[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81371-81393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33253]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0638; FRL-9613-7]


Approval and Disapproval and Promulgation of Implementation 
Plans; Texas; Infrastructure and Interstate Transport Requirements for 
the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is partially approving and partially disapproving 
submittals from the state of Texas pursuant to the Clean Air Act (CAA 
or Act) that address the infrastructure elements specified in the CAA 
section 110(a)(2), necessary to implement, maintain, and enforce the 
1997 8-hour ozone and 1997 and 2006 fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS or 
standards). We are determining that the current Texas State 
Implementation Plan (SIP) meets the infrastructure requirements for the 
1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS at 
110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of 
(C), (D)(ii) and (J). We are determining that the current Texas SIP 
does not meet the infrastructure requirements for the 1997 8-hour ozone 
and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) for portions 
of (C), (D)(ii) and (J). The EPA is also partially approving and 
partially disapproving SIP revisions submitted by the state of Texas 
for the purpose of addressing the provisions of CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS. These SIP revisions address the requirement 
that the Texas SIP have adequate provisions to prohibit air emissions 
from adversely affecting another state's air quality through interstate 
transport. The EPA is partially approving and partially disapproving 
the provisions of these SIP submissions that emissions from sources in 
Texas do not interfere with measures required in the SIP of any other 
state under part C of the CAA to prevent significant deterioration of 
air quality, with regard to the 1997 8-hour ozone NAAQS and the 1997 
and 2006 PM2.5 NAAQS. The partial disapprovals herein are 
because Texas has stated it cannot issue permits for and does not 
intend to regulate greenhouse gas (GHG) emissions. The EPA is also 
approving SIP revisions that modify the Texas SIP for Prevention of 
Significant Deterioration (PSD) to include nitrogen oxides 
(NOX) as an ozone precursor. This action is being taken 
under section 110 and part C of the Act.

DATES: This rule is effective on January 27, 2012.

ADDRESSES: The EPA established a docket for this action under Docket ID 
No. EPA-R06-OAR-2008-0638. All documents in the docket are listed at 
www.regulations.gov. 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 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 Freedom of 
Information Act (FOIA) Review Room between the hours of 8:30 a.m. and 
4:30

[[Page 81372]]

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. Please make the appointment 
at least two working days in advance of your visit. There is a fee of 
15 cents per page 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.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-6521; fax 
number (214) 665-7263; email address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

Table of Contents

I. Background
II. What action is the EPA taking?
A. What is the EPA approving in this action?
    B. What is the EPA disapproving in this action?
III. Comments
    A. What comments did the EPA receive on the September 22, 2011 
action for Texas?
    B. General Format
    C. Comments That Address the Consideration of Existing SIP 
Provisions
    D. Comments That Address Implementation Issues
    E. Comments That Address Greenhouse Gases (GHGs)
    F. Comments That Address Section 110(a)(2)(E)
    G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)
    H. Comments That Address Best Available Control Technology 
(BACT)
    I. Comments That Address Regulation of PM2.5
    J. Comments That Address Single Source Ozone Modeling
    K. Comments That Address Cumulative Air Quality Impacts
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    The background for today's action is discussed in detail in our 
September 22, 2011 proposal to partially approve and partially 
disapprove revisions \1\ to the Texas SIP (76 FR 58748). In that 
action, we proposed to partially approve and partially disapprove the 
current Texas SIP for meeting the provisions of the CAA sections 
110(a)(1) and 110(a)(2) (i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-(H), and 
(J)-(M)) for the 1997 ozone and the 1997 and 2006 PM2.5 
NAAQS. We also proposed to approve severable \2\ portions of revisions 
to the Texas PSD SIP that address NOX as a precursor to 
ozone, submitted by the TCEQ to the EPA on March 11, 2011 and May 26, 
2011.
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    \1\ The specific submittals and our actions are detailed in 
Section II of this rulemaking.
    \2\ By severable, we mean that the portions of the SIP revision 
that address NOX as a precursor can be implemented 
independently of the remaining portions of the submittal, without 
affecting the stringency of the submitted rules. In addition, the 
remaining portions of the submittal are not necessary for approval 
of the provisions addressing NOX as a precursor.
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    Our September 22, 2011 proposal provides a detailed description of 
the revisions and the rationale for the EPA's proposed actions, 
together with a discussion of the opportunity to comment. The public 
comment period for these actions closed on October 24, 2011. See the 
Technical Support Document (TSD) and our proposed rulemaking at 76 FR 
58748 for more information.

II. What action is the EPA taking?

    The EPA is partially approving and partially disapproving 
submittals from the state of Texas pursuant to the CAA that address the 
infrastructure elements specified in section 110(a)(2) of the Act, 
necessary to implement, maintain, and enforce the 1997 8-hour ozone and 
1997 and 2006 PM2.5 standards.

A. What is the EPA approving in this action?

    The EPA is approving portions of the December 12, 2007; March 11, 
2008; April 4, 2008; and November 23, 2009 submissions from Texas, 
determining that the following section 110(a)(2) elements are contained 
in the current Texas SIP and provide the infrastructure for 
implementing the 1997 ozone and 1997 and 2006 PM2.5 
standards: Emission limits and other control measures (section 
110(a)(2)(A)); ambient air quality monitoring/data system (section 
110(a)(2)(B)); the program for enforcement of control measures, except 
for the portion that addresses GHGs (section 110(a)(2)(C)); 
international and interstate pollution abatement, except for the 
portion that addresses GHGs (section 110(a)(2)(D)(ii)); adequate 
resources (section 110(a)(2)(E)); stationary source monitoring system 
(section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future 
SIP revisions (section 110(a)(2)(H)); consultation with government 
officials (section 110(a)(2)(J)); public notification (section 
110(a)(2)(J)); PSD and visibility protection, except for the PSD 
portion that addresses GHGs (section 110(a)(2)(J)); air quality 
modeling/data (section 110(a)(2)(K)); permitting fees (section 
110(a)(2)(L)); and consultation/participation by affected local 
entities (section 110(a)(2)(M)).
    We are also approving portions of the May 1, 2008 (Texas Interstate 
Transport SIP) and the November 23, 2009 submissions from Texas, 
demonstrating that Texas has adequately addressed one of the four 
required elements (or prongs) of the CAA section 110(a)(2)(D)(i), the 
element that requires that the SIP prohibit air emissions from sources 
within a state from interfering with measures required to prevent 
significant deterioration of air quality in any other state.\3\ We are 
determining that emissions from sources in Texas do not interfere with 
measures to prevent significant deterioration of air quality in any 
other state for the 1997 8-hour ozone NAAQS or the 1997 and 2006 
PM2.5 NAAQS (CAA section 110(a)(2)(D)(i)(II)), except for 
the portions that address GHGs. We are not addressing the three 
remaining prongs of section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
and 1997 and 2006 PM2.5 NAAQS, that pertain to prohibiting 
air emissions within Texas from: (1) Significantly contributing to 
nonattainment in any other state, (2) interfering with maintenance of 
the relevant NAAQS in any other state and (3) interfering with measures 
required to protect visibility in any other state. We will take action 
on the three remaining prongs of section 110(a)(2)(D)(i) for these 
three NAAQS, which addresses interstate transport, in separate 
rulemakings.
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    \3\ As noted in the proposed rulemaking for this action, the May 
1, 2008 submittal addresses the 1997 ozone and PM2.5 
standards; it does not address the 2006 PM2.5 standard. 
The November 23, 2009 submittal addresses the 110(a)(2) 
infrastructure and interstate transport elements for the 2006 
PM2.5 NAAQS.
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    In conjunction with our finding that the Texas SIP meets the 
section 110(a)(1) and (2) infrastructure and interstate transport SIP 
elements listed above for the three NAAQS, we are also approving 
severable portions of the SIP revisions submitted by the TCEQ to the 
EPA on March 11, 2011 and a correction submitted on May 26, 2011. These 
portions address revisions to 30 TAC sections 101.1 and 116.12. The 
revisions to 116.12 add PSD to the title of the section, such that the 
section will address Nonattainment and Prevention of Significant 
Deterioration Review Definitions and thus provide that NOX 
is an ozone precursor for the PSD program; and add the definition of 
Federally Regulated NSR Pollutant, which identifies volatile organic 
compounds (VOCs) and NOX as

[[Page 81373]]

precursors in all attainment and unclassifiable areas. Thus, the 
definitions for Major stationary source, Major modification, and the 
table identifying the Significant Level for emission thresholds for 
major sources and major modifications apply under PSD. These revisions 
addressing PSD also specify that a major source that is major for VOCs 
or NOX shall be considered major for ozone and provide that 
the significant emission threshold for ozone (identified as VOC, 
NOX) is 40 tons per year (tpy). The EPA intends to act on 
the remaining Texas New Source Review (NSR) SIP revisions at a later 
date. The inclusion of these requirements in the SIP means that Texas 
has met the requirement to treat NOX as a precursor for 
ozone as necessary to implement the 1997 ozone standard.

B. What is the EPA Disapproving in this Action?

    We are determining that portions of three section 110(a)(2) 
elements are not contained in the current Texas SIP and thus do not 
provide the infrastructure for implementing the 1997 ozone and 1997 and 
2006 PM2.5 standards. We are therefore disapproving portions 
of the December 12, 2007; March 11, 2008; April 4, 2008; and November 
23, 2009 submissions from Texas, and determining that the current Texas 
SIP does not meet the infrastructure requirements for the 1997 8-hour 
ozone and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) for 
portions of (C), (D)(ii) and (J) because Texas has stated it cannot 
issue permits for and does not intend to regulate greenhouse gas (GHG) 
emissions.
    We are also disapproving the portion of the Texas Interstate 
Transport SIP element that prohibits GHG emissions from sources within 
Texas from interfering with measures required to prevent significant 
deterioration of air quality in any other state (section 
110(a)(2)(D)(i)).
    For the disapproved infrastructure elements (the portions of 
section 110(a)(2)(C), section 110(a)(2)(D)(ii), and section 
110(a)(2)(J) described in this section), the EPA remains obligated to 
implement a FIP at the same time the disapproval is finalized. The 
EPA's disapproval here, however, does not engender an additional 
statutory obligation, because the EPA has already promulgated a FIP for 
the Texas PSD program to address permitting GHGs at or above the 
Tailoring Rule thresholds (76 FR 25178). As noted earlier, we will take 
action on the remaining three prongs of section 110(a)(2)(D)(i), which 
addresses interstate transport, in a separate rulemaking.

III. Comments

A. What comments did the EPA receive on the September 22, 2011 action 
for Texas?

    We received five comment letters on the proposed rulemaking. These 
comments are available for review in the docket for this rulemaking. 
The comment letters came from the following sources:
    1. October 24, 2011 letter from Gabriel Clark-Leach, for 
Environmental Integrity Project and on behalf of Public Citizen and the 
Sustainable Energy and Economic Development (SEED) Coalition.
    2. October 24, 2011 letter from Tangela Niemann, Texas Commission 
on Environmental Quality.
    3. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for 
the BCCA Appeal Group.
    4. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for 
the Texas Industry Project.
    5. October 24, 2011 letter from Elena Saxonhouse, for Sierra Club 
and on behalf of its members in Texas and states downwind of Texas, 
such as Arkansas, Louisiana and Oklahoma.

B. General Format

    Our responses to comments (RTCs) received follow a general format 
of summarizing the comment or group of similar comments, and then 
providing our response to that particular summary of comments. Thus the 
general format provided herein is ``Comment'' and then ``Response.'' 
The RTCs in Sections III-C and D however, do not follow the general 
format, but still provide a summary of the comments with our responses.

C. Comments That Address the Consideration of Existing SIP Provisions

    Two commenters objected generally to the EPA's statements in the 
proposal concerning substantive issues the Agency considers outside the 
scope of actions on infrastructure SIP submissions. In the proposal, 
the EPA explained that in the context of acting upon the infrastructure 
SIP submissions required by section 110(a)(1) and (2), the Agency must 
determine what substantive issues states and the EPA need to address in 
this specific type of SIP submission. In particular, the EPA noted four 
substantive issues that may exist in the previously existing SIPs that 
the Agency wanted to be clear were not among the issues that states and 
the EPA are addressing in actions on infrastructure SIPs: (i) Start-up, 
shut-down, malfunction (SSM) provisions; (ii) director's discretion 
provisions; (iii) minor source NSR provisions; and (iv) NSR Reform 
related provisions.\4\
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    \4\ See 76 FR 58750-53.
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    One commenter expressed that it was ``not sympathetic'' to the 
EPA's assertion that an action on an infrastructure SIP is ``not the 
appropriate time and place to address all potential existing SIP 
problems.'' Instead, the commenter argued that the EPA's position that 
it could act on ``deficient'' portions of the existing SIP at another 
time through more appropriate statutory mechanisms is inconsistent with 
the requirements of section 110(a)(2), and with section 110(k)(3). The 
commenter noted that the latter provision of the CAA only contemplates 
a partial EPA approval of a state's SIP submission if that part ``meets 
all the applicable requirements.''
    The EPA disagrees with the premise of the commenter that the Agency 
must address all possible substantive issues in existing SIPs in the 
context of acting on an infrastructure SIP submission, whether in a 
full or partial approval. As explained in the proposal, the EPA 
considers action on the infrastructure SIP submissions required by 
section 110(a)(1) and (2) to be an exercise to assure that a state's 
SIP meets the basic structural requirements for the new or revised 
NAAQS, not a time to address all potential defects in existing SIP 
provisions. The EPA believes this approach is permissible under the 
statute because the individual provisions of section 110(a)(2) are 
worded in ways that require interpretation and do not explicitly 
require that the EPA address certain issues in existing SIPs that the 
EPA identified in the proposal.
    Moreover, the commenter's reference to section 110(k)(3) as 
permitting a partial approval only when the part approved ``meets all 
applicable requirements'' suggests that the commenter believes either 
that the EPA is deferring action on issues that are integral to action 
on an infrastructure SIP, or alternatively that the EPA is approving 
the infrastructure SIP with respect to the substantive issues in the 
existing SIP that the EPA explicitly indicated it was not acting upon. 
In either case, the EPA believes that the commenter is mistaken on this 
point. As explained in more detail in the proposal, the EPA 
specifically noted certain issues that it considers outside the scope 
of an action on an infrastructure SIP as required by section 110(a)(1) 
and (2), and explained the

[[Page 81374]]

statutory basis for this position. Therefore, the EPA does not agree 
that it is deferring action on substantive issues that are integral to 
acting on an infrastructure SIP, e.g., the EPA does not agree that it 
is necessary to address existing SSM provisions already in the SIP in 
the context of acting on an infrastructure SIP submission. As the EPA 
also explained in the proposal, the agency intentionally highlighted 
specific substantive issues that it considers outside the scope of an 
action on an infrastructure SIP because it did ``not want states, 
regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state.'' 76 FR 58750. In other words, the EPA's 
approval of the state's infrastructure SIP should not be viewed as 
approving an existing deficient provision in the state's SIP, such as 
an exemption for excess emissions during SSM events that does not meet 
CAA requirements. To the contrary, the EPA explicitly noted that if 
there were problematic provisions in the state's existing SIP with 
respect to the four issues identified as outside the scope of action on 
an infrastructure SIP, the EPA may elect to deal with those issues 
separately in another action.
    The other commenter likewise objected in general to the EPA's view 
that certain substantive issues are beyond the scope of an action on an 
infrastructure SIP, but also critiqued the specific explanations and 
rationale provided by the EPA for its position in the proposal. The 
commenter raised four specific arguments in response to the EPA's 
reasoning: (1) The existence of other tools to rectify SIP deficiencies 
does not make an infrastructure SIP approvable; (2) a SIP cannot meet 
``basic structure'' requirements if it contains known deficiencies; (3) 
it may not be possible to review every provision of a SIP in acting on 
an infrastructure SIP, but the EPA has to consider any issues that 
commenters bring to the EPA's attention; and (4) the EPA action on a 
state SIP submission that relies on existing SIP provisions combined 
with the Agency's decision not to examine certain types of deficiencies 
in the existing SIP provisions ``deprives the public of any opportunity 
to comment upon or challenge the submissions.'' We will address these 
concerns in turn.
    First, the commenter argued that the mere existence of other 
statutory tools, such as a section 110(k)(5) SIP call, to address SIP 
deficiencies ``has no bearing'' on the fundamental question of whether 
the EPA should approve a state's infrastructure SIP submission if the 
underlying SIP contains any deficiencies. The commenter reasoned that 
the ability of the EPA to use section 110(k)(5) to rectify a problem 
does not mean that the EPA should not address the problem when acting 
on an infrastructure SIP for a new or revised NAAQS. Indeed, the 
commenter asserts that if the existing provisions in a SIP could be the 
basis for a section 110(k)(5) SIP call, then those issues ``should be 
addressed during the SIP approval process for the new NAAQS.''
    The EPA agrees that the mere existence of other statutory tools to 
address SIP deficiencies, such as a section 110(k)(5) SIP call, does 
not per se answer the question of whether the EPA must address all 
potential existing SIP deficiencies in the context of acting on a 
state's infrastructure SIP submission. However, the EPA did not make 
such an argument in the proposal. The EPA's point in noting the 
existence of other statutory tools to address existing SIP deficiencies 
was merely that the availability of these tools supported the EPA's 
reasonable reading of section 110(a)(2) as not requiring that any and 
all possible issues in the existing SIP be addressed in the context of 
acting on an infrastructure SIP submittal, when those issues are not 
explicitly among those that must be addressed in this context. As 
explained in more detail in the proposal, the EPA believes that the 
provisions of section 110(a)(2) are in some cases ambiguous and it is 
necessary to interpret what they require in the specific context of the 
infrastructure SIP as contemplated in section 110(a)(1). The EPA 
pointed to other statutory tools such as a section 110(k)(5) SIP call 
as support for its reading of the statute that permits the EPA to 
address existing SIP deficiencies outside of an action on an 
infrastructure SIP, because Congress provided other mechanisms for the 
EPA to use as appropriate for such problems. To reiterate, the EPA 
believes that even though it is not necessary to address a particular 
issue while acting on an infrastructure SIP submission, it should not 
be viewed as precluding the EPA from separately exercising other 
authority such as section 110(k)(5) to address any existing deficiency 
in the SIP. Thus the EPA indicated that it may take steps to address 
such problems via a SIP call or other means.
    Second, the commenter disagreed with the EPA's view that a state 
could meet basic structural requirements for a SIP even if there may be 
potential deficiencies in the existing SIP. The commenter focused in 
particular on the description of the deficiencies as merely 
``potential'' deficiencies and asserted that the EPA cannot acknowledge 
deficiencies and nevertheless approve the infrastructure SIP submission 
as meeting the requirements of section 110(a). According to the 
commenter, there is ``no `basic structure' requirement in Section 
110(a)'' and that if there were such a requirement the EPA must 
evaluate the basic structure of the state's SIP ``as it actually 
exists.''
    With respect to this point, the EPA disagrees with the commenter's 
view that the specific SIP submission required in section 110(a)(1) and 
(2) within three years after the promulgation of a new or revised NAAQS 
is not intended to be a submission directed at basic structural 
requirements for a SIP. The commenter can take issue with the EPA's 
characterization or terminology when the agency refers to ``basic 
structure'' requirements, but the fact remains that the agency has to 
evaluate whether the SIP submission in question meets the various 
requirements of section 110(a)(2), as applicable, in this specific type 
of SIP submission.
    As the EPA articulated in the proposal, the various elements of 
section 110(a)(2) address a host of different issues, some of which 
entail legal authority requirements, some of which entail substantive 
requirements, and some of which entail both. Many of the elements of 
section 110(a)(2) are ambiguous with respect to what they require in 
the context of an infrastructure SIP. In order to act on the 
infrastructure SIP, the EPA has to interpret the provisions of section 
110(a)(2) to ascertain which of those provisions apply to this specific 
type of SIP submission, and how they apply. The commenter objected to 
the EPA's approach, but did not support its contentions with specific 
arguments based upon the actual wording of section 110(a)(2), nor did 
the commenter explain how or why it disagreed with the interpretation 
of the statutory language provided by the EPA in the proposal. Having 
had to determine which issues are properly within the scope of an 
action on an infrastructure SIP, for informational purposes the EPA 
sought to make clear that its action should not be construed as 
reapproving existing provisions of certain types because the EPA 
considers those issues that may be dealt with separately. The EPA did 
not, therefore, determine definitively whether the state's existing SIP 
contained any of these types of provisions that may be deficiencies, 
hence the agency referred

[[Page 81375]]

to any such provisions as ``potential'' deficiencies. Contrary to the 
commenter's view, the EPA believes it is appropriate to refer to any 
such provisions as potential deficiencies, until such time that the EPA 
can undertake the requisite analysis and undergo the proper procedures 
to establish that any such provisions are in fact inconsistent with the 
requirements of the CAA.
    Third, the commenter objected to the EPA's statement that it is 
reasonable to defer action on a deficient provision in an existing SIP 
because it is not possible ``for [the] EPA to consider whether every 
provision of every SIP in every state meets the current requirements of 
the federal Clean Air Act.'' The commenter asserted that it was not 
asking the EPA ``to evaluate every word of the Texas SIP,'' but rather 
that it believes that the EPA must evaluate the SIP for the four 
substantive issues that the Agency concluded were outside the scope of 
infrastructure SIP actions as well as any other substantive issue that 
the commenter brings to the EPA's attention in this rulemaking context.
    With respect to this point, the EPA believes that the commenter 
misunderstood the reason that the Agency stated that it is not required 
to review SIPs for all possible existing deficiencies when evaluating 
an infrastructure SIP submission, including any related to the four 
issues specifically identified in the proposal. The EPA noted this 
practical point as part of explaining its view that where the specific 
requirements of the provisions of section 110(a)(2) are ambiguous, it 
is appropriate for the EPA to interpret the statute in a way that makes 
logical and feasible sense. Thus, for example, because the provisions 
of section 110(a)(2) do not explicitly provide that the SIP submission 
required by section 110(a)(1) after the promulgation of a new or 
revised NAAQS must rectify any and all potential substantive issues 
concerning any pre-existing SSM provisions in the state's SIP, the EPA 
concluded that it was reasonable to interpret the statute as not 
requiring the EPA to address that issue in this specific action on an 
infrastructure SIP submission. The SSM issue in and of itself is 
complex and could take substantial time and resources by both the state 
and EPA to identify, evaluate, and address as necessary any such 
provisions.
    Rather than a basic structural SIP requirement for a new or revised 
NAAQS, such as having state law authority to carry out the SIP, an 
overarching permitting program in place, or a monitoring network 
deployed, such an SSM issue might arise in the context of an individual 
existing emission limit that might apply only to a small number of 
sources of a certain type as part of the nonattainment area plan for a 
particular geographic area within the state. The EPA does not disagree 
that such a provision might be problematic in and of itself and that 
once examined through the appropriate mechanisms could prove to be 
inconsistent with the CAA and EPA's policy guidance on excess 
emissions. However, such a provision could be but one substantive issue 
among many in the existing SIP for which in depth analysis as part of 
the action on an infrastructure SIP is not practicable. To attempt to 
do such an analysis in this action would detract from the larger 
exercise to assure that the state SIP meets basic structural 
requirements for a new or revised NAAQS.
    The EPA agrees that where the specific provisions of section 
110(a)(2) clearly indicate that the EPA should evaluate a state's 
infrastructure SIP submission with respect to a given issue, the EPA 
must do so. Thus, the EPA has evaluated the state's submission on an 
element by element basis in the proposal, and explained why the agency 
believes that the state has or has not met the various individual 
requirements of section 110(a)(2), as applicable and as the EPA 
interprets them. For example, the EPA explained in detail why the 
agency believes that the state has adequately complied with section 
110(a)(2)(A) concerning enforceable emissions limits and other control 
measures; section 110(a)(2)(B) concerning air quality monitoring. By 
contrast, the EPA explained in detail why the agency believes that the 
state has not met the requirements of a component of section 
110(a)(2)(C) with respect to permitting new or modified sources for all 
federally regulated pollutants including GHGs. It does not follow, 
however, that the specific provisions of section 110(a)(2) require the 
EPA to address any and all issues within the existing SIP in the 
context of acting on an infrastructure SIP submission, and the EPA has 
noted four such substantive issues that it believes are outside the 
scope of this exercise as explained in more detail in the proposal.
    Where commenters raise concerns with a state's compliance with an 
element of section 110(a)(2) that the EPA agrees is germane to the 
infrastructure SIP, the EPA is responding to those comments separately 
in this action.
    Fourth, the commenter opposed the EPA's view that some substantive 
issues should be addressed separately from action on the infrastructure 
SIP on the grounds that this approach would deprive the public from any 
opportunity to comment upon or challenge the state's submission. The 
commenter evidently believes that because the state's infrastructure 
SIP submission did not include new provisions and merely confirmed how 
the existing SIP meets the applicable requirements of section 110(a)(2) 
that this precluded any comment on the merits of the state's 
submission.
    The EPA shares the commenter's concern with adequate public process 
and opportunity to comment on a state's infrastructure SIP submission. 
In this context, however, the EPA disagrees with the commenter's 
implication that the EPA should address any and all possible issues 
relating to the existing SIP in any action on a pending SIP submittal. 
First, the mere fact that the state's infrastructure SIP submission 
does not include actual revisions to the existing EPA-approved SIP does 
not alter the fact that it is a SIP submission and therefore its 
contents are subject to notice and comment, to the extent that the 
issues raised are germane to the action in question. To the extent that 
an issue is applicable in the context of the infrastructure SIP 
submission, the EPA itself is scrutinizing the content of the 
submission for compliance with the CAA, and when the Agency proposes 
action on the submission it is providing notice and inviting public 
comment on its proposed action. This does not automatically mean, 
however, that it is appropriate for the EPA to address, and for the 
public to comment upon, all possible substantive issues relating to the 
existing SIP beyond those that the EPA interprets as applicable for 
evaluation in the context of this specific type of SIP submission. The 
same principle, applied more precisely to the actual submission at 
hand, suggests that it is reasonable for the EPA to determine that 
certain substantive issues are outside the scope of the infrastructure 
SIP process and may be assessed separately in another context. This 
decision does not foreclose public comment on such issues, it merely 
indicates that public comment on such issues should occur at the point 
when the EPA is taking an action that more appropriately addresses the 
specific issue.
    Additionally, the EPA notes that although the Texas infrastructure 
SIP submission was comprised of the state's explanations of why the 
state believes its existing SIP meets the applicable requirements of 
section 110(a)(2), that approach has not precluded public

[[Page 81376]]

comment on the relevant issues. The commenter's own comments illustrate 
that this process affords the public an opportunity to comment on the 
EPA's proposed action on the infrastructure SIP submission. Where those 
comments raise concerns about issues properly within the scope of an 
action on an infrastructure SIP, the EPA is evaluating those comments 
as part of this action.
    Finally, one commenter more specifically objects to the EPA's 
evaluation of the state's infrastructure SIP submissions with respect 
to the minor NSR permitting program in Texas. The commenter expresses 
concern that the state has ``failed to implement its minor source NSR 
program in a way that complies with federal requirements'' and claims 
that ``because Texas's failures undermine its ability to implement, 
maintain, and enforce the new NAAQS, [the] EPA's action on Texas's 
submissions fails to comply with the clear and unambiguous requirements 
of section 110(a)(2)(C).'' As further explanation of its concerns, the 
commenter contends in more detailed comments that the ``Permit by 
Rule'' (PBR) provisions in the Texas SIP must be limited to narrowly 
defined source categories and include a mechanism for pre-construction 
application and agency review. Another commenter echoes these 
statements, and additionally contends the PBR provisions do not allow 
for adequate public participation. According to the commenters, these 
concerns preclude the EPA approving the state's infrastructure SIP 
submissions. Additionally, the commenters contend another component of 
Texas's SIP-approved minor NSR program, permit ``alterations,'' fails 
to meet the requirements of section 110(a)(2). One commenter states the 
alterations rules interfere with NAAQS attainment strategies, fail to 
prevent circumvention of NSR permitting requirements for major 
stationary sources, and undermine public participation in the 
permitting process. Another commenter also states the alteration 
provisions violate 40 CFR part 51 notice requirements, fail to provide 
adequate mechanisms for denial for cause, and fail to protect the 
NAAQS.
    The EPA disagrees with the commenter's view that concerns with 
certain components of the minor NSR program in the Texas SIP preclude 
approval of the state's infrastructure SIP submissions for the ozone 
and PM2.5 NAAQS. In the case of the minor NSR permitting 
requirements for a SIP, the EPA agrees that section 110(a)(2)(C) 
provides the general statutory basis for this program and for the 
agency's regulations that govern such programs. However, in the 
proposal and in this response, the EPA explains that the EPA considers 
action on the infrastructure SIP submissions required by section 
110(a)(1) and (2) to be an exercise to assure that a state's SIP meets 
the basic structural requirements for the new or revised NAAQS, not a 
time to address all potential substantive defects, or alleged defects, 
in existing SIP provisions Therefore, EPA considers an evaluation of 
any component of a state's existing minor NSR program to be outside the 
scope of an infrastructure SIP review rather than an unambiguous 
requirement of the EPA's action on an infrastructure SIP with regard to 
section 110(a)(2)(C). The specific concerns the commenters raise are 
over the PBR and alterations rules, which were approved into the Texas 
SIP as components of the minor NSR program.\5\ Because an action upon 
an infrastructure SIP is not the correct place to evaluate the 
commenter's specific substantive concerns about existing components of 
the state's minor NSR program that the commenters consider defective, 
the EPA will not address those concerns at this time. As with the other 
substantive issues that the EPA determined to be outside the scope of 
infrastructure SIP actions, the EPA notes that the CAA provides other 
mechanisms to address existing substantive deficiencies in SIPs, 
including potential deficiencies with a state's minor NSR program.
---------------------------------------------------------------------------

    \5\ The PBR rules were approved into the Texas SIP at 68 FR 
64543, November 14, 2003. The alterations rules were approved into 
the Texas SIP at 67 FR 58697, September 18, 2002.
---------------------------------------------------------------------------

D. Comments That Address Implementation Issues

    Comment: One commenter states that if provisions in Texas's 
existing SIP are facially deficient, or if the EPA is aware of the 
state's inadequate implementation of facially sufficient SIP-approved 
provisions, then the submitted infrastructure SIP is also deficient 
with respect to section 110(a)(2) requirements for the relevant NAAQS. 
The commenter states the EPA is aware of Texas's inadequate 
implementation of the SIP, and posits the EPA does not have discretion 
to approve Texas's infrastructure SIP if there is improper 
implementation of the existing SIP or deficiencies in the existing SIP.
    Response: The EPA agrees with the commenter that facial 
deficiencies in SIP provisions could preclude the EPA from approving an 
infrastructure SIP submittal that relies on those provisions. The 
commenter's statements highlight an important issue concerning the 
distinction between a state's SIP meeting the requirements of the CAA 
on its face (i.e., facial sufficiency of the SIP) and a state's actual 
compliance with those SIP requirements (i.e., adequacy of 
implementation of the SIP), and the question of when implementation 
concerns should be considered an issue in the context of acting on a 
state's infrastructure SIP.
    However, it is important to note as explained in our previous 
response to comment under B, the EPA is not evaluating potential 
deficiencies for substantive issues it has determined to be outside the 
scope of action on an infrastructure SIP. Because the EPA has 
determined certain substantive issues to be outside the scope of action 
on an infrastructure SIP, the EPA accordingly is not evaluating those 
provisions for facial sufficiency. For the EPA's action on submitted 
provisions it has determined to appropriately be within the scope of an 
infrastructure SIP, the EPA has evaluated whether the SIP provisions 
identified or submitted by the state as part of that submission are 
facially sufficient to meet the applicable requirements of section 
110(a)(2) of the CAA. In its analysis of the state's infrastructure SIP 
submission, the EPA evaluated the provisions submitted within the scope 
of the infrastructure SIP for facial sufficiency against the relevant 
elements of section 110(a)(2). In the proposal, the EPA explicitly 
evaluated the state's submission on a requirement by requirement basis 
and explained its views on the adequacy of the state's SIP for purposes 
of meeting the infrastructure SIP requirements. Where the EPA had 
concerns about the facial adequacy of the state's infrastructure SIP 
submission, the Agency proposed disapproval of the submission (e.g., 
deficiencies concerning adequate regulation of GHGs in the PSD 
permitting program that are inconsistent with the requirements of 
section 110(a)(2)(C)). Aside from the GHG component of the PSD element 
of section 110(a)(2)(C), the EPA believes that the other portions of 
the infrastructure SIP submission facially meet the applicable 
requirements of section 110(a)(2).
    The commenter also contends that a state's failure to implement an 
otherwise facially sufficient SIP, in contravention of statutory 
requirements, could also preclude the EPA's approval of a state's 
infrastructure SIP. First, the EPA does not believe that any concerns 
whatsoever regarding adequate implementation of the SIP should be the 
basis for a disapproval of an infrastructure SIP.

[[Page 81377]]

    The EPA acknowledges, as commenter asserts, there have been 
instances regarding particular components of the Texas Major NSR PSD 
SIP permitting program where the EPA itself has raised concerns with 
the state about implementation issues. The EPA is continuing to 
evaluate its review of the implementation issues that have arisen at 
this time but believes that it may move forward with finalizing its 
proposed approval in the absence of a final EPA determination pursuant 
to 110(m) and 179(a)(4) that the SIP is not being implemented 
adequately. EPA has not finalized such a determination. EPA believes 
that such a determination would undermine the approvability of SIP 
language that is otherwise facially sufficient.
    The EPA is not determining in this action that the implementation 
concerns that have arisen do not exist, but that the EPA will continue 
to examine and analyze the implementation concerns we are currently 
aware of and have already communicated to the state, as well as any 
others we become aware of in the future. It is important to note that 
EPA has already taken a number of actions to attempt to correct some 
issues with SIP implementation, including disapproval of certain 
proposed SIP packages and objections to individual Title V permits that 
did not include all applicable SIP requirements. If the EPA determines 
that outstanding implementation issues are sufficiently serious it will 
take appropriate action, which could include the use of other 
regulatory tools, including the issuance of a SIP call, making a 
finding of failure to implement, or taking measures to address specific 
permits pursuant to the EPA's case by case permitting oversight. Which 
action would be appropriate would depend on the nature and extent of 
the particular implementation problems at issue. The commenters raise 
additional specific contentions regarding problems with implementation 
of particular components of the PSD NSR SIP program. The EPA will 
respond to those comments in the following relevant subsections.

E. Comments That Address Greenhouse Gases (GHGs)

    Comment: The EPA received identically phrased comments from two 
industry groups on this proposal. These commenters support the EPA's 
proposal to the extent of the proposed partial approval of Texas's 
infrastructure SIP, but oppose the proposal to the extent of the 
proposed partial disapproval of the SIP. The commenters make two 
objections as the basis of their opposition to the partial disapproval.
    The commenters' first objection is that the EPA's proposed 
disapproval is based on grounds that are outside this rulemaking. They 
explain that, in their view, this rulemaking relates to the 
requirements of CAA section 110 for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS, and that the GHG permitting requirements--which 
were the subject of the EPA's proposed disapproval--are not related to 
those NAAQS requirements.
    Response: We disagree with these comments. The premise of these 
comments seems to be that CAA PSD permitting requirements apply on a 
pollutant-by-pollutant basis, but that premise is incorrect. Those 
requirements apply on a source-by-source basis for all pollutants 
emitted by that source that meet the PSD applicability thresholds. For 
example, a new source that triggers PSD because of its emissions of 
ozone precursors or PM2.5 is also subject to PSD for any 
other conventional pollutants that it emits above the applicable 
significance levels and for GHGs, if it emits those above the Tailoring 
Rule thresholds. Accordingly, for the ozone and PM2.5 NAAQS 
Texas infrastructure SIP to be fully approvable, that SIP must include 
the appropriate PSD requirements for all other pollutants, including 
GHGs. Thus, contrary to the commenters' objections, those PSD 
requirements are related to--and, in fact, are part and parcel of--the 
ozone and PM2.5 infrastructure SIP. Because the 
infrastructure SIP fails to include some of those requirements, the EPA 
must disapprove that SIP to that extent.\6\
---------------------------------------------------------------------------

    \6\ As discussed below, the Error Correction Rule identified, 
and issued a partial disapproval for, flaws in the Texas SIP PSD 
program that were broader than the lack of application to GHGs.
---------------------------------------------------------------------------

    Comment: The commenters' second objection is that disapproval of 
the infrastructure SIP is ``redundant'' in light of what we call the 
GHG PSD SIP Call or, simply, the SIP Call,\7\ and what we call the 
Texas GHG PSD Error Correction Rule, or, simply, the Error Correction 
Rule.\8\ The commenters add that they have ``serious concerns about, 
among other things, the extent to which the GHG SIP Call and [Error 
Correction Rule] have a sound basis in the CAA * * *. In light of the 
highly questionable basis for these past actions, * * * there is no 
reason for [the] EPA to introduce the legal uncertainty associated with 
the federal program for GHG permitting at Texas sources to the 
straightforward and unrelated action'' concerning the infrastructure 
SIP. The commenters incorporate by reference their comments on the SIP 
Call and the Error Correction Rule, in which they argue that those 
rules are not authorized under the CAA.
---------------------------------------------------------------------------

    \7\ ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final Rule,'' 75 FR 77698 (December 13, 2010).
    \8\ ``Determinations Concerning Need for Error Correction, 
Partial Approval and Partial Disapproval, and Federal Implementation 
Plan Regarding Texas's Prevention of Significant Deterioration 
Program,'' Interim Final Rule, 75 FR 82430 (December 30, 2010) 
(Interim Final Error Correction Rule); ``Determinations Concerning 
Need for Error Correction, Partial Approval and Partial Disapproval, 
and Federal Implementation Plan Regarding Texas's Prevention of 
Significant Deterioration Program,'' Final Rule, 76 FR 25187 (May 3, 
2011) (Error Correction Rule).
---------------------------------------------------------------------------

    Response: We disagree with these comments. The infrastructure SIP 
action is not unrelated to or redundant in light of the EPA's past 
actions regarding GHG permitting. As explained in the proposal for this 
infrastructure SIP action, the Texas infrastructure SIP submittals do 
not include revisions to the SIP, but document how the current Texas 
SIP already includes the required infrastructure elements. Our proposed 
determination evaluated how section 110(a)(2) elements, including the 
PSD element of section 110(a)(2)(C), are contained in the current Texas 
SIP. In the two recent actions cited by commenters, the EPA identified 
substantial deficiencies in the Texas PSD SIP provisions. In the SIP 
Call, promulgated under CAA section 110(k)(5) on December 13, 2010, the 
EPA determined that the Texas PSD SIP is substantially inadequate to 
meet CAA requirements because it does not apply PSD requirements to 
GHG-emitting sources. Accordingly, the EPA issued a ``SIP call'' for 
Texas, which required the state to revise its SIP as necessary to 
correct the inadequacy. The EPA also established the deadline of 
December 1, 2011 for Texas to submit the corrective SIP revision. See 
75 FR 77698.
    In the Error Correction Rule, we stated that Texas's PSD SIP was 
flawed because it ``failed to address or to include assurances of 
adequate legal authority * * * for the application of PSD to each newly 
regulated pollutant, including non-NAAQS pollutants, under the CAA,'' 
among them GHGs (see 76 FR 25178, 25192). Accordingly, we stated that 
our approval of the SIP with those flaws was in error. Although our 
approval took place in 1992, and concerned SIP submittals in the late 
1980s, we made clear that Texas had never corrected those flaws and, in 
fact, in the context of participating in the EPA's CAA rulemakings 
concerning

[[Page 81378]]

GHGs in 2010, had made statements that highlighted those flaws. As a 
result, under CAA section 110(k)(6), we revised our previous approval 
of the SIP to be a partial approval and partial disapproval. Further, 
we promulgated a FIP, the scope of which was commensurate with the 
error that we were correcting. We explained that we were promulgating a 
FIP to apply appropriate measures to assure that the EPA's PSD 
regulatory requirements will apply to non-NAAQS pollutants that are 
newly subject to regulation under the CAA that the Texas PSD program 
does not already cover. At present, the only pollutant is GHGs. 
Therefore, the EPA's FIP will apply the EPA regulatory PSD program for 
the GHG portion of PSD permits for GHG-emitting sources in Texas, and 
the EPA commits to take whatever steps are appropriate if, in the 
future, Texas fails to apply PSD to another newly regulated non-NAAQS 
pollutant. Id.
    Therefore the SIP Call and the Error Correction Rule are not only 
inextricable from, but are also important for today's rulemaking. As 
described in those prior actions, the EPA determined that the Texas PSD 
SIP provisions have deficiencies. Texas's infrastructure SIP includes 
those same PSD provisions. Accordingly, the EPA is fully justified in 
disapproving the Texas infrastructure SIP to the extent those PSD 
provisions are deficient.
    Contrary to the commenters' statements, the fact that the EPA 
determined the deficiencies in the SIP Call and Error Correction Rule 
also does not make the current rulemaking ``redundant.'' As we explain 
in the proposal for this rulemaking, Texas is required to have an 
infrastructure SIP that meets the applicable requirements of CAA 
section 110(a)(2). That obligation is not changed by the fact that the 
EPA conducted previous rulemakings--the SIP Call and Error Correction 
Rule--that determined that Texas's SIP PSD program has deficiencies.
    As noted above, the industry commenters on this infrastructure 
rulemaking commented on the SIP call and the Error Correction Rule, and 
we responded to those comments, during the course of those rulemakings. 
See 75 FR 77698, 77705-77716 (SIP Call); Response to Comment on 
Proposed Rule, ``Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call,'' December 2010; 76 FR 25178, 25192-25205 (Error Correction 
Rule); ``Determinations Concerning Need for Error Correction, Partial 
Approval and Partial Disapproval, and Federal Implementation Plan 
Regarding Texas's Prevention of Significant Deterioration Program; 
Proposed Rule--Response to Comments (April 2011) (response to comments 
for Error Correction Rule). As of the date of the current rulemaking, 
Texas has not submitted the corrective SIP revision required by the SIP 
Call, and has taken no action to remedy the flaws that were the basis 
for the Error Correction Rule. Texas has challenged both rulemakings in 
the U.S. Court of Appeals for the DC Circuit.
    In addition, contrary to the commenters' statements, their 
objections to the SIP Call and Error Correction Rule are not relevant 
in the current rulemaking. As noted above, those rulemakings made 
determinations that the Texas SIP PSD program has deficiencies. 
Commenters had the opportunity to, and did, comment on those 
rulemakings, and have brought challenges to those rulemakings in court. 
The EPA is not re-opening those determinations in this rulemaking. 
These determinations apply in this rulemaking to the extent the SIP PSD 
provisions at issue in the SIP Call and Error Correction rules are the 
same as the SIP provisions at issue in the current rulemaking. In the 
alternative, if the comments are relevant, then we respond to them by 
incorporating by reference our responses to comments in the SIP Call 
and Error Correction Rule, cited above.
    As we noted in the proposal for this rulemaking, Texas did not 
submit additional SIP provisions to assure that its 1997 
PM2.5 and ozone, and 2006 PM2.5, infrastructure 
SIPs met the substantive requirements of CAA section 110(a)(2). See 76 
FR 58748, 58750. Rather, in 2008 and 2009, Texas took the position that 
its existing SIP provisions meet the infrastructure SIP requirements, 
including CAA section 110(a)(2)(C) and (D)(i)(II). Id. Among its 
existing SIP provisions are the PSD provisions that the EPA 
subsequently, in the 2010 SIP Call and the 2011 Error Correction Rule, 
determined to have deficiencies. Accordingly, the EPA's determination 
in the SIP Call that Texas's SIP PSD program is deficient because it 
does not apply PSD to GHGs, and the EPA's determination in the Error 
Correction Rule that Texas's SIP PSD program is deficient because it 
does not address, or provide assurances of adequate legal authority to 
address, pollutants newly subject to regulation--including non-NAAQS 
pollutants, among them GHGs--apply as well for purposes of the current 
rulemaking. In this manner, the SIP Call and Error Correction Rule 
provide the basis for our disapproval in the current rulemaking of the 
Texas SIP for failing to meet the infrastructure requirements for the 
1997 ozone and PM2.5 NAAQS and the 2006 PM2.5 
NAAQS with respect to the PSD requirements of CAA section 110(a)(2)(C) 
that concern GHGs and that concern the applicability of PSD to 
pollutants newly subject to regulation.
    The same determinations in the SIP Call and the Error Correction 
Rule that the Texas SIP PSD program has deficiencies provide a basis 
for our disapproval in the current rulemaking of the Texas SIP for 
failing to meet the infrastructure requirements under CAA section 
110(a)(2)(D)(i)(II),\9\ under which Texas's SIP must contain adequate 
provisions prohibiting emissions that interfere with any other state's 
required PSD program; and under CAA section 110(a)(2)(D)(ii), under 
which Texas's SIP must require new or modified sources to notify 
neighboring states of potential impacts from such sources. As discussed 
in the proposal for this rulemaking, Texas's PSD program is the primary 
measure that must be included to meet the requirements of section 
110(a)(2)(D)(i)(II). See 76 FR 58748, 58760. The EPA's determinations 
in the SIP Call and the Error Correction Rule that the Texas SIP does 
not meet PSD requirements because it has the deficiencies of failing to 
apply to GHGs or to address pollutants newly subject to regulation 
means that the infrastructure SIP fails to meet the requirements of (i) 
section 110(a)(2)(D)(i)(II) because the PSD program has the same 
deficiencies, and (ii) section 110(a)(2)(D)(ii) because, by not 
addressing pollutants newly subject to regulation, the infrastructure 
SIP does not require new or modifying sources that emit those 
pollutants to notify neighboring states of potential impacts.
---------------------------------------------------------------------------

    \9\ As noted above, the EPA is not reopening those 
determinations in this rulemaking.
---------------------------------------------------------------------------

F. Comments That Address Section 110(a)(2)(E)

    Comment 1: The commenter states that Texas does not have adequate 
authority to enforce the SIP pursuant to section 110(a)(2)(E) 
specifically because of Article 6 of Senate Bill 12, Texas state 
legislation passed in 2007. The commenter states the EPA's position is 
Senate Bill 12 does not disallow the EPA's approval of the 
infrastructure SIP for section 110(a)(2)(E) in part because the 
legislation does not alter the enforcement authority ascribed to the 
EPA, citizens, and other parties other than the TCEQ by the CAA. 
According to the commenter's assertion, under

[[Page 81379]]

section 110(a)(2)(E) the TCEQ may not cede its authority to other 
parties and must have authority to enforce all infractions and not just 
repeat infractions, and because Senate Bill 12 partially undermines the 
state's enforcement authority the Texas infrastructure SIP does not 
meet section 110(a)(2)(E). The commenter also states that the EPA's 
separate evaluation of Senate Bill 12 under the Agency's Title V 
authority does not make the infrastructure SIP any more compliant with 
section 110 requirements.
    Response: Regarding the commenter's assertion that under section 
110(a)(2)(E) the TCEQ must have authority to enforce all infractions 
and cannot cede this authority to others, Senate Bill 12 (SB 12) does 
not preclude the TCEQ from taking certain types of enforcement actions 
against sources covered under SB12. The TCEQ has authority to impose 
injunctive relief with respect to all violations from the sources 
including those for which the legislation altered the TCEQ's 
enforcement authority (76 FR 58748). Senate Bill 12, codified at TWC 
Section 7.00251, by its own statutory terms alters the TCEQ's 
enforcement authority for ``violations based on information [the TCEQ] 
receives as required by Title V of the Clean Air Act'' upon first 
infraction. In particular, Senate Bill 12 alters the TCEQ's enforcement 
authority with respect to particular self-certified\10\ violations, 
further classified as ``Category B'' violations, documented in a Title 
V deviation report. Under the Title V regulations states must 
specifically have the authority to collect civil penalties for the 
violation of any applicable requirement; any permit condition; any fee 
or filing requirement; any duty to allow or carry out inspection, entry 
or monitoring activities or, any regulation or orders issued by the 
permitting authority. This provision is in contrast to the more general 
requirements for the states to have an enforcement program under Title 
I. The EPA reads SB 12 to not legislatively impede the TCEQ's 
enforcement authority to seek injunctive relief for any violations, and 
as described in the proposal, also does not impede the TCEQ from 
collecting penalties for repeat infractions. Therefore, the state has 
the authority to subject all infractions to some level of enforcement. 
Because the TCEQ has generic enforcement authorities evinced by various 
state statute provisions described in the proposal, the authority to 
seek injunctive relief for all violations and authority to seek 
penalties and injunctive relief for repeat infractions, and SB 12 did 
not alter the CAA enforcement authority of the EPA or other parties, 
the EPA determined this state legislation did not bar the EPA's 
approval and these facts conjunctively supported the EPA's proposal for 
approval of the infrastructure SIP as meeting section 110(a)(2)(E), as 
discussed in our proposal.
---------------------------------------------------------------------------

    \10\ A self-certified violation is a violation certified by the 
source. Category B violations are identified in the TCEQ Enforcement 
Initiation Criteria (EIC); the EIC is in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    The EPA's approval is based on the specific facts described in this 
rulemaking regarding the effects of SB 12. As discussed in our 
proposal, the EPA is evaluating SB 12 pursuant to its Title V authority 
as the legislation, by the face of its own terms, alters the TCEQ's 
enforcement authority with respect to violations based on information 
the TCEQ receives as required by Title V of the CAA upon first 
infraction. The EPA reiterates that for the bases described in this 
response to comment and the proposal for this action, such as generic 
enforcement authority under state statutory provisions, the EPA finds 
the Texas SIP meets the infrastructure SIP requirements for section 
110(a)(2)(E). As described in the proposal, Title V is subject to 
statutory and regulatory mechanisms outside the scope of section 
110(a), and the scope of this SIP action is limited to determining 
whether the existing SIP meets certain infrastructure and interstate 
transport SIP requirements of section 110(a)(2) with respect to the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS. The reasons 
for the EPA's proposed determination of approvability under section 
110(a)(2)(E) are discussed in this response and in the proposal, and 
are separate and adequate bases that do not preclude the agency's 
evaluation of this legislation under Title V.
    Comment 2: The TCEQ agrees with the EPA's proposed finding for this 
action that the SIP meets the infrastructure SIP requirements for 
adequate enforcement authority and resources pursuant to section 
110(a)(2)(E). However, the commenter considers the EPA's discussion of 
Senate Bill 12 as inappropriate for inclusion in the proposal for this 
rulemaking because the commenter contends the EPA's stated awareness 
regarding Senate Bill 12, a Title V program, has no bearing on the 
evaluation of the Texas SIP which is solely a Title I program. The 
commenter concludes it fails to see the purpose served by the EPA's 
discussion of Senate Bill 12 in the proposed action.
    Response: The EPA appreciates the commenter's support for the 
proposed finding pursuant to section 110(a)(2)(E). Though the EPA's 
evaluation of SB 12 under Title V ultimately does not factor into the 
EPA's proposed approval of the infrastructure SIP for reasons explained 
in the proposal and in our response to Comment 1 under this subsection, 
the EPA believes it was not inappropriate in this particular matter 
that involved an overlapping concern--the adequacy of the state's 
enforcement authority--to put interested parties and the public on 
notice that the agency is evaluating this matter, albeit under another 
part of the Act.

G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)

    Comment: One commenter states that the Texas SIP does not provide 
for appropriate monitoring of ambient air quality, particularly for 
ozone. The commenter also states that the EPA's prior approvals of the 
Texas Statewide Air Quality Surveillance network and the 2010 Annual 
Air Monitoring Network Plan (AAMNP) do not nullify the EPA's need to 
evaluate Texas's monitoring program in this rulemaking. The commenter 
additionally cites to the EPA's raising concerns regarding the 2010 
AAMNP with the TCEQ in a separate communication without discussion of 
those concerns in this rulemaking as negating a basis for approval of 
the Texas SIP for meeting the requirements of 110(a)(2)(B). The 
commenter also states that the AAMNP does not discuss ozone monitoring. 
The commenter also states that many gaps remain in the State's air 
monitoring network in the Houston area and only a few Houston ozone 
monitoring stations are equipped with Automated Gas Chromatographs, 
which measure highly reactive volatile organic compounds (HRVOCs).
    Response: As the comment indicates, the EPA has approved the Texas 
Statewide Air Quality Surveillance Network and its 2010 Annual Air 
Monitoring Network Plan. The EPA conducts a comprehensive annual review 
to ensure that the state has a monitoring network in place that meets 
the technical requirements of 40 CFR Part 58 and its appendices. Part 
58 minimally provides a 30-day public inspection opportunity for every 
annual monitoring network plan presented by the States and local 
agencies that develop the plans; moreover, whenever a plan proposes 
network modifications, a public comment opportunity is

[[Page 81380]]

furnished by either the State or EPA.\11\ We invite future public 
participation from this commenter and others when these opportunities 
are provided. Consistent with the findings of our most recent review, 
Texas has a monitoring network in place and has no deficiencies in that 
network that warrant disapproval of the state's monitoring network 
plan. For the reasons discussed below, we do not agree with the 
commenter that more is needed to satisfy the requirements of 
110(a)(2)(B).
---------------------------------------------------------------------------

    \11\ The TCEQ provides a 30-day comment period for their AAMNP, 
but did not receive any comments during the public comment period 
for their 2010 AAMNP.
---------------------------------------------------------------------------

    Several of the assertions brought forward by this comment are 
misplaced or inaccurate. The current air monitoring network for Texas 
includes, but is not limited to monitoring PM2.5, ozone and 
ozone precursors. The network design criteria for ambient air quality 
monitoring is found at 40 CFR 58, Appendix D (hereafter referred to as 
Part 58) \12\ and includes the minimum monitoring requirements for 
state and local air monitoring stations (SLAMS), which measure ozone; 
Photochemical Assessment Monitoring Stations (PAMS), which measure 
ozone precursors, including HRVOCs; and PM2.5. The minimum 
number of PAMS required in the Houston area is two and the Texas 
Commission on Environmental Quality (TCEQ) operates three PAMS in 
Houston. In addition however, there are seven privately owned PAMS in 
the Houston area and the TCEQ posts data from these monitors on their 
Web site (www.tceq.texas.gov/agency/data/ozone_data.html). The minimum 
number of SLAMS for ozone required under Part 58 in the Houston area is 
four and the TCEQ operates 12 such monitors in Houston.\13\ The current 
TCEQ air monitoring network meets the minimum federal regulatory 
requirements in Part 58 for SLAMS and PAMS in the Houston area. The air 
monitoring networks in the Austin, Beaumont, Corpus Christi, Dallas-
Fort Worth (DFW), El Paso, Lower Rio Grande Valley, San Antonio, Tyler-
Longview, and Waco areas also meet the minimum requirements for number 
of ozone monitors, pursuant to Part 58.\14\ In addition, pursuant to 
Part 58, in a metropolitan statistical area (MSA) having a population 
over 350,000, a minimum of one ozone monitoring site is required in 
areas that have never monitored for ozone. In Texas this has resulted 
in one new site in the Killeen-Temple-Fort Hood area. A second ozone 
monitoring site will be added when the 3-year ozone design value is at 
least 85% of the 2008 ozone NAAQS (64 ppb).\15\
---------------------------------------------------------------------------

    \12\ The Network Design Criteria for Ambient Air Quality 
Monitoring was promulgated at 71 FR 61236 (October 17, 2006) and 
codified at 40 CFR 58, Appendix D. The ozone specific monitoring 
network design criteria are at part 58, Appendix D, section 4.1.
    \13\ See the TCEQ Web site air monitoring pages at 
www.tceq.texas.gov/agency/data/ozone_data.html.
    \14\ Pursuant to Table D-2 of Appendix D to Part 58 (SLAMS 
Minimum Ozone Monitoring Requirements), the Longview, Tyler and Waco 
areas each must have a minimum of one SLAMS; the Austin, Beaumont, 
Corpus Christi, El Paso, the Lower Rio Grande Valley, and San 
Antonio areas each must have a minimum of two SLAMS and DFW must 
have a minimum of three SLAMS. These areas have at least the minimum 
number of required SLAMS. See 71 FR 61236, 61318. See also the TCEQ 
Web site for a listing of the current SLAMS in these cities: 
www.tceq.texas.gov/agency/data/ozone_data.html.
    \15\ The Killeen monitor was activated in June 2009, several 
months after the start of the ozone season. Thus, the first, 
complete 3-year ozone design value for this site is anticipated with 
the completion of the 2012 ozone season.
---------------------------------------------------------------------------

    Texas established a State-wide monitoring system in their initial 
SIP (37 FR 10842, 10895) and while SIP revisions to the monitoring 
system have not been made since 1978 (43 FR 9275), the TCEQ has made 
many revisions to the monitoring network. For example, in 1997, there 
were 23 regulatory ozone monitoring sites in six MSAs \16\ and today, 
there are approximately 72 regulatory ozone monitoring sites in 10 
MSAs.\17\ The locations of these regulatory monitors have been chosen 
following the requirements of Part 58, to support the basic monitoring 
objectives of public data reporting, air quality mapping, compliance, 
and understanding ozone-related atmospheric processes. To meet these 
goals the monitoring network includes more sites than the minimum 
numbers required in Part 58, as we see in the Beaumont, DFW, El Paso, 
and Houston areas. Data from the State's air quality monitors are 
collected, evaluated for quality and the quality-assured data are 
submitted to the EPA's Air Quality System \18\ on a quarterly basis. 
The TCEQ Web site provides the ozone and PM2.5 monitor 
locations and data from as far back as 1999\19\ through today. In 
general, the TCEQ currently operates one of the most extensive and up-
to-date air monitoring systems in the United States. Thus, for the 
Texas air monitoring network, the lack of recent SIP revisions does not 
support a finding that the SIP does not meet the requirements of 
section 110(a)(2)(B).
---------------------------------------------------------------------------

    \16\ Texas cities with regulatory ozone monitoring sites in 
1997: Dallas-Fort Worth, Tyler-Longview-Marshall, Beaumont-Port 
Arthur, Austin, and Houston-Galveston-Brazoria, and San Antonio.
    \17\ The TCEQ added regulatory ozone monitoring sites in the 
following cities: El Paso-Juarez, Corpus Christi-Victoria, Lower Rio 
Grande Valley (which includes the McAllen-Edinburg-Mission area and 
Brownsville), and Waco.
    \18\ The Air Quality System (AQS) is the EPA's repository of 
ambient air quality data. AQS stores data from over 10,000 monitors, 
5,000 of which are currently active.
    \19\ The TCEQ Web site provides data from as far back as 1997 
for 8-hour ozone.
---------------------------------------------------------------------------

    The State's 2010 AAMNP did not address ozone monitoring in its 
narrative section, but it included for our review an appendix listing 
all of the air monitors, including those for ozone and PM. The 
narrative or text portion of the AAMNP addresses proposed changes to 
the network. The TCEQ did not propose changes to the ozone network, 
thus the text did not reference ozone. We did not have concerns with 
the lack of proposed changes to the State's ozone network.
    We expressed concerns in our December 23, 2010 letter to the TCEQ 
regarding their 2010 AAMNP.\20\ The TCEQ has addressed all but one of 
the concerns expressed in our December 23, 2010 letter \21\ and is 
working to resolve our final request to ensure that regulatory ozone 
monitoring in an identified gap in the eastern Houston area (the 
Wallisville monitor, which currently is not run by the TCEQ) is 
completed by July 1, 2012.\22\ A monitor at the Wallisville location is 
not required by Part 58, but has been requested by the Regional 
Administrator of the EPA's Region 6 office, as it has consistently 
recorded some of the highest 8-hour ozone concentrations in the Houston 
area (see footnote 22).\23\ See 40 CFR 58, Appendix D, 4.1(a); 40 CFR 
58, Appendix D, 1.1.1 et seq. Furthermore, because Texas has been 
responsive to and is taking steps to address the EPA's concerns 
regarding the air monitoring network there is no basis to determine 
that the Texas SIP fails to meet section 110(a)(2)(B) of the Act.
---------------------------------------------------------------------------

    \20\ The December 27, 2010 letter and the TCEQ AAMNP for 2010 
are in the docket for this rulemaking.
    \21\ See letter from David W. Bower to Maria L. Martinez, dated 
January 31, 2011 and letter from Mark R. Vickery to Al Armendariz, 
dated March 31, 2011, in the docket for this rulemaking.
    \22\ See letter from Al Armendariz to Mark R. Vickery, dated 
June 2, 2011, in the docket for this rulemaking.
    \23\ The Wallisville site would not qualify as a maximum 
concentration monitor because it does not record the highest 8-hour 
ozone concentrations in the area. For the last several years, the 
ozone monitor at the Manvel site has recorded the highest 8-hour 
ozone concentrations in the Houston area.
---------------------------------------------------------------------------

    The commenter also references an article in the Houston Chronicle 
dated March 2, 2005, which mentions 20 gaps in the Houston air 
monitoring network.

[[Page 81381]]

The outdated article did not list where the 20 gaps were located, but 
provided names of several cities within the Houston area that, at the 
time, lacked ozone monitors. Currently, at least two of those cities 
have ozone monitors. Neither the commenter nor the article provided any 
documentation showing where any current gaps might be located.
    Our record on the current State-wide air quality network shows that 
Texas meets the requirements in Part 58. As stated, the air monitoring 
network review occurs annually, and the state has worked to address the 
EPA-identified concerns and avoid potential deficiencies in a timely 
manner. Furthermore, the State and EPA work together to ensure that the 
air monitoring network meets federal regulatory requirements whether 
through the demonstration of meeting minimum requirements or by 
exercising and implementing the Regional Administrator's authority for 
obtaining any additional information. Id. For the 1997 ozone and the 
1997 and 2006 PM2.5 NAAQS, the Texas SIP provides for 
establishment and operation of appropriate devices, methods, systems, 
and procedures necessary to--(i) monitor, compile, and analyze data on 
ambient air quality, and (ii) upon request, make such data available to 
the Administrator.
    Comment: One commenter posits that the lack of ozone monitors in 
nearly all of the counties that include coal-fired power plants 
precludes the State from successfully notifying the public if the NAAQS 
are exceeded and accordingly, the SIP does not meet the notification 
requirements of section 110(a)(2)(J).
    Response: As an initial matter, we do not agree that there is a 
``lack of ozone monitors in nearly all of the counties that include 
coal-fired power plants'' because, as described more fully below, a 
number of counties with coal-fired power plants have ozone monitoring 
sites and the monitoring network meets the requirements of part 58, 
Appendix D. We also do not agree that Texas's satisfaction of the 
requirements of section 110(a)(2)(J) regarding adequacy of public 
notification measures is in question. Texas has measures in its plan, 
as required by section 127 of the Act, as well as measures that it 
implements in practice that are effective to notify the public of 
instances or areas in which any primary NAAQS is or was exceeded. When 
the forecast indicates that ozone levels will be above the 8-hour ozone 
standard, the State notifies the National Weather Service (NWS), who 
then broadcasts the information across its weather wire. In addition, 
county residents can subscribe to the State's electronic notification 
system for ozone forecasts and ozone warnings.\24\ Finally, monitored 
ozone values are posted on the TCEQ Web site and are updated hourly. 
Thus the State has use of its own Web site, the electronic notification 
system and the NWS to successfully notify Texas residents when the 
ozone NAAQS are forecast to be or actually are above the 8-hour 
standard.
---------------------------------------------------------------------------

    \24\ The ozone warning areas: Austin, DFW, Houston-Galveston-
Brazoria, and San Antonio.
---------------------------------------------------------------------------

    As noted above, we do not agree with this comment's technical 
assertion regarding a ``lack of ozone monitors.'' The placement of air 
quality monitors is provided by Part 58, which requires an ozone 
monitor when the MSA has a population of at least 350,000. In addition 
however, Part 58 addresses the need to locate monitoring sites to 
determine the impact of significant sources or source categories on air 
quality. Ozone is an unstable and highly reactive molecule and it is 
well known that by increasing the concentration of NOX, the 
concentration of ozone can be depressed, causing chemical loss of ozone 
or ``NOX scavenging.'' Therefore, the TCEQ and EPA have 
located air quality monitors downwind of significant sources, as 
monitors placed in closer proximity to NOX sources can show 
lower ozone levels. As indicated in Table 1, two of the counties with 
power plants have a monitor in the same county and eight of the 
counties with power plants (actual and proposed) have at least one 
ozone monitor in an adjacent and/or downwind county. The two counties 
in west Texas (Lamb and Potter) will soon have a monitor in the Palo 
Duro area of Randall County, which is adjacent to Potter County. Most 
(10 out of 12) of the counties listed in Table 1 are within or very 
close to the State's established ozone forecast areas.
---------------------------------------------------------------------------

    \25\ This is a Clean Air Status and Trends Network (CASTNET) 
monitor that includes a continuous ozone monitor. CASTNET is a 
regional long-term environmental monitoring program administered and 
operated by the EPA. This monitor will meet Part 58 and data will be 
submitted into AQS by early 2012. Additional information on CASTNET 
is in the docket for this rulemaking.

         Table 1--Ozone Monitoring Near Coal-Fired Power Plants
------------------------------------------------------------------------
   Facility name and location       Closest monitor
            (county)                   (county)          Forecast areas
------------------------------------------------------------------------
Parish (Fort Bend).............  (Fort Bend,           Houston-Galveston-
                                  Brazoria, Harris).    Brazoria (HGB).
Big Brown (Freestone)..........  Corsicana (Navarro),  Dallas-Fort Worth
                                  adjacent to           (DFW).
                                  Freestone.
Monticello, Welsh (Titus)......  Greenville (Hunt),    DFW.
                                  downwind (east) of
                                  Titus county.
Martin Lake (Rusk).............  Longview (Gregg),     Tyler-Longview.
                                  Tyler (Smith), both
                                  adjacent to Rusk.
Pirkey (Harrison)..............  Karnack (Harrison),   Tyler-Longview.
                                 Longview (Gregg),
                                  Tyler (Smith),
                                  Gregg and Smith are
                                  downwind.
Gibbons Creek (Grimes).........  Conroe (Montgomery),  HGB.
                                  adjacent to Grimes.
Twin Oaks (Robertson)..........  Corsicana (Navarro),  DFW.
                                  downwind from
                                  Robertson.
White Stallion (Matagorda).....  Danciger and Lake     HGB.
Facility is proposed...........   Jackson (Brazoria),
                                  adjacent to
                                  Matagorda.
Coleto Creek (Goliad)..........  Seguin and New        Forecast:
                                  Braunfels Airport     Victoria,
                                  (Guadalupe),         HGB and San
                                  downwind.             Antonio.
San Miguel (Atascosa)..........  San Antonio (Bexar),  San Antonio.
                                  adjacent to
                                  Atascosa.
Tolk (Lamb)....................  Palo Duro
                                  (Randall).\25\
Harrington (Potter)............  Palo Duro (Randall),
                                  adjacent to Potter.
------------------------------------------------------------------------


[[Page 81382]]

H. Comments That Address Best Available Control Technology (BACT)

    Comment 1: The commenter states that the Texas Commission on 
Environmental Quality (TCEQ) fails to properly implement Best Available 
Control Technology (BACT) requirements. The commenter also states that 
the TCEQ does not require new and modified sources to meet the BACT 
standard consistent with the federal definition of BACT. The commenter 
also states that the TCEQ BACT guidance incorporates a three-tier 
approach, which is at odds with the federal BACT definition. The 
commenter also states that the TCEQ routinely disregards and misapplies 
its own BACT guidance and the Commission's implementation of BACT is 
not guided by any written BACT methodology.
    Response: Texas's approved SIP is facially sufficient to meet the 
federal PSD SIP requirements with respect to BACT. Under Texas's 
approved Prevention of Significant Deterioration (PSD) SIP that EPA 
approved on September 15, 2010 (75 FR 55978),\26\ a source must 
determine applicable BACT for each PSD permit as required under 40 CFR 
52.21(b)(12) and (j). See 30 TAC 116.160(c)(1)(A) and (c)(2)(A).\27\ 
The EPA approved initial revisions to the Texas SIP for its PSD program 
and BACT provisions on June 24, 1992. See 57 FR 28093. In that action, 
EPA did not specifically require TCEQ to incorporate EPA's Top-Down 
BACT review approach into the SIP. Instead, Texas was allowed to use, 
although not incorporated into the SIP, the State's Spring 1987 BACT 
guidance document that used a three-tier BACT Analysis approach. After 
public comment in 2011, TCEQ issued a Reference Guide,\28\ that brings 
forward and updates the Spring 1987 BACT guidance document. It 
continues to include the three-tier BACT Analysis approach.
---------------------------------------------------------------------------

    \26\ As background, the State's February 1, 2006 SIP submittal 
of revisions to its state rules removed the reference to the 
definition of federal PSD BACT in 40 CFR 52.21(b)(12). On September 
23, 2009, EPA proposed to disapprove the 2006 submittal due in part 
to its removal of this definition. See 74 FR 48467. On July 16, 
2010, Texas submitted a revision to its state rules that reinstated 
the federal PSD BACT definition to 52.21(b)(12). See 30 Texas 
Administrative Code (TAC) 116.160(c)(1)(A). The revision also 
included a reference to 52.21(j) which implements the BACT 
definition. See 30 TAC 116.160(c)(2)(A). We found that the adoption 
of the reference to the federal definition of PSD BACT in 40 CFR 
52.21(b)(12) corrected the deficiency in the 2006 submittal because 
it reinstated the federal BACT definition. See the final rule at 75 
FR 55978 for a detailed discussion.
    \27\ The cross-references to the federal PSD requirements 
relating to BACT in its State PSD Program serves to distinguish the 
federal BACT requirements for PSD from the State's requirement to 
apply State BACT under its Minor NSR Program. See 30 TAC 
116.111(a)(2)(C). See the discussion at 75 FR 55978, at 55979-55980 
and 55981-55986, for detailed information on the basis for the 2010 
SIP approval action.
    \28\ See http://www.tceq.texas.gov/assets/public/permitting/air/Guidance/NewSourceReview/airpoll_guidance.pdf.
---------------------------------------------------------------------------

    While we appreciate commenter's concerns regarding BACT 
implementation issues, EPA is continuing to evaluate those issues. EPA 
has not yet made any final determinations regarding BACT implementation 
issues in this action. Therefore, we believe that we may move forward 
with finalizing this action and will continue to evaluate the 
implementation issues raised.
    Comment 2: The commenter states that the TCEQ guidance and policy 
regarding BACT demonstrations for PSD permits fail to require 
compliance with the federal standards and thus, Texas's PSD program 
fails to ensure the NAAQS will be properly implemented, maintained, and 
enforced, per sections 110(A)(2)(A) and (C). The commenter also states 
that the TCEQ refuses to require applicants for PSD permits to consider 
alternative processes and fuels as expressly required by the federal 
definition of BACT, which is incorporated by reference into the TCEQ's 
PSD rules. The commenter also states that EPA letters to TCEQ dated 
January 24, 2011 and September 29, 2010, regarding permits for White 
Stallion and Las Brisas, respectively, and EPA's comments dated March 
1, 2010, on the proposed revisions to Title 30 of the Texas 
Administrative Code (TAC), Section 116.160 to the Texas PSD SIP all 
expressed concern over TCEQ's implementation of BACT requirements.
    Response: See our response to Comment 1 under this subsection. 
While we agree that the EPA has expressed concern with the TCEQ's 
implementation of the BACT analysis requirements in the above-cited 
comment letters (e.g., integrated gasification combined cycle (IGCC) 
and alternative fuels), the EPA has not yet made any final 
determinations regarding BACT implementation issues in this action. 
Therefore, we believe that we may move forward with finalizing this 
action and will continue to evaluate the implementation issues raised. 
If the EPA determines that outstanding implementation issues are 
sufficiently serious it will take appropriate action, which could 
include the use of other regulatory tools, including the issuance of a 
SIP call, making a finding of failure to implement, or taking measures 
to address specific permits pursuant to the EPA's case by case 
permitting oversight. Which action would be appropriate would depend on 
the nature and extent of the particular implementation problems at 
issue.

I. Comments That Address Regulation of PM2.5

    One commenter objected to the EPA's proposed approval of the 
state's infrastructure SIP submissions for the 1997 and 2006 
PM2.5 NAAQS on the grounds that the state ``has not yet 
incorporated the minimum requirements for controlling and regulating 
PM2.5 through its PSD program.'' The commenter argued that 
as part of acting on the infrastructure SIPs for the 1997 and 2006 
PM2.5 NAAQS, the EPA ``must verify that the state has in 
place enforceable PM2.5 significant emissions rates for 
NOX and SO2, precursors to PM2.5, as 
well as for direct PM2.5'' and that the state has in place 
the PM2.5 increments required by the EPA in another separate 
rulemaking. In support of this latter point, the commenter referred to 
the separate rulemaking action by the EPA in October 2010 applicable to 
the NSR/PSD requirements for the PM2.5 NAAQS (the 2010 
PM2.5 NSR/PSD Rule).\29\ In addition, the commenter 
questioned the adequacy of the separate SIP submission made by the 
state in May 2011 to meet the requirements of another separate 
rulemaking action by the EPA in May 2008 (the 2008 PM2.5 
NSR/PSD Rule).\30\
---------------------------------------------------------------------------

    \29\ See, ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant 
Monitoring Concentration (SMC),'' 75 FR 64864 (Oct. 20, 2010). This 
rulemaking concerned various issues relevant to PM2.5 and 
PSD, including increments, significant impact levels, and a 
significant monitoring concentration.
    \30\ See, ``Implementation of the New Source Review (NSR) 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5),'' 73 FR 28321 (May 16, 2008). This rulemaking 
concerned various issues relevant to PM2.5 and PSD, 
including how to address PM2.5 precursors, significant 
emissions rates, and ambient air quality analysis requirements.
---------------------------------------------------------------------------

    The commenter's concerns highlight an important overarching 
question that the EPA had to confront when assessing the infrastructure 
SIP submissions for the 1997 and 2006 PM2.5 NAAQS: How to 
proceed when the timing and sequencing of multiple related SIP 
submissions impact the ability of the state and the agency to address 
certain substantive issues in the infrastructure SIP submission in a 
reasonable fashion. In this instance, the state's infrastructure SIP 
for the 1997 PM2.5 NAAQS was, per the explicit terms of the 
statute, due in the year 2000.

[[Page 81383]]

Because of protracted litigation over the 1997 PM2.5 NAAQS, 
however, the EPA and states were significantly delayed in the 
implementation of the 1997 PM2.5 NAAQS, including the 
infrastructure SIPs required under section 110(a)(1) and (2). The EPA 
did not issue guidance to states concerning these infrastructure SIP 
submissions until October 2, 2007.\31\ The state submitted its 
infrastructure SIP for the 1997 PM2.5 NAAQS soon thereafter 
on April 4, 2008. For the 2006 PM2.5 NAAQS, section 
110(a)(1) required the submission of an infrastructure SIP for that 
NAAQS by November 23, 2009. For this NAAQS, the state submitted its 
infrastructure SIP on November 29, 2009. In the proposal notice, for 
purposes of efficiency the EPA proposed action on both of these 
PM2.5 infrastructure SIP submissions, in addition to the 
state's submission for the 1997 8-hour ozone NAAQS. Significantly, the 
EPA is required, under the terms of a Consent Decree, to act on the 
state's infrastructure SIP for the 1997 PM2.5 NAAQS by no 
later than December 16, 2011.
---------------------------------------------------------------------------

    \31\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 
National Ambient Air Quality Standards,'' Memorandum from William T. 
Harnett, Director, Air Quality Policy Division, Office of Air 
Quality Planning and Standards (OAQPS).
---------------------------------------------------------------------------

    In the process of acting on the infrastructure SIP submissions for 
the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS, 
the EPA necessarily had to consider how to approach the requirements of 
the 2008 PM2.5 NSR/PSD Rule and the 2010 PM2.5 
NSR/PSD Rule. The EPA acknowledges that section 110(a)(2)(C) directs 
the EPA to assess the state's infrastructure SIP submission with 
respect to the PSD permitting program, and the EPA has taken actions 
accordingly.\32\ In both the 2008 PM2.5 NSR/PSD Rule and the 
2010 PM2.5 NSR/PSD Rule, the EPA directed states to make 
specific SIP submissions relevant to the PSD permitting programs for 
PM2.5.\33\ A core question is thus whether the EPA should 
take into account these other collateral SIP submissions in evaluating 
the state's infrastructure SIP submissions for the PM2.5 
NAAQS.
---------------------------------------------------------------------------

    \32\ For example, as part of this action, the EPA is approving a 
portion of another SIP submission from the state necessary to make 
explicit that NOX is a precursor to ozone formation in 
the state's PSD permitting program.
    \33\ The EPA notes that in the context of acting on 
infrastructure SIPs, only provisions related to PSD permitting would 
be relevant, because the requirements of section 110(a)(2)(I) 
pertaining to nonattainment plan requirements are outside the scope 
of the infrastructure SIPs.
---------------------------------------------------------------------------

    Unfortunately, the sequence and timing of the various SIP 
submissions renders consideration of the other SIP submissions required 
by the 2008 PM2.5 NSR/PSD Rule and the 2010 PM2.5 
NSR/PSD Rule impracticable or impossible as part of the EPA's action on 
these infrastructure SIPs. The 2008 PM2.5 NSR/PSD Rule 
itself was delayed by litigation over the NAAQS and other intervening 
events, and thus the EPA did not promulgate it until May 16, 2008. 
Within that rule, the EPA directed states to make a SIP submission that 
would accomplish certain changes to the PSD permitting program to 
address PM2.5 by May 16, 2011. The state in fact made a SIP 
submission intended to address this requirement on May 19, 2011.\34\ 
Similarly, in the 2010 PM2.5 NSR/PSD Rule, the EPA required 
states to make certain PSD program revisions, but in that case the SIP 
submissions to address those requirements are not even due until July 
of 2012, and the State has not yet made any SIP submission to address 
those requirements.
---------------------------------------------------------------------------

    \34\ As noted in the proposal, on April 20, 2011, the state 
adopted revisions to its SIP to amend its PSD and nonattainment NSR 
programs to implement the PM2.5 NAAQS. These revisions 
became effective and enforceable by the state on May 12, 2011. The 
state submitted these changes to the EPA as a SIP revision on May 
19, 2011.
---------------------------------------------------------------------------

    Given that the state submitted its infrastructure SIP for the 1997 
PM2.5 NAAQS on April 4, 2008, nearly three years in advance 
of the SIP submission required by the 2008 PM2.5 NSR/PSD 
Rule, that necessarily means that the state's infrastructure SIP 
submission for the 1997 PM2.5 NAAQS could not have included 
or anticipated those later requirements. Likewise, the state's 
infrastructure SIP submission for the 2006 PM2.5 NAAQS on 
November 29, 2009, was significantly in advance of that other required 
PSD SIP revision. The EPA believes that it is not reasonable to expect 
that the state's April 2008 and November 2009 infrastructure SIP 
submissions for the 1997 and 2006 PM2.5 NAAQS should have 
addressed the specific PSD program requirements that EPA had not 
requested the state to make SIP submissions to address until May of 
2011. For the same reason, the EPA does not consider it reasonable to 
expect the state to have anticipated and addressed the SIP revision 
requirements of the 2010 PM2.5 NSR/PSD Rule in these 
infrastructure submissions, when by the terms of that rule states have 
until July 2012 to make the necessary SIP revisions.
    In theory, the EPA could have elected to act on the PSD portion of 
the state's May 2011 submission to meet the requirements of the 2008 
PM2.5 NSR/PSD Rule as part of acting at this time on the 
infrastructure SIP submissions for the 1997 and 2006 PM2.5 
NAAQS. In other words, the EPA could have sought to accelerate action 
on the May 2011 submission in order to try to address the more recent 
SIP submission requirements relevant to the PSD program for 
PM2.5. However, the EPA determined that this would not be 
the most appropriate course for two primary reasons: (1) The EPA's 
current logistical situation makes it difficult to accelerate action on 
a SIP submission; and (2) the EPA believes that the state is currently 
addressing PM2.5 in its PSD permitting program pursuant to 
state law requirements and will continue to do so in the interim until 
the EPA is able to act on the May 2011 submission.
    First, the EPA notes that the state made the SIP submission for the 
2008 PM2.5 NSR/PSD Rule only relatively recently. Because 
the state made the submission on May 19, 2011, it is now considered 
complete by operation of law as of November 23, 2011. Pursuant to 
section 110(k)(2), Congress provided the EPA with up to one year to act 
on the submission from this date. Under other logistical circumstances, 
the EPA might consider accelerating action upon this particular SIP 
submission and acting on the PSD portions of it as part of taking 
action on the state's infrastructure SIPs for PM2.5 because 
that would allow the EPA to address the PSD requirements for 
PM2.5 more comprehensively and efficiently in one 
consolidated action. However, the EPA is currently working on a large 
number of rulemaking matters, many under Consent Decree deadlines 
including this specific rulemaking, and this makes it difficult for the 
EPA to act on a SIP submission on an accelerated basis, unless such 
accelerated action is necessary. As noted in the proposal, the EPA 
intends to act on the May 2011 SIP submission for the 2008 
PM2.5 NSR/PSD Rule separately, on a schedule that will allow 
the agency to evaluate and take action on that submission, as 
appropriate.
    Second, the EPA believes that action on the May 2011 SIP submission 
is not necessary at this time and as part of acting on the 
infrastructure SIP submissions for the 1997 and 2006 PM2.5 
NAAQS because the PSD program revisions contained within that 
submission are already effective and enforceable as a matter of state 
law, as of May 12, 2011. Although the EPA acknowledges that it is 
important that these revisions be evaluated and approved into the 
state's SIP, the EPA does not believe that it is inappropriate to 
approve the state's infrastructure SIP submissions at this time. The 
state made the SIP submission required by the 2008

[[Page 81384]]

PM2.5 NSR/PSD Rule. Until such time as the EPA has the 
opportunity to evaluate that submission and take the necessary 
administrative actions to propose and finalize appropriate action upon 
it, the agency concludes that it is acceptable to rely on the fact that 
the revisions have been made and are currently enforceable for purposes 
of state law. The state made the submission to reflect that its PSD 
permitting program now includes evaluation of PM2.5 and does 
not continue to rely on the use of PM10 as surrogate for 
PM2.5 as of May 2011.
    Under these circumstances, the EPA does not consider it reasonable 
to interpret section 110(a)(2)(C) to require the EPA to disapprove the 
state's infrastructure SIP submissions for the 1997 PM2.5 
NAAQS and the 2006 PM2.5 NAAQS simply because the agency has 
not yet acted on the May 2011 SIP submission for the 2008 
PM2.5 NSR/PSD Rule, or has not required the state to make 
other PSD program revisions in advance of the date required in the 2010 
PM2.5 NSR/PSD Rule. Instead, the EPA believes that it is 
appropriate for the EPA to take into consideration the timing and 
sequence of related SIP submissions as part of determining what it is 
reasonable to expect a state to have addressed in an infrastructure SIP 
for a NAAQS at the time when the EPA acts on such submission. Such an 
approach is reasonable, and to adopt a different approach by which the 
EPA could not act on an infrastructure SIP, or at least could not 
approve an infrastructure SIP, whenever there was any impending 
revision to the SIP required by another collateral rulemaking action 
would result in regulatory gridlock. The EPA believes that such an 
outcome would be an unreasonable reading of the statutory process for 
the infrastructure SIPs contemplated in section 110(a)(1) and (2).
    The commenter also specifically expressed concern that the state's 
May 2011 SIP submission to meet the requirements of the 2008 
PM2.5 NSR/PSD Rule did not ``fully implement the federally 
required program to address the PM2.5 NAAQS'' for two 
specific reasons: (1) The submission does not establish significant 
emissions rates for precursors that would trigger further analysis of 
PM2.5 impacts; and (2) the submission does not include the 
PM2.5 increments established by the EPA.
    With respect to the first point, the EPA has not yet had the 
opportunity to analyze and take action upon the May 2011 submission, so 
the agency considers it premature to determine whether or not the state 
has correctly addressed the issue of significant emissions rates for 
precursors in the submission. The EPA will evaluate the submission for 
this and other issues when it takes action on this submission in a 
separate rulemaking. The commenter should participate in that action 
and resubmit its comments at that time.
    With respect to the second point, the EPA has also not evaluated 
the submission yet, but notes that the May 2011 SIP submission would 
not be likely to include any PM2.5 increments, nor would EPA 
have required it to. The EPA only established the PM2.5 
increments in the 2010 PM2.5 NSR/PSD Rule, and did not 
require states to make submissions to address PM2.5 
increments until July 2012. Again, however, the EPA will evaluate the 
May 2011 SIP submission at a later date and the commenter should 
participate in that action and resubmit its comments on this issue at 
that time, or in the later action that will eventually occur on the SIP 
submission from the state to meet the requirements of the 2010 
PM2.5 NSR/PSD Rule.
    Finally, one commenter suggested that, rather than approving the 
state's infrastructure SIP with respect to the 1997 and 2006 
PM2.5 NAAQS, the EPA should instead ``condition any approval 
of the infrastructure SIP'' on later revisions to the state's SIP to 
incorporate the NSR/PSD requirements that were in the May 2011 
submission. The commenter asserted that the infrastructure SIP 
submission could not be ``complete'' until it addresses each applicable 
element of section 110(a)(2) and that the EPA ``cannot approve the SIP 
when some elements are missing.''
    The EPA interprets the commenter's suggestion that it ``condition'' 
approval of the state's infrastructure SIP submission on later actions 
to be a reference to the concept of conditional approval under section 
110(k)(4). The EPA considered the commenter's suggestion as a means of 
addressing the SIP submission timing issue, but the agency is 
constrained by the provisions of the statute. Section 110(k)(4), under 
the rubric of ``conditional approval,'' explicitly authorizes EPA to 
approve a SIP submission ``based on a commitment of the State to adopt 
specific enforceable measures by a date certain, but not later than 1 
year after the date of approval of the plan revision.'' Courts have 
confirmed that conditional approvals are an available course of action 
under section 110(k), but only if the statutory conditions for such a 
conditional approval have been met.
    Based on the specific language of section 110(k)(4), the EPA 
concluded that it would not be appropriate to use the mechanism of a 
conditional approval in this action on the state's infrastructure SIP 
submission. The statute clearly contemplates use of this approach when 
the state has made a commitment to make a submission in the future that 
meets the statutory criteria. In this instance, however, the state has 
already made the substantive SIP submission for the NSR/PSD 
requirements for the 1997 PM2.5 NAAQS in May of 2011. In 
other words, the state would not need to make a commitment to make a 
future submission to adopt specific measures by a date certain to meet 
this requirement for the 1997 PM2.5 NAAQS because the state 
has already made a submission intended to meet the requirement.
    Given that the state has already made the submission in question, 
and that the EPA has not yet been able to evaluate it and take the 
necessary procedural steps to act upon it, the EPA does not believe 
that it is appropriate to use the mechanism of a conditional approval 
in these circumstances. Had the EPA already been able to evaluate the 
NSR/PSD submission substantively, in theory the agency could have 
requested the state to make a commitment to make revisions to that 
submission as part of a conditional approval. As previously discussed, 
however, the EPA has not yet been able to evaluate that submission 
fully. Thus, the EPA concluded that a conditional approval of the 
infrastructure SIP for this element would not be a viable option in 
this case. It should be noted, however, that the EPA will consider the 
commenter's suggestion and may utilize the mechanism of a conditional 
approval when it acts on the NSR/PSD submission, should that be 
appropriate.
    With respect to the commenter's concern that the 2006 
PM2.5 NAAQS infrastructure SIP submission from the state was 
not ``complete'' because it did not address the NSR/PSD submission, the 
EPA believes that this reflects a misunderstanding of the concept of 
``completeness'' as it applies in this situation. In section 
110(k)(1)(B), under the rubric of ``completeness finding,'' the statute 
directs the EPA to make a finding whether a SIP submission meets 
minimum criteria within 60 days. If, however, the EPA does not make 
such a completeness finding within 60 days, then the submission is 
deemed complete by operation of law, no matter what its content, six 
months after submission. Whether by an actual finding, or by operation 
of law, the completeness starts the clock for action by the EPA on the 
submission under section 110(k)(2). In this instance, the state's 2006 
PM2.5 NAAQS

[[Page 81385]]

infrastructure SIP submission was deemed complete by operation of law 
on May 27, 2010.\35\ Thus, regardless of what that submission said with 
respect to section 110(a)(2)(C) in general, or with respect to the NSR/
PSD submission in particular, the state's 2006 PM2.5 NAAQS 
infrastructure SIP submission was ``complete'' under the express terms 
of the statute for purposes of further actions. Likewise, the 
commenter's observation that the EPA's guidance for these SIP 
submissions stated that a submission must contain material relevant to 
each of the elements of section 110(a)(2) in order to be considered 
``complete'' is not germane in this case, because that is superseded 
where the statute requires that a submission be deemed complete by 
operation of law.
---------------------------------------------------------------------------

    \35\ The State's submittal, dated November 23, 2009, was 
received by EPA on November 27, 2009.
---------------------------------------------------------------------------

    Finally, the commenter's concern that the EPA should not approve an 
infrastructure SIP ``when some elements are missing'' raises an 
important question about the practical considerations of the EPA's 
evaluation of infrastructure SIPs. In general, the EPA of course agrees 
that the agency should not approve an infrastructure SIP submission for 
a particular element of section 110(a)(2) if the state's submission 
does not adequately address that element, whether by establishing that 
the state's existing SIP already contains the necessary basic 
structural requirements, by submitting revisions to the existing SIP to 
meet those requirements, or by some combination thereof. However, the 
determination of whether ``some elements are missing'' necessarily 
includes consideration of the sequence and timing of SIP submissions, 
and as in the situation at issue, there can be complications when a SIP 
submission that is collateral to, but also relevant to, the 
infrastructure SIP is required to be submitted on a schedule that does 
not mesh with the schedule on which the EPA must act on the 
infrastructure SIP itself. In short, evaluating whether an element ``is 
missing'' depends upon considerations such as when a SIP submission 
relevant to that element was or is due to be submitted, whether the EPA 
has yet had the opportunity to evaluate that other SIP submission, and 
other considerations discussed in more detail earlier in this response 
with respect to the commenter's other concerns.

J. Comments That Address Single Source Ozone Modeling

1. Comments That Address the Adequacy of Ozone Modeling Procedures
    Comment: Two commenters assert the TCEQ has incorrectly concluded 
that modeling demonstrations evaluating the ozone contributions of 
proposed sources to existing nonattainment areas are unnecessary as 
summarized in the comments that address SILs,\36\ and that the TCEQ has 
consequently issued PSD permits to sources in close proximity to those 
areas and also areas that are in near-nonattainment for ozone without 
requiring adequate modeling of each source's impact on ozone levels. 
Referencing the TCEQ's Air Quality Modeling Guidelines and ``Draft 
Ozone Procedures'' document,\37\ the commenters maintain that TCEQ 
routinely issues PSD permits based on outdated and inadequate ozone 
modeling procedures. One commenter adds that the ozone screening 
procedure authorized by the TCEQ's modeling guidance document is partly 
based on, or equivalent to, inappropriate ``Scheffe Tables.'' 
Additionally, the commenter states the ozone screening method involves 
ratios of NOX to VOC without considering the impact of 
biogenic emissions. Two commenters state that the EPA has on multiple 
occasions informed the TCEQ that the ozone screening procedures 
authorized by the TCEQ are outdated and unreliable to evaluate a single 
source's ozone modeling impact on an air quality control region. One 
commenter states that the Texas SIP is insufficient to comport with 
section 110(a)(2)(C) of the Act unless it is revised to expressly 
require case-by-case ozone impact analyses to be conducted for major 
sources of ozone precursors based on sufficient modeling techniques. 
The commenters also stated that the TCEQ has indicated that for some 
situations TCEQ views the SIP process as the appropriate vehicle for 
evaluating ozone impacts on a nearby nonattainment area, and this is 
not acceptable.
---------------------------------------------------------------------------

    \36\ See Section III-J.3 of this rulemaking for the comments 
that address SILs.
    \37\ When we say `modeling guidance' in this response in 
reference to the TCEQ's modeling guidance, we are including guidance 
based on the TCEQ's ``Air Quality Modeling Guidelines'' prepared by 
the TCEQ's New Source Review Permits Division, RG-25 (Revised) and 
``Draft Ozone Procedures'' included in the docket for this action as 
``TCEQ's Draft Ozone Procedures'' and other guidance the TCEQ has 
given applicants in the past.
---------------------------------------------------------------------------

    Response: As further discussed in this response, the appropriate 
time to evaluate ozone impacts for major sources of ozone precursors on 
attainment and nearby nonattainment areas is in the permitting process. 
As we noted in our proposal, the TCEQ has adopted EPA's Guideline on 
Air Quality Models as part of its adopted-by-reference regulations.\38\ 
Therefore, we have concluded that the TCEQ has adopted the necessary 
requirements and provisions for implementing a PSD program as it 
relates to the 1997 ozone standard infrastructure elements, including 
40 CFR part 51, Appendix W: Guideline on Air Quality Models (GAQM).
---------------------------------------------------------------------------

    \38\ TAC Sec.  116.160(d). Prevention of Significant 
Deterioration Requirements. 6-77, TXd118, TX110. As adopted by the 
TCEQ June 2, 2010, effective June 24, 2010 (6-77). Approved by the 
EPA September 15, 2010 (75 FR 55978) effective November 15, 2010 
(TXd118). Regulations.gov docket EPA-R06-OAR-2010-0620. ``TAC Sec.  
116.160(d). All estimates of ambient concentrations required under 
this subsection shall be based on the applicable air quality models 
and modeling procedures specified in the EPA Guideline on Air 
Quality Models, as amended, or models and modeling procedures 
currently approved by the EPA for use in the state program, and 
other specific provisions made in the prevention of significant 
deterioration state implementation plan. If the air quality impact 
model approved by the EPA or specified in the guideline is 
inappropriate, the model may be modified or another model 
substituted on a case-by-case basis, or a generic basis for the 
state program, where appropriate. Such a change shall be subject to 
notice and opportunity for public hearing and written approval of 
the administrator of the EPA.''
---------------------------------------------------------------------------

    The commenter has raised a number of concerns with individual 
permitting actions. In our proposal, we pointed out that the EPA has 
commented to the TCEQ on individual PSD permits regarding concerns with 
technical inadequacies in ozone impact analyses. We also pointed out 
that the EPA may address implementation of the SIP through separate 
action and such separate action is not precluded by approval of the 
infrastructure SIP. We continue to believe that specific concerns about 
individual permits are best addressed separately from any action taken 
specifically with regard to the approvability of this infrastructure 
SIP.
    In the event there is not progress in addressing our technical 
concerns based on these clarifications, the EPA will consider the other 
regulatory tools available.
    While we remain very concerned about the appropriateness of ambient 
impacts analyses of ozone for some past permitting actions, herein we 
are explaining our technical and scientific expectations for ozone 
impacts analysis for the state permitting authorities and the public. 
The EPA agrees with the commenter that Texas state permitting authority 
should not be using

[[Page 81386]]

inappropriate or outdated analytical tools including models or other 
ambient analysis techniques based on model outputs. The commenter is 
correct that the use of: (1) ``Scheffe Tables,'' (2) screening 
techniques which involve ratios of NOX to VOCs that do not 
consider the impact of biogenic emissions, or (3) screening techniques 
that use other outdated or irrelevant modeling, is inappropriate, 
except in limited circumstances, to evaluate a single source's ozone 
impacts on an air quality control region.\39\ In our proposal, we note 
that these three types of procedures lack the appropriate levels of 
biogenic emissions, appropriate consideration of background pollutant 
levels, and the resulting chemistry conclusions as to whether the 
airshed is NOX limited or that a NOX source would 
result in an ozone neutral impact. NOX limited means that 
the airshed has plenty of VOCs from biogenics and anthropogenic sources 
such that the production of ozone is limited by the amount of 
NOX available in the atmosphere to react with VOCs. Addition 
of NOX emissions in an airshed that is ``NOX 
limited'' will result in the generation of more ozone within the local 
airshed. NOX plumes that have a high concentration of 
NOX can result in some initial ozone destruction, but as the 
plume further disperses the NOX reactions that create ozone 
overtake the destruction cycles and the overall net effect is more 
ozone molecules within the airshed. To be clear, using techniques that 
compare a proposed source's VOC to NOX ratio without 
consideration of the overall airshed can lead to scientifically 
inappropriate conclusions.\40\
---------------------------------------------------------------------------

    \39\ With the exception of limited circumstances, these 
techniques would not be acceptable to use. Such a limited 
circumstance may arise in an area where biogenic emissions are not 
present in significant quantities, such that the overall airshed 
being evaluated is actually VOC limited (VOC emissions limit the 
formation of ozone). In this unique situation, through consultation 
with the EPA Regional Office, the EPA Regional Office and the state 
permitting agency may determine a screening approach could be 
technically appropriate using these tools.
    \40\ Sillman, S., (1995), ``The Use of NOy, 
H2O2, and HNO3 as Indicators for 
O3-NOX-ROG Sensitivity in Urban Locations,'' 
J. Geophys. Res. 100, 14,175-14,188; Sillman, S., D. He, C. 
Cardelino, and R.E. Imhoff, (1997), ``The Use of Photochemical 
Indicators to Evaluate Ozone-NOX-Hydrocarbon Sensitivity: 
Case Studies from Atlanta, New York and Los Angeles,'' J. Air and 
Waste Mgmt. Assoc., 47 (10), 1030-1040. (Oct. 1997); Sillman, S., 
(1998), ``Evaluating the Relation Between Ozone, NOX and 
Hydrocarbons: The Method of Photochemical Indicators,'' EPA/600R-98/
022, http://www-personal.engin.umich.edu/~sillman/publications.htm; 
Sillman, S., and D. He, (2002), ``Some theoretical results 
concerning O3-NOX-VOC chemistry and NOX-VOC 
indicators,'' J. Geophys. Res., 107, D22, 4659, doi:10.1029/
2001JD001123, 2002, http://www-personal.engin.umich.edu/~sillman/
publications.htm; Ryerson et al, (2003) ``Effect of petrochemical 
industrial emissions of reactive alkenes and NOX on 
tropospheric ozone formation in Houston, Texas,'' Journal of 
Geophysical Research, Vol. 108, No. D8, 4249, doi:10.1029/
2002JD003070, 2003; Ryerson et al., (2001), ``Observations of Ozone 
Formation in Power Plant Plumes and Implications for Ozone Control 
Strategies,'' Science, April 27, 2001.
---------------------------------------------------------------------------

    We note the TCEQ's ``draft ozone procedures'' document relies upon 
outdated EKMA diagrams that conclude most situations are VOC limited 
and not NOX limited and that increases in NOX are 
assessed as being ozone neutral.\41\ This is an inaccurate conclusion 
because it does not appropriately consider the total pollutant 
concentration in the local airshed. The procedures discussed in this 
response and in the proposal, and as found in the TCEQ Draft Ozone 
Procedures guidance, are fundamentally flawed with the exception of 
usage in certain limited circumstances (see footnote 39). The EPA will 
continue to monitor implementation of the PSD program as it relates to 
ozone impacts analysis and remain in communication with the state.
---------------------------------------------------------------------------

    \41\ A copy of the TCEQ Draft Ozone Procedures guidance relying 
upon outdated EKMA diagrams is included in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    More scientifically appropriate screening and refined analytical 
tools are available; they should be considered for use in conducting 
ambient impact analyses for ozone. As discussed in a separate comment 
and as called for in the GAQM, the approach for an ozone impact 
analysis should be determined in consultation with the EPA Regional 
Office on a case-by-case basis. The TCEQ has adopted the GAQM and 
therefore should be following the guidance and principles outlined in 
GAQM to properly implement the TCEQ's PSD program.\42\ We raised our 
fundamental concerns with TCEQ's conclusions that NOX-
dominated sources result in ozone neutral impacts in our proposal. The 
TCEQ did not provide comments on our proposal, nor did it offer 
supporting reasons to disagree with the EPA's position that these 
techniques should no longer be used. Therefore, we anticipate that the 
TCEQ will not use these techniques.
---------------------------------------------------------------------------

    \42\ Id.
---------------------------------------------------------------------------

    The current Texas SIP facially meets the requirements of 40 CFR 
51.166(l)(1) and (2). We disagree with one commenter's statement that 
the Texas SIP is insufficient unless it is revised to explicitly 
require case-by-case ozone impact analyses for major sources of ozone 
precursors based on sufficient modeling techniques. We note that the 
GAQM and the Texas SIP indicates the state permitting authority should 
consult with the Regional Office to determine the appropriate analysis 
techniques, but allows flexibility through the consultation process to 
determine either modeling based or other analysis techniques may be 
acceptable. We note that not all sources have utilized the TCEQ's draft 
ozone procedures. Nevertheless, if the TCEQ continues to utilize 
inappropriate techniques, we will consider the other regulatory tools 
available to the EPA. The EPA's authority to take action, which may 
include a SIP call, a finding of failure to implement, or taking 
measures to address specific permits pursuant to the EPA's case-by-case 
permitting oversight, is not precluded by its approval of this 
infrastructure SIP.
2. Comments That Address Consultation
    Comment: In conjunction with the proposition summarized in the 
comment regarding the adequacy of ozone modeling procedures for 
proposed PSD permits in Texas,\43\ the commenters both indicated that 
the TCEQ routinely does not consult, nor does it require permit 
applicants to consult, with the EPA before approving a PSD permit 
application based upon those modeling procedures the commenters state 
to be inadequate. The commenters both cite to a specific PSD permit 
application approved by the TCEQ for the White Stallion Energy Center 
as illustrating the TCEQ's position that an applicant may rely on TCEQ 
ozone modeling procedures other than those approved by the EPA without 
consulting with the EPA. The commenter concludes that the TCEQ 
routinely issues PSD permits based upon ozone impacts analyses alleged 
to be inadequate (see the comment regarding the adequacy of ozone 
modeling procedures and footnote 43) without consulting with the EPA 
and therefore the Texas PSD program is insufficient to assure the NAAQS 
are achieved. The commenter contends the EPA should require the TCEQ to 
amend its SIP-approved rules to explicitly include a consultation 
requirement for ozone. Two commenters state that the EPA should require 
the TCEQ to amend its SIP to expressly include an approval requirement 
for ozone requiring all applicants to submit a proposed modeling 
procedure to the EPA regional office and receive written approval from 
the EPA regarding that procedure before a PSD permit may be issued.
---------------------------------------------------------------------------

    \43\ See Section III-J.1 of this rulemaking for the comments 
that address the adequacy of ozone modeling procedures.

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

[[Page 81387]]

    Response: The current Texas SIP facially meets the requirements of 
40 CFR 51.166(l)(1) and (2). Specifically, the Texas SIP states ``all 
estimates of ambient concentrations required under PSD shall be based 
on applicable air quality models and procedures specified in the GAQM, 
or other models and modeling procedures currently approved by the EPA 
for use in the state program.'' Therefore the Texas SIP requires that 
PSD permit applications contain an adequate analysis of ozone impacts 
from the proposed project.\44\ As indicated by the GAQM, the methods 
used for the ozone impacts analysis for individual PSD permit actions 
are determined on a case-by-case basis. 40 CFR Part 51, Appendix W, 
Sec.  5.2.1.c.
---------------------------------------------------------------------------

    \44\ As discussed further in another response to comment, the 
TCEQ has adopted the EPA's GAQM as part of its adopted-by-reference 
regulations. Thus, Texas has the appropriate rules in place to 
require an ambient analysis of ozone impacts from a proposed 
project.
---------------------------------------------------------------------------

    The TCEQ has adopted and incorporated the EPA's PSD permitting 
regulations found at 40 CFR 51.166 and 52.21 into its SIP. The language 
of the GAQM clearly applies to permits issued in Texas. Other than the 
merging of the requirements from 40 CFR 52.21(l)(1) and (l)(2) and 
51.166(l)(1) and (l)(2) into one requirement (30 TAC 116.160(d)), the 
requirements of the Texas rules do not vary from the EPA's GAQM. 
Section 5.2.1.c. of the GAQM provides that ``model users should consult 
with the Regional Office to determine the most suitable approach on a 
case-by-case basis (subsection 3.2.2.).'' Since this provision is 
incorporated into the Texas SIP, the infrastructure SIP is approvable 
as facially sufficient with respect to the analysis of impacts of 
proposed facilities on ozone concentrations in PSD permit reviews.
    The commenters assert, and the EPA acknowledges, that EPA has 
indicated to the TCEQ on multiple occasions the state should consult 
with the EPA to determine the most appropriate method to analyze ozone 
impacts on a case-by-case basis. Pursuant to EPA's authority under the 
Act, EPA Region 6 has submitted formal comment letters in response to 
the TCEQ draft PSD permits indicating the Agency's position that PSD 
permit applications and draft permits did not contain an adequate 
analysis of ozone impacts from the proposed projects, nor was the EPA 
consulted about the appropriateness, or lack thereof, of an ozone 
impacts analyses for the facilities. The EPA is concerned that the 
TCEQ's consultation to date, including the development of a protocol, 
has not always met the EPA's expectations. The TCEQ should consult with 
EPA Region 6 on a case-by-case basis for determining the appropriate 
techniques in developing an adequate ozone impact analysis. 
Furthermore, a modeling protocol should be developed and agreed upon by 
EPA Region 6, the TCEQ, and the applicant to ensure that the analysis 
conducted will conform to the recommendations, requirements, and 
principles of the GAQM.
    As indicated in Section D, the EPA is continuing to evaluate its 
review of implementation issues that have arisen at this time but 
believes that it may move forward with finalizing its proposed approval 
in the absence of a final EPA determination regarding the 
implementation issues. The EPA believes that such a determination would 
undermine the approvability of SIP language that is otherwise facially 
sufficient. The EPA is not determining in this action that the 
implementation concerns that have arisen no longer exist. If the EPA 
determines that outstanding implementation issues are sufficiently 
serious it will take appropriate action, which could include the use of 
other regulatory tools, including the issuance of a SIP call, making a 
finding of failure to implement, or taking measures to address specific 
permits pursuant to the EPA's case by case permitting oversight, 
depending on the nature and extent of the particular implementation 
problems at issue.
3. Comments That Address Significant Impact Levels (SILs)
    Comment: Two commenters state that the TCEQ claims it cannot 
determine whether ozone impacts from a proposed major stationary source 
upon a nonattainment region are significant or de minimis because the 
EPA has not established a significant level for ozone. In the absence 
of a SIL and perceived time and monetary costs of modeling procedures, 
the commenters further state that the TCEQ has concluded that modeling 
demonstrations evaluating the contribution of proposed sources upon 
existing nonattainment areas are unnecessary. The commenters also state 
that the TCEQ has also adopted ad-hoc de minimis level of 5ppb through 
TCEQ permitting orders without undergoing rulemaking processes to, in 
part find modeling, or detailed modeling, is not necessary for a number 
of new coal-fired power units.
    Response: The EPA has defined significant impact levels (commonly 
referred to as ``SILs''), expressed as ambient pollutant concentrations 
(e.g., micrograms per cubic meter or parts per million) for certain 
pollutants for the purpose of determining when a new or modified 
source's modeled impact of that pollutant are ``significant'' for 
purposes of analyzing whether the Source \45\ causes or contributes to 
a violation of the NAAQS predicted to exist after the Source commences 
operation. 40 CFR 51.165(b), 40 CFR 52.21(l).
---------------------------------------------------------------------------

    \45\ In this Response to Comment, the term `Source' represents a 
new or modified source that has an increase in emissions that is 
undergoing a permit review.
---------------------------------------------------------------------------

    The purpose of a SIL in general is to compare against the ambient 
air quality impacts of the proposed emissions increase from a proposed 
Source that have been estimated using modeling or other analytical 
techniques. There are generally two ways a SIL may be used as part of 
an ambient impact analyses for PSD review. First, if an abbreviated 
analysis of just the impact of the proposed Source's emissions, without 
the inclusion of any surrounding sources, on ambient concentrations is 
below the SIL in all ambient air areas, then the proposed Source may be 
regarded as ``de minimis'' and considered not to cause or contribute to 
any violation of the NAAQS for that particular pollutant. Secondly, 
when ambient analysis/modeling of a proposed Source's emissions are 
included with other surrounding sources within the airshed in a 
``cumulative analysis,'' a SIL can be utilized to compare the proposed 
Source's impacts on any exceedances/violations of ambient standards. If 
violations/exceedances are projected, the Source can still receive a 
permit if a conclusion is reached that the Source's contribution is not 
significant (de minimis) for all projected violations/exceedances of 
that standard. As we discuss further below, a SIL can aid in making a 
de minimis determination, but is not necessary to conduct an ambient 
impact analysis.
    Therefore, when a SIL exists it is sometimes used in the First 
situation as an initial screening tool, in that when a proposed 
Source's impact of a particular pollutant is below the SIL at all 
locations and, therefore, not ``significant,'' there is no need to 
require a ``cumulative analysis.'' The ``cumulative analysis'' entails 
completing a more thorough ambient impact analysis to consider whether 
the proposed Source's impact along with the impact of other existing 
and surrounding sources in the area of concern will result in any 
violations/exceedances of the NAAQS after the proposed Source commences 
operation. The use of a SIL in this First situation as a screening 
procedure is acceptable

[[Page 81388]]

in the context of most pollutants regulated by PSD. Ozone is a unique 
pollutant in that it is not directly emitted by sources in most 
circumstances but is a result of chemical reactions in the atmosphere 
and is generated from emissions of precursors of ozone (VOC and 
NOX) that react with other pollutants that are already 
present in the local atmosphere. The amount of ozone that may be 
created from a proposed Source of ozone precursors is dependent on a 
number of variables including the existing concentrations of VOC and 
NOX in the airshed the proposed Source would impact. Because 
of this chemical interaction of the Source's pollutants with other 
airshed pollutants it would be technically inappropriate to attempt to 
model impacts on ozone levels from a proposed Source without also 
considering the pollutant loading in the local airshed. This technical 
issue is one of the reasons that development of a SIL and performing 
ambient impact analyses for ozone is more complicated than for other 
pollutants. The commenter asserts that TCEQ has concluded the lack of a 
SIL makes it unnecessary for TCEQ to conduct an ambient analysis for 
impacts on ozone levels for a proposed Source. We are discussing the 
two ways that SILs are commonly used to explain and conclude that the 
lack of a specific SIL for ozone does not limit TCEQ (or permit 
applicants) from conducting an ambient impact analysis for impacts on 
ozone levels from a proposed Source. We further discuss in this 
response and other responses in this notice the regulatory requirements 
and EPA's expectations pertaining to completing ozone impact analyses 
for proposed Sources.
    EPA has not yet established a significant impact level (SIL) for 
ozone in its regulations (40 CFR 51.165(b), 51.166(k)(2), 52.21(k)(2)) 
or identified a specific SIL for ozone in any guidance.\46\ There are 
other ambient standards for which we have not formally promulgated SILs 
at the time of the drafting of this Response, such as the 1-hour 
NO2 and SO2 standards. In those cases, we have 
issued guidance that includes interim SILs that can be used by states. 
In our recent guidance for SO2 (and also NO2) 
modeling, we indicated ``The application of any SIL that is not 
reflected in a promulgated regulation should be supported by a record 
in each instance that shows the value represents a de minimis impact on 
the 1-hour SO2 standard'' (NO2 guidance is the 
same quote with NO2 replacing SO2).\47\ In the 
same SO2 and NO2 guidance documents, the EPA also 
indicated that states do not have to use the EPA's recommended interim 
SILs and can use different values if supportable by a record in each 
instance.
---------------------------------------------------------------------------

    \46\ This does not preclude EPA from developing a SIL in the 
future. If we were to do so, however, we note that there are some 
technical issues specific to ozone that would need to be considered.
    \47\ Guidance Memorandums: ``Guidance Concerning the 
Implementation of the 1-hour S02 NAAQS for the Prevention of 
Significant Deterioration Program'' From Stephen D. Page, Director 
OAQPS, August 23, 2010 and ``Guidance Concerning the Implementation 
of the 1-hour N02 NAAQS for the Prevention of Significant 
Deterioration Program'' From Stephen D. Page, Director OAQPS, June 
29, 2010.
---------------------------------------------------------------------------

    Even if a generally applicable SIL has not been defined, the 
permitting authority may choose to define the de minimis or SIL level 
through rulemaking, development of guidance or on a case-by-case basis, 
but the permitting authority must provide an adequate record to support 
the de minimis/SIL level decision. This is the current situation with 
the 1997 and 2008 8-hour ozone standards. The lack of a SIL (formal or 
interim) does not create an exemption from conducting the analysis 
required by the PSD provisions at 40 CFR 52.21 (k) and (m). Texas has 
adopted by reference provisions at 40 CFR 52.21(k) and (m) into their 
SIP, which require that an ambient impact analysis be conducted for the 
allowable emissions increase from each proposed new or modified Source, 
in conjunction with all other applicable emission increases or 
reductions (including secondary and precursor emissions). PSD 
regulations require an ambient impact analysis for ozone when precursor 
emissions of VOC and/or NOX are projected to equal or exceed 
the 40 tpy threshold levels. We note that 52.21(i) and 51.166(i) are 
potentially applicable in this context. Footnote 1 to sections 
51.166(i)(5)(i) and 52.21(i)(5)(i) of EPA's regulations says the 
following: ``No de minimis air quality level is provided for ozone. 
However, any net emission increase of 100 tons per year or more of 
volatile organic compounds or nitrogen oxides subject to PSD would be 
required to perform an ambient impact analysis, including the gathering 
of air quality data.'' EPA previously included a similar note in a 
guidance listing Significant Impact Levels. In the 1990 NSR Workshop 
Manual (Draft, October 1990), page C.28, footnote b on this page says 
the following with respect to the applicable one-hour ozone NAAQS: ``No 
significant ambient impact concentration has been established. Instead, 
any net emissions increase of 100 tons per year of VOC subject to PSD 
would be required to perform an ambient impact analysis.'' Based on 
these statements, this 100 tpy value has been used by some permitting 
authorities in a manner similar to a SIL to assess whether a detailed 
air quality analysis should be conducted for ozone in a similar fashion 
to the ``First'' method of using a SIL discussed above. While these 
statements suggest a less rigorous analysis may be appropriate for 
sources emitting less than 100 tpy of these precursors (and greater 
than or equal to 40 tpy), they have not been revisited by EPA since the 
promulgation of the 8-hour ozone NAAQS (which included revisions to 
include NOX as an ozone precursor). EPA is not categorically 
concluding that every source emitting less than 100 tpy of 
NOX or 100 tpy of VOCs will not cause or contribute to a 
violation of the current ozone NAAQS. EPA believes it unlikely a source 
emitting below these levels would contribute to such a violation of the 
1997 8-hour ozone NAAQS, but consultation with an EPA regional office 
should still be conducted in accordance with section 5.2.1.c. of 
Appendix W when reviewing an application for sources with emissions of 
these ozone precursors below 100 tpy.
    For ozone, a proposed Source's emission impacts are dependent upon 
the ozone and ozone precursor levels present in the surrounding 
airshed. In addition, meteorological parameters such as wind speed and 
direction, temperature, solar radiation influx, and atmospheric 
stability are also important factors. Therefore determination of a SIL/
de minimis level and conducting an ambient impact analysis is dependent 
on consideration of a number of issues and as previously noted, the 
permitting authority must support a SIL/de minimis determination with 
an adequate record. As discussed in other Responses in this notice 40 
CFR Part 51, Appendix W--Guideline on Air Quality Models includes 
discussion on selection of appropriate models or analysis tools, the 
procedures, process and methods for conducting analyses, the guiding 
principles in completing ambient impact analyses and the applicant and 
the permitting authority working with EPA specifically in the case of 
completing an acceptable ambient impact analysis for ozone.\48\ Given 
the variable factors related to ambient impact analyses for ozone we 
note that 40 CFR Part 51, Appendix W 1.0(e)

[[Page 81389]]

indicates that in all cases, however, the analysis applied to a given 
situation should be the one that provides the most accurate 
representation of atmospheric transport, dispersion, and chemical 
transformations in the area of interest. Once an analysis of the 
potential change in ozone levels is completed in accordance with 40 CFR 
40 Appendix W, the state or permitting authority may still have to 
determine if the change in ozone levels is to be considered ``de 
minimis,'' as opposed to ``significant.'' If no exceedances/violations 
or near exceedances/violations, then the permitting authority may 
choose to not define a SIL/de minimis level if they determine it is not 
necessary for the review of the permit application. If exceedances/
violations were projected by the ambient impact analysis, the state or 
permitting authority will need to make a determination of a SIL or de 
minimis level in order to conclude that the permit for the proposed 
emission increases would/would not cause or contribute to ozone 
exceedances. We do note that a SIL (regulatorily developed, interim, or 
case-by-case) does aid in the review process and can provide context 
for the public and stakeholders of the level of the impacts in addition 
to when it is necessary for reaching a conclusion of whether the 
proposed emission increases would/would not cause or significantly 
contribute to ozone exceedances. Without a SIL developed by the EPA or 
the permitting authority, it is difficult to determine whether the 
Source's contribution to a violation (exceedance) is de minimis or 
significant, and any increases could contribute to an estimated 
violation. To address the commenter's statement, a SIL is not necessary 
for conducting an ambient impact analysis for a proposed Source's 
impact on ozone levels and lack of a SIL is not a reason for not 
requiring an ambient impact analysis when required by PSD regulations. 
Moreover, the state has the authority to develop a SIL for ozone if it 
determines a SIL is necessary or beneficial in analyzing ambient impact 
analyses for ozone.
---------------------------------------------------------------------------

    \48\ 40 CFR Part 51 Appendix W--Guideline on Air Quality Models 
including (1.0-3.3), (5.2.1.c), and (10).
---------------------------------------------------------------------------

    As explained earlier in this response and this rulemaking and in 
prior EPA rulemakings,\49\ a SIL is not a prerequisite to conducting an 
air quality analysis for criteria pollutants, and the EPA maintains 
this position with respect to ozone. The EPA has also stated the 
absence of an EPA-promulgated SIL does not justify an exemption from 
the air quality analysis. In summary, the absence of a SIL for the 8-
hour ozone standard does not change the regulatory requirement to 
conduct an ambient analysis of impacts on ozone levels when required by 
40 CFR 52.21.
---------------------------------------------------------------------------

    \49\ See PM2.5 NSR final rule RTC at 75 FR 64864, 
64891, October 20, 2010.
---------------------------------------------------------------------------

    Furthermore, states are not precluded from developing and applying 
their own SILs for ozone in the absence of one established by EPA and 
demonstrating that a proposed Source would impact ozone levels by only 
a de minimis amount and thus that the proposed emissions increase would 
not be considered to cause or contribute to an exceedance or violation 
of the ozone NAAQS. When applying a threshold value like a SIL to 
conclude an impact is de minimis, the permitting agency must follow a 
rational approach to determine what level of emission is a de minimis 
impact.\50\ The EPA affirms this principle in this rulemaking, and 
maintains that to the extent a state utilizes and/or develops a SIL in 
the absence of an established one by the EPA for determining the 
significance of an ozone impact, the state's SIL must be rooted in a 
rational basis addressing the specific situation for which it is being 
used. For a state-developed SIL level used in a permitting action, the 
administrative record must include sufficient rationale to demonstrate 
that an air quality impact at or below the SIL is de minimis in nature 
and would not cause a violation of the NAAQS. Accordingly, it should 
contain an explanation of how the state or permitting agency applying 
the SIL derived the value to support the SIL as a threshold for de 
minimis determinations. Additionally, the administrative record should 
substantiate the reasoning for employing a particular SIL. Thus, when a 
state or permitting agency applies an alternate SIL in the absence of 
an EPA-established SIL, the administrative record should elucidate both 
the reasoning and the methodology used to derive the SIL, and also 
explain the rationale for concluding the SIL is reasonable for that 
specific analysis.\51\ Since this is a case-by-case determination that 
the EPA will review as part of our oversight of state permitting 
actions and analyses conducted in accordance with Appendix W,\52\ the 
EPA would like to work with the state in the development of case a 
specific and/or interim SIL as the state deems necessary in determining 
if the proposed Source's impact is significant, and if such impact 
would contribute to an exceedance and/or violation of the standard.
---------------------------------------------------------------------------

    \50\ Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 
1979); Prevention of Significant Deterioration (PSD) for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)--Increments, 
Significant Impact Levels (SILs), and Significant Monitoring 
Concentration (SMC) Final Rule, 75 FR 64899 (October 20, 2010); In 
Re Mississippi Lime Company, U.S. EPA Environmental Appeals Board, 
PSD Appeal No. 11-01, August 9, 2011.
    \51\ In Re Mississippi Lime Company, U.S. EPA Environmental 
Appeals Board, PSD Appeal No. 11-01, August 9, 2011.
    \52\ 40 CFR Appendix W Parts 1, 2, 3 including 3.0(c), 3.2.2(a), 
3.3(a & b), 10.
---------------------------------------------------------------------------

    The commenters state that the TCEQ has also adopted an ad-hoc de 
minimis level of 5 ppb through TCEQ permitting orders without 
undergoing rulemaking processes to in part find modeling, or detailed 
modeling, is not necessary for a number of new coal-fired power units. 
As we discuss in our response above, an ad hoc or interim SIL may be 
developed and applied, but we are clear that development of an interim/
ad hoc de minimis level (or other de minimis/SIL determinations) would 
need to be fully supported by a record (administrative and technical) 
that would support the use of the de minimis level in a specific 
circumstance. We have not received an administrative record from TCEQ 
or any supporting technical analyses that would suggest the use of an 
ad hoc/interim de minimis level of 5 ppb in a PSD permitting action for 
a coal fired power plant in Texas. The TCEQ has also clarified that 
they have never used the 5 ppb as a de minimis level.\53\ We note that 
monitored ozone levels vary widely throughout the large state of Texas, 
and depending on the location of a source, this may impact the level of 
concern with a particular source in selection of a de minimis value in 
a case-specific situation. If the TCEQ were to utilize an ad hoc/
interim de minimis level as part of a PSD permitting action, we would 
review the administrative and technical record supporting the de 
minimis level at that time. As we expressed above, we would like to 
work with the TCEQ if they choose to develop a SIL/de minimis level.
---------------------------------------------------------------------------

    \53\ See email from Daniel Menendez, Supervisor of the Air 
Quality Modeling Group for New Source Review TCEQ, to Erik Snyder, 
EPA Region 6 dated November 19, 2011, in the docket for this 
rulemaking.
---------------------------------------------------------------------------

K. Comments That Address Cumulative Air Quality Impacts

    Comment: The commenter acknowledges that the Texas SIP incorporates 
federal requirements for permit applicants to perform a cumulative 
impacts analysis, the commenter continues though by citing statements 
made by the TCEQ staff through communications and depositions regarding 
particular permit processes for proposed coal-fired power plants as 
reflective of TCEQ stating it

[[Page 81390]]

does not adhere to the requirements. The commenter indicates that as a 
result of TCEQ's allegedly stated position it is impossible to 
determine the extent of cumulative air quality impacts from the 
proposed facilities.
    Response: The commenter acknowledges and EPA confirms the facial 
sufficiency of the Texas SIP requiring permit applicants to perform a 
cumulative impacts analysis by incorporating federal requirements. As 
we note in this response and in our responses to comments that address 
consultation \54\ in this action, the TCEQ has adopted the EPA's 
Guideline on Air Quality Models. The EPA expects modeling analyses 
conducted for PSD permits are conducted in accordance with the 
recommendations, requirements, and principles of the GAQM, including 
conducting a cumulative analysis of ozone impacts. As discussed in 
other responses to comments regarding conducting ozone modeling \55\ or 
analysis of ozone impacts,\56\ the unique nature of ozone chemistry and 
the interaction between a proposed or modified source's emissions 
necessitates consideration of local airshed pollutant loading of ozone 
precursors and ozone levels to conduct an appropriate technical 
analysis. Therefore a ``cumulative analysis'' approach of inclusion of 
other surrounding sources and background concentrations is necessary to 
achieve an ambient impact analysis of a proposed increase in emissions 
from a proposed or modified source.
---------------------------------------------------------------------------

    \54\ See Section III-J.2 of this rulemaking for our responses to 
the comments that address consultation.
    \55\ See Section III-J.1 of this rulemaking for our RTCs that 
address the adequacy of ozone modeling procedures.
    \56\ See Section III-J.3 of this rulemaking for our RTCs that 
address SILs.
---------------------------------------------------------------------------

    As indicated in Section D, the EPA is continuing to evaluate its 
review of implementation issues that have arisen at this time but 
believes that it may move forward with finalizing its proposed approval 
of a facially sufficient SIP in the absence of a final EPA 
determination regarding the implementation issues.

IV. Final Action

    We are partially approving and partially disapproving the 
submittals provided by the State of Texas to demonstrate that the Texas 
SIP meets the requirements of Section 110(a)(1) and (2) of the Act for 
the 1997 ozone and 1997 and 2006 PM2.5 NAAQS.
    We are determining that the current Texas SIP meets the 
infrastructure elements for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS listed below:
    Emission limits and other control measures (110(a)(2)(A) of the 
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the 
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act), except for the portion that addresses GHGs;
    Interstate transport, pursuant to section (110(a)(2)(D)(ii) of the 
Act), except for the portion that addresses GHGs;
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration (110(a)(2)(J) of the Act), 
except for the portion that addresses GHGs;
    Visibility protection (110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M) 
of the Act).
    We are determining that the current Texas SIP does not meet the 
infrastructure elements for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS listed below:
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act), only as it relates to GHGs;
    Interstate transport, pursuant to section 110(a)(2)(D)(ii) of the 
Act, only as it relates to GHGs; and
    Prevention of significant deterioration (110(a)(2)(J) of the Act), 
only as it relates to GHGs.
    We are also approving the Texas Interstate Transport SIP provisions 
that address the requirement of section 110(a)(2)(D)(i)(II) that 
emissions from sources in Texas do not interfere with measures required 
in the SIP of any other state under part C of the CAA to prevent 
significant deterioration of air quality, except as they relate to GHGs 
for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS.
    We are disapproving the portion of the Texas Interstate Transport 
SIP provisions that address the requirement of section 
110(a)(2)(D)(i)(II), as it relates to GHGs, that emissions from sources 
in Texas do not interfere with measures required in the SIP of any 
other state under part C of the CAA to prevent significant 
deterioration of air quality, for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS. We will act on the remaining three SIP elements 
regarding interstate transport, per section 110(a)(2)(D)(i) of the Act 
in separate rulemakings.
    We are also approving the following revisions to 30 TAC 101.1 and 
30 TAC 116.12, submitted by the TCEQ on March 8, 2011, as part of the 
Texas NSR SIP:
    1. The substantive revisions to the definition of Maintenance area 
at 30 TAC 101.1.
    2. The substantive revisions to the definition of Nonattainment 
area at 30 TAC 101.1.
    3. The substantive revisions to the definition of Reportable 
quantity at 30 TAC 101.1.
    4. The non-substantive revisions to the definition of Volatile 
organic compound at 30 TAC 101.1.
    5. The non-substantive revision to the title of 30 TAC 116.12 from 
Nonattainment Review Definitions to Nonattainment and Prevention of 
Significant Deterioration Review Definitions.
    6. The non-substantive revisions to the introductory paragraph at 
30 TAC 116.12.
    7. The substantive revisions that add Federally Regulated NSR 
pollutant to the definitions at 30 TAC 116.12.
    8. The non-substantive changes to rename the definition of Major 
facility/stationary source at 30 TAC 116.12 to Major stationary source 
and the substantive changes making the definition consistent with 40 
CFR 51.166(b)(1).
    9. The non-substantive changes to the definition of Major 
modification at 30 TAC 116.12 that provide editorial revisions, and the 
substantive changes making the definition consistent with 40 CFR 
51.165(a)(1) and 40 CFR 51.166(b)(1) and (2), and which address the 
grounds for the September 15, 2010 disapproval of this definition.

The EPA is taking these actions in accordance with section 110 and part 
C of the Act and the EPA's regulations and consistent with EPA 
guidance.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to act on state law as 
meeting Federal requirements and does

[[Page 81391]]

not impose additional requirements beyond those imposed by state law.

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

    This final 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 final 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 disapproval under section 110 and subchapter I, 
part D of the CAA will not in-and-of itself create any new information 
collection burdens but simply acknowledges that a required program is 
not included in the SIP. Burden is defined at 5 CFR 1320.3(b).

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 the September 
22, 2011 proposed rule on small entities, small entity was 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.
    After considering the economic impacts of the September 22, 2011 
(76 FR 58748) proposed rule on small entities, I certify that this 
action will not have a significant impact on a substantial number of 
small entities. This rule does not impose any requirements or create 
impacts on small entities. This proposed SIP disapproval under section 
110 and subchapter I, part D of the CAA will not in-and-of itself 
create any new requirements but simply acknowledges that a required 
program is not included in the SIP. Accordingly, it affords no 
opportunity for EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will flow from 
this disapproval does not mean that EPA either can or must conduct a 
regulatory flexibility analysis for this action.

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.'' The EPA has determined that the 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 action acknowledges that 
certain pre-existing requirements are not in the SIP and 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 the 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 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 acknowledges that 
a required program is not included in the SIP and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA. 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 in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because this 
action neither imposes substantial direct compliance costs on tribal 
governments, nor preempts tribal law. Therefore, the requirements of 
section 5(b) and 5(c) of the Executive Order do not apply to this rule. 
Consistent with EPA policy, the EPA nonetheless offered consultation to 
Tribes regarding this rulemaking action. No comments were received from 
the Tribes concerning this rulemaking action.

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

    The 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 disapproval under section 110 and subchapter I, part D of the 
CAA will not in-and-of itself create any new regulations but simply 
acknowledges that a required program is not included in the SIP.

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

    This action 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 the 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 the EPA 
to provide Congress, through OMB, explanations when the Agency decides

[[Page 81392]]

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 CAA.

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.
    The EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, the EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
CAA. Accordingly, this action merely acknowledges that a required 
program is not included in the SIP under section 110 and subchapter I, 
part D of the CAA and will not in-and-of itself create any new 
requirements. Accordingly, it does not provide the EPA with the 
discretionary authority to address, as appropriate, disproportionate 
human health or environmental effects, using practicable and legally 
permissible methods, under Executive Order 12898.

K. Congressional Review Act

    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. The 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).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 27, 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).)

M. Statutory Authority

    The statutory authority for this action is provided by section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: December 16, 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. In Section 52.2270:
0
a. The table in paragraph (c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended as follows:
0
i. Revising the entry under ``Chapter 101--General Air Quality Rules'' 
for Section 101.1.
0
ii. Revising the entry under ``Chapter 116 (Reg 6)--Control of Air 
Pollution by Permits for New Construction or Modification'' for Section 
116.12.
0
b. Paragraph (e) is amended by adding a new entry for ``Infrastructure 
and Interstate Transport for the 1997 Ozone and the 1997 and 2006 
PM2.5 NAAQS'' at the end of the second table in paragraph 
(e) entitled ``EPA Approved Nonregulatory Provisions and Quasi-
Regulatory Measures in the Texas SIP.''
    The amendments 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 A--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1................  Definitions.......  1/23/2006; 2/9/     11/10/2010 75 FR   Except for the
                                                    2011; 5/26/2011     68989; 12/28/      definitions listed
                                                                        2012, [Insert FR   immediately below,
                                                                        page number        the SIP retains the
                                                                        where document     Section 101.1
                                                                        begins].           Definitions, adopted
                                                                                           1/23/2006 and
                                                                                           approved 11/10/2010
                                                                                           (75 FR 68989); the
                                                                                           following revised
                                                                                           definitions adopted 2/
                                                                                           9/2011 and 5/26/2011
                                                                                           are approved:
                                                                                           maintenance area;
                                                                                           nonattainment area;
                                                                                           reportable quantity;
                                                                                           and volatile organic
                                                                                           compound.
 

[[Page 81393]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
  Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Section 116.12...............  Nonattainment       8/20/2003; 2/9/     3/20/2009 74 FR    Except for the
                                Review              2011.               11851; 12/28/      definitions listed
                                Definitions;                            2012, [Insert FR   immediately below,
                                Nonattainment and                       page number        the SIP retains the
                                Prevention of                           where document     Section 116.12
                                Significant                             begins].           Nonattainment Review
                                Deterioration                                              Definitions, adopted
                                Review                                                     8/20/2003 and
                                Definitions.                                               approved 3/20/2009
                                                                                           (74 FR 11851); the
                                                                                           following revisions
                                                                                           adopted 2/9/2011 are
                                                                                           approved: the revised
                                                                                           title and the
                                                                                           introductory
                                                                                           paragraph at 116.12,
                                                                                           and the definitions
                                                                                           for Federally
                                                                                           Regulated NSR
                                                                                           pollutant, Major
                                                                                           stationary source,
                                                                                           and Major
                                                                                           modification.
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *
* * * * *

              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or     State submittal
     Name of SIP provision         nonattainment     date/ effective   EPA approval date        Explanation
                                        area               date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Infrastructure and Interstate    Statewide........  12/12/2007, 3/11/  12/28/2012,        Approval for CAA
 Transport for the 1997 Ozone                        2008, 4/4/2008,    [Insert FR page    elements
 and the 1997 and 2006 PM2.5                         11/23/2009         number where       110(a)(2)(A), (B),
 NAAQS.                                                                 document begins].  (E), (F), (G), (H),
                                                                                           (K), (L), and (M).
                                                                                           Approval for CAA
                                                                                           elements
                                                                                           110(a)(2)(C), (D)(ii)
                                                                                           and (J), except for
                                                                                           the portions that
                                                                                           address Greenhouse
                                                                                           Gas (GHG) emissions.
                                                                                           Approval for
                                                                                           revisions to prohibit
                                                                                           interference with PSD
                                                                                           in any other state
                                                                                           (CAA element
                                                                                           110(a)(2)(D)(i)(II)),
                                                                                           except for the
                                                                                           portion that
                                                                                           addresses GHG
                                                                                           emissions.
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[FR Doc. 2011-33253 Filed 12-27-11; 8:45 am]
BILLING CODE 6560-50-P