[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Rules and Regulations]
[Pages 27647-27649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11683]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0147; FRL-9151-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving severable portions of two revisions to the 
Texas State Implementation Plan (SIP) submitted by the State of Texas 
on October 24, 2006, and August 16, 2007. These revisions amend 
existing sections and create a new section in Title 30 of the Texas 
Administrative Code (TAC), Chapter 101--General Air Quality Rules, 
Subchapter H--Emissions Banking and Trading, Division 1--Emission 
Credit Banking and Trading, referred to elsewhere in this notice as the 
Emission Reduction Credit (ERC) Program. The October 24, 2006, 
submittal creates a new section for international emission reduction 
provisions and amends existing sections to further clarify procedures 
for using emission protocols and to update the approved list of 
emission credit uses. The August 16, 2007, submittal amends two 
sections of the ERC program to update cross-references to recently 
recodified 30 TAC Chapter 117 provisions. EPA has determined that these 
SIP revisions comply with the Clean Air Act and EPA regulations, are 
consistent with EPA policies, and will improve air quality. This action 
is being taken under section 110 and parts C and D of the Federal Clean 
Air Act (the Act or CAA).

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

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2010-0147. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 
to make an appointment. If possible, please make the appointment at 
least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents. On the day of 
the visit, please check in at the EPA Region 6 reception area at 1445 
Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part 
of the EPA docket, is also available for public inspection at the State 
Air Agency listed below during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

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

[[Page 27648]]

October 24, 2006, and August 16, 2007, specific to the ERC Program. The 
revisions we are approving amend existing sections and create a new 
section in the ERC Program at Title 30 of the Texas Administrative Code 
(TAC), Chapter 101--General Air Quality Rules, Subchapter H--Emissions 
Banking and Trading, Division 1--Emission Credit Banking and Trading. 
The October 24, 2006, submittal creates a new section for international 
emission reduction provisions and amends existing sections to further 
clarify procedures for using emission protocols and to update the 
approved list of emission credit uses. The severable portions of the 
August 16, 2007 submittal that we are approving non-substantively 
revise the ERC 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). Consequently, we are approving 
the revisions to the Texas SIP at 30 TAC sections 101.302(a), 
101.302(d)(1)(C)(vi), 101.302(f), and 101.306(a)(5) and the creation of 
new section 101.305 submitted on October 24, 2006. Additionally, we are 
approving revisions to the Texas SIP at 30 TAC sections 
101.302(d)(1)(A) and 101.306(b)(3) submitted on August 16, 2007, by the 
TCEQ.
    EPA proposed the above action on March 30, 2010, at 75 FR 15645-
15648. Today, we are approving the ERC 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 Discrete 
Emission Credit Banking and Trading Program (referred to elsewhere in 
this notice as the Discrete Emission Reduction Credit (DERC) Program) 
revisions at 30 TAC sections 101.372, 101.373, 101.375, 101.376, and 
101.378 submitted on October 24, 2006, and 30 TAC sections 101.372 and 
101.376 submitted on August 16, 2007 (see EPA-R06-OAR-2010-0418).
    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 ERC Program, SIP-approved by EPA on September 6, 2006, 
establishes a market-based trading program for the generation and use 
of emission credits (generated and used at a specified emission rate, 
tons per year) to provide flexibility for sources in complying with 
certain State and Federal requirements. Generally, emission reductions 
of criteria pollutants (excluding lead) or precursors of criteria 
pollutants for which an area is designated may be banked and used as 
emission credits. EPA's September 6, 2006, final approval of the ERC 
program addressed the original submission of the program on December 
23, 1997, and the subsequent revisions on January 18, 2001; April 14, 
2002; January 17, 2003; and December 6, 2004.
    Since our September 6, 2006, final approval, TCEQ has revised the 
ERC program to address the commitments of the DERC conditional 
approval. Additionally, the TCEQ adopted revisions to the ERC 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 ERC 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 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

[[Page 27649]]

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 101.302 and 101.306 under 
Subchapter H--Emissions Banking and Trading, Division 1--Emission 
Credit Banking and Trading.
0
b. Adding an entry for Section 101.305 under Subchapter H--Emissions 
Banking and Trading, Division 1--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
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                                                           State
         State citation             Title/subject        approval/      EPA approval date        Explanation
                                                      submittal date
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                                     Chapter 101--General Air Quality Rules
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                                                  * * * * * * *
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                                   Subchapter H--Emissions Banking and Trading
                                 Division 1--Emission Credit Banking and Trading
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 101.302................  General Provisions.       7/25/2007  5/18/10 [Insert FR
                                                                       page number where
                                                                       document begins].
 
                                                  * * * * * * *
Section 101.305................  Emission Reductions       10/4/2006  5/18/10 [Insert FR
                                  Achieved Outside                     page number where
                                  the United States.                   document begins].
Section 101.306................  Emission Credit Use       7/25/2007  5/18/10 [Insert FR
                                                                       page number where
                                                                       document begins].
 
                                                  * * * * * * *
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[FR Doc. 2010-11683 Filed 5-17-10; 8:45 am]
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