[Federal Register Volume 79, Number 62 (Tuesday, April 1, 2014)]
[Rules and Regulations]
[Pages 18183-18190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07127]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0191; FRL-9908-27-Region 6]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to the Minor New Source Review (NSR) State Implementation 
Plan (SIP); Types of Standard Permits, State Pollution Control Project 
Standard Permit and Control Methods for the Permitting of Grandfathered 
and Electing Electric Generating Facilities

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving several 
revisions to the Texas State Implementation Plan (SIP) related to the 
Texas Minor New Source Review (NSR) Standard Permits (SP) Program. 
First, EPA is approving revisions submitted by the Texas Commission on 
Environmental Quality (TCEQ, or Commission) on January 3, 2000, and 
March 11, 2011, expanding the Texas SP Program to include the Rule 
Standard Permit (Rule SP). The EPA is also approving a revision to the 
Texas SIP submitted by the TCEQ on February 1, 2006, for a specific 
Rule SP, the Rule Standard Permit for Pollution Control Projects (Rule 
SP for PCP) as meeting the requirements for a Minor NSR SIP revision. 
Finally, because EPA is approving the Rule SP for PCP, EPA is also 
approving a severable portion of the January 3, 2000, submittal 
concerning the Texas Senate Bill 7 (SB7) permitting program for 
grandfathered and electing electric generating facilities (EGFs). All 
of the Texas SB7 EGFs permitting program provisions have been approved 
as part of the Texas NSR SIP except for this severable portion. This 
severable portion allowing for the use of the Rule SP for PCP for 
permitting of collateral emission increases is being approved as 
meeting the requirements for a Minor NSR SIP revision. EPA is approving 
these actions under section 110 of the Federal Clean Air Act (the Act 
or CAA) through a direct final rulemaking.

DATES: This rule is effective on June 2, 2014 without further notice, 
unless EPA receives relevant adverse comment by May 1, 2014. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2014-0191, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions.
     Email: Ms. Adina Wiley at [email protected]. Please also 
send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Mail or delivery: Ms. Adina Wiley, Air Permits Section 
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2014-0191. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or email, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment along with any disk or CD-ROM 
submitted. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters and any form of encryption and should be free of any 
defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy

[[Page 18184]]

location (e.g., copyrighted material), and some may not be publicly 
available at either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment with the person listed in the 
FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 
214-665-7253.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett (6PD-R), Air Permits 
Section, telephone (214) 665-7227; email: [email protected]. Ms. 
Adina Wiley (6PD-R), Air Permits Section, telephone (214) 665-2115; 
email: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``our,'' 
and ``us'' refers to EPA.

Table of Contents

I. Overview of State Submittals
    A. 30 TAC Section 116.601(a)(1): Types of Standard Permits
    B. 30 TAC Section 116.617: State Pollution Control Project 
Standard Permit
    C. 30 TAC Section 116.911(a)(2): Control Method for 
Grandfathered and Electing Electric Generating Facilities
II. Evaluation of State Submittals
    A. 30 TAC Section 116.601(a)(1): Types of Standard Permits
    B. 30 TAC Section 116.617: State Pollution Control Project 
Standard Permit
    C. 30 TAC Section 116.911(a)(2): Control Method for 
Grandfathered and Electing Electric Generating Facilities
    D. CAA Section 110(l) Analysis
III. Final Action
IV. Statutory and Executive Order Reviews

I. Overview of State Submittals

    EPA is approving through direct final action revisions to the Texas 
Minor NSR Program, related to the Texas SP Program, which were 
submitted on January 3, 2000; February 1, 2006; and March 11, 2011, and 
are summarized below. The effect of this direct final action will be to 
approve into the Texas Minor NSR SIP the provisions for the adoption 
and development of the Rule SP, the specific Rule SP for PCP, and a 
provision allowing for the use of the Rule SP for PCP for grandfathered 
and electing electric generating facilities. The approval of the 
provisions for the adoption and development of Rule SP brings this 
category of SP under the umbrella provisions of the Texas Minor NSR SIP 
SP Program, ensuring that Rule SP meet all the requirements of the Act 
for Minor NSR permits. As discussed more fully in Sections I.B and II.B 
of this notice, we recognize that the TCEQ has recently promulgated a 
Non-Rule SP for PCP to replace the Rule SP for PCP. Despite the 
replacement of the Rule SP for PCP with the Non-Rule SP for PCP, the 
TCEQ has not withdrawn the Rule SP for PCP from our consideration. 
Therefore, we are acting on it today. Additionally, our action today is 
responsive to the March 26, 2012, Fifth Circuit Court of Appeals 
decision to vacate and remand our September 15, 2010 disapproval of the 
Rule SP for PCP, as amended by the Court's order of February 21, 2014, 
directing EPA to take final action on this submittal by May 19, 
2014.1 2
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    \1\ Luminant Generation Co., LLC v. EPA, 675 F 3d 917 at 922 
(5th Cir. 2012) (hereinafter Luminant).
    \2\ Order on Motion to Amend and Enforce Judgment, Luminant 
Generation Co. v. EPA, No. 10-60891 (Fifth Cir. Feb. 21, 2014), 
amending Luminant.
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A. 30 TAC Section 116.601(a)(1): Types of Standard Permits

    Under state law, the Texas Standard Permits (SP) Program at 30 TAC 
Chapter 116, Subchapter F, is a component of the Texas Minor NSR 
Program. A SP under the Texas Minor NSR Program is not a case-by-case 
Minor NSR permit, but rather is a streamlined mechanism with all 
permitting requirements for construction and operation of a certain 
source category. Within the Texas SP Program, the TCEQ has the ability 
to develop and implement two types of Standard Permits--Rule Standard 
Permits (Rule SP) and Non-Rule Standard Permits (Non-Rule SP). These 
two categories of SP are identified at 30 TAC Section 116.601(a). The 
Non-Rule SP and the general provisions applicable to all SP are already 
approved as part of the Texas Minor NSR SIP. We are approving into the 
Texas Minor NSR SIP portions of two revisions to the Texas SIP 
submitted on January 3, 2000, and March 11, 2011, pertaining to the 
Rule SP. Specifically, we are approving 30 TAC Section 116.601(a)(1) as 
initially adopted on December 16, 1999, and submitted as a revision to 
the Texas SIP on January 3, 2000, which addresses the development of 
Rule SP. Additionally, we are approving a non-substantive revision to 
30 TAC Section 116.601(a)(1) adopted on February 9, 2011, and submitted 
as a revision to the Texas SIP on March 11, 2011. EPA has taken no 
action to date on the development of Rule SP at 30 TAC Section 
116.601(a)(1).\3\ Therefore, our action approves the initial adoption 
and submittal on January 3, 2000, and the revisions submitted on March 
11, 2011, addressing the development and implementation of Rule SP. 
Further, our action today approves the general provisions at 30 TAC 
Sections 601, 604, 605, 606, 610, 611, 614 and 615 pertaining to all SP 
as applicable to the Rule SP as well as the Non-Rule SP. With today's 
action, the category of Rule SP will now become part of the Texas Minor 
NSR SIP.
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    \3\ EPA approved the provision at 30 TAC Section 116.601(a)(2) 
regarding the development of Non-Rule SP in a separate rulemaking. 
See 68 FR 64543, November 14, 2003.
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B. 30 TAC Section 116.617: State Pollution Control Project Standard 
Permit

    The Texas State Pollution Control Project Standard Permit (referred 
to as the SP for PCP) before us for SIP action is a Rule SP that must 
meet the requirements of 30 TAC Section 116.601(a)(1), which we are 
also approving today as described above. The Rule SP for PCP at 30 TAC 
Section 116.617 is a component of Texas's broader SP Program, which 
originated in 1994.
    The Rule SP for PCP authorizes projects undertaken voluntarily, or 
as required by any federal or state statute or rule, that reduce or 
maintain currently authorized air emission rates for facilities 
authorized by a NSR permit, Standard Permit, or Permits by Rule, and 
that may have associated Minor NSR collateral emission increases in 
other regulated pollutants.4 5 On April 22, 1994, Texas 
adopted a regulation at 30 TAC Section 116.617 that was a Rule SP 
applicable to pollution control projects for any regulated pollutant. 
On January 27, 2006, Texas repealed the previously submitted Rule SP 
for PCP and adopted a new Rule SP for PCP that is limited to Minor NSR 
only. Texas adopted the new Rule SP for PCP to be consistent with 
federal law after the D.C. Circuit limited the use of pollution control 
projects to Minor NSR. New York v. EPA, 413 F.3d 3, 40-42 (D.C. Cir. 
2005). On February 1, 2006, Texas submitted the newly adopted Rule SP 
for PCP found at 30 TAC Section 116.617, among other provisions, to the 
EPA for approval into the Texas SIP.\6\ On

[[Page 18185]]

September 23, 2009, EPA proposed to disapprove revisions to the Texas 
SIP, including the Rule SP for PCP at 30 TAC Section 116.617, on the 
basis that the Rule SP for PCP did not meet the requirements for a 
Minor NSR SIP revision. 74 FR 48467, 48471. EPA finalized our 
disapproval of the Rule SP for PCP on September 15, 2010. See 75 FR 
56424.
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    \4\ See 30 TAC Section 116.617(a)(1) describing the scope and 
applicability of the Rule SP for PCP as adopted on January 27, 2006 
by the State of Texas and submitted as a revision to the Texas SIP 
on February 1, 2006. See also the TCEQ Response to Comments provided 
in the preamble to the rule adoption at 31 TexReg 529, January 27, 
2006.
    \5\ See Luminant, 675 F.3d at 922 n. 3 (``although the projects 
by definition reduce or maintain emissions of the primary pollutant, 
they have the potential to cause incidental increases in the 
emissions of other regulated pollutants.''
    \6\ The February 1, 2006, SIP submittal also included amendments 
to 30 TAC Sections 116.610(a) and 116.610(b). EPA disapproved 30 TAC 
Sections 116.610(a) and (b) in our September 15, 2010 disapproval of 
the Rule SP for PCP. See 75 FR 56424. EPA consented to vacatur of 
our disapproval of 30 TAC Sections 116.610(a) and (b), and on March 
26, 2012, the Fifth Circuit Court of Appeals vacated our disapproval 
of those two provisions, In response to the Court's vacatur and 
remand, EPA separately finalized approval of 30 TAC Sections 
116.610(a) and (b) on February 14, 2014. See 79 FR 8861.
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    Upon finalization of our disapproval, several parties (Luminant 
Generation Company, L.L.C.; Oak Grove Management Company, L.L.C.; Big 
Brown Power Company, L.L.C.; Luminant Mining Company, L.L.C.; Sandow 
Power Company, L.L.C.; Texas Association of Business; Texas Association 
of Manufacturers; Texas Oil & Gas Association; Chamber of Commerce of 
the United States of America; and the State of Texas) appealed our 
disapproval to the Fifth Circuit Court of Appeals.
    Prior to a ruling by the Fifth Circuit Court of Appeals, the TCEQ 
conducted rulemaking to revise the Rule SP for PCP at 30 TAC Section 
116.617 and issued pursuant to the Texas Minor NSR SIP, a new Non-Rule 
SP for PCP to replace the Rule SP for PCP at 30 TAC Section 116.617. On 
February 9, 2011, TCEQ adopted, without submitting for SIP approval, 
revisions to the Rule SP for PCP at 30 TAC Section 116.617. Those new 
non-SIP provisions are codified at 30 TAC Section 116.617(a)(4) and 
(a)(5), and provide that ``no new or modified registrations will be 
accepted and no existing registrations will be renewed'' under the Rule 
SP for PCP ``on or after March 3, 2011.'' See 36 TexReg 1323, February 
25, 2011. Additionally, the Non-Rule SP for PCP issued on February 9, 
2011, that became part of the Texas Minor NSR SIP immediately upon its 
effective date of March 3, 2011, requires at sections (1)(D)(i)-(iii) 
that all Rule SP for PCP authorized as of March 3, 2011, must be 
converted to a Non-Rule SP for PCP no later than the ten-year renewal 
anniversary of the authorization.\7\ Therefore, from March 3, 2011, 
forward, under the Texas SIP, no source can register for a new Rule SP 
for PCP at 30 TAC Section 116.617, and registrants for the existing 
Rule SP for PCP must use for revision and renewal purposes, the Non-
Rule SP for PCP which the TCEQ developed pursuant to the Texas SIP at 
30 TAC Sections 116.601(a)(2) and 116.603. 36 TexReg 2305, February 25, 
2011. Because a SP must be renewed every 10 years pursuant to the SIP-
approved provisions at 30 TAC Section 116.604, all PCPs currently 
authorized under a Rule SP for PCP are required by the Texas Minor NSR 
SIP to be renewed and comply with the Non-Rule SP for PCP no later than 
March 3, 2021. Effectively, the SIP Non-Rule SP for PCP creates a 
sunset date beyond which the Rule SP for PCP will be unavailable.
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    \7\ The State's summary document explains that ``This new non-
rule standard permit replaces the existing 30 TAC Sec.  116.617 for 
authorization of new pollution control projects (PCP).'' Air Quality 
Standard Permit For Pollution Control Projects Summary Document, 
Section II--Explanation and Background of Air Quality Standard 
Permit (March 10, 2011), available at http://www.tceq.state.tx.us/permitting/air/announcements/nsr-announce-3-10-11.html.
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    On March 26, 2012, the Fifth Circuit Court of Appeals granted the 
petition for review, vacated our disapproval of the Rule SP for PCP, 
and remanded the matter back to EPA for further review. Luminant, 675 F 
3d 917. The ruling did not address the changes Texas had made to the 
Rule SP for PCP but not submitted for SIP approval, including the date 
limitations Texas added to the Rule SP for PCP. Nor did the decision 
address the availability of the SIP-approved Non-Rule SP for PCP as a 
replacement for the Rule SP for PCP and the mechanism to obtain federal 
authorization for PCP in Texas.\8\ The effect of the ruling was to put 
back in front of EPA for review and consideration as a revision to the 
Texas SIP the Rule SP for PCP as submitted on February 1, 2006. The 
Fifth Circuit issued an Order on February 21, 2014, instructing EPA to 
issue a final rule regarding the Rule SP for PCP by May 19, 2014.
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    \8\ On remanding the case to EPA, the court noted as follows 
``It is difficult to conceive, and the EPA has not suggested, how it 
could disapprove the PCP Standard Permit under the appropriate 
statutory factors . . . when pressed at oral argument, the EPA was 
unable to identify any legal deficiencies with the PCP Standard 
Permit other than its supposed failure to meet . . . requirements 
that today we hold unlawful--despite the half decade the EPA has had 
to evaluate it. Nevertheless, we defer to the Agency to evaluate 
Texas's regulations in light of the proper CAA standards.'' Id. At 
932 n. 12.
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    Our action today is confined to the approval of the Rule SP for PCP 
submitted on February 1, 2006, at 30 TAC Section 116.617, combined with 
the approval of the Rule SP as an available type of SP, as meeting the 
Minor NSR SIP requirements consistent with the Fifth Circuit decision 
regarding the Rule SP for PCP as a Minor NSR program.\9\ Today's action 
reflects EPA's evaluation of the Texas regulations and its conclusion 
that the Texas rules are consistent with the requirements of the CAA. 
EPA's approval of the Rule SP for PCP into the Texas SIP will not 
provide federal authorization for projects registered under the Rule SP 
for PCP before it was SIP-approved. CAA Section 110(i); 40 CFR 51.105; 
see also, Train v. Natural Res. Def. Council, Inc., 421 U.S. 60 (1975); 
Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1034 (7th Cir. 1984); 
United States v. Ford Motor Co., 814 F.2d 1099, 1102-03 (6th Cir. 
1987); Sierra Club v. TVA, 430 F.3d 1337, 1347 (11th Cir. 2005).\10\
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    \9\ The Fifth Circuit has recognized that the Rule SP for PCP 
``applies only to minor NSR.'' 675 F.3d at 922.
    \10\ We state this to clarify any potential confusion created by 
statements made in the Fifth Circuit February 21, 2014 Order on 
Motion to Amend and Enforce Judgment that seem to imply that 
authorizations under the Rule SP for PCP obtained prior to EPA's SIP 
approval ``may in fact be valid under the Clean Air Act'' upon 
approval by EPA. Luminant et al., v. EPA, Order on Motion to Amend 
and Enforce Judgement, Case No. 10-60891, at 9 (5th Cir. Feb. 21, 
2014).
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C. 30 TAC Section 116.911(a)(2): Control Method for Grandfathered and 
Electing Electric Generating Facilities

    We are approving a portion of revisions to the Texas SIP submitted 
on January 3, 2000, regarding the application and permitting procedures 
for grandfathered and electing electric generating facilities (EGFs). 
Specifically, we are approving 30 TAC Section 116.911(a)(2)--Control 
method. Background information about the permitting of grandfathered 
and electing EGFs in Texas subject to Texas Senate Bill 7 (SB 7) is 
available in EPA's partial approval and partial disapproval of the 
Texas provisions for permitting grandfathered and electing EGFs on 
January 11, 2011. See 76 FR 1525.
    As explained more fully in EPA's January 11, 2011 notice, EPA 
partially approved and partially disapproved the Texas provisions for 
permitting grandfathered and electing EGFs, referred to as the Texas SB 
7 permitting program. 76 FR 1525. Specifically, EPA partially 
disapproved the provisions for control methods for grandfathered 
electric generating units at 30 TAC Section 116.911(a)(2) because they 
provided that a source could obtain coverage under the Rule SP for PCP 
at 30 TAC Section 116.617, which we had disapproved on September 15, 
2010. Upon finalization of our partial approval and partial 
disapproval, several parties (Luminant Generation Company, L.L.C.; Big 
Brown Power Company, L.L.C.; and the State of Texas) filed a petition 
for review of EPA action to the Fifth Circuit Court of Appeals. On 
September 12, 2012, EPA requested the Fifth Circuit vacate our 
disapproval and remand the provision back to EPA for further 
proceedings. On October 4, 2012, the Fifth Circuit granted our request 
by vacating our disapproval of

[[Page 18186]]

30 TAC Section 116.911(a)(2) and remanded the matter back to EPA.
    Our approval today of 30 TAC Section 116.601(a)(1), into the Texas 
SIP, results in the application of the SIP's general provisions for SP 
applying now to Rule SP as well as Non-Rule SP. Additionally, our 
evaluation today is that the specific Rule SP for PCP at 30 TAC Section 
116.617, as submitted on February 1, 2006, when combined with the 
general provisions for SP, satisfies the requirements for Minor NSR and 
our prior basis for disapproval of 30 TAC Section 116.911(a)(2) is no 
longer supportable. Accordingly, today's direct final action approving 
30 TAC Sections 116.601(a)(1) and 116.617 as part of the Texas Minor 
NSR SIP also approves 30 TAC Section 116.911(a)(2) as part of the Texas 
SB7 permitting program and the Minor NSR SIP consistent with the Fifth 
Circuit remand and vacatur of the Rule SP for PCP.
    The following table identifies the sections addressed in today's 
direct final action.\11\
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    \11\ Note that the TCEQ also submitted other, non-related 
revisions to the Texas SIP in the rulemakings identified in the 
Table. The accompanying Technical Support Document (TSD) for this 
direct final action identifies each submitted provision and the date 
of EPA's action on the provision. The TSD is available in the 
rulemaking docket.

                     Table 1--Summary of the Individual Revisions to Each Section Evaluated
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                                                    Date submitted to
            Section                    Title               EPA          Adopted by state         Comments
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                                                   Chapter 116
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                                                  Subchapter F
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30 TAC Section 116.601.........  Types of Standard  January 3, 2000..  December 16, 1999  New provision at 30
                                  Permits.                                                 TAC Section
                                                                                           116.601(a)(1)
                                                                                           establishes the Rule
                                                                                           SP as one of two
                                                                                           types of SP available
                                                                                           in the Texas Minor
                                                                                           NSR Program.
                                                    March 11, 2011...  February 9, 2011.  Revisions to 30 TAC
                                                                                           Section 116.601(a)(1)
                                                                                           to remove cross-
                                                                                           references from the
                                                                                           definition of the
                                                                                           Rule SP.
30 TAC Section 116.617.........  State Pollution    February 1, 2006.  January 11, 2006.  Repeal and replacement
                                  Control Project                                          of the Rule SP for
                                  Standard Permit.                                         PCP at 30 TAC Section
                                                                                           116.617.
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                                                  Subchapter I
----------------------------------------------------------------------------------------------------------------
30 TAC Section 116.911(a)(2)...  Control method...  January 3, 2000..  December 16, 1999  Requires the use of
                                                                                           the Rule SP for PCP
                                                                                           at 30 TAC 116.617.
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II. Evaluation of State Submittals

A. 30 TAC Section 116.601(a)(1): Types of Standard Permits

    EPA approved Texas' regulations for Non-Rule SP in 30 TAC Chapter 
116, Subchapter F on November 14, 2003 (68 FR 64543) as meeting the 
federal requirements for Minor NSR.\12\ When the Texas Minor NSR SP 
Program began in 1994, all SPs were developed using the State's 
rulemaking process under the Texas Government Code, Chapter 2001, 
Subchapter B. To streamline the process for development and issuance of 
SPs within the Texas Minor NSR Program, Texas Senate Bill 766 of the 
76th Legislature directed the Texas Natural Resource Conservation 
Commission to develop an alternate process whereby the SPs could be 
developed and implemented without going through the formal rule-making 
process.\13\ On January 3, 2000, the TCEQ submitted a SIP revision that 
created the two types of SP that exist today in the Texas Minor NSR 
Program--the Rule SP and the Non-Rule SP. Specifically, this revision 
to the Texas SIP included:
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    \12\ EPA did not approve the Rule SP at 30 TAC Section 
116.601(a)(1) or the specific Rule SP for PCP at 30 TAC Section 
116.617, the Rule SP for Oil and Gas Facilities at 30 TAC 116.620, 
or the Rule SP for Municipal Solid Waste Landfills at 30 TAC Section 
116.621 in the November 14, 2003 action. See 68 FR 64543, at 64547. 
Since that time, EPA has approved the Rule SP for Oil and Gas 
Facilities at 30 TAC Section 116.620 on February 14, 2014 at 79 FR 
8861. The TCEQ repealed the Rule SP for Municipal Solid Waste 
Landfills at 30 TAC Section 116.621 on March 1, 2006.
    \13\ The Texas Natural Resource Conservation Commission is the 
predecessor agency to the TCEQ, hereafter referred to as the TCEQ.
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     New 30 TAC Section 116.601(a)(1) which identified those SP 
that were adopted through rulemaking in accordance with Texas 
Government Code, Chapter 2001, Subchapter B. (Rule Standard Permits or 
Rule SP).
     New 30 TAC Section 116.601(a)(2) which identified those SP 
that were issued after a public notice and comment period in accordance 
with 30 TAC Section 116.603 (relating to the Public Participation in 
Issuance of Standard Permits) (Non-Rule Standard Permits or Non-Rule 
SP) rather than through rulemaking.\14\
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    \14\ On November 14, 2003, EPA fully approved the Non-Rule 
Standard Permit provisions, including the identification of the Non-
Rule Standard Permits at 30 TAC Sections 116.601(a)(2). See 68 FR 
64543. Thereafter, upon TCEQ issuance of a Non-Rule SP, the specific 
Non-Rule SP automatically becomes part of the Texas Minor NSR SIP.
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    Since the initial adoption of 30 TAC Section 116.601(a)(1), the 
TCEQ has adopted one revision to the identification of Rule SPs and 
submitted this amendment to the Texas SIP on March 11, 2011. This non-
substantive revision removes unnecessary cross-references in the Rule 
SP regulation in the Texas SP program for the Rule SP for PCP and the 
Rule SP for Oil and Gas Facilities. This non-substantive revision also 
removes the cross-reference to the repealed Rule SP for Municipal Solid 
Waste Landfills. Our direct final approval addresses the initial 
adoption of 30 TAC 116.601(a)(1), as revised through the March 11, 
2011, SIP submittal.
    EPA finds that the 30 TAC Section 116.601(a)(1) as revised through 
the March 11, 2011, SIP submittal is an integral part of the Texas 
Minor NSR program and approves it as part of the Texas Minor NSR SIP. 
This provision enables the Texas SIP to meet the requirements of 40 CFR 
51.160 by clearly identifying the scope of the Texas SP Program and 
identifying the

[[Page 18187]]

legally enforceable procedures the TCEQ will use in developing Rule 
SPs. As previously noted, our approval also means that the general 
provisions at 30 TAC Sections 601, 604, 605, 606, 610, 611, 614, and 
615 approved into the Texas Minor NSR SIP in our November 14, 2003 
action, now apply to the Rule SP in addition to Non-Rule SP. 
Additionally, 30 TAC Section 116.601(a)(1) satisfies the Minor NSR 
public notice requirements at 40 CFR 51.161 by specifying that a Rule 
SP is developed in accordance with Texas Government Code, Chapter 2001, 
Subchapter B. This is the rulemaking process that TCEQ uses in 
developing any revision to the Texas SIP; under this Code, when 
developing a Rule SP the TCEQ is required to publish notice of the 
proposed Rule SP in the Texas Register. TCEQ is also required to 
provide for 30 days notice on the proposed Rule SP.\15\
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    \15\ As discussed previously, a SP is not a case-by-case permit. 
Therefore, the Rule SP goes through public comment during the 
development process, but does not have separate notice and comment 
requirements for each authorization of the Rule SP.
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B. 30 TAC Section 116.617: State Pollution Control Project Standard 
Permit

    Federal regulations at 40 CFR 51.160 require a Minor NSR program to 
include legally enforceable procedures that enable the permitting 
authority to ensure that no construction of a facility or modification 
will cause a violation of applicable portions of the control strategy 
or interfere with attainment or maintenance of a NAAQS. The Rule SP for 
PCP at 30 TAC Section 116.617 submitted on February 1, 2006, is a 
component of the Texas Minor NSR program. 30 TAC Section 116.610(b) 
limits the Texas SP Program to Minor NSR and provides that a SP cannot 
be used to authorize a project that constitutes a new major stationary 
source or major modification. Therefore, the Rule SP for PCP can be 
used at minor sources, or at major sources taking a Minor NSR action. 
But in all cases, the Rule SP for PCP will not authorize emission 
increases that would have triggered Major NSR review under either the 
SIP-approved Texas Prevention of Significant Deterioration or 
Nonattainment NSR programs. As discussed above and in Section I.B. and 
as recognized by the Fifth Circuit, Luminant, 675 F.3d at 922, the 
applicability of the Rule SP for PCP is clearly limited to Minor NSR 
and EPA finds that the provisions at 30 TAC Section 116.617, in 
conjunction with the already-SIP approved general provisions for SP, 
satisfy the federal requirements for a Minor NSR program.
    The Rule SP for PCP that we are acting on now is a Rule SP as 
identified in 30 TAC Section 116.601(a)(1). The TCEQ used the public 
notice procedures found in Texas Government Code, Chapter 2001, 
Subchapter B to develop and accept comments on the program. 
Consequently, the development of the Rule SP for PCP provided public 
notice that satisfies the requirements for Minor NSR public notice at 
40 CFR 51.161. Furthermore, because we are approving into the Texas 
Minor NSR SIP, 30 TAC Section 116.601(a)(1), all of the SP general 
requirements previously approved into the Texas SIP in 2003 as 
applicable for the Non-Rule SP now apply to the Rule SP for PCP. The 
registrant is required at 30 TAC Section 116.615(1) to protect public 
health and welfare. Additionally, sources seeking authorization via the 
Rule SP for PCP are required to submit a SP registration to TCEQ under 
30 TAC Section 116.611, which must include information regarding the 
proposed project to be authorized (e.g., emission estimates, 
description of project and related process, description of equipment 
being installed). 30 TAC Section 116.615 includes general conditions 
that must be met by sources authorized by a Rule SP, including the Rule 
SP for PCP; these general conditions specifically require that the 
sources authorized under a SP comply with ``all rules, regulations, and 
orders of the commission issued in conformity with the [Texas Clean Air 
Act].'' See 30 TAC Section 116.615(10). In the case where more than one 
state or federal rule, regulation, or permit condition is applicable, 
the source must comply with the most stringent requirement or limit. 
See 30 TAC Section 116.615(10). Therefore, the conditions of the Rule 
SP for PCP in no way supersede or relax other applicable state or 
federal requirements. In addition, 30 TAC Sections 116.610(a), 116.615, 
and 116.617(b) require that sources authorized under the Rule SP for 
PCP submit appropriate documentation to demonstrate compliance with 
state and federal provisions, including New Source Performance 
Standards and National Emission Standards for Hazardous Air Pollutants. 
Regarding testing, recordkeeping, reporting and monitoring provisions, 
30 TAC Section 116.615 requires recordkeeping and monitoring sufficient 
to demonstrate compliance with the Rule SP for PCP and all other 
requirements for SP. This means the sources authorized under a Rule SP 
for PCP must maintain records/testing/monitoring/etc sufficient to 
demonstrate status as Minor NSR and compliance with all federal and 
state provisions, as discussed above. The Rule SP for PCP only 
authorizes collateral emission increases of regulated pollutants from 
permitted projects that otherwise ``reduce or maintain currently 
authorized emission rates.'' Additionally, 30 TAC Section 
116.617(a)(3)(B) provides that the Rule SP for PCP cannot be used to 
authorize the installation of emission control equipment or the 
implementation of a control technique that the TCEQ Executive Director 
has determined has the potential to exceed a NAAQS until the potential 
exceedances are addressed. Based on all of these provisions, EPA 
concludes that the Rule SP for PCP contains legally enforceable 
procedures to prevent interference with a NAAQS.
    As previously discussed, EPA disapproved the Rule SP for PCP on 
September 15, 2010. Prior to the ruling by the Fifth Circuit Court of 
Appeals, the TCEQ conducted rulemaking to revise the Rule SP for PCP at 
30 TAC Section 116.617 and to also issue a new Non-Rule SP for PCP that 
automatically became part of the Texas Minor NSR SIP upon its effective 
date, to replace the Rule SP for PCP at 30 TAC Section 116.617. 
Therefore, from March 3, 2011, forward, pursuant to the Texas SIP, 
sources seeking authorization for a PCP must register under the Non-
Rule SP for PCP and all renewals and revisions to currently authorized 
Rule SP for PCP must be done under the Non-Rule SP for PCP. The Non-
Rule SP for PCP became effective on March 3, 2011, and was developed by 
TCEQ according to the requirements of 30 TAC Sections 116.601(a)(2) and 
116.603. 36 TexReg 2305, February 25, 2011. Because the method for 
issuing the Non-Rule SP for PCP was approved by EPA into the Texas SIP 
in 2003, the Non-Rule SP for PCP issued by TCEQ is now part of the 
Texas Minor NSR SIP.
    The TCEQ has not submitted the revisions to 30 TAC Section 116.617, 
the Rule SP for PCP, adopted on February 9, 2011, as revisions to the 
Texas SIP. Therefore, EPA is only approving as a revision to the Texas 
Minor NSR SIP the Rule SP for PCP at 30 TAC Section 116.617 as 
initially adopted and submitted February 1, 2006. The February 9, 2011, 
revisions to 30 TAC Section 116.617(a)(4) and (a)(5) establishing date 
and other limitations are not federally enforceable as SIP 
requirements. However, as previously noted, the issuance of the Non-
Rule SP for PCP created the SIP-approved mechanism for obtaining 
initial, revised and renewal authorizations for PCP.

[[Page 18188]]

C. 30 TAC Section 116.911(a)(2): Control Method for Grandfathered and 
Electing Electric Generating Facilities

    EPA previously disapproved 30 TAC Section 116.911(a)(2) because it 
allowed a source to obtain authorization through 30 TAC Section 
116.617. However, we requested the Court to vacate that disapproval and 
remand to EPA for further consideration based on the Fifth Circuit 
ruling on EPA's disapproval of 30 TAC Section 116.617. As discussed 
previously in Section II.B of this direct final action, EPA now 
approves it as a SIP revision, based on today's finding that 30 TAC 
Section 116.617 is an approvable component of the Texas Minor NSR 
program. By extension, the provision in 30 TAC Section 116.911(a)(1) 
allowing sources to obtain authorization through 30 TAC Section 116.617 
is also an approvable provision of the Texas Minor NSR program, and 
therefore approvable as submitted on January 3, 2000.

D. CAA Section 110(l) Analysis

    Under Section 110(l) of the CAA, the regulations submitted as a SIP 
revision adopting and implementing the Texas SP Program, and 
specifically the Rule SP for PCP, must meet the procedural requirements 
of Section 110(l) by demonstrating that the State followed all 
necessary procedural requirements such as providing reasonable notice 
and public hearing of the SIP revision. Additionally, the SIP revision 
must demonstrate that the adopted rules will not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA. We find that 
the TCEQ satisfied all requirements pursuant to Section 110(l).
    The regulation of minor sources is a requirement of Section 
110(a)(2)(C) of the CAA and EPA's regulations at 40 CFR 51.160-51.164. 
As discussed in this direct final action and the accompanying TSD, EPA 
finds that the revisions to the Texas SP Program establishing the type 
of SP termed the Rule SP submitted on January 3, 2000 and revised on 
March 11, 2011; the Rule SP for PCP submitted on February 1, 2006; and 
the provision allowing for the use of the Rule SP for PCP as a control 
method for Texas SB7 grandfathered and electing EGFs as submitted on 
January 3, 2000; satisfy the requirements for Minor NSR. The Rule SP 
for PCP when combined with the already SIP-approved general provisions 
that apply to all SP, includes adequate provisions to provide legally 
enforceable procedures to ensure protection of the control strategy and 
any applicable NAAQS. The Texas Minor NSR SIP SP general provisions, 
and specifically the Rule SP for PCP, also contain sufficient 
safeguards to prevent circumvention of Major NSR permitting 
requirements. The Rule SP for PCP only authorizes collateral emission 
increases of regulated pollutants from permitted projects that would 
otherwise ``reduce or maintain currently authorized emissions rates.'' 
Additionally, 30 TAC Section 116.617(a)(3)(B) provides that the Rule SP 
for PCP cannot be used to authorize the installation of emission 
control equipment or the implementation of a control technique that the 
TCEQ Executive Director has determined has the potential to exceed a 
NAAQS until the potential exceedances are addressed. In sum, we find 
that the revisions to the Texas SIP adopting and implementing revisions 
to the Texas Minor NSR Program for Standard Permits, specifically 
provisions for the development of Rule SP and establishment and use of 
the Rule SP for PCP, satisfy the requirements of Section 110(l) of the 
Act.

III. Final Action

    EPA has made the determination that the revisions to the Texas SIP 
submitted on January 3, 2000, February 1, 2006, and March 11, 2011, 
which are part of this direct final rulemaking, are approvable because 
they were adopted and submitted in accordance with the CAA and EPA 
regulations regarding Minor NSR. Therefore, under section 110 of the 
Act, and for the reasons stated above, EPA is taking direct final 
action to approve the following revisions to the Texas SIP:
     The initial submittal of 30 TAC Section 116.601(a)(1) as a 
revision to the Texas SIP on January 3, 2000, and the subsequent 
amendments to 30 TAC Section 116.601(a)(1) submitted on March 11, 2011.
     The repeal and replacement of 30 TAC Section 116.617 
submitted as a revision to the Texas SIP on February 1, 2006.
     The adoption of 30 TAC Section 116.911(a)(2) submitted as 
a revision to the Texas SIP on January 3, 2000.
    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on June 2, 2014 
without further notice unless we receive adverse comment by May 1, 
2014. If we receive adverse comments, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. In that case, we will address all public comments 
on today's notice in a subsequent final rule based on the proposed 
rule. We will not institute a second comment period on this action. Any 
parties interested in commenting must do so now. Please note that if we 
receive adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of an adverse comment.

IV. 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, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because

[[Page 18189]]

application of those requirements would be inconsistent with the CAA; 
and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2).
    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 June 2, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 21, 2014.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 Sec.  52.2270 (c), the table titled ``EPA APPROVED REGULATIONS IN 
THE TEXAS SIP'' is amended by:
0
a. Revising the entries for Sections 116.601 and 116.911.
0
b. Adding a new entry for Section 116.617 immediately after the entry 
for Section 116.615.
    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     EPA approval date       Explanation
                                                             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Subchapter F--Standard Permits
----------------------------------------------------------------------------------------------------------------
Section 116.601..................  Types of Standard          2/9/2011  4/1/2014 [Insert FR
                                    Permits.                             page number where
                                                                         document begins].
 
                                                  * * * * * * *
Section 116.617..................  State Pollution           1/11/2006  4/1/2014 [Insert FR
                                    Control Project                      page number where
                                    Standard Permit.                     document begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                               Subchapter I--Electric Generating Facility Permits
----------------------------------------------------------------------------------------------------------------
Section 116.911..................  Electric Generating       5/22/2002  4/1/2014 [Insert FR  Section
                                    Facility Permit.                     page number where    116.911(a)(2) is
                                                                         document begins].    authorized for
                                                                                              Minor NSR only.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-07127 Filed 3-31-14; 8:45 am]
BILLING CODE 6560-50-P