a PSD permit, whether 
issued by EPA or by a State under a SIP-approved or delegated PSD 
program. See 61 FR 1880, 1882 (Jan. 24, 1996) (EPA's proposed 
disapproval of Virginia's PSD program SIP revision due to State law 
standing requirements that limited judicial review); 72 FR 72617, 
72619 (December 21, 2007) (in approving South Dakota's PSD program, 
EPA stated: ``We interpret the statute and regulations to require at 
minimum an opportunity for state judicial review of PSD 
permits'').'' 77 FR at 65307.
    \4\ Clarification Letter from Mr. Richard A. Hyde, P.E., 
Executive Director, TCEQ to Mr. Ron Curry, Regional Administrator, 
EPA Region 6 (May 30, 2014) (hereinafter ``Judicial Review 
Clarification Letter''. This letter is available in the docket for 
this rulemaking.
    \5\ Tex. Air Control Bd. v. Travis Cnty, 502 SW.2d 213, 215 
(Tex. Civ. App.-Austin 1973, no writ); see also, Sproles Motor 
Freight Line, Inc. v. Smith, 130 SW.2d 1087, 1088 (Tex. Civ. App.-
Austin 1939, writ ref d).
---------------------------------------------------------------------------

IV. Effective Date of Final Action

    The EPA has determined that today's final FIP action and the 
separate but simultaneous final approval of the majority of the Texas 
GHG PSD SIP are effective immediately upon publication under 5 U.S.C. 
Section 553(d) of the APA. The expedited effective date for this final 
FIP action and the separate but simultaneous SIP approval action is 
authorized under both 5 U.S.C. Section 553(d)(1) and 553(d)(3) of the 
APA. Section 553(d)(1) allows an effective date less than 30 days after 
publication if a substantive rule relieves a ``restriction.'' Section 
553(d)(3) allows an effective date less than 30 days after publication 
``as otherwise provided by the agency for good cause found and 
published with the rule.'' The EPA has determined that it is 
appropriate to make both final actions effective upon publication 
because the final removal of the Texas GHG PSD FIP and the separate but 
simultaneous final approval of the majority of Texas GHG PSD SIP will 
both relieve a permitting restriction and there is ``good cause'' to 
allow Texas to begin processing PSD GHG applications that meet the 
appropriate federal PSD requirements immediately. Final immediate 
action relieves a restriction by promoting an efficient single GHG 
permit process, supports an efficient use of EPA and

[[Page 66649]]

State resources, and creates certainty for the regulated community and 
public. It provides Texas with undelayed authority to regulate major 
GHG emitting sources, and the EPA and TCEQ have worked closely to 
ensure the State has adequate authority and resources to administer the 
GHG permitting program without a 30 day delay, which is normally the 
time required for affected parties to adjust their behavior and prepare 
before a final rule takes effect. The EPA has determined that moving as 
expeditiously as practicable to consolidate GHG PSD permitting with the 
TCEQ is consistent with the State's authority and resources to 
administer the GHG PSD permitting program. The EPA finds that the above 
reasons support an effective date prior to thirty days after the date 
of publication under 5 U.S.C. Section 553(d) for both today's final FIP 
action and the separate but simultaneous final SIP approval action by 
establishing good cause for making the rule immediately effective and 
demonstrating that the rule relieves a restriction.

V. Final Action

    The EPA is rescinding the GHG PSD FIP for Texas at 40 CFR 
52.2305(a) and (b), with three limited circumstances for retained 
authority for ``anyway'' source permit applications as specified in the 
new section of 40 CFR 52.2305(d). First, the EPA retains GHG PSD 
permitting authority for any pending ``anyway'' permit applications 
where the permit applicant submitted a written request to remain with 
the EPA for permit issuance by the deadline specified in our Transition 
Process. Second, the EPA will retain GHG PSD permitting authority for 
``anyway'' source permit applications submitted after February 18, 
2014, unless or until the applicant submits a written request 
transferring the permitting authority to the TCEQ. Finally, the EPA 
will retain GHG PSD permitting authority for any issued ``anyway'' 
permit or ``anyway'' permit application denied by the EPA for which 
either the time for filing an administrative appeal has not expired or 
all administrative and judicial appeals processes have not been 
completed by the publication date of the EPA's final actions to rescind 
the GHG FIP and simultaneously approve the TCEQ's PSD SIP submittal. 
Note, even for those cases where the EPA announces it will retain GHG 
PSD permitting authority over an ``anyway'' application, this authority 
will cease upon an applicant's written request to the EPA withdrawing 
the pending permit application before a final determination is made. 
The EPA Region 6 GHG Web site identifies the permit applications where 
the EPA retains GHG permitting authority. We intend to update this Web 
site as we process the pending permit applications and transfer the 
issued permits to the TCEQ for implementation. When all permit 
applications have been processed and transferred to the TCEQ, the EPA 
will, in a separate action, revise 40 CFR 52.2305 to remove the 
remaining GHG PSD FIP authority at Sec.  52.2305(a) and (b).
    Consistent with the UARG v. EPA decision, the EPA does not find it 
appropriate at this time to act on revisions to the Texas SIP providing 
the authority to regulate and permit non-``anyway'' sources and 
modifications of GHGs. Therefore, the EPA will not transfer issued non-
``anyway'' source permits to the TCEQ. The EPA will also not continue 
to process or evaluate pending permit applications for ``non-anyway'' 
sources or modifications.
    Our final action today also finds that through a letter dated 
January 13, 2014, the TCEQ has provided necessary and adequate 
assurances that the Texas PSD program will be revised in the future to 
address pollutants that become newly regulated under the CAA after 
January 2, 2011, and that the TCEQ has the adequate authority under 
State law to regulate any new PSD pollutants. Therefore, the EPA 
rescinds the PSD FIP for Newly Regulated Pollutants for Texas at 40 CFR 
52.2305(c).
    As explained in our February 18, 2014 proposal (see 79 FR 9123), 
this action is made possible because of our separate but simultaneous 
final action being published elsewhere in this issue of the Federal 
Register to approve the majority of the Texas PSD SIP revisions, which 
updates the Texas SIP to provide for the regulation of GHG emissions 
for ``anyway'' sources, and clarifies the applicability of BACT for all 
PSD permit applications. The EPA has made the determination that the 
majority of revisions to the Texas SIP are approvable because the 
revisions meet all applicable requirements of the CAA, and EPA 
implementing regulations that were not affected by the recent U.S. 
Supreme Court decision in UARG v. EPA. We noted that we are taking no 
action at this time other certain revisions that appear to no longer be 
needed in light of that decision. The EPA also has determined under the 
authority of 5 U.S.C. Section 553(d) of the APA, to make this final FIP 
action and the separate but simultaneous final PSD SIP approval action 
effective upon November 10, 2014. Upon the effective date of today's 
final FIP action and the separate but simultaneous final PSD SIP 
approval, the TCEQ will immediately assume responsibility for GHG PSD 
permitting, with the exception of the three limited circumstances where 
the EPA is retaining GHG PSD permitting authority under the FIP, as 
described this final FIP action. As such, all new GHG PSD permit 
applications will be submitted to and processed by the TCEQ.
    The EPA is finalizing this action under Section 110 and Part C of 
the Act.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This FIP withdrawal action is not a ``significant regulatory 
action'' under the terms of Executive Order 12866 (58 FR 51735, October 
4, 1993) and is therefore not subject to review under Executive Orders 
12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This FIP withdrawal action does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. because this partial FIP rescission under 
Section 110 and Part C of the CAA will not in-and-of itself create any 
new information collection burdens but simply transfers the permitting 
authority from EPA to the State. Burden is defined at 5 CFR 1320.3(b). 
Because this final action does not impose an information collection 
burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This rule 
will transfer the majority of GHG PSD permitting responsibility from 
the EPA to the State of Texas. This final rule applies to large 
emitters of GHGs that tend to be large sources. The result of this 
final action, however, simply is to transfer the majority of authority 
to administer the PSD program for GHGs from EPA to the State of Texas 
and does not create any new requirements. The substantive requirement 
for a source to obtain a PSD permit prior to construction of a new 
major source of GHGs or modification of an existing major source that 
will significantly increase GHGs is not changed by this final FIP 
action. This

[[Page 66650]]

final FIP action will not impose any new requirements on small 
entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action removes the majority of a Federal plan 
and transfers most permitting responsibility of GHG emissions from the 
EPA to the State of Texas. Small governments are not impacted.

E. Executive Order 13132: Federalism

    This FIP withdrawal action does not have federalism implications. 
It will not have substantial direct effects on Texas, on the 
relationship between the national government and the State of Texas, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between the EPA and State and local 
governments, the EPA specifically solicited comment on the proposed 
action from State and local officials. The EPA received no adverse 
comments from state or local governments on this rulemaking but only 
comments in support from the State.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action, 
the EPA is not addressing any Tribal Implementation Plans. This action 
is limited to the withdrawal of the majority of the Texas GHG PSD FIP. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because the EPA is withdrawing the majority of 
the federal GHG PSD FIP in Texas as authorized by the CAA.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This final rule does not provide the 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).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary or contrary to the public interest (5 U.S.C. 
808(2)). The EPA has made a good cause finding for this rule as 
discussed in Section IV (Effective Date of Final Action), including the 
basis for that finding.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 9, 2015. 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 CAA section 307(b)(2); 5 U.S.C. 
7607(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 30, 2014.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR Part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. Section 52.2305 is amended by removing and reserving paragraph (c) 
and by adding paragraph (d) to read as follows.

Sec.  52.2305  What are the requirements of the Federal Implementation 
Plan (FIP) to issue permits under the Prevention of Significant 
Deterioration requirements to sources that emit greenhouse gases?

* * * * *
    (d) The authority provided in paragraphs (a) and (b) of this 
section is rescinded except in the three limited circumstances 
described in paragraphs (d)(1) through (3) of this section:
    (1) The EPA will retain permitting authority for all GHG PSD permit 
applications for major sources and major modifications required to 
obtain PSD permits because of emissions of pollutants other than GHGs 
submitted to the EPA where the permit applicant submitted a written 
request by May 15, 2014, that the EPA continue processing the 
application.
    (2) The EPA will retain permitting authority for all GHG PSD permit 
applications for major sources and major modifications required to 
obtain PSD permits because of emissions of pollutants other than GHGs 
submitted to the EPA after February 18, 2014, unless and until the 
applicant submits to the EPA a written request to transfer the 
permitting authority to TCEQ (or withdraws the application) prior to 
issuance of a final permit decision under 40 CFR 124.15(b).
    (3) The EPA will retain permitting authority for GHG PSD permits 
issued by the EPA for major sources and major modifications required to 
obtain PSD permits because of emissions of pollutants other than GHGs 
and GHG PSD permit applications denied by the EPA for major sources and 
major

[[Page 66651]]

modifications required to obtain PSD permits because of emissions of 
pollutants other than GHGs for which either the time for filing an 
administrative appeal has not expired or all administrative and 
judicial appeals processes have not been completed by November 10, 
2014. Except that the EPA will not retain authority over a permit if an 
applicant submits a written request to the EPA to withdraw the permit 
application while an administrative appeal is pending and the Regional 
Administrator then withdraws the permit under 40 CFR 124.19(j) or the 
Environmental Appeals Board grants a voluntary remand under 40 CFR 
124.19(j) or another appropriate remedy.

[FR Doc. 2014-26315 Filed 11-7-14; 8:45 am]
BILLING CODE 6560-50-P
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