[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66626-66641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26314]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0808; FRL-9912-51-OAR]


Approval and Promulgation of Air Quality Implementation Plans; 
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 approving 
portions of two 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. Together, these two SIP 
submittals revise the Texas Prevention of Significant Deterioration 
(PSD) Program to provide for the regulation of greenhouse gas (GHG) 
emissions and clarify the applicability of Best Available Control 
Technology (BACT) for all PSD permit applications. The EPA is approving 
portions of the October 5, 2010, and April 16, 2014, SIP revisions to 
the Texas SIP and New Source Review (NSR) permitting program as 
consistent with federal requirements for PSD permitting of GHG 
emissions. The EPA is taking no action on the portion of the October 5, 
2010, SIP revision which pertains to the Texas Minor NSR program for 
Qualified Facilities and portions of the April 16, 2014, submittal that 
appear no longer appropriate for inclusion in the Texas SIP after the 
recent United States Supreme Court decision discussing greenhouse gas 
emissions. The EPA is approving this action under Section 110 and Part 
C of the Clean Air Act (CAA). In a separate but simultaneous action 
published elsewhere in this issue of the Federal Register, the EPA is 
also rescinding the GHG PSD Federal Implementation Plan (FIP) for 
Texas, with three limited circumstances for retained authority.

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-

[[Page 66627]]

R), telephone (214) 665-2115, email <a href="/cdn-cgi/l/email-protection#fd8a94919884d39c9994939cbd988d9cd39a928b"><span class="__cf_email__" data-cfemail="7007191c15095e1114191e11301500115e171f06">[email protected]</span></a>.

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. Demonstration that the Texas PSD Program is consistent with 
the application of the CAA and UARG v. EPA
    C. Provisions where the EPA is Taking No Action
    D. Provisions where the EPA is Finalizing Action
III. Response to Comments
IV. Effective Date of Final Action
V. Final Action
VI. Statutory and Executive Order Reviews

I. Background

    This final action approves portions of two revisions to the Texas 
SIP submitted on October 5, 2010 and April 16, 2014. The April 16, 
2014, submittal includes revisions to the Texas SIP to provide the 
State of Texas with the authority to regulate GHG emissions, issue PSD 
permits governing GHG emissions, establish emission thresholds for new 
stationary sources and modifications to existing stationary sources 
that are subject to Texas' PSD permitting requirements for their GHG 
emissions based on their emissions of air pollutants other than GHGs 
(also known as ``Step 1'' or ``anyway'' sources), and revises several 
Minor NSR provisions to specify that Minor NSR permit mechanisms cannot 
be used for authorizing GHG emissions. The October 5, 2010, submittal 
revises the Texas SIP to clarify that all PSD permits must undergo BACT 
review consistent with the requirements in the Federal and Texas PSD 
programs.
    The background for this final approval of the revisions to the 
Texas SIP and the background for the separate, but simultaneous action 
to rescind the Texas GHG PSD FIP, arediscussed 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. As such, we 
proposed approval of the SIP revisions and simultaneously proposed to 
rescind the majority of the GHG PSD FIP for Texas.
    Under the EPA's ``parallel processing'' procedure, the EPA proposes 
a rulemaking action on a proposed SIP revision concurrently with the 
State's public review process. If the State's proposed SIP revision is 
not significantly or substantively changed, the EPA will finalize the 
rulemaking on the SIP revision as proposed after responding to any 
submitted comments. Final rulemaking action by the EPA will occur only 
after the final SIP revision has been fully adopted by the TCEQ and 
submitted formally to the EPA for approval as a revision to the Texas 
SIP. See 40 CFR part 51, Appendix V.
    The TCEQ completed their state rulemaking process and adopted 
revisions on March 26, 2014. The TCEQ submitted these adopted changes 
as a revision to the Texas SIP on April 16, 2014. The EPA has evaluated 
the State's final SIP revision for any changes made from the time of 
proposal. See ``Addendum to the TSD'' for EPA-R06-OAR-2013-0808, 
available in the rulemaking docket. Our evaluation indicates that the 
revisions 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. As 
such, the EPA is proceeding with our final approval of the majority of 
the revisions to the Texas SIP, consistent with the parallel processing 
provisions in 40 CFR Part 51, Appendix V. Additionally, the EPA is not 
acting at this time on certain sections of the April 16, 2014, 
submittal that appear no longer appropriate after the recent United 
States Supreme Court decision, UARG v. EPA, as discussed in Section II 
of this notice. We are taking a separate but simultaneous action 
elsewhere in this issue of the Federal Register to rescind the Texas 
GHG PSD FIP, with the exception of three limited circumstances for 
retained federal permitting authority.

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), 134 S.Ct. 2427 (2014). 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 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 
Section 51.166(b)(48)(v), which addresses state 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, 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

[[Page 66628]]

``Step 2'' sources obtain PSD permits. Thus, despite the fact that 
section 51.166(b)(48)(v) remains in the Code of Federal Regulations at 
this time, in light of the Supreme Court 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 
sources 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 or modified source that 
is otherwise subject to PSD requirements as a result of its emissions 
of another regulated 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 
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 (CO<INF>2</INF>e) 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 
CO<INF>2</INF>e and greater than zero on a mass basis.
    Based on information submitted by TCEQ, the 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 the 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. As noted above, the EPA disagrees with 
this position. 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 confirmed 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

[[Page 66629]]

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 
approval of the Texas SIP submittals and its rescission of the FIP and 
as discussed in the separate final FIP action published elsewhere in 
this issue of the Federal Register.

B. Demonstration That the Texas PSD Program Is Consistent With the 
Application of the CAA and UARG v. EPA

    The following analysis explains how the Texas PSD program for GHGs 
meets the requirements of the Clean Air Act and the EPA's regulations, 
and fits within the parameters of the Supreme Court's decision. First, 
the revised Texas PSD SIP recognizes GHGs and appropriately applies GHG 
requirements to PSD through the new definitions of ``greenhouse gases'' 
in 30 TAC Sections 101.1 and 116.12 and the definitions adopted at 30 
TAC Section 116.12 for ``carbon dioxide equivalent'' and ``federally 
regulated air pollutant.'' The ``carbon dioxide equivalent'' definition 
is necessary to calculate the amount of GHG emissions in PSD permit 
applications and the revised definition of ``federally regulated new 
source review pollutant'' explicitly identifies GHGs as regulated NSR 
pollutants. In addition, this definition references thresholds outlined 
in 30 TAC Section 116.164(a)(1) and (a)(2), which include the 75,000 
tpy CO<INF>2</INF>e threshold for application of BACT to GHGs as 
discussed above. Second, once a GHG source is determined to be 
otherwise subject to PSD, the Texas PSD program elements at 30 TAC 
Sections 116.160, 116.164(a)(1), 116.164(a)(2), and 116.169 apply in 
the following way:
    1. The applicability of the Texas PSD program is governed by 30 TAC 
Section 116.160(a) and applies to each proposed new major source or 
major modification in an attainment or unclassifiable area. To ensure 
that the Texas PSD program approved into the SIP does not use GHG 
emissions alone to determine whether a source is a major stationary 
source or a major modification subject to PSD, the EPA is taking no 
action at this time on the substantive revisions in 116.160(a) 
pertaining to GHGs, or to the revisions to the definitions in 30 TAC 
Section 116.12(19) and (20) that expanded ``major stationary source'' 
and ``major modification'' to apply to sources that emit only GHGs 
above major source levels and modifications that increase only GHGs 
above applicable levels. This ensures that the portion of the existing 
Texas PSD program at 30 TAC Section 116.160(a) that is part of the 
approved Texas SIP does not extend PSD applicability to sources not 
already subject to PSD based on emissions of pollutants other than GHGs 
and limits the scope of the approved SIP solely to ``anyway sources'' 
and modifications.
    2. After it has been determined that an existing source proposing 
to modify is a major source potentially subject to PSD requirements, 
the next step in the Texas PSD program is to apply the netting test as 
required under 30 TAC Section 116.160(b). Under the Texas regulations, 
this netting test is to determine whether the modification requires a 
PSD permit because it results in a net significant increase of 
federally regulated new source review pollutants. The EPA is taking no 
action at this time on the substantive revisions to the definition in 
30 TAC Section 116.12(20) of ``major modification'' so that the PSD 
requirements in the approved Texas SIP will only apply to a modified 
source when there is a net significant increase of a regulated 
pollutant other than GHGs.
    3. Finally, if the emissions from construction of a new source or 
net emission increase from a major modification are greater than the 
levels at 52.21(b)(23) for a particular pollutant or the interim 
thresholds for GHGs at 30 TAC Section 116.164(a)(1) and (a)(2), then 
BACT is required to be applied to each such pollutant under 30 TAC 
Section 116.160(c).\3\ This section incorporates Section 52.21(j) of 
EPA's regulation, which requires BACT for each ``regulated NSR 
pollutant'' that a new source emits or that a major modification 
increases in a significant amount. The Texas regulations do not 
incorporate the definition of ``regulated NSR pollutant'' in Section 
52.21(b)(50) of EPA's regulations, but rather contain a Texas-specific 
definition of ``federally-regulated NSR pollutant'' in Section 
116.12(15), which covers greenhouse gases. Because the Texas 
regulations approved into the SIP in this action explicitly identify 
GHGs as a federally-regulated NSR pollutant above the interim 
thresholds in 30 TAC Section 116.164(a)(1) and (a)(2), the 75,000 tpy 
CO<INF>2</INF>e threshold will be used for GHGs rather than the default 
of any amount greater than 0 tpy for a pollutant not listed at 40 CFR 
52.21(b)(23). Therefore, with only the provisions approved in this 
action identified above, the approved portions of the Texas PSD program 
in the state's SIP will apply BACT for GHG emissions at the interim 
thresholds to only ``anyway'' sources and modifications.
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    \3\ Note the Texas PSD SIP incorporates the major modification 
levels at 40 CFR 52.21(b)(23).
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    The EPA concludes that the Texas SIP and PSD program regulate GHGs 
through the PSD program as consistent with the June 23, 2014, UARG v. 
EPA decision for ``anyway sources''.

C. Provisions Where the EPA Is Taking No Action

    Because of the Supreme Court's ruling, the EPA is not taking final 
action at this time on certain SIP provisions. We are not taking action 
at this time on the provisions listed below as they are not necessary 
to appropriately regulate ``anyway'' sources. We believe these 
provisions are severable from other portions of the Texas SIP 
submissions and we do not need to act on them now to finalize approval 
of all other provisions of the submittal.
    <bullet> Revisions to 30 TAC Section 106.4(a)(1), (a)(3) and (a)(4) 
adopted on March 26, 2014, and submitted on April 16, 2014;
    <bullet> Substantive revisions to the definition of ``major 
stationary source'' at 30 TAC Section 116.12(19) adopted on March 26, 
2014, and submitted on April 16, 2014; \4\
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    \4\ Note that the EPA is approving the renumbering of the 
Definitions in 30 TAC Section 116.12, which will include the 
renumbering of the existing SIP-approved definition of ``major 
stationary source'' from 30 TAC Section 116.12(17) to 30 TAC Section 
116.12(19).
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    <bullet> Substantive revisions to the definition of ``major 
modification'' at 30 TAC Section 116.12(20) adopted on March 26, 2014, 
and submitted on April 16, 2014; \5\
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    \5\ Note that the EPA is approving the renumbering of the 
Definitions in 30 TAC Section 116.12, which will include the 
renumbering of the existing SIP-approved definition of ``major 
modification'' from 30 TAC Section 116.12(18) to 30 TAC Section 
116.12(20). We are also approving other non-substantive revisions to 
the name of the Figure within the definition, and to footnotes 1 and 
5 of the Figure.
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    <bullet> Revisions to 30 TAC Section 116.111(a)(2)(I) adopted on 
March 26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.160(a) and (b) adopted on 
March 26, 2014, and submitted on April 16, 2014;
    <bullet> New 30 TAC Sections 116.164(a)(3), (a)(4), (a)(5), and (b) 
adopted on March 26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Sections 116.610(b) adopted on March 
26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Sections 116.611(b), 116.611(c)(3), 
116.611(c)(3)(A), and 116.611(c)(3)(B) adopted on March 26, 2014, and 
submitted on April 16, 2014; and

[[Page 66630]]

    <bullet> Revisions to 30 TAC Sections 122.122(e)(3), (e)(3)(A), and 
(e)(3)(B) adopted on March 26, 2014, and submitted on April 16, 2014.
    In a letter dated October 1, 2014, the TCEQ informed EPA of its 
view that the provisions listed above ``are no longer appropriate or 
necessary for the SIP'' after the Supreme Court decision in UARG v. 
EPA. EPA concurs with this assessment by TCEQ and is not taking action 
on the submitted revisions to these provisions in this rulemaking.

D. Provisions Where the EPA Is Finalizing Action

    The remaining provisions in the Texas SIP submissions can operate 
independently and do not depend on the provisions listed above to 
provide authority for the TCEQ to issue PSD permits for ``anyway 
sources'' that contain limitations on GHGs based on application of 
BACT. The provisions we are approving in this action are listed below. 
These provisions are sufficient by themselves to ensure the TCEQ will 
have a GHG PSD program in place that is consistent with the Court's 
ruling and the provisions of 40 CFR 51.166 that the EPA is continuing 
to apply and enforce at this time.
    <bullet> Substantive and non-substantive revisions to 30 TAC 
Section 116.111(a)(2)(i), (a)(2)(B), (a)(2)(C), (a)(2)(D), and 
(a)(2)(F) adopted on September 15, 2010, and submitted on October 5, 
2010;
    <bullet> Revisions to 30 TAC Sections 39.411(e)(11), (e)(15), 
(e)(16), (f)(4), (f)(8), 39.412(a)-(d), 39.419(e)(1), and 39.420(e)(4) 
adopted on March 26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 101.1 adopted on March 26, 
2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 101.10 adopted on March 26, 
2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 101.201 adopted on March 26, 
2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 106.2 and 106.4(d) adopted on 
March 26, 2014, submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.12 adopted on March 26, 
2014, submitted on April 16, 2014, including the renumbering of SIP-
approved definitions for ``major stationary source'' and ``major 
modification'' at non-substantive revisions within those definitions; 
\6\
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    \6\ As specified in Section II.C of this final rule, the EPA is 
taking no action at this time on the substantive revisions to the 
definitions of ``major stationary source'' and ``major 
modification'' pertaining to non-anyway sources and modification.
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    <bullet> Revisions to 30 TAC Section 116.111(b)(1) adopted on March 
26, 2014, submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.160(c) adopted on March 
26, 2014, submitted on April 16, 2014;
    <bullet> New provisions at 30 TAC Section 116.164(a) introductory 
paragraph, (a)(1), and (a)(2) adopted on March 26, 2014, submitted on 
April 16, 2014;
    <bullet> New provisions at 30 TAC Section 116.169(a) adopted on 
March 26, 2014, submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.610(a)(1) adopted on March 
26, 2014, submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.611(c)(1) and (c)(2) 
adopted on March 26, 2014, submitted on April 16, 2014; and
    <bullet> Revisions to 30 TAC Section 122.122(a), (e)(1), and (e)(2) 
adopted on March 26, 2014, submitted on April 16, 2014.
    The EPA anticipates that we will need to take additional action to 
revise the federal PSD requirements for GHG PSD permitting in light of 
the Supreme Court decision. The timing and content of such revisions 
are expected to be informed by ongoing legal proceedings before the 
D.C. Circuit. These revisions to federal requirements may necessitate 
future revisions to the Texas SIP. The EPA will work with Texas, and 
all other affected states, to address future changes in our federal 
permitting requirements in an expeditious manner.

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. Below is our summary of each comment 
received relating to the SIP action and our response. The EPA notes 
that the comments and our responses to comments relevant to the final 
FIP rescission action are in the separate but simultaneous final 
action. Comments and responses that relate to both final actions are 
found in both 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 SIP approval rule 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 GHG PSD SIP and the rescission of 
the GHG PSD FIP effective immediately upon publication in the Federal 
Register pursuant to the Administrative Procedure Act (APA), Section 
553(d). As explained more fully in Section IV of this document and in 
Comment/Response 3, the EPA finds that this final SIP action and the 
separate but simultaneous final FIP rescission action should 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 the date 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

[[Page 66631]]

in Section III of this final SIP action and in Section III of the 
separate but simultaneous final FIP action, we have determined that 
both the final approval of the GHG PSD SIP and the separate but 
simultaneous rescission of the GHG PSD FIP be effective immediately 
upon publication in the Federal Register. An immediate effective date 
is authorized under the APA, Section 553(d)(1), which provides that a 
rulemaking action 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), which 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, the immediate effective date helps to relieve the 
restriction on the 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'' 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. 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. Additionally, 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 thirty days after the date of publication under 
5 U.S.C. Section 553(d) for both this final SIP approval action and the 
separate but simultaneous final FIP action. We have revised the 
effective date of our final SIP action as a result of these comments.
    Comment 4: The HB 788 Working Group commented that the EPA should 
proceed with finalizing our proposed parallel processing even though 
the TCEQ Commissioners are likely to revise the Texas GHG PSD rule 
package in response to public comments received at the March 26, 2014, 
agenda meeting. The HB 788 Working Group summarized the proposed 
changes and characterized the changes as follows: (1) clarify the 
distinction between the GHG PSD program and Texas minor NSR 
requirements; (2) remove the exemption for CO<INF>2</INF> from biogenic 
sources from the new definition of CO<INF>2</INF>-equivalent emissions 
(CO<INF>2</INF>e), consistent with the EPA's action in the proposed GHG 
PSD SIP approval; (3) clarify GHG PSD applicability and ensure 
consistency with federal requirements; (4) address recordkeeping 
requirements for non-PSD changes in GHGs; and (5) establish a deadline 
for GHG-only major sources to certify emissions of GHGs below major 
source thresholds that is consistent with the federal Part 70 and Texas 
Chapter 122 deadlines.
    Response 4: The TCEQ submitted the final GHG PSD SIP submittal on 
April 16, 2014. As discussed above in Section I of this rulemaking and 
the Addendum to the TSD, the TCEQ Commissioners did not adopt material 
changes as a result of public comment. The EPA has evaluated the 
adopted changes and determined that each change is not significant or 
substantive in nature. Because these were not material changes to the 
regulations that the EPA proposed to approve, the EPA's notice of 
proposed rulemaking provided sufficient notice to members of the public 
of the substance of the TCEQ regulations that the EPA is approving into 
the Texas SIP in this final rule. However, as discussed above in 
Section II of this final action, some of the provisions that the EPA 
proposed to approve are now no longer appropriate for inclusion in the 
Texas SIP after the Supreme Court's ruling. Nevertheless, the EPA is 
finalizing approval of the majority of the revisions to the Texas SIP 
as proposed, including those provisions with revisions that are not 
significant or substantive, adopted by the TCEQ on March 26, 2014, and 
submitted on April 16, 2014. See Section II.C and II.D of this final 
rulemaking for an explanation of which submitted provisions where we 
are taking no action and which provisions are being finally approved.
    Comment 5: 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 5: As stated in our proposed approval, the TCEQ submitted 
a letter 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.
    We would also like to correct one statement from the commenter 
concerning the EPA's delegation of permitting authority to the TCEQ. 
The EPA's final action today approves under Section 110 of the CAA, the 
Texas GHG PSD permit process as part of the Texas SIP. The EPA wishes 
to clarify to the commenter that our final action is a SIP approval, 
not a delegation of the EPA's authority. Once a SIP is approved, the 
state permitting authority issues permits consistent with the SIP under 
state law. CAA Section 110 does not involve a ``delegation'' of the EPA 
authority under federal law to states. Rather, states exercise primary 
authority as implemented through their EPA-approved SIPs, including 
issuing state permits under state law under a PSD SIP. In general, when 
the EPA approves a PSD SIP, the EPA makes a determination that a state-
issued preconstruction permit that complies with the state law in the 
SIP will satisfy the federal PSD permitting requirements that are 
applicable under the CAA and EPA regulations at the time of the SIP 
approval. No changes have been made to the final SIP approval rule as a 
result of this comment.
    Comment 6: 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 6: Although not specifically referenced in the comment, we 
believe the commenter's reference to ``pending

[[Page 66632]]

Supreme Court decision around GHG'' refers to the following case that 
was 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 decided this case on June 23, 
2014. See Section II of this final action for a detailed discussion. 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. The 
EPA is proceeding with the finalization of the majority of the 
revisions to the Texas SIP and the separate but simultaneous FIP 
removal that we proposed to approve on February 18, 2014. However, in 
order to proceed consistent with the Court's decision as detailed in 
Section II and Comment/Response 4, the EPA is taking no action at this 
time on the portions of the April 16, 2014, submittal that provided for 
the permitting of ``Step 2,'' ``non-anyway'' sources.
    Comment 7: The EPA should state for the record that the reasonable 
possibility recordkeeping requirements pursuant to 40 CFR 52.21(r)(6) 
do not apply to GHG emissions if the emissions increase is less than 
75,000 tpy CO<INF>2</INF>e. The reasonable possibility requirements 
under 40 CFR 52.21(r)(6) apply to a ``regulated NSR pollutant.'' The 
definition of ``regulated NSR pollutant'' in 40 CFR 52.21(b)(50) 
includes any pollutant that is ``subject to regulation.'' Pursuant to 
40 CFR 52.21(b)(49), GHG is not subject to regulation and thus is not a 
regulated NSR pollutant if the emissions increase is less than 75,000 
tpy CO<INF>2</INF>e.
    Response 7: After the Supreme Court decision, the EPA considers GHG 
emissions to be subject to regulation only if the criteria at 40 CFR 
52.21(b)(49)(i) through (iv) are satisfied. As discussed above, these 
provisions remain in the Code of Federal Regulations at the present 
time. The EPA may need to consider modifications to these regulations, 
but under the existing provisions, the reasonable possibility 
requirements at 40 CFR 52.21(r)(6) do not apply for GHG emissions below 
the subject to regulation thresholds.
    Comment 8: Air Alliance Houston commented that the EPA should not 
approve the Texas rules without first requiring the TCEQ to explicitly 
allow for public review and comment on all BACT analyses.
    Response 8: As discussed in our February 18, 2014, proposed 
approval, the proposed revisions to the Texas SIP and the existing 
Texas SIP already require public review and comment on all BACT 
analyses. Even though we are not finalizing approval of the submitted 
revisions to 30 TAC Section 116.111(a)(2)(I) that were adopted on March 
26, 2014, and submitted on April 16, 2014, the existing Texas SIP at 30 
TAC Section 116.111(a)(2)(I) requires that any permit application for a 
proposed facility in an attainment area comply with all applicable 
requirements of PSD review. As discussed in our February 18, 2014, 
proposed approval, one such applicable requirement for PSD permitting 
is the SIP-approved requirement at 30 TAC Section 116.111(b)(2) which 
requires that Chapter 39 public notice provisions are followed for PSD 
permits declared administratively complete on or after September 1, 
1999. As also discussed in our February 18, 2014, proposed approval, 
the EPA, in a separate rulemaking action on January 6, 2014, previously 
approved the public notice provisions in 30 TAC Chapter 39 as 
consistent with all requirements for PSD public notice. See 79 FR 9123, 
9129. As discussed more fully in Section II.B of this final SIP 
approval action, the EPA has concluded that the Texas PSD program will 
apply GHG BACT to all ``Step 1'' or ``anyway'' sources. Therefore, any 
GHG PSD permit application will be subject to PSD public notice 
requirements under the SIP-approved public notice provisions for PSD 
permit applications at 30 TAC Chapter 39. Specifically, the SIP-
approved public notice provisions at 30 TAC Section 39.405(g) require 
the applicant to make available for public review the permit 
application, additional materials submitted in support of the 
application, the air quality analysis, the preliminary determination 
summary, and the draft permit. The BACT analysis for a given GHG PSD 
permit application for an ``anyway'' source will therefore be included 
in the materials available for public review and comment. Please note 
that we are no longer taking action on provisions that deal with ``non-
anyway'' or ``Step 2'' sources, as discussed elsewhere in this notice.
    Comment 9: Air Alliance Houston commented that the EPA should 
require the TCEQ to assess add-on GHG pollution control equipment 
consistent with the federal BACT program. Air Alliance Houston further 
commented that the three-tiered Texas BACT process required by the 
Texas Clean Air Act is not consistent with the top-down, five-step 
federal BACT analysis. Public citizens also commented to request 
clarification on how BACT is determined and questioned who is 
responsible for determining whether controls such as carbon capture 
would be feasible.
    Response 9: The EPA's final action today approves revisions to 30 
TAC Section 116.111(a)(2)(C) to clarify the application of BACT for all 
permit applications in Texas, including GHG PSD permit applications. 
This provision clarifies that the TCEQ use two types of BACT for permit 
reviews--federal BACT pursuant to the requirements of Title I Part C 
and Texas BACT under the Texas Clean Air Act (TCAA). The revision 
clarifies federal BACT must be applied first to any facility subject to 
PSD requirements. While this provision is germane to all Texas PSD 
permits, this applies to PSD permits for anyway sources with GHG 
emissions. These GHG PSD permits will be required to apply federal BACT 
as well as TCAA BACT. Federal BACT requirements will govern the 
permitting process if there is a difference in stringency between the 
federal BACT requirements and the Texas BACT requirements. See the 
discussion in our February 18, 2014, proposed approval at 79 FR 9123, 
9128. Additionally, as discussed in past SIP approval actions on the 
Texas PSD program, the EPA has determined that the Texas BACT process 
is an appropriate alternative to the federal top-down process.\7\ This 
action on the Texas GHG PSD SIP revision does not alter our 
determination that the TCEQ will continue to implement the Texas PSD 
program consistent with federal requirements. This approval of 30 TAC 
Section 116.111(a)(2)(C) further supports our previous determinations 
that the TCEQ shall apply Texas BACT and federal BACT to all PSD 
permits, and if there is a conflict, the federal BACT requirements will 
apply. As to the specific process for applying BACT review in a PSD 
permit, under state law at 30 TAC Sections 116.111(a)(2)(C) and 
116.160(c)(1)(A), the applicant must submit an application including 
specific control technology.\8\ As the PSD

[[Page 66633]]

permitting authority, the TCEQ, under its PSD permit rules at 30 TAC 
Sections 116.160 and 116.164(a) introductory paragraph, (a)(1) and (2) 
only, shall review the application and specified control technology and 
determine whether the technology is considered BACT. Under the Texas 
SIP at 30 TAC Section 39.405(g)(3), the TCEQ's analysis of the proposed 
BACT shall be included in the proposed state issued permit, which is 
subject to public review and comment. Public citizens have an 
opportunity to review the TCEQ's proposed BACT determination and 
provide comments on the proposed permit during the specific comment 
period under 30 TAC Section 55.152. Pursuant to the Texas SIP at 30 TAC 
Section 55.156(b), the TCEQ must respond to all comments received on 
proposed PSD permits.
---------------------------------------------------------------------------

    \7\ See the EPA's proposed approval of the Texas PSD program on 
December 22, 1989 at 54 FR 52823, 52825. See also the EPA's final 
approval of the Texas PSD program on June 24, 1992 at 57 FR 28093, 
28096.
    \8\ The revisions to 30 TAC Section 116.160(c) adopted on March 
26, 2014, and submitted on April 16, 2014, refer to the requirements 
for GHG PSD permitting in 30 TAC Section 116.164. As noted in 
Section II.C of this final SIP approval, EPA is not taking action at 
this time on portions of 30 TAC Section 116.164 that add thresholds 
pertinent to whether a non-anyway source or modification requires a 
PSD permit solely for GHG emissions. But, EPA is acting to approve 
the portions of 30 TAC Sections 116.164 that apply a ``75,000 TPY 
``major modification level'' to increases in GHGs at anyway sources 
and modifications, so it remains appropriate for EPA to act to 
approve the submitted revisions to 30 TAC Section 116.160(c) adding 
the reference to the thresholds for GHGs in 30 TAC Section 
116.164(a)(1) and (a)(2).
---------------------------------------------------------------------------

    Comment 10: 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 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 10: 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. 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 rescission of 
the FIP for GHGs. We received no comments on this specific issue. As 
stated in the proposal, the EPA finds the TCEQ has the necessary legal 
and regulatory provisions in place to successfully implement the 
federal requirements for GHG PSD permitting. As such, we are finalizing 
the approval of the Texas SIP provisions for GHG PSD permitting, with 
the above noted exceptions where we are taking no action at this time 
on certain revisions that appear to no longer be needed after the 
Supreme Court's UARG v. EPA decision. In a separate but simultaneous 
action published elsewhere in this issue of the Federal Register, we 
are rescinding the majority of the Texas GHG PSD FIP. Upon the 
effective date of both of these actions, the TCEQ will have the 
authority to process applications and issue GHG PSD permits, except 
where the EPA retained authority in three limited circumstances. 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 a permit application is withdrawn from 
the EPA. 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 retains authority over a permit application or an issued permit has 
not gone through exhaustion of all administrative and judicial appeals, 
as discussed in our final FIP rescission action. 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, as we are finalizing this SIP approval rulemaking today, we 
find the 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 program, 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 ``anyway'' applications transferred 
from the EPA 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

[[Page 66634]]

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 proposed approval of the Texas GHG 
PSD SIP. No changes were made to the final SIP approval rule as a 
result of these comments.
    Comment 11: Air Alliance Houston commented that the EPA should 
encourage the TCEQ to compile an annual GHG emissions inventory of 
those sources required to submit emissions information under the EPA's 
GHG Reporting Program.
    Response 11: While we appreciate the commenter's suggestion, this 
requirement is beyond the scope of this action. Our final action today 
approves revisions to the Texas PSD SIP to provide the TCEQ the 
authority to regulate GHG emissions from ``anyway'' sources under the 
Texas PSD program consistent with the PSD requirements after the 
Supreme Court's UARG v. EPA decision. The EPA's PSD program regulation 
applicable to approval of a state program (40 CFR 51.166) does not 
require a GHG emissions inventory. However, as the commenter noted, the 
EPA has a separate requirement under the federal GHG Reporting Program 
that requires certain sources to report annual GHG emissions to the EPA 
for tracking in a national database. See the EPA regulations at 40 CFR 
Part 98. We note that the data submitted to the GHG Reporting Program 
is made available to the public at http://www.epa.gov/climatechange/ghgemissions and can be readily sorted by state. The implementation of 
the GHG Reporting Program is outside the scope of the Texas SIP 
revision that the EPA is approving in this action. No changes were made 
to the final SIP approval rule as a result of these comments.
    Comment 12: 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 the TCEQ.
    Response 12: The EPA appreciates the comments on the Transition 
Process we will be using to transfer GHG PSD permitting authority to 
the TCEQ. After consideration of the comments and in light of the 
recent UARG v. EPA decision, we have decided that it is necessary to 
revise, in part, our Transition Process as well as revise, in part, the 
EPA's proposed retained authority under the FIP. Below are our specific 
responses to the comments raised regarding the Transition Process and a 
discussion of how the EPA is revising our retained authority under the 
separate but simultaneous FIP rescission.
    Response 12A: 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 the SIP and 
FIP rulemaking actions. By communicating with our initial permit 
applicants immediately following the TCEQ Commissioners vote on March 
26, 2014, 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 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 SIP approval 
rule 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, the applicant 
submits a written request to be transferred to the TCEQ, or the 
applicant withdraws the permit from the EPA.
    Response 12B: 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 in house 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 applications 
that were 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 withdraws the permit application from the EPA. The EPA will 
continue to process and evaluate any pending permit application for an 
anyway source or modification. There is no 30-day time period for a 
decision imposed on the 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 12C: At this time, we intend to transfer all initial 
permit applications

[[Page 66635]]

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 12A and 12B, 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 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 ``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 SIP approval rule 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 13: 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 13: 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).\9\ The TCEQ provided a letter to 
the EPA dated May 30, 2014,\10\ 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.\11\ 
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 a 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 SIP 
approval rule as a result of this comment.
---------------------------------------------------------------------------

    \9\ ``[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) (The 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, 
the EPA stated: `We interpret the statute and regulations to require 
at minimum an opportunity for state judicial review of PSD 
permits').'' 77 FR 65307.
    \10\ 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.
    \11\ 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).
---------------------------------------------------------------------------

    Comment 14: Sierra Club also commented that the availability of 
judicial review for PSD permits is too limited because the TCEQ 
restricts standing requirements to ``affected persons'', which the 
commenter alleges is more restrictive than Article III standing under 
the U.S. Constitution.\12\ Sierra Club is also concerned that Texas 
will assert that no person has standing to challenge a GHG PSD permit 
because the TCEQ does not believe that anyone is affected by GHG 
emissions. Sierra Club asks the EPA to require the TCEQ to amend its 
regulations to clarify that persons who participate in or comment on 
the permitting process will have standing to seek review of a final 
permit decision in court.
---------------------------------------------------------------------------

    \12\ Sierra Club states that the requirement to demonstrate that 
a member of the public is an ``affected person'' has been 
prohibitively onerous in past the TCEQ proceedings under the 
contested case hearing process. See e.g., Rawls v. Texas Comm'n on 
Envtl. Quality, 11-05-00368CV, 2007 WL 1849096 (Tex. App. June 28, 
2007); Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 
96 SW.3d 519, 527 (Tex. App. 2002); and Sierra Club and Public 
Citizen v. TCEQ, District Court of Travis County, Texas, Case No. D-
1-GN-13-000678.
---------------------------------------------------------------------------

    Response 14: The Texas permitting program adequately provides 
access to judicial review as required under Title I of the CAA for PSD. 
The EPA believes that Congress intended such opportunity for state 
judicial review of PSD permit actions to be available to permit 
applicants and at least those members of the public who participated in 
the public comment process and can satisfy threshold standing 
requirements under Article III of the Constitution. 61 FR at 1882. The 
Texas permitting program enables any member of the public who 
participated in the public comment process on a GHG PSD permit and who 
meets the threshold standing

[[Page 66636]]

requirements of Article III of the Constitution to obtain judicial 
review of the permit in the State's court system after exhausting the 
administrative remedies, either through a Motion to Overturn or Motion 
for Rehearing. 38 Tex. Reg. 7845, at 7854 (Nov. 8, 2013). The 
definition of ``affected person'' that commenter refers to applies to 
the contested case hearing process. See 30 TAC 53.3, Judicial Review 
Clarification Letter, pages 1-2. As discussed above, the contested case 
hearing process does not apply to Texas' GHG PSD permitting program. 
Access to judicial review for GHG PSD permits issued by the TCEQ is 
governed by THSC Sec.  382.032, and standing for judicial review of 
such permits is commensurate with Article III of the Constitution. 38 
Tex. Reg. at 7849.\13\ Therefore, Texas' program meets the minimum 
requirements for judicial review required for PSD SIP programs. If the 
EPA discovers evidence to support the assertion that the TCEQ's GHG 
permitting program failed to provide adequate access to judicial review 
as federally required under Title I of the CAA for PSD, then the EPA 
could address this implementation failure on a permit specific basis or 
by using another CAA remedy mechanism. No revisions were made to the 
final SIP approval rule as a result of this comment.
---------------------------------------------------------------------------

    \13\ THSC section 382.032(a) states that, ``[a] person affected 
by a ruling, order, decision, or other act of the commission or of 
the executive director, if an appeal to the commission is not 
provided, may appeal the action by filing a petition in a district 
court of Travis County.''
---------------------------------------------------------------------------

    Comment 15: Finally, Sierra Club states that the TCEQ's SIP 
submittal should clarify the path to seek judicial review to raise GHG 
PSD claims for permits that address both GHG and non-GHG emissions.
    Response 15: The TCEQ's Judicial Review Clarification Letter 
explains the administrative and judicial review processes for 
consolidated permit applications for GHG and non-GHG emissions. If the 
TCEQ receives a request for a contested case hearing on a consolidated 
application, the entire application will be forwarded to the 
commissioners for consideration. If the commissioners grant a hearing 
request, the application and draft permit will be referred to the State 
Office of Administrative Hearings (SOAH) for a contested case hearing 
on issues related to the non-GHG portion of the application and draft 
permit. If SOAH holds an evidentiary hearing, SOAH will then send a 
Proposal for Decision to the commission on the contested portion of the 
application. At that point, the commissioners will consider and take 
action on the entire consolidated application and draft permit, 
including the GHG PSD portion and the non-GHG portion. All final 
actions by the commissioners on a consolidated application are subject 
to the motion for rehearing requirement. If a motion for rehearing is 
filed and the commissioners deny the motion or if it is overruled by 
operation of law, the final order may be appealed to a Travis County 
District Court. Judicial Review Clarification Letter, pages 2-3. No 
revisions were made to the final SIP approval rule as a result of this 
comment.

IV. Effective Date of Final Action

    The EPA has determined that this final SIP approval action and the 
separate but simultaneous final FIP action are effective immediately 
upon publication under the authority of 5 U.S.C. Section 553(d) of the 
APA. The expedited effective date for this final SIP approval action 
and the separate but simultaneous FIP 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 approval of 
the majority of the Texas GHG PSD SIP and the separate but simultaneous 
removal of the majority of the Texas GHG PSD FIP will both relieve a 
permitting restriction and there is ``good cause'' to allow Texas to 
begin processing PSD GHG permit applications that meet the appropriate 
federal PSD requirements immediately. Final immediate action relieves a 
restriction by promoting an efficient single permitting authority 
process, supports an efficient use of EPA and 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 the 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 this final SIP 
approval action and the separate but simultaneous FIP action by 
establishing good cause for making the rule immediately effective and 
demonstrating that the rule relieves a restriction.

V. Final Action

    The EPA finds that the October 5, 2010, revisions to the Texas SIP 
that are part of this rulemaking are approvable because they are in 
accordance with the CAA and the EPA regulations regarding SIP 
development and NSR permitting. The EPA finds that the majority of the 
April 16, 2014, revisions to the Texas SIP that are part of this 
rulemaking are approvable because they are in accordance with the CAA 
and the EPA regulations regarding SIP development and GHG regulations, 
and consistent with the Supreme Court's UARG v. EPA ruling. The EPA 
approves the following revisions to the Texas SIP under Section 110 and 
Part C of the Act and will revise the table at 40 CFR 52.2270(c) 
accordingly:
    <bullet> Revisions to 30 TAC Section 116.111 adopted on September 
15, 2010, and submitted on October 5, 2010, to clarify the application 
of BACT to all PSD permit applications in the Texas NSR program;
    <bullet> Revisions adopted on March 26, 2014, and submitted on 
April 16, 2014, necessary to provide the TCEQ the authority to regulate 
GHG emissions under the Texas PSD Program:
    [cir] Revisions to Public Notice requirements at 30 TAC Sections 
39.411(e)(11), (e)(15), (e)(16), (f)(4), (f)(8), 39.412(a)-(d), 
39.419(e)(1), and 39.420(e)(4).
    [cir] Revisions to the General Air Quality Definitions at 30 TAC 
Sections 101.1.
    [cir] Revisions to the Emission Inventory Requirements at 30 TAC 
Section 101.10.
    [cir] Revisions to Emissions Event Reporting and Recordkeeping 
Requirements at 30 TAC Section 101.201.
    [cir] Revisions to the Permits by Rule Minor NSR program at 30 TAC 
Sections 106.2 and 106.4(d).
    [cir] Revisions to the Definitions for Texas NSR Permitting at 30 
TAC Section 116.12, including substantive revisions to the definition 
of ``federally regulated new source review pollutant'', new definitions 
of ``Carbon dioxide equivalent'' and ``Greenhouse gases'', and non-
substantive renumbering and updates to correct grammar and

[[Page 66637]]

formatting of existing SIP-approved definitions.
    [cir] Revisions to Permit Application provisions for Texas NSR 
Permitting at 30 TAC Section 116.111(b)(1).
    [cir] Revisions to the Texas PSD Program at 30 TAC Section 
116.160(c) that address permitting requirements for ``anyway'' sources.
    [cir] New 30 TAC Section 116.164(a) introductory paragraph, (a)(1) 
and (a)(2) for anyway GHG PSD requirements.
    [cir] New 30 TAC Section 116.169(a) to establish the transition 
process for GHG permitting.
    [cir] Revisions to the Standard Permit Minor NSR program at 30 TAC 
Sections 116.610(a)(1) and 116.611(c)(1) and (c)(2).
    [cir] Revisions to the definition of Potential to Emit at 30 TAC 
Section 122.122(a), (e)(1), and (e)(2).
    The EPA is severing and taking no action at this time on the 
remainder of the October 5, 2010, SIP submittal for the adoption and 
implementation of the Texas Minor NSR Qualified Facilities Program. The 
EPA is also taking no action at this time on the following portions of 
the April 16, 2014, SIP submittal that address ``Step 2'' permitting 
and were impacted by the Supreme Court's UARG v. EPA decision:
    <bullet> Revisions to 30 TAC Section 106.4(a)(1), (a)(3) and (a)(4) 
adopted on March 26, 2014, and submitted on April 16, 2014;
    <bullet> Substantive revisions to the definition of ``major 
stationary source'' pertaining to ``non-anyway'' sources and 
modifications at 30 TAC Section 116.12(19) adopted on March 26, 2014, 
and submitted on April 16, 2014;
    <bullet> Substantive revisions to the definition of ``major 
modification'' pertaining to ``non-anyway'' sources and modifications 
at 30 TAC Section 116.12(20) adopted on March 26, 2014, and submitted 
on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.111(a)(2)(I) adopted on 
March 26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Section 116.160(a) and (b) adopted on 
March 26, 2014, and submitted on April 16, 2014;
    <bullet> New 30 TAC Sections 116.164(a)(3), (a)(4), (a)(5), and (b) 
adopted on March 26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Sections 116.610(b) adopted on March 
26, 2014, and submitted on April 16, 2014;
    <bullet> Revisions to 30 TAC Sections 116.611(b), 116.611(c)(3), 
116.611(c)(3)(A), and 116.611(c)(3)(B) adopted on March 26, 2014, and 
submitted on April 16, 2014; and
    <bullet> Revisions to 30 TAC Sections 122.122(e)(3), (e)(3)(A), and 
(e)(3)(B) adopted on March 26, 2014, and submitted on April 16, 2014.
    The EPA is also approving the following three letters from the TCEQ 
into the Texas SIP at 40 CFR 52.2270(e):
    <bullet> December 2, 2013, Letter from the TCEQ that clarifies the 
TCEQ has the authority under the Texas Clean Air Act to apply the Texas 
PSD program to all pollutants newly subject to regulation, including 
non-NAAQS pollutants into the future;
    <bullet> January 13, 2014, Letter from the TCEQ that clarifies the 
TCEQ has the general authority to administer EPA issued GHG PSD permits 
and to process and issue any and all subsequent PSD actions relating to 
EPA issued GHG PSD permits; and
    <bullet> May 30, 2014, Letter from the TCEQ that clarifies the 
judicial review process for Texas PSD permits.
    As a result of our final approval of the April 16, 2014, revisions 
to the Texas SIP for GHG PSD permitting, the EPA is simultaneously 
rescinding the majority of the GHG PSD FIP for Texas at 40 CFR 
52.2305(a), (b), (c), and (d) as discussed in the separate but 
simultaneous final action published elsewhere in this issue of the 
Federal Register.
    The EPA also finds under the authority of 5 U.S.C. Section 553(d) 
of the APA, to make this final SIP approval action and the separate but 
simultaneous final FIP action effective upon November 10, 2014. Upon 
the effective date of this final SIP approval and the separate but 
simultaneous FIP rescission, the TCEQ will immediately resume 
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 in the separate but simultaneous 
FIP action. As such, all new GHG PSD permit applications will be 
submitted to and processed by the TCEQ.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the 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:
    <bullet> 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);
    <bullet> does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
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. Section 808 allows the issuing agency to make any rule 
effective ``at such time as the Federal agency promulgating the rule 
determines'' if the agency makes a ``good cause'' finding that notice 
and public procedure is impracticable,

[[Page 66638]]

unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5. U.S.C. 808(2). As stated 
previously, the EPA has made such a ``good cause'' finding, including 
the reasons therefore, and established an effective date of November 
10, 2014. The EPA submitted 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. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective November 10, 2014.
    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 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 purposed 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) of the CAA.)

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 22, 2014.
Ron Curry,
Regional 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. In Sec.  52.2270:
0
a. The table in paragraph (c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended by revising the entries for Sections 39.411, 
39.419, 39.420, 101.1, 101.10, 101.201, 106.2, 106.4, 116.12, 116.111, 
116.160, 116.610, 116.611, 122.122 and adding new entries in sequential 
order for Sections 39.412, 116.164, and 116.169; and
0
b. The table in paragraph (e) entitled ``EPA Approved Nonregulatory 
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended 
by adding entries at the end of the table for clarification letters 
dated December 2, 2013, January 13, 2014, and May 30, 2014.
    The revisions and additions read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                      State approval/
         State citation             Title/Subject     submittal date   EPA Approval date        Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                            Chapter 39--Public Notice
----------------------------------------------------------------------------------------------------------------
                               Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 39.411.................  Text of Public            3/26/2014  11/10/2014 [Insert  SIP includes
                                  Notice.                              FR page number      39.411(a),
                                                                       where document      39.411(e)(1)-(4)(A)(i
                                                                       begins].            ) and (iii), (4)(B),
                                                                                           (e)(5)(A), (e)(5)(B),
                                                                                           (e)(6)-(10),
                                                                                           (e)(11)(A)(i),
                                                                                           (e)(11)(A)(iii),
                                                                                           (e)(11)(A)(iv),
                                                                                           (e)(11)(B)-(F),
                                                                                           (e)(13), (e)(15),
                                                                                           (e)(16), (f)(1)-(8),
                                                                                           (g), and (h).
Section 39.412.................  Combined Notice for       3/26/2014  11/10/2014 [Insert  ......................
                                  Certain Greenhouse                   FR page number
                                  Gases Permit                         where document
                                  Applications.                        begins].
 
                                                  * * * * * * *
Section 39.419.................  Notice of                 3/26/2014  11/10/2014 [Insert  SIP includes 39.419(e)
                                  Application and                      FR page number      (e)(1) and (e)(2).
                                  Preliminary                          where document
                                  Determination.                       begins].
Section 39.420.................  Transmittal of the        3/26/2014  11/10/2014 [Insert  SIP includes
                                  Executive                            FR page number      39.420(c)(1)(A)-(D)(i
                                  Director's                           where document      )(I) and (D)(i)(II),
                                  Response to                          begins].            (D)(ii), (c)(2), and
                                  Comments and                                             (d)-(e).
                                  Decisions.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------
                                           Subchapter A--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1..................  Definitions........       3/26/2014  11/10/2014 [Insert  ......................
                                                                       FR page number
                                                                       where document
                                                                       begins].
 

[[Page 66639]]

 
                                                  * * * * * * *
Section 101.10.................  Emissions Inventory       3/26/2014  11/10/2014 [Insert  ......................
                                  Requirements.                        FR page number
                                                                       where document
                                                                       begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
           Subchapter F--Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
----------------------------------------------------------------------------------------------------------------
                                          Division 1--Emissions Events
----------------------------------------------------------------------------------------------------------------
Section 101.201................  Emissions Event           3/26/2014  11/10/2014 [Insert  101.201(h) is not in
                                  Reporting and                        FR page number      the SIP.
                                  Recordkeeping                        where document
                                  Requirements.                        begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                          Chapter 106--Permits by Rule
----------------------------------------------------------------------------------------------------------------
                                       Subchapter A--General Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 106.2..................  Applicability......       3/26/2014  11/10/2014 [Insert  ......................
                                                                       FR page number
                                                                       where document
                                                                       begins].
Section 106.4..................  Requirements for          3/26/2014  11/10/2014 [Insert  The SIP approved
                                  Permitting by Rule.                  FR page number      provisions at 30 TAC
                                                                       where document      Section 106.4(a)(1),
                                                                       begins].            (a)(3), and (a)(4)
                                                                                           are those adopted by
                                                                                           the State as of 4/20/
                                                                                           2011.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.12.................  Nonattainment and         3/26/2014  11/10/2014 [Insert  The SIP does NOT
                                  Prevention of                        FR page number      include the
                                  Significant                          where document      substantive revisions
                                  Deterioration                        begins].            to the definitions of
                                  Review Definitions.                                      ``major stationary
                                                                                           source'' at 30 TAC
                                                                                           Section 116.12(19) or
                                                                                           ``major
                                                                                           modification'' at 30
                                                                                           TAC Section
                                                                                           116.12(20) pertaining
                                                                                           to ``Step 2'' or
                                                                                           ``non-anyway'' GHG
                                                                                           sources.
                                                                                          The SIP includes the
                                                                                           TCEQ's letter dated 5/
                                                                                           3/2012, which
                                                                                           explains and
                                                                                           clarifies the TCEQ's
                                                                                           interpretation of the
                                                                                           definition of ``plant-
                                                                                           wide applicability
                                                                                           limit'' in 30 TAC
                                                                                           Section 116.12(24).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Subchapter B--New Source Review Permits
----------------------------------------------------------------------------------------------------------------
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.111................  General Application       3/26/2014  11/10/2014 [Insert  30 TAC Section
                                                                       FR page number      116.111(a)(2)(I) is
                                                                       where document      SIP-approved as
                                                                       begins].            adopted by the State
                                                                                           as of 8/21/2002.
                                                                                          The SIP does NOT
                                                                                           include 30 TAC
                                                                                           Section
                                                                                           116.111(a)(2)(K).
 

[[Page 66640]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                           Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160................  Prevention of             3/26/2014  11/10/2014 [Insert  The PSD SIP includes
                                  Significant                          FR page number      30 TAC Section
                                  Deterioration                        where document      116.160(a) and (b) as
                                  Requirements.                        begins].            adopted by the State
                                                                                           as of 6/2/2010.
                                                                                          The PSD SIP includes a
                                                                                           letter from the TCEQ
                                                                                           dated December 2,
                                                                                           2013, committing that
                                                                                           Texas will follow a
                                                                                           SIP amendment process
                                                                                           to apply its PSD SIP
                                                                                           to additional
                                                                                           pollutants that are
                                                                                           regulated in the
                                                                                           future, including non-
                                                                                           NAAQS pollutants.
                                                                                          The PSD SIP includes a
                                                                                           letter from the TCEQ
                                                                                           dated May 30, 2014,
                                                                                           clarifying the
                                                                                           judicial review
                                                                                           process for the Texas
                                                                                           PSD permit program.
 
                                                  * * * * * * *
Section 116.164................  Prevention of             3/26/2014  11/10/2014 [Insert  The PSD SIP does NOT
                                  Significant                          FR page number      include 30 TAC
                                  Deterioration                        where document      Sections
                                  Applicability for                    begins].            116.164(a)(3),
                                  Greenhouse Gases                                         (a)(4), (a)(5), and
                                  Sources.                                                 (b).
Section 116.169................  Greenhouse Gases          3/26/2014  11/10/2014 [Insert  The PSD SIP does NOT
                                  Program                              FR page number      include 30 TAC
                                  Transitions.                         where document      Section 116.169(b).
                                                                       begins].           The PSD SIP includes a
                                                                                           letter from the TCEQ
                                                                                           dated January 13,
                                                                                           2014, regarding the
                                                                                           TCEQ's authority to
                                                                                           administer EPA-issued
                                                                                           GHG PSD permits.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Subchapter F--Standard Permits
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.610................  Applicability......       3/26/2014  11/10/2014 [Insert  30 TAC Section
                                                                       FR page number      116.610(b) is SIP-
                                                                       where document      approved as adopted
                                                                       begins].            by the State as of 11/
                                                                                           20/2002.
                                                                                          The SIP does NOT
                                                                                           include 30 TAC
                                                                                           Section 116.610(d).
Section 116.611................  Registration to Use       3/26/2014  11/10/2014 [Insert  30 TAC Section
                                  a Standard Permit.                   FR page number      116.611(b) is SIP-
                                                                       where document      approved as adopted
                                                                       begins].            by the State as of 11/
                                                                                           20/2002.
                                                                                          The SIP does NOT
                                                                                           include 30 TAC
                                                                                           Section
                                                                                           116.611(c)(3),
                                                                                           (c)(3)(A), and
                                                                                           (c)(3)(B).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Chapter 122--Federal Operating Permits
----------------------------------------------------------------------------------------------------------------
                                        Subchapter B--Permit Requirements
----------------------------------------------------------------------------------------------------------------
                                            Division 2--Applicability
----------------------------------------------------------------------------------------------------------------
Section 122.122................  Potential to Emit..       3/26/2014  11/10/2014........  The SIP does NOT
                                                                      [Insert FR page      include 30 TAC
                                                                       number where        Section
                                                                       document begins].   122.122(e)(3),
                                                                                           (e)(3)(A), or
                                                                                           (e)(3)(B).
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

[[Page 66641]]



              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                Applicable geographic  State submittal/    EPA approval
    Name of SIP provisions      or nonattainment area   effective date         date               Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Commitment Letter from the      Statewide............  December 2, 2013  11/10/2014        Clarifies that the
 TCEQ regarding regulation of                                             [Insert FR page   TCEQ has the
 PSD pollutants into the                                                  number where      authority under the
 future.                                                                  document          Texas Clean Air Act
                                                                          begins].          to apply the Texas
                                                                                            PSD program to all
                                                                                            pollutants newly
                                                                                            subject to
                                                                                            regulation,
                                                                                            including non-NAAQS
                                                                                            pollutants into the
                                                                                            future.
Clarification Letter from the   Statewide............  January 13, 2014  11/10/2014        Clarifies that the
 TCEQ regarding authority to                                              [Insert FR page   TCEQ has the general
 administer EPA issued GHG PSD                                            number where      authority to
 permits.                                                                 document          administer EPA
                                                                          begins].          issued GHG PSD
                                                                                            permits. Also
                                                                                            clarifies that the
                                                                                            TCEQ has authority
                                                                                            to process and issue
                                                                                            any and all
                                                                                            subsequent PSD
                                                                                            actions relating to
                                                                                            EPA issued GHG PSD
                                                                                            permits.
Clarification Letter from the   Statewide............  May 30, 2014....  11/10/2014        Clarifies the
 TCEQ regarding Judicial                                                  [Insert FR page   judicial review
 Review for PSD Permits.                                                  number where      process for Texas
                                                                          document          PSD permits.
                                                                          begins].
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2303 is amended by adding paragraph (a)(1)(xi) to read as 
follows.


Sec.  52.2303  Significant deterioration of air quality.

    (a) * * *
    (1) * * *
    (xi) November 10, 2014 (as revised by the Texas Commission on 
Environmental Quality on March 24, 2014, and submitted on April 16, 
2014, and further clarified in letters dated December 2, 2013, January 
13, 2014, and May 30, 2014) to address PSD permitting requirements of 
GHG emissions for major sources and modifications required to obtain 
PSD permits because of emissions of pollutants other than GHGs 
promulgated by EPA on June 3, 2010.
* * * * *
[FR Doc. 2014-26314 Filed 11-7-14; 8:45 am]
BILLING CODE 6560-50-P


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