[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Rules and Regulations]
[Pages 27644-27647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11681]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0148; FRL-9151-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revisions to the Discrete Emission Credit Banking and Trading 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving severable portions of two revisions to the 
Texas State Implementation Plan (SIP) submitted by the State of Texas 
on October 24, 2006, and August 16, 2007. These revisions amend 
existing sections and create a new section in Title 30 of the Texas 
Administrative Code (TAC), Chapter 101--General Air Quality Rules, 
Subchapter H--Emissions Banking and Trading, Division 4--Discrete 
Emission Credit Banking and Trading, referred to elsewhere in this 
notice as the Discrete Emission Reduction Credit (DERC) Program. The 
October 24, 2006, submittal creates a new section for international 
emission reduction provisions and amends existing sections to prohibit 
the generation and use of DERCs from shutdown activities and further 
clarify procedures for using emission protocols. The August 16, 2007, 
submittal amends two sections of the DERC program to update cross-
references to recently recodified 30 TAC Chapter 117 provisions. 
Additionally, EPA finds that the Texas Commission on Environmental 
Quality (TCEQ) has satisfied all elements of our September 6, 2006, 
final conditional approval of the DERC program with the submittal of 
the October 24, 2006, SIP submittal; and as such, the DERC program 
conditional approval is converted to a full approval. EPA has 
determined that these SIP revisions comply with the Clean Air Act and 
EPA regulations, are consistent with EPA policies, and will improve air 
quality. This action is being taken under section 110 and parts C and D 
of the Federal Clean Air Act (the Act or CAA).

DATES: This final rule will be effective June 17, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2010-0148. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 
to make an appointment. If possible, please make the

[[Page 27645]]

appointment at least two working days in advance of your visit. There 
will be a 15 cent per page fee for making photocopies of documents. On 
the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part 
of the EPA docket, is also available for public inspection at the State 
Air Agency listed below during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's final rule, please contact Ms. Adina Wiley (6PD-R), Air Permits 
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue 
(6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is 
(214) 665-2115. Ms. Wiley can also be reached via electronic mail at 
[email protected].

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

Table of Contents

I. What final action is EPA taking?
II. What is the background for this action?
III. What are EPA's responses to comments received on the proposed 
action?
IV. Statutory and Executive Order Reviews

I. What final action is EPA taking?

    We are fully approving severable portions of two revisions to the 
Texas SIP submitted by the TCEQ on October 24, 2006, and August 16, 
2007, specific to the DERC Program. The revisions we are approving 
amend existing sections and create a new section in the DERC Program at 
Title 30 of the Texas Administrative Code (TAC), Chapter 101--General 
Air Quality Rules, Subchapter H--Emissions Banking and Trading, 
Division 4--Discrete Emission Credit Banking and Trading. The October 
24, 2006, submittal creates a new section for international emission 
reduction provisions and amends existing sections to prohibit the 
generation and use of discrete emission reduction credits from shutdown 
activities and further clarify procedures for using emission protocols. 
Additionally, EPA finds that the TCEQ has satisfied all elements of our 
September 6, 2006, final conditional approval of the DERC program with 
the submittal of the October 24, 2006, SIP submittal; and as such, the 
DERC program conditional approval is converted to full SIP approval. 
The severable portions of the August 16, 2007, submittal that we are 
approving non-substantively revise the DERC Program to correctly update 
the cross-references to the stationary source nitrogen oxide (NOX) 
rules found in the Texas SIP at 30 TAC Chapter 117 as a result of the 
non-substantive recodification of Chapter 117 approved by EPA as part 
of the Texas SIP on December 3, 2008 (see 73 FR 73562). Additionally, 
in both the October 24, 2006, and August 16, 2007, SIP submittals TCEQ 
has made several non-substantive revisions to update grammar and 
document style. Consequently, we are approving the revisions to the 
Texas SIP at 30 TAC sections 101.372(a), 101.372(d), 101.372(f), 
101.372(j), 101.373(a), 101.376(c)(4), and 101.378(b) and the creation 
of new section 101.375 submitted on October 24, 2006. Additionally, we 
are approving revisions to the Texas SIP at 30 TAC sections 101.372(d) 
and 101.376(d) submitted on August 16, 2007, by the TCEQ.
    EPA proposed the above action on March 30, 2010, at 75 FR 15648-
15655. Today, we are approving the DERC program revisions as proposed 
and find that they comply with the CAA and EPA regulations, are 
consistent with EPA policies, and will improve air quality. This final 
approval is being taken under parts C and D of the CAA.
    In a separate rulemaking, EPA is approving the severable Emission 
Credit Banking and Trading Program (referred to elsewhere in this 
notice as the Emission Reduction Credit (ERC) Program) revisions at 30 
TAC sections 101.302, 101.305, and 101.306 submitted on October 24, 
2006, and 30 TAC sections 101.302 and 101.306 submitted on August 16, 
2007 (see EPA-R06-OAR-2010-0417).
    At this time, EPA is not taking action on the revisions to the 
Emissions Banking and Trading of Allowances Program at 30 TAC sections 
101.338 and 101.339 submitted on October 24, 2006. EPA is also not 
taking action at this time on the revisions to the general air quality 
definitions at 30 TAC Section 101.1 or the revisions to the System Cap 
Trading Program at 30 TAC sections 101.383, and 101.385 submitted on 
August 16, 2007. These severable revisions remain under review by EPA 
and will be addressed in separate actions.

II. What is the background for this action?

    The DERC Program, conditionally approved by EPA on September 6, 
2006, establishes an open market trading program to provide flexibility 
for sources in complying with certain State and Federal requirements. 
In an open market trading program, a source generates emission credits 
by reducing its emissions during a discrete period of time. These 
credits, called discrete emission credits, or DECs, in the Texas 
program, are quantified in units of mass. Discrete emission credit 
(DEC) is a generic term that encompasses reductions from stationary 
sources (discrete emission reduction credits, or DERCs) and reductions 
from mobile sources (mobile discrete emission reduction credits, or 
MDERCs).\1\ Generally, discrete emission reductions of criteria 
pollutants (excluding lead) or precursors of criteria pollutants may be 
banked and used as DERCs. EPA's September 6, 2006, final conditional 
approval of the DERC program addressed the original submission of the 
program on December 23, 1997, and the subsequent revisions on January 
18, 2001; April 14, 2002; January 17, 2003; and December 6, 2004.
---------------------------------------------------------------------------

    \1\ In this action, when we refer to the program as the ``DERC 
Rule'' or the ``DERC Program'' we are speaking of the entire 
Discrete Emission Credit Banking and Trading Program, which 
encompasses both DERCs and MDERCs.
---------------------------------------------------------------------------

    Since our September 6, 2006, final conditional approval, TCEQ has 
revised the DERC program to address the commitments of the DERC 
conditional approval. Additionally, the TCEQ adopted revisions to the 
DERC program consistent with the requirements of Senate Bill 784, 
adopted during regular session, 2005, of the 79th Texas Legislature. 
Senate Bill 784 allows for greater flexibility in the generation and 
use of international emission reductions. These revisions were adopted 
by the TCEQ on October 4, 2006, and became effective on October 26, 
2006. The adopted regulations were submitted to EPA as a SIP revision 
on October 24, 2006. TCEQ has also promulgated revisions to the DERC 
program that update the cross-references to the new numbering structure 
in 30 TAC Chapter 117. These revisions were adopted on July 25, 2007, 
and became effective on August 16, 2007. The adopted regulations were 
submitted to EPA as a SIP revision on August 16, 2007.

III. What are EPA's responses to comments received on the proposed 
action?

    EPA received no comments on our proposed rulemaking.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the

[[Page 27646]]

provisions of the Act and applicable Federal regulations. 42 U.S.C. 
7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's 
role is to approve State choices, provided that they meet the criteria 
of the Clean Air Act. Accordingly, this action merely approves State 
law as meeting Federal requirements and does not impose additional 
requirements beyond those imposed by State law. For that reason, this 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 19, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental Relations, Nitrogen oxides, Ozone, 
Volatile organic compounds.

    Dated: April 30, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' under Chapter 101 is amended by:
0
a. Revising the entries for Sections 101.372, 101.373, 101.376, and 
101.378 under Subchapter H--Emissions Banking and Trading, Division 4--
Discrete Emission Credit Banking and Trading.
0
b. Adding an entry for Section 101.375 under Subchapter H--Emissions 
Banking and Trading, Division 4--Discrete Emission Credit Banking and 
Trading, in numerical order.
    The revisions and additions read as follows:


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 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                   Subchapter H--Emissions Banking and Trading
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            Division 4--Discrete Emission Credit Banking and Trading
----------------------------------------------------------------------------------------------------------------
 

[[Page 27647]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 101.372................  General Provisions.       7/25/2007  5/18/2010 [Insert FR  ....................
                                                                       page number where
                                                                       document begins].
Section 101.373................  Discrete Emission         10/4/2006  5/18/2010 [Insert FR  ....................
                                  Reduction Credit                     page number where
                                  Generation and                       document begins].
                                  Certification.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 101.375................  Emission Reductions       10/4/2006  5/18/2010 [Insert FR  ....................
                                  Achieved Outside                     page number where
                                  the United States.                   document begins].
Section 101.376................  Discrete Emission         7/25/2007  5/18/2010 [Insert FR  ....................
                                  Credit Use.                          page number where
                                                                       document begins].
Section 101.378................  Discrete Emission         10/4/2006  5/18/2010 [Insert FR  ....................
                                  Credit Banking and                   page number where
                                  Trading.                             document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-11681 Filed 5-17-10; 8:45 am]
BILLING CODE 6560-50-P