[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Rules and Regulations]
[Pages 71260-71267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29641]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0025; FRL-9489-8]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to the New Source Review (NSR) State Implementation Plan 
(SIP); General Definitions; Definition of Modification of Existing 
Facility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving, as proposed July 18, 2011, several revisions 
to the State Implementation Plan (SIP) for the State of Texas that 
relate to severable portions of the definition of ``modification of 
existing facility'' in the general definitions for the Texas NSR 
Program. EPA finds that these changes to the Texas SIP comply with the 
Federal Clean Air Act (the Act or CAA) and EPA regulations, and are 
consistent with EPA policies. EPA is also disapproving a severable 
portion of the definition that was proposed for disapproval on 
September 23, 2009. EPA is taking these actions under section 110 of 
the Act.

DATES: This final rule is effective December 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2005-TX-0025. 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 Permits Section (6PD-R), 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 Freedom 
of Information Act 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

[[Page 71261]]

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 is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    Texas Commission on Environmental Quality (TCEQ), Office of Air 
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
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. The State's Submittals
II. What action is EPA taking?
III. EPA's Evaluation of the Severable Portions of the Definition of 
``Modification of Existing Facility''
    A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the 
Definition of ``Modification of Existing Facility''
    1. What is the background of the introductory paragraph of 30 
TAC 116.10(11)?
    2. What is EPA's evaluation of the submitted revisions to the 
introductory paragraph of 30 TAC 116.10(11)?
    B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance 
and Replacement of Equipment
    1. What is the background of 30 TAC 116.10(11)(C)?
    2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.11(C)?
    C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase 
in Annual Hours of Operation
    1. What is the background of 30 TAC 116.10(11)(D)?
    2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.10(11)(D)?
    D. Disapproval of 30 TAC 116.10(11)(G)--Exclusion of Changes at 
Certain Natural Gas Processing, Treating, or Compression Facilities
    1. What is the background of 30 TAC 116.10(11)(G)?
    2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.10(11)(G)?
    3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
    E. Response to Other Comments on the July 18, 2011, Proposal
IV. Final Action
V. Statutory and Executive Order Reviews

I. The State's Submittals

    On March 13, 1996; July 22, 1998; and September 4, 2002; the State 
of Texas submitted revisions to the Texas State Implementation Plan 
(SIP) concerning the definition of ``modification of existing 
facility'' for minor source permitting under Title 30 of the Texas 
Administrative Code (30 TAC), Chapter 116--Control of Air Pollution by 
Permits for New Construction or Modification, Subchapter A--
Definitions. The definition of ``modification of existing facility'' 
for minor NSR permitting is located at 30 TAC 116.10(11) in the 
September 4, 2002, submittal. The March 13, 1996, revisions to this 
definition were repealed and readopted, and new versions were submitted 
to EPA on July 22, 1998. This definition was later recodified from 30 
TAC 116.10(9) to 116.10(11) in a SIP submittal dated September 4, 2002.
    Section 30 TAC 116.10--General Definitions--is currently approved 
as adopted by Texas on August 21, 2002, and as approved April 14, 2010 
(75 FR 19468). As approved, the current SIP does not include all the 
definitions under Section 116.10, including the definition of 
``modification of existing facility'' found in Section 116.10(11). On 
July 18, 2011 (76 FR 42078), EPA proposed to approve severable portions 
of this definition first adopted by Texas on February 14, 1996 
(submitted March 13, 1996). The next submittal reflects the Texas 
repeal and readoption of this definition as Section 116.10(9) on June 
17, 1998 (submitted July 22, 1998). The regulatory history of the March 
13, 1996 submittal was used to evaluate the later submittals. On July 
18, 2011 (76 FR 42078), we proposed to approve severable portions of 
the definition ``modification of existing facility'' as submitted on 
July 22, 1998, and the redesignation of this definition to Section 
116.10(11) adopted August 21, 2002 (submitted September 4, 2002). We 
also proposed to approve Subparagraphs (C) and (D) of this definition 
as submitted July 22, 1998, and September 4, 2002. In response to this 
proposal, we received comments from the Texas Industry Project (TIP) 
and the BCCA Appeal Group (BCCAAG).
    On September 23, 2009 (74 FR 48450), EPA proposed to disapprove 
severable portions of the definition of ``modification of existing 
facility'' under Subparagraph (G). In response to this proposal, we 
received comments from the University of Texas at Austin, Environmental 
Clinic (UT Environmental Clinic).\1\ Today, we finalize our disapproval 
of Subparagraph (G) as not meeting the requirements of the CAA.
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    \1\ The UT Environmental Clinic forwarded its comments on behalf 
of: Environmental Integrity Project: Environmental Defense Fund; 
Galveston-Houston Association for Smog Prevention; Public Citizen; 
Citizens for Environmental Justice; Sierra Club Lone Star Chapter; 
Community-In-Power and Development Association; KIDS for Clean Air; 
Clean Air Institute of Texas; Sustainable Energy and Economic 
Development Coalition; Robertson County: Our Land, Our Lives; Texas 
Protecting Our Land, Water, and Environment; Citizens for a Clean 
Environment; Multi-County Coalition; and Citizens Opposing Power 
Plants for Clean Air.
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    EPA is taking these actions under section 110 of the Act.
    Finally, please note that Texas submitted further revisions to 30 
TAC 116.10 on October 5, 2010. This includes the removal of two 
definitions, the renumbering of other definitions, and revisions to 
certain definitions. In this October 2010 submittal, TCEQ renumbered 
the definition of ``modification of existing facility'' to Section 
116.10(9) and relettered Subparagraphs (C) and (D) to Subparagraphs (B) 
and (C), respectively, with no other changes. We are not acting on the 
October 5, 2010, SIP submittal here. We will address the October 2010 
SIP revisions in a separate action.
    Additional information related to these SIP submittals is contained 
in the Technical Support Documents (TSD) for the September 23, 2009,\2\ 
and July 18, 2011,\3\ proposals, which are in the docket for this 
action.
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    \2\ The TSD for the September 23, 2009, proposal is in the 
docket as document EPA-R06-OAR-2005-TX-0025-0007. You can access 
this TSD on line at: http://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-2005-TX-0025-0007.
    \3\ The TSD for the July 18, 2011, proposal is in the docket as 
document EPA-R06-OAR-2005-TX-0025-0378. You can access this TSD on 
line at: http://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-
2005-TX-0025-0378.
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    The table below summarizes the changes that were submitted and are 
affected by this action. A summary of EPA's evaluation of each section 
and the basis for this proposal is discussed in section III of this 
preamble. The TSD includes a detailed evaluation of the referenced SIP 
submittals.

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                                                                            Date
              Section                       Title              Date      adopted by  Description of change   Date of EPA proposed     Final EPA action
                                                            submitted       TCEQ                                    action
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30 TAC 116.10(11).................  Definition of            3/13/1996    2/14/1996  Initial adoption.....  7/18/2011--proposed    Approval.
                                     modification of         7/22/1998    6/17/1998  Repeal and readoption   approval.
                                     existing facility--                              as Section 116.10(9).
                                     Introductory
                                     paragraph.
                                                              9/4/2002    8/21/2002  Recodification to
                                                                                      Section 116.10(11).
30 TAC 116.10(11)(C)..............  Exclusion of             3/13/1996    2/14/1996  Initial adoption.....  7/18/2011--proposed    Approval.
                                     maintenance and         7/22/1998    6/17/1998  Repeal and readoption   approval.
                                     replacement of                                   as Section
                                     equipment.                                       116.10(9)(C).
                                                              9/4/2002    8/21/2002  Recodification to
                                                                                      Section
                                                                                      116.10(11)(C).
30 TAC 116.10(11)(D)..............  Exclusion of increase    3/13/1996    2/14/1996  Initial adoption.....  7/18/2011--proposed    Approval.
                                     in annual hours of      7/22/1998    6/17/1998  Repeal and readoption   approval.
                                     operation.                                       as Section
                                                                                      116.10(9)(D).
                                                              9/4/2002    8/21/2002  Recodification to
                                                                                      Section
                                                                                      116.10(11)(D).
30 TAC 116.10(11)(G)..............  Exclusion of certain     3/13/1996    2/14/1996  Initial adoption.....  9/23/2009--proposed    Disapproval.
                                     changes natural gas     7/22/1998    6/17/1998  Repeal and readoption   disapproval.
                                     processing,                                      as Section
                                     treating, or                                     116.10(9)(G).
                                     compression
                                     facilities.
                                                              9/4/2002    8/21/2002  Recodification to
                                                                                      Section
                                                                                      116.10(11)(G).
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    In a separate proposal published on September 23, 2009, 74 FR 
48450, EPA proposed to disapprove severable provisions in Subparagraphs 
(A), (B), and (G) of the definition of ``modification of existing 
facility'' at 30 TAC 116.10(11). In light of revisions that were 
submitted on October 5, 2010, revising the language of Subparagraph (A) 
and eliminating Subparagraph (B), EPA will withdraw its proposed 
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph 
(A) as it appears in the October 5, 2010, submittal will be evaluated 
and will be addressed in a separate future action. Based upon our 
proposed disapproval of 30 TAC 116.10(11)(G) and our evaluation of the 
comments received on that proposal, EPA is taking final action to 
disapprove 30 TAC 116.10(11)(G) submitted March 13, 1996; July 22, 
1998; and September 4, 2002.

II. What action is EPA taking?

    We have evaluated severable portions of the SIP submissions of 30 
TAC 116.10(11), which include the introductory paragraph of the 
definition of ``modification of existing facility,'' and Subparagraphs 
(C) and (D) of that definition for consistency with the CAA, and NSR 
regulations for new and modified sources in 40 CFR part 51. We have 
also reviewed the rules for enforceability and legal sufficiency.
    This action addresses severable portions of the definition of 
modification of existing facility under 30 TAC 116.10(11), including 
the introductory paragraph and Subparagraphs (C) and (D) of the 
definition submitted March 13, 1996; July 22, 1998; and September 4, 
2002. A technical analysis of the submittals for this definition has 
found that these changes meet the CAA and 40 CFR part 51. EPA received 
two comments in support of this proposal and did not receive any 
adverse comments. Therefore, EPA approves as proposed the severable 
portions of the definition of ``modification of existing facility'' 
under 30 TAC 116.10(11), including the introductory paragraph of 
Section 116.10(11) and Subparagraphs (C) and (D) of this definition, 
submitted on March 13, 1996; July 22, 1998; and September 4, 2002. As 
discussed earlier, in a separate SIP submittal dated October 5, 2010, 
30 TAC 116.10(11) Subparagraphs (C) and (D) were renamed as 30 TAC 
116.10(9) and Subparagraphs (B) and (C), respectively. EPA is not 
acting on the changes submitted October 2010, and will address these 
revisions in a separate action.
    In a separate proposal published on September 23, 2009 (74 FR 
48450), EPA proposed to disapprove 30 TAC 116.10(11)(G). Based upon our 
proposed disapproval of this rule and our evaluation of the comments 
received on our proposed disapproval of Subsection (G), EPA is taking 
final action to disapprove 30 TAC 116.10(11)(G) submitted March 13, 
1996; July 22, 1998; and September 4, 2002.
    On September 23, 2009, 74 FR 48450, EPA also proposed to disapprove 
severable provisions in Subparagraphs (A) and (B) of the definition of 
``modification of existing facility.'' In light of revisions that were 
submitted on October 5, 2010, revising the language of Subparagraph (A) 
and eliminating Subparagraph (B), EPA will withdraw its proposed 
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph 
(A) as it appears in the October 5, 2010, submittal will be evaluated 
and will be addressed in a separate future action.

III. EPA's Evaluation of Severable Portions of the Definition of 
``Modification of Existing Facility''

A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the 
Definition of ``Modification of Existing Facility''

1. What is the background of the introductory paragraph of 30 TAC 
116.10(11)--introductory paragraph?
    The TCEQ initially submitted the introductory paragraph of the 
general definition of ``modification of existing facility'' on March 
13, 1996. On July 22, 1998, TCEQ repealed and resubmitted this 
definition as readopted at 30 TAC 116.10(9). On September 4, 2002, TCEQ 
submitted revisions that redesignated this definition to 30 TAC 
116.10(11). The submitted regulatory definition of the introductory 
paragraph that we are addressing here provides that a modification of 
an existing facility is ``any physical change in, or change in

[[Page 71263]]

the method of operation of, a facility in a manner that increases the 
amount of air contaminants emitted by the facility into the atmosphere 
or which results in the emission of any air contaminant not previously 
emitted.''
2. What is EPA's evaluation of the submitted revisions to the 
introductory paragraph of 30 TAC 116.10(11)?
    EPA approved the definition of ``facility'' in Subchapter A: 
Definitions on September 6, 2006 (71 FR 52698) as part of the Texas 
SIP. ``Facility'' is defined as ``[a] discrete or identifiable 
structure, device, item, equipment, or enclosure that constitutes or 
contains a stationary source, including appurtenances other than 
emission control equipment. A mine, quarry, well test, or road is not a 
facility.'' See approved SIP at 30 TAC 116.10(6). The submitted 
regulatory definition for ``modification of existing facility'' also is 
in Subchapter A, Section 116.10. Therefore, ``existing facility'' is 
limited by the terms of the SIP definition of ``facility.'' In our 
evaluation of this introductory paragraph in the submitted regulatory 
definition of modification of existing facility, we compared it to how 
``modification'' is defined in the CAA and in our regulations.
    The CAA defines modification in Section 111(a)(4) as ``any physical 
change in, or change in the method of operation of, a stationary source 
which increases the amount of any air pollutant emitted by such source 
or which results in the emission of any pollutant not previously 
emitted.'' In 40 CFR 52.01(d), the phrases ``modification'' and 
``modified source'' are defined as any physical change in, or change in 
the method of operation of, a stationary source which increases the 
emission rate of any air pollutant for which a national standard has 
been promulgated under part 50 of this chapter or which results in the 
emission of any such pollutant not previously emitted.
    The introductory paragraph of 30 TAC 116.10(11) is substantially 
the same as the definitions in section 111(a)(4) of the Act and 40 CFR 
52.01(d).
    The existence of a different definition for ``major modification,'' 
in Section 116.12--Nonattainment and Prevention of Significant Review 
Definitions--that is applicable for Major NSR \4\ serves to distinguish 
the provisions in the introductory paragraph of section 116.10(11) from 
the Major NSR Program and limit its application to Minor NSR.
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    \4\ Section 116.12 as currently approved in the Texas SIP 
applies only to the Major NSR Program for Nonattainment Review. SIP 
revisions submitted February 1, 2006, and March 11, 2011, revised 
the definition to apply to both Nonattainment Review and Prevention 
of Significant Deterioration. EPA is currently reviewing these 
revisions and plans to act upon them shortly. The definitions in 
Section 116.12 are effective as State rules and the TCEQ implements 
them as part of its Major NSR Program.
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    In response to our proposed approval, we received comments from TIP 
and BCCAAG. The commenters agree that the regulatory language in 30 TAC 
116.10(11) is consistent with the CAA and EPA regulations and that SIP 
approval is warranted.
    Based upon the proposal and consideration of the comments we 
received, we are approving the introductory paragraph of 30 TAC 
116.10(11), as submitted March 13, 1996; July 22, 1998; and September 
4, 2002.

B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance and 
Replacement of Equipment

1. What is the background of 30 TAC 116.10(11)(C)?
    On March 13, 1996, this provision was submitted as Subparagraph (C) 
under the definition of ``modification of existing facility.'' In the 
July 22, 1998, submittal, the provision was repealed and resubmitted as 
30 TAC 116.10(9)(C). On September 4, 2002, TCEQ submitted revisions 
that redesignated this definition to 30 TAC 116.10(11)(C). As 
submitted, Subparagraph (C) provides that maintenance or replacement of 
equipment components that do not increase or tend to increase the 
amount or change the characteristics of the air contaminants emitted 
into the atmosphere is not a modification to an existing facility.
2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.10(11)(C)?
    The submitted Subparagraph (C) mirrors the definition in the Texas 
Clean Air Act (TCCA). Under Subparagraph (C), any maintenance and 
repair of equipment components that increases emissions, or tends to 
increase emissions, will be considered a modification consistent with 
the introductory paragraph of 30 TAC 116.10(11). Accordingly, the 
limitation in Subparagraph (C) protects against increases in emissions 
and thereby does not interfere with attainment or reasonable further 
progress. The definition of ``major modification'' in Section 116.12 
has a different exclusion for routine maintenance, repair, and 
replacement. The existence of a different exclusion in the Section 
116.12 that is applicable for Major NSR serves to distinguish the 
provisions in paragraph (C) from the Major NSR Program and limit its 
application to Minor NSR.
    In response to our proposed approval, we received comments from TIP 
and BCCAAG. The commenters agree that the regulatory language in 30 TAC 
116.10(11)(C) is consistent with the CAA and EPA regulations and that 
SIP approval is warranted.
    Based upon the proposal and consideration of the comments we 
received, we are finalizing our approval of 30 TAC 116.10(11)(C), as 
submitted March 13, 1996; July 22, 1998; and September 4, 2002.

C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase in 
Annual Hours of Operation

1. What is the background of 30 TAC 116.10(11)(D)?
    On March 13, 1996, this provision was submitted as Subparagraph (D) 
under the definition of ``modification of existing facility.'' In the 
July 22, 1998, submittal, the provision was repealed and resubmitted as 
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions 
that redesignated this definition to 30 TAC 116.10(11)(D). As 
submitted, Subparagraph (D) provides that an increase in the annual 
hours of operation is not a modification to an existing facility, 
unless the existing facility has received a preconstruction permit or 
has been exempted, under TCAA, Sec.  382.057, from preconstruction 
permit requirements.
2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.10(11)(D)?
    The submitted Subparagraph (D) mirrors the definition in the Texas 
Clean Air Act (TCCA). Subparagraph (D) is similar to 40 CFR 
52.01(d)(2)(ii), which provides that an increase in the hours of 
operation shall not be considered a change in the method of operation. 
The operative language in the submitted Subparagraph (D) is 
substantially the same as 40 CFR 52.01(d)(2)(ii). Furthermore, 
Subparagraph (D) includes additional language that clarifies that an 
increase in hours of operation may be a modification for existing minor 
facilities having preconstruction permits or exemptions, under TCAA 
Sec.  382.057 \5\ for preconstruction permit requirements. This 
language limits the reach of the

[[Page 71264]]

exclusion in scenarios where an existing facility is subject to 
limitations on hours of operation under the terms of a preconstruction 
permit or an exemption. This is consistent with Federal requirements in 
40 CFR 52.01(d)(2)(ii). Subparagraph (D) meets the Federal requirements 
as described above. Again, the definition of ``major modification'' in 
Section 116.12 has a different exclusion for an increase in the annual 
hours of operation. The existence of a different exclusion in the 
Section 116.12 that is applicable for Major NSR serves to distinguish 
the provisions in paragraph (D) from the Major NSR Program and limit 
its application to Minor NSR.
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    \5\ The term ``exemptions'' is a misnomer. Exemptions in Texas 
now are called Permits by Rule. An ``exemption'' since 1972 in Texas 
and in the Texas SIP, is an authorization to construct and/or modify 
if certain conditions are met.
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    In response to our proposed approval, we received comments from TIP 
and BCCAAG. The commenters agree that the regulatory language in 30 TAC 
116.10(11)(D) is consistent with the CAA and EPA regulations and that 
SIP approval is warranted.
    Based upon the proposal and consideration of the comments we 
received, we are finalizing our approval of 30 TAC 116.10(11)(D), as 
submitted March 13, 1996; July 22, 1998; and September 4, 2002.

D. Disapproval of 30 TAC 116.10(11)(G)--Exclusions for Changes at 
Certain Natural Gas Processing, Treating, or Compression Facilities

1. What is the background of 30 TAC 116.10(11)(G)?
    On March 13, 1996, this provision was submitted as Subparagraph (G) 
under the definition of ``modification of existing facility.'' In the 
July 22, 1998, submittal, the provision was repealed and resubmitted as 
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions 
that redesignated this definition to 30 TAC 116.10(11)(D). On September 
23, 2009, EPA proposed to disapprove the submitted revisions relating 
to 30 TAC 116.10(11)(G).
2. What is EPA's evaluation of the submitted revisions to 30 TAC 
116.10(11)(G)?
    The submittals provide that changes at certain natural gas 
processing, treating, or compression facilities are not modifications 
if the change does not result in an annual emissions rate of any air 
contaminant in excess of the volume for grandfathered facilities. The 
``annual emissions rate'' is the same as the ``volume emitted at 
maximum design capacity;'' therefore, this would provide an exemption 
for those sources from permit review for any emission increases at 
these facilities. The requirements of 40 CFR 51.160(e) allow a State to 
identify facilities which will be subject to review under its minor NSR 
program and require its minor NSR SIP to discuss the basis for 
determining which facilities will be subject to review. The submittals, 
however, do not contain an applicability statement or regulatory 
provision limiting this type of change to minor NSR. There is no 
explanation of the reason for exempting this type of change from the 
permitting SIP requirements. Without the submittal by the State of an 
analysis describing how this exemption does not negate the major NSR 
SIP requirements and meets the minor NSR SIP requirements in 40 CFR 
51.160 and the Act's antibacksliding requirements in section 110(l), 
EPA proposed to disapprove this submitted definition.
    In response to our proposed disapproval, we received comments from 
the UT Environmental Clinic (Clinic) and TCEQ. The Clinic supported the 
disapproval of this exemption from the definition of modification of 
existing facility because the exemption could apply to major 
modifications and because TCEQ did not demonstrate that the exemption 
will not interfere with attainment or cause a violation of a control 
strategy. EPA acknowledges that these comments support its basis for 
proposing disapproval of this exemption because it could allow major 
modifications without undergoing review that satisfies the applicable 
permitting requirements for Major NSR under 40 CFR 51.165 and/or 
51.166, as applicable. The exemption may also allow a source to 
increase emissions without a demonstration that such change will not 
interfere with attainment or maintenance of a National Ambient Air 
Quality Standard (NAAQS) or cause a violation of a control strategy. 
The TCEQ commented that it will consider EPA's comments regarding its 
proposed disapproval of 30 TAC 116.10(11)(G), but provided no 
information which demonstrates that this provision meets the 
requirements for SIP approval.\6\
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    \6\ On October 5, 2010, TCEQ submitted a revision that 
renumbered 30 TAC 116.10(11)(G) to 30 TAC 116.10(9)(F), but made no 
changes to the substance of this provision.
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3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
    Based upon the September 23, 2009, proposal and the consideration 
of comments provided, EPA is disapproving the exemption in 30 TAC 
116.10(11)(G) on the following grounds:
     This definition exempts changes at certain natural gas 
processing, treating, or compression facilities as non-modifications if 
the change does not result in an annual emissions rate of any air 
contaminant in excess of the volume for grandfathered facilities from 
the definition of modification of existing facility. However, TCEQ did 
not provide any discussion of the basis for this exemption as required 
by 40 CFR 51.160(e).
     The submitted definition includes no applicability 
statement or regulatory provision limiting this type of change to minor 
NSR.
     The submitted rule includes no demonstration that the 
exempted change at a natural gas processing, treating, or compression 
facility does not result in an annual emissions rate of any air 
contaminant in excess of the volume for grandfathered facilities, and 
does not interfere with attainment or maintenance of a NAAQS or cause a 
violation of a control strategy as required under 40 CFR 51.161(a).
    Based upon the September 23, 2009, proposal, and consideration of 
the comments received, we are finalizing our disapproval of 30 TAC 
116.10(11)(G) as submitted March 11, 1996; July 22, 1998; and September 
4, 2002.

E. Response to Other Comments on the July 18, 2011, Proposal

    TIP and BCCAAG commented that EPA should take into account the 
dramatic improvements in Texas's air quality in acting on the 
definition of ``modification of existing facility'' and other SIP 
revisions. The commenters assert that Texas's integrated air permitting 
program, including the definition which EPA now proposes to approve, 
has played a key role in Texas's air quality success. TIP and BCCAAG 
urge EPA to approve the entire ``modification of existing facility'' as 
part of this integrated program. The commenters cite to substantial 
reductions in several air pollutants and reductions in ambient 
concentrations in monitored levels of ozone, nitrogen dioxide, sulfur 
dioxide, and carbon monoxide from 1990 to 2009.
    Our actions on the severable parts of the definition of 
``modification of existing facility'' are based upon whether the 
definition meets the applicable requirements of the CAA, as discussed 
herein. EPA is required to review a SIP revision submission for 
compliance with the CAA and EPA regulations. CAA 110(k)(3). See also 
BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003), Natural 
Resource Defense Council v. Browner, 57 F.3d 1122, 1123 (DC Cir. 1995).

[[Page 71265]]

    The submitted data, even if accepted, does not show that gains are 
attributable to the definition of ``modification of existing 
facility,'' and the commenter's claim regarding the data does not take 
account of SIP-approved control strategies (both State and Federal 
programs) and other Federal and State programs. The approvals of 
revisions which we finalize today are based on our review of the Texas 
submittals following the analysis furnished in the proposal in 
accordance with the CAA.

IV. Final Action

    Today, EPA is approving the following revisions to the Texas SIP to 
include severable provisions of the definition of ``modification of 
existing facility'' under 30 TAC 116.10(11), submitted March 13, 1996; 
July 22, 1998; and September 4, 2002. This includes the following:
     30 TAC 116.10(11)--the introductory paragraph of the 
definition of ``modification of existing facility;''
     30 TAC 116.10(11)(C)--Exclusion for maintenance and 
replacement of equipment; and
     30 TAC 116.10(11)(D)--Exclusion for an increase in annual 
hours of operation.
    Today, EPA is also disapproving the severable portion of definition 
of ``modification of existing facility'' under 30 TAC 116.10(11)(G), 
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
    Final action on these revisions on or before October 31, 2011, will 
meet EPA's obligation on the NSR Rules Revisions; 112(g) Revisions 
component of the May 21, 2009, Settlement Agreement between EPA and the 
Business Coalition for Clean Air Appeal Group, Texas Association of 
Business, and Texas Oil and Gas Association.
    EPA is not taking further action on the following severable 
provisions of 30 TAC 116.10(11):
     30 TAC 116.10(11)(E). EPA disapproved Subparagraph (E) in 
a separate action on April 14, 2010, 75 FR 19468. EPA will address any 
subsequent submittals containing Subparagraph (E) as newly revised in a 
separate action.
     30 TAC 116.10(11)(F). EPA disapproved Subparagraph (F) in 
a separate action on July 15, 2010, 75 FR 41312. EPA will address any 
subsequent submittals containing Subparagraph (F) as newly revised in a 
separate action.

V. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP approval and disapproval under section 110 and 
subchapter I, part D of the Clean Air Act will not in-and-of itself 
create any new information collection burdens but simply approves and 
disapproves certain State severable requirements for inclusion into the 
SIP. Burden is defined at 5 CFR 1320.3(b). Because this final action 
does not impose an information collection burden, the Paperwork 
Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. This rule will not have a significant 
impact on a substantial number of small entities because SIP approvals 
and disapprovals under section 110 of the Clean Air Act do not create 
any new requirements but simply approve or disapprove requirements that 
the States are already imposing.
    Furthermore, as explained in this action, a severable portion of 
the submissions does not meet the requirements of the Act and EPA 
cannot approve the severable portion of the submissions. The final 
disapproval will not affect any existing State requirements applicable 
to small entities in the State of Texas. Federal disapproval of a 
severable portion of a State submittal does not affect its State 
enforceability. After considering the economic impacts of today's 
rulemaking on small entities, and because the Federal SIP disapproval 
does not create any new requirements or impact a substantial number of 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Clean Air 
Act forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 ``for State, local, or tribal governments or the private 
sector.'' EPA has determined that the approval and disapproval action 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
determines that pre-existing requirements under State or local law 
should not be approved as part of the Federally-approved SIP. It 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of

[[Page 71266]]

power and responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely approves and 
disapproves severable portions of certain State requirements for 
inclusion into the SIP and does not alter the relationship or the 
distribution of power and responsibilities established in the Clean Air 
Act. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000) because the rule 
neither imposes substantial direct compliance costs on tribal 
governments, nor preempts tribal law. Therefore, the requirements of 
sections 5(b) and 5(c) of the Executive Order do not apply to this 
action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This SIP approval and disapproval under section 110 and subchapter I, 
part D of the Clean Air Act will not in-and-of itself create any new 
regulations but simply disapproves certain State requirements for 
inclusion into the SIP.

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act. Today's action does not require 
the public to perform activities conducive to the use of VCS.

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

    Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the Clean 
Air Act. Accordingly, this action merely disapproves certain State 
requirements for inclusion into the SIP under section 110 and 
subchapter I of the Clean Air Act and will not in-and-of itself create 
any new requirements. Accordingly, it 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.

K. Congressional Review Act

    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 
rule 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).

L. Petitions for Judicial Review

    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 17, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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.

    Dated: October 31, 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. 7402 et seq.

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under Chapter 116, Subchapter A, by revising 
the entry for Section 116.10 to read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

[[Page 71267]]



                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                       State- approval/
         State citation              Title/subject      submittal  date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
                                            Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10..................  General Definitions         8/21/2002  November 17, 2011,   The SIP does not
                                                                          [Insert FR page      include
                                                                          number where         paragraphs (1),
                                                                          document begins].    (2), (3), (7)(F),
                                                                                               (11)(A), (11)(B),
                                                                                               (11)(E), (11)(F),
                                                                                               (11)(G), and
                                                                                               (16).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2273 is revised by adding a new paragraph (g) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (g) EPA has disapproved the Texas SIP revision submittals under 30 
TAC Chapter 116--Control of Air Pollution by Permits for New 
Construction or Modification--Subchapter A--Definitions--Section 
116.10(11)(G), adopted February 14, 1996, and submitted March 13, 1996; 
repealed and re-adopted June 17, 1998, and submitted July 22, 1998; and 
adopted August 21, 2002, and submitted September 4, 2002.

[FR Doc. 2011-29641 Filed 11-16-11; 8:45 am]
BILLING CODE 6560-50-P