[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 67600-67604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28256]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R06-OAR-2011-0426; FRL-9485-3]


Approval and Promulgation of Implementation Plans; Texas; 
Regulations for Control of Air Pollution by Permits for New 
Construction or Modification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is approving portions of three revisions to the Texas 
State Implementation Plan (SIP) submitted by the State of Texas on 
August 31, 1993; July 22, 1998; and October 5, 2010. These revisions 
amend existing sections and create new sections in Title 30 of the 
Texas Administrative Code (TAC), Chapter 116--Control of Air Pollution 
by Permits for New Construction or Modification. The August 31, 1993, 
revision creates two new sections for the use of emission reductions as 
offsets in new source review permitting. The July 22, 1998, revision 
allows for the use of Discrete Emission Reduction Credits (DERC) to 
exceed emission limits in permits (permit allowables) and updates 
internal citations to other Texas regulations. The October 5, 2010, 
revision updates internal citations to other Texas regulations. EPA has 
determined that these SIP revisions comply with the Clean Air Act and 
EPA regulations and are consistent with EPA

[[Page 67601]]

policies. This action is being taken under authority of the Federal 
Clean Air Act (the Act or CAA).

DATES: This final rule is effective on December 2, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2011-0426. 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 action, please contact Ms. Erica Le Doux (6PD-R), Air 
Permits Section, Environmental Protection Agency, Region 6, 1445 Ross 
Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone (214) 
665-7265; fax number (214) 665-6762; email address 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever, any 
reference to ``we,'' ``us,'' or ``our'' is used, we mean 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 three revisions to the 
Texas SIP submitted on August 31, 1993; July 22, 1998; and October 5, 
2010. The August 31, 1993, SIP submittal creates two new sections, 
116.174 and 116.175, establishing the requirements for use and 
recordkeeping of emission reductions in New Source Review (NSR) 
permitting. The July 22, 1998 SIP submittal creates a new section at 
116.116(f) that allows Discrete Emission Reduction Credits (DERCs) to 
be used to exceed permit allowables; and amends existing section 
116.174 to correctly cross-reference other Texas permitting 
regulations. The October 5, 2010, SIP submittal amends section 
116.116(f) to correctly cross-reference the SIP-approved DERC rules at 
Title 30 of the Texas Administrative Code (30 TAC) Chapter 101, 
Subchapter H, Division 4. We are fully approving new sections 116.174 
and 116.175 submitted on August 31, 1993. We are approving new section 
116.116(f) and amendments to section 116.174 submitted on July 22, 
1998. Finally, we are fully approving the amendment to section 
116.116(f) submitted on October 5, 2010.
    EPA acted on the above SIP revisions through a direct final 
rulemaking and accompanying proposed rule action on July 25, 2011 at 76 
FR 44271 and 76 FR 44293, respectively. In our direct final action we 
stated that we would withdraw our direct final approval if we received 
relevant adverse comments before August 24, 2011. Because EPA received 
one adverse comment, we withdrew our direct final action on September 
15, 2011 at 76 FR 56982. As we discussed in our direct final and 
proposed rulemaking actions, in this notice we are proceeding with a 
final action and responding to the comment. The revisions submitted by 
Texas amend existing sections and create new sections in 30 TAC Chapter 
116--Control of Air Pollution by Permits for New Construction or 
Modification and 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 section 110 and parts C and D of the CAA.
    Finally, EPA is revising the title used in the direct final action 
to remove a reference to Permits by Rule. Because this action does not 
change any provision of Texas' Permits by Rule program, we are removing 
the reference to Permits by Rule to clarify that such rules are not 
part of this action.

II. What is the background for this action?

    We are approving severable provisions of three SIP revisions that 
the Texas Commission on Environmental Quality (TCEQ) adopted on August 
16, 1993; June 17, 1998; and September 15, 2010; and submitted to EPA 
on August 31, 1993; July 22, 1998; and October 5, 2010; respectively. 
Copies of the revised rules as well as the Technical Support Document 
(TSD) can be obtained from the Docket, as discussed in the ``Docket'' 
section above. A discussion of the specific Texas rule changes that we 
are approving is included in the TSD and summarized below. The TSD also 
contains a discussion as to why EPA is not taking action on certain 
provisions of each Texas SIP submittal and documents why these 
provisions are severable from the provisions that we are approving.

A. August 31, 1993, Submittal

1. Section 116.174--Determination by Executive Director To Authorize 
Reductions
    The TCEQ adopted section 116.174 on August 16, 1993, to provide the 
criteria by which the TCEQ Executive Director (ED) will determine 
whether emission reductions can be used for purposes of NSR permitting. 
Section 116.174 requires that the ED approve reductions for use 
pursuant with requirements set forth in SIP-approved section 116.170. 
Additionally, any emission reductions approved for use as offsets by 
the ED must be made as enforceable permit conditions.
2. Section 116.175--Recordkeeping
    The TCEQ adopted new section 116.175 on August 16, 1993, to 
establish that the recordkeeping burden for the generation and use of 
emission reductions in NSR permitting is on the applicant. The TCEQ 
will only maintain records associated with the permit application and 
files. The permit applicant is responsible for making all records 
related to the emission reductions available upon request by the ED.

B. July 22, 1998, Submittal

1. Section 116.116(f)--Use of Credits
    The TCEQ adopted new section 116.116(f) on June 17, 1998, to 
provide that DERCs generated under the TCEQ's banking and trading 
provisions at 30 TAC 101.29 can be used to exceed permit allowables, if 
all applicable requirements of section 101.29 are

[[Page 67602]]

satisfied. Since the adoption of section 116.116(f), the TCEQ has 
recodified the SIP-approved DERC provisions from 30 TAC 101.29 to 30 
TAC 101.376. The use of DERCs cannot be used to authorize any physical 
changes to a facility.
    EPA reviewed and conditionally approved the DERC program on 
September 6, 2006 at 71 FR 52703. This conditional approval was 
converted to a full approval on May 18, 2010 at 75 FR 27644. The full 
approval action resulted after we found that TCEQ satisfied all 
elements that were outlined in a commitment letter submitted by TCEQ, 
dated September 8, 2005. This commitment letter can be found in the 
docket for our approval of the DERC program at EPA-R06-OAR-2005-TX-
0029. The DERC rules establish a type of Economic Incentive Program 
(EIP), in particular an open market emission trading (OMT) program as 
described in EPA's EIP Guidance document, ``Improving Air Quality with 
Economic Incentive Programs'' (EPA-452/R-01-001, January 2001). In an 
OMT program, a source generates short-term emission credits (called 
discrete emission reduction credits, or DERCs, in the Texas program) by 
reducing its emissions. The source can then use these DERCs at a later 
time, or trade them to another source to use at a later time. The 
trading program assumes that many sources will participate and 
continuously generate new DERCs to balance with other sources using 
previously generated discrete credits. DERCs are quantified, banked and 
traded in terms of mass (tons) and may be generated and used statewide. 
Reductions of all criteria pollutants, with the exception of lead, may 
be certified as DERCs.
2. Section 116.174--Determination by Executive Director To Authorize 
Reductions
    The TCEQ adopted amendments to section 116.174 on June 17, 1998, to 
remove outdated references to the Texas Air Control Board, and to 
update references to other sections of the Texas NSR permitting 
regulations where emission reductions can be used in permits.

C. October 5, 2010, Submittal

Section 116.116(f)--Use of Credits
    The TCEQ adopted amendments to section 116.116(f) on September 15, 
2010, to change references to outdated section 101.29 to the current 
SIP-approved section 101.376.
    In our July 25, 2011, direct final action, we presented our 
evaluation of these revisions to amend existing sections and create new 
sections in 30 TAC Chapter 116--Control of Air Pollution by Permits for 
New Construction or Modification. Generally, SIP rules must be 
enforceable and must not relax existing requirements. See CAA sections 
110(a), 110(l), and 193. EPA's review of the August 31, 1993; July 22, 
1998; and October 5, 2010; SIP revisions finds that all three 
submittals are consistent with the requirements at 40 CFR part 51 and 
are considered complete SIP submittals in accordance with 40 CFR part 
51, appendix V. This detailed analysis is available in the TSD for this 
rulemaking.

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

    EPA received one adverse comment on our proposed action, available 
in the docket. As discussed previously, because we received an adverse 
comment within the comment period, EPA withdrew our direct final 
rulemaking on September 15, 2011, 76 FR 56982. We are proceeding with a 
final action in this notice.
    A summary of the comment EPA received is as follows: The 
implementation of this rule would shutdown the Luminant Big Brown Mine 
and Power Plant in Freestone County, Texas. The effects would be 
disastrous to the community of Fairfield, Texas, where the commenter 
lives and works. The closure of this facility would cause an economic 
decline because the plant is the main economic driving force for this 
community; as a result, people will leave the area to find work. People 
vacating the area would cause a decline in the housing and retail 
market, both of which, the commenter and his wife are active 
participants. The commenter wants the government to reconsider the 
rule.
    The commenter did not provide any basis for why this action will 
cause the shutdown of the mentioned power plants and consequently cause 
the economic decline of the surrounding communities, nor did he call 
attention to any specific parts of the rule that would cause this to 
happen. While EPA is just now approving these rules as revisions to the 
Texas SIP, Texas has been implementing these rules since they became 
effective in 1993 and 1998. If these rules had the potential to result 
in the plant closures and the local community's economic decline 
outlined in the comments, this potential would have existed since the 
1993 and 1998 revisions associated with these rules. However, the 
commenter did not identify any past plant closures and economic decline 
as a result of these rules. Accordingly, these SIP revisions and 
amendments should be approved.
    The Clean Air Act was enacted by Congress. 42 U.S.C.A. 7401. Under 
the Act, EPA is authorized to set clean air standards. 42 U.S.C.A. 
7409. States are authorized to choose control strategies to meet these 
standards. 42 U.S.C.A. 7410(a). EPA can approve the strategies into 
state implementation plans, as long as the strategies are consistent 
with the Act. 42 U.S.C.A. 7410(l). As we stated in our proposal, and in 
section II of this notice, EPA finds the submitted SIP revisions to 30 
TAC Chapter 116 as identified earlier herein are consistent with the 
Act. EPA is making no changes to our proposed action as a result of 
this comment.

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);

[[Page 67603]]

     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. section 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 January 3, 2012. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 21, 2011.
Al Armendariz,
Regional Administrator, Region 6.
    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'' is amended as follows:
0
a. By revising the entry for Sec.  116.116;
0
b. By adding new entries for Sec. Sec.  116.174 and 116.175.
    The additions and revisions read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                        State
                                                      approval/
         State citation             Title/subject     submittal      EPA approval date          Explanation
                                                         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Subchapter B--New Source Review Permits
----------------------------------------------------------------------------------------------------------------
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.116................  Changes to            9/15/2010  11/2/2011 [Insert FR    The SIP does not
                                  Facilities.                      page number where       include paragraph
                                                                   document begins].       (b)(3) and (b)(4),
                                                                                           and subsection (e).
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                   Division 7--Emission Reductions: Offsets *
----------------------------------------------------------------------------------------------------------------
Section 116.174................  Determination by      6/17/1998  11/2/2011 [Insert FR    ......................
                                  Executive                        page number where
                                  Director to                      document begins].
                                  Authorize
                                  Reductions.
----------------------------------------------------------------------------------------------------------------
Section 116.175................  Recordkeeping.....    8/16/1993  11/2/2011 [Insert FR    ......................
                                                                   page number where
                                                                   document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------


[[Page 67604]]

* * * * *
[FR Doc. 2011-28256 Filed 11-1-11; 8:45 am]
BILLING CODE 6560-50-P