[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 55978-55988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22672]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0620; FRL-9199-8]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Revisions to the New Source Review (NSR) State Implementation
Plan (SIP); Prevention of Significant Deterioration (PSD)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action approving revisions to the
Texas PSD State Implementation Plan (SIP). EPA is approving a SIP
revision submitted February 1, 2006, as amended by a SIP revision
submitted July 16, 2010. This action makes no substantive changes to
the Texas PSD SIP; it merely approves reorganization and renumbering of
the Texas PSD SIP rules. Further, the July 16, 2010 submission corrects
certain deficiencies identified in EPA's September 23, 2009 proposed
disapproval. The EPA is approving these revisions pursuant to section
110 and part C of the Federal Clean Air Act (Act or CAA).
DATES: This direct final rule will be effective on November 15, 2010
without further notice, unless EPA receives relevant adverse comments
by October 15, 2010. If EPA receives such comments, EPA will publish a
timely withdrawal of the direct final rule 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-2010-0620, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Stanley M. Spruiell at
[email protected]. Please also cc the person listed in the FOR
FURTHER INFORMATION CONTACT section below.
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), at fax number 214-665-7263.
Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Stanley M. Spruiell, Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2010-0620. 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 whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail 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
[[Page 55979]]
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. 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, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at (214) 665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number 214-665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION:
Throughout this document wherever ``we,'' ``us,'' or ``our'' is
used, we mean the EPA.
Outline
I. What action is EPA taking?
II. What did the State submit?
III. What is the background for this action?
IV. What comments did EPA receive on the proposed disapproval of the
2006 SIP revision submittal?
V. What are the grounds for approval?
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is approving the revisions to the Texas SIP PSD Program
(Program) that amend Title 30 of the Texas Administrative Code (30 TAC)
116.160--Prevention of Significant Deterioration Requirements. This
includes SIP revisions to the Program as follows: The revision which
relates to the PSD Program that Texas submitted February 1, 2006 (as
adopted by the Texas Commission on Environmental Quality (TCEQ) on
January 11, 2006), and a revision submitted July 16, 2010 (as adopted
by TCEQ on June 2, 2010) that amends the 2006 submittal. We are
approving these revisions as meeting the Major NSR PSD SIP
requirements.
Specifically, we are approving the nonsubstantive reorganizing and
renumbering of 30 TAC 116.160 as submitted in 2006 and as revised in
2010. Our final action ensures that the Texas PSD SIP remains the same
in substance with improvement in clarity.
II. What did the State submit?
On September 23, 2009, EPA proposed to disapprove the SIP revisions
submittals relating to Prevention of Significant Deterioration (PSD);
Nonattainment NSR (NNSR) for the 1-Hour Ozone Standard, NNSR for the
1997 8-Hour Ozone Standard, NSR Reform, and a Standard Permit (under
Docket No. EPA-R06-OAR-2006-0133). See the proposal at 74 FR 48467, at
48472. We proposed to disapprove the submitted PSD revisions in 30 TAC
116.160 because:
This 2006 SIP revision submittal removed from the State
rules the incorporation by reference of the Federal PSD definition of
``best available control technology (BACT)'' as defined in 40 CFR
51.166(b)(12). The currently approved PSD SIP includes the Federal
definition of PSD BACT. See 30 TAC 116.160(a); and
The 2006 SIP submittal also removed from the State rules,
the PSD SIP requirement at 40 CFR 52.21(r)(4) that the State previously
had incorporated by reference. The currently approved PSD SIP mandates
this requirement. See 30 TAC 116.160(a). This provision specifies that
if a project becomes a major stationary source or major modification
solely because of a relaxation of an enforceable limitation on the
source or modification's capacity to emit a pollutant, then the source
or modification is subject to PSD as if construction had not yet
commenced. The State's action in eliminating that requirement means the
State's rules will not regulate these types of major stationary sources
or modifications as stringently as the Federal program or the current
approved Texas PSD SIP.
The 2006 SIP revision submittal included a nonsubstantive
reorganizing, and renumbering of the State's PSD rules but for the
removal of the two requirements described above. The reorganization and
renumbering of 30 TAC 116.160 (submitted in 2006) includes the
following:
A revision to 30 TAC 116.160(a);
Deletion of the existing 30 TAC 116.160(b);
Addition of a new 30 TAC 116.160(b);
Deletion of the existing 30 TAC 116.160(c), including the
removal of the two definitions of ``building, structure, facility, or
installation'' and ``secondary emissions'' from 30 TAC 116.160(c),
which had duplicated the definitions of those terms as currently
defined in the SIP at 30 TAC 116.12(4) and (17), respectively;
Portions of the existing 30 TAC 116.160(a) and (b) were
reorganized into a new and revised 30 TAC 116.160(c)(1), (2), and (3);
Moving the existing 30 TAC 116.160(d) into a new 30 TAC
116.160(c)(4); and
Finally, moving the existing 30 TAC 116.160(e) into new 30
TAC 116.160(d).
EPA finds that these submitted changes are nonsubstantive and
continue to meet the Act and EPA's PSD SIP regulations, with the
exception of the removal of the incorporation of the PSD BACT
definition in 40 CFR 52.21(b)(12) and the removal of the incorporation
of the provisions in 40 CFR 52.21(r)(4) PSD SIP requirement.
On July 16, 2010, TCEQ submitted revisions to 30 TAC 116.160. These
revisions revised the State's rules as follows:
Incorporated by reference the federal PSD BACT definition
in 40 CFR 52.21(b)(12). See 30 TAC 116.160(c)(1)(A). This corrects a
deficiency identified in the 2009 proposal.
Incorporated by reference the requirements of 40 CFR
52.21(r)(4). See 30 TAC 116.160(c)(2)(A). This corrects a deficiency
identified in the 2009 proposal.
Incorporated by reference the requirements of 40 CFR
52.21(j)--Control technology review. See 30 TAC 116.160(c)(2)(C). This
provision identifies the circumstances under which PSD BACT must be
required for
[[Page 55980]]
the construction of a major stationary source and a major modification
that is subject to PSD.
TCEQ adopted and submitted for the first time, incorporation by
reference of the Federal PSD requirement at 40 CFR 52.21(j) for
approval by EPA into the Texas PSD SIP to ensure that it is clear that
major stationary sources and major modifications in attainment/
unclassifiable designated areas must meet the PSD requirement by
performing a PSD BACT analysis. The Texas NSR SIP includes not only the
federal PSD BACT definition but also a requirement for a source to
perform a State BACT analysis. See 30 TAC 116.111(a)(2)(C). EPA relied
upon this SIP provision in its 1992 original approval of the Texas PSD
SIP as meeting the PSD requirement of 40 CFR 52.21(j). See 54 FR 52823,
at 52824-52825, and 57 FR 28093, at 28096-28096. Both Texas and EPA
interpreted this SIP provision to require either a Minor NSR BACT
determination or a Major PSD BACT determination. Since EPA's approval
of the Texas PSD SIP in 1992, there has been some confusion about the
distinction between a State Minor NSR BACT definition and a PSD Major
NSR BACT definition and the requirement that a source must perform the
relevant PSD BACT analysis.\1\ TCEQ's July 2010 submittal's inclusion
of the PSD requirement of 40 CFR 52.21(j) is aimed at clarifying the
Texas PSD SIP in this respect.
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\1\ The January 1972 Texas NSR rules, as revised in July 1972,
require a proposed new facility or modification to utilize ``best
available control technology, with consideration to the technical
practicability and economic reasonableness of reducing or
eliminating the emissions resulting from the facility.'' This
definition of BACT is from the Texas Clean Air Act. When EPA
approved the Texas PSD program SIP revision submittals, including
the State's incorporation by reference of the Federal definition of
PSD BACT, in 1992, both EPA and Texas interpreted the use of the
TCAA BACT definition to be for Minor NSR SIP permitting purposes
only. EPA specifically found that the State's TCAA BACT definition
did not meet the Federal PSD BACT definition. We required the use of
the Federal PSD BACT definition for PSD SIP permitting purposes. See
the proposal and final approval of the Texas PSD SIP at 54 FR 52823
(December 22, 1989) and 57 FR 28093 (June 24, 1992).
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Based upon our review, we find that the 2010 SIP revision submittal
corrects the deficiencies identified in the September 2009 proposed
disapproval concerning the 2006 SIP revision submittal. Consequently,
because Texas has corrected the deficiencies, we are now approving the
PSD Program revisions submitted February 1, 2006 and as amended July
16, 2010. Our final action ensures that the substance of the Texas PSD
SIP continues to remain the same and approval of the two SIP revision
submittals improves the clarity of the Texas PSD SIP. See sections III
through V of this preamble, the proposal FRN, and the technical support
document (TSD) for further information on the basis for approving this
submitted Texas PSD Program. Therefore, EPA is approving the amendments
to 30 TAC 116.160, as submitted on February 1, 2006 and as amended on
July 16, 2010.
III. What is the background for this Action?
Tables 1 and 2 below summarize the changes that are in the two SIP
revision submittals. A summary of EPA's evaluation of each section and
the basis for this direct final action is discussed in sections IV and
V of this preamble. The TSD includes a detailed evaluation of the
submittals.
Table 1--Summary of Each SIP Submittal That Is Affected by This Action
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Date submitted Date of state
Title of SIP submittal to EPA adoption Regulations affected
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Federal New Source Review Permit Rules 2/1/2006 1/11/2006 30 TAC 116.160--Prevention of
Reform. Significant Deterioration
Requirements.
The Rule was changed to
reorganize existing SIP-
approved rule.
This change resulted in
removal of cross-references to
40 CFR 52.21(b)(12) and
52.21(r)(4) which are critical
to administration and
enforcement of PSD
requirements.
The change included the
removal of definitions of
``building, structure,
facility, on installation'' and
``secondary emissions'' in 30
TAC 116.160(c)(1)-(2),
respectively. The removal of
these definitions is
nonsubstantive because these
terms are currently defined
with the same definitions in
the Texas SIP at 30 TAC
116.12(4) and (17),
respectively.
Best Available Control Technology (BACT) in 7/16/2010 6/2/2010 30 TAC 116.160--Prevention of
Prevention of Significant Deterioration Significant Deterioration
(PSD) Permitting. Requirements.
Re-instatement of cross-
references to 40 CFR
52.21(b)(12) and 52.21(r)(4).
Added cross-reference
to 40 CFR 52.21(j)--Control
technology review.
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Table 2--Summary of Each Regulation that is Affected by this Action
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Date Date of state
Section Title submitted adoption Comments
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Chapter 116--Control of Air Pollution by Permits New Construction or Modification
Subchapter B--New Source Review Permits
Division 6--Prevention of Significant Deterioration Review
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Section 116.160.............. Prevention of 2/1/2006 1/11/2006 Rule changed to
Significant reorganize existing SIP-
Deterioration approved rule.
Requirements.
[[Page 55981]]
This change
resulted in removal of
cross-references to 40
CFR 52.21(b)(12) and
52.21(r)(4) which are
critical to
administration and
enforcement of PSD
requirements.
7/16/2010 6/2/2010 Re-instatement of
cross-references to 40
CFR 52.21(b)(12) and
52.21(r)(4).
Added cross-
reference to 40 CFR
52.21(j)--Control
technology review.
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IV. What comments did EPA receive on the proposed disapproval of the
2006 SIP revisions submittal?
In response to our September 23, 2009, proposed disapproval of the
submitted revisions to Texas' PSD Program, we received comments from
the following: Baker Botts, L.L.P., on behalf of BCCA Appeal Group
(BCCA); Baker Botts, L.L.P., on behalf of Texas Industrial Project
(TIP); Bracewell & Guiliani, L.L.P., on behalf of the Electric
Reliability Coordinating Council (ERCC); Gulf Coast Lignite Coalition
(GCLC); Texas Chemical Council (TCC); Texas Commission on Environmental
Quality (TCEQ); Members of the Texas House of Representatives;
University of Texas at Austin School of Law--Environmental Clinic (the
Clinic) on behalf of: Environmental Integrity Project, Environmental
Defense Fund, Galveston-Houston Association for Smog Prevention, Public
Citizen, Citizens for Environmental Justice, Sierra Club Lone Star
Chapter, Community-In-Power and Development Association, KIDS for Clean
Air, Clean Air Institute of Texas, Sustainable Energy and Economic
Development Coalition, Robertson County: Our Land, Our Lives, Texas
Protecting Our Land, Water and Environment, Citizens for a Clean
Environment, Multi-County Coalition, and Citizens Opposing Power Plants
for Clean Air.
Below is a summary of the comments and our responses.
Comment 1: TCEQ commented on the lack of a specific definition of
PSD BACT and the absence of a requirement contained in 40 CFR
52.21(r)(4). TCEQ noted that although these references are currently
missing from 30 TAC 116.160, its permitting actions are implemented in
a manner that does not circumvent Federal New Source Review (FNSR)
requirements and does not allow a control technology review to be
conducted that results in a technology that is less than PSD BACT as
defined in the federal rule. TCEQ agrees that if a project becomes a
major source or major modification through the relaxation of an
enforceable limitation, PSD review is required, and TCEQ complies with
that requirement in its permitting actions. The missing references are
oversights, and TCEQ agreed to adopt revisions to 30 TAC 116.160 to
include these provisions.
Response: EPA acknowledges TCEQ's description of how it implements
the submitted Program. However, our evaluation considers whether a
submitted SIP revision that removes a statutory requirement can still
meet the requirements of the Act. In the proposal, EPA explained that
the removal of a statutory requirement from a State's program renders a
SIP revision unapprovable because the removal does not meet the
requirements of the Act. PSD BACT is not only a defined statutory and
regulatory term; it is also a central requirement of the Act.
Accordingly, a state's submission of a revision that removes the
requirement that all new major stationary sources or major
modifications install, at a minimum, PSD BACT as defined by the Act
creates a situation where the submitted SIP revision violates the Act
and also would be a relaxation of the requirements of the SIP. In the
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal PSD BACT definition in 40
CFR 52.21(b)(12) and the requirement contained in 40 CFR 52.21(r)(4).
Based upon our evaluation of the July 2010, SIP revision, we conclude
that Texas has corrected the deficiencies identified in the proposal.
Comment 2: The Clinic supported EPA's proposed positions. The
Clinic further comments that instead of implementing the top-down
approach consistent with EPA's PSD guidance, TCEQ uses its ``three-
tier'' guidance, a process that does not always require a detailed
analysis of the most effective emission control alternatives and is
less stringent than the top-down procedure. The Clinic maintains that
Texas's definition and implementation of BACT are insufficient. This
results in Texas implementing BACT such that it fails to fulfill the
technology forcing intent of the Act and results in weaker emission
limitations--and thus more pollution. EPA must take immediate action to
ensure that Texas is properly implementing the federal SIP-approved
definition of BACT, including rejection of Texas's use of its current
BACT guidance.
Response: In the July 16, 2010, SIP submittal TCEQ revised 30 TAC
116.160 to incorporate into its PSD Program the federal PSD BACT
definition in 40 CFR 52.21(b)(12). See 30 TAC 116.160(c)(1)(A),
submitted July 16, 2010. By re-instating the federal definition of PSD
BACT into the State's rules, the PSD Program now meets EPA's PSD SIP
requirements and is consistent with the approved Texas PSD SIP. This
final rulemaking only addresses the approvability of the Texas PSD SIP
revision submittals. Therefore, those comments related to other EPA
actions and the State's implementation of the PSD SIP are outside the
scope of this rulemaking action.
Comment 3: Members of the Texas House of Representatives commented
that Texas is applying a definition of BACT, and using a BACT
determination process that is significantly less stringent than
required by federal law. Consequently, Texas industrial facilities emit
more pollution than similar facilities in other states. They further
comment that use of federal BACT alone will not be sufficient for the
State to achieve and maintain attainment of the NAAQS and protect the
health and welfare of facilities downwind of these new sources. They
recommend that EPA adopt procedures necessary to ensure that TCEQ has
explicit authority and direction to analyze individual and cumulative
effects of emissions from proposed significant point sources on
regional ozone levels when considering a permit application. Analysis
of ozone effects should include photochemical modeling of impacts to
downwind areas under typical high ozone conditions.
Response: The comments that (1) the use of federal PSD BACT alone
will not
[[Page 55982]]
be sufficient for the State to achieve and maintain attainment of the
NAAQS and protect the health and welfare of facilities downwind of
these new sources, and (2) the suggestion that EPA conduct a
rulemaking, are outside the scope of this rulemaking action. The issue
of how TCEQ implements the Texas PSD SIP to make its PSD BACT
determinations is not the subject of this rulemaking action and
therefore outside the scope of this action. Based upon TCEQ's July 2010
SIP revision, which re-instates into the TCEQ rules the federal PSD
BACT definition, its PSD BACT definition is EPA's PSD BACT definition.
Comment 4: BCCA, TIP, ERCC, GCLC and TCC commented that Texas
submitted a revision to 30 TAC 116.160(a) and a new section
116.160(c)(1) and (2) on February 1, 2006, as a SIP revision to the
Texas PSD SIP. This SIP revision reorganized the earlier SIP-approved
rules. These commenters refer to TCEQ's plans to address this matter in
rulemaking that should resolve EPA concerns regarding the Texas PSD
program. See also Hall v. United States EPA, 273 F.3d 1146, 1160 (9th
Cir. 2001) stating that EPA must consider anticipated revisions in
determining whether the State will achieve attainment.
Response: EPA reviews a SIP revision submission for its compliance
with the Act and EPA regulations. CAA 110(k)(3). See also BCCA Appeal
Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003); Natural Resources
Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995).
This includes an analysis of the submitted regulations for their legal
interpretation. The Court of Appeals, in Hall v. United States EPA,
stated that ``the objective of EPA's analysis is to determine whether
the ultimate effect of a state's choice of emission limitations is
compliance with the NAAQS.'' \2\ The court did not require EPA to
consider anticipated revisions when evaluating particular revisions.
The court only required that EPA must be able to conclude the
``particular plan revision before it is consistent with the development
of an overall plan.'' \3\ At the time of EPA's proposal, the
anticipated revisions had not been submitted to EPA for approval as a
SIP revision and therefore could not be considered. In this action, EPA
has considered the subsequent revision to Texas' PSD program submitted
July 16, 2010. Based upon our evaluation of the July 2010, SIP
revision, we conclude that Texas has corrected the deficiencies
identified in the proposal.
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\2\ Id. at 1159.
\3\ Id. at 1160.
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Comment 5: BCCA and TIP commented that the term BACT has been
defined by TCEQ in strict accordance with the statutory BACT
requirement in the TCAA. Specifically, 30 TAC 116.10(3) defines BACT as
``BACT with consideration given to the technical practicability and the
economic reasonableness of reducing or eliminating emissions from the
facility.'' ERCC commented that Texas has an adequate and legally
defensible definition of BACT, which is allowable under case law, EPA
guidance, and rulings from the Environmental Appeals Board. Contrary to
EPA's statements in the proposed disapprovals, States have flexibility
in their definition of BACT and implementation of BACT as long as the
statutory factors in the BACT definition are present in the state's
analysis. The commenters commented that EPA has made no finding that
Texas' BACT definition is contrary to, or less stringent than, the
Federal definition of BACT. Nonetheless, EPA is proposing the drastic
action of disapproving the entire Texas PSD program. Such disapproval
would also discard all the benefits of the 2002 NSR Reform Rules. They
comment that EPA would place Texas permittees at a severe disadvantage
to all other permittees throughout the country that have the benefit of
the 2002 NSR reforms rules. GCLC commented that the Texas BACT
assessment process is legally valid as it has been and continues to be
in full compliance with FCAA requirements. Texas has a three-tiered
BACT approach that has been previously approved by the EPA. This
policy, as demonstrated in the TCEQ guidance document ``Evaluating Best
Avail able Control Technology (BACT) in Air Permit Applications''
outlines BACT policy in the state. Drafted in April 2001 it has been
the primary guidance document for both permittees and protestant for
BACT assessment. It predates the Texas February 2006 submittal by
almost five years and continues to be the primary guidance document
regarding BACT after the submittals; BACT has been consistently applied
by the TCEQ before and after the submitted changes to Chapter 116 of
Title 30 of the TAC.
Response: EPA disagrees with the commenters about the term PSD
BACT, the flexibility a state has in its definition of PSD BACT and
that EPA has not made a finding that Texas' BACT definition is contrary
or less stringent than the Federal definition of PSD BACT. As discussed
in the September 23, 2009, proposed disapproval of the submitted 2006
SIP revisions to 30 TAC 116.160, EPA in its original approval of the
Texas PSD SIP, specifically found that the BACT definition (derived
from the TCAA) did not meet the federal PSD BACT definition. See 54 FR
52823 (December 22, 1989) and 57 FR 28093 (July 24, 1992). For proposed
and final approval of the original Texas PSD SIP, Texas chose to
incorporate by reference the Federal PSD BACT definition and submitted
it for approval by EPA as part of the Texas PSD SIP. Upon EPA's
original approval of the Texas PSD SIP, both EPA and Texas interpreted
the TCAA BACT definition as being the Minor NSR BACT definition for
Minor NSR permits.\4\ See 74 FR 48467, at 48472, footnote 4, and
footnote 1 in this action.
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\4\ In a separate action published in today's Federal Register,
EPA is disapproving the submitted regulatory definition for BACT
(derived from the TCAA) in 30 TAC 116.10(3) because it is not clear
that this BACT applies only for Minor NSR. See that notice for
further information. We wish to note that TCEQ has proposed
revisions to the definition to clarify its use is only for Minor NSR
but has not submitted it yet to EPA for action as a SIP revision.
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EPA's review was in accordance with the requirements of the CAA.
EPA is not required to base its proposed disapproval on any
determination that (a) depended on the definition as applied, and (b)
yielded a determination less strict than would result from application
of the ``federal definition.''
Under EPA's revised major NSR SIP regulations, as promulgated on
December 31, 2002 (67 FR 80186) and reconsidered with minor changes on
November 7, 2003 (68 FR 63021), to be approved as meeting the 2002
revised major NSR SIP requirements, a State submitting a customized
major NSR SIP revision must demonstrate why its program and definitions
are in fact at least as stringent as the major NSR revised base
program. See 67 FR 80185, at 80241. Texas did not submit such a
demonstration. Furthermore, in the July 16, 2010, SIP revision
submittal, TCEQ revised 30 TAC 116.160 to incorporate into its PSD
Program the federal PSD BACT definition in 40 CFR 52.21(b)(12). Based
upon our evaluation of the July 2010, SIP revision, we conclude that
Texas has corrected the deficiencies identified in the proposal. See
response to comment 2 above for further information.
Comment 6: GCLC commented that TCEQ's three-tier approach to PSD
BACT determinations meets the requirements of section 165 of the CAA,
ensuring that facilities receiving PSD permits in the state are
required to utilize PSD BACT.
[[Page 55983]]
Response: The issue of how TCEQ implements the Texas PSD SIP to
make its PSD BACT determinations is not the subject of this rulemaking
action and therefore outside the scope of this action. The 2006
submitted revision, if approved, would have removed the PSD BACT
definition (as defined by the Act) from the Texas PSD SIP. In the July
16, 2010, SIP submittal, however, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal PSD BACT definition in 40
CFR 52.21(b)(12). Based upon our evaluation of the July 2010, SIP
revision, we conclude that Texas has corrected the deficiencies
identified in the proposal.
Comment 7: BCCA, TIP, ERCC, and TCC commented that the Texas
regulations have continuously carved out 40 CFR 52.21(j), concerning
control technology review, which is the federal BACT requirement, from
the Texas PSD regulations. This is true from 1992 when EPA first
granted authority to Texas to administer PSD permitting. As part of the
1992 approval, EPA explained why the federal control technology review
requirement of Section 52.21(j) could be properly excluded by Texas
under the federal Clean Air Act. See 54 FR 52824-52825 (Dec. 22, 1989).
EPA then stated in the final rule approving the Texas PSD program that
the federal control technology review requirement, which requires BACT
for PSD applications, was ``not necessary for approval of the Texas
Program.'' See 57 FR 28093-28094 (June 24, 1992).
Response: The 2006 SIP revision submittal removed from the State
rules the incorporation by reference of the Federal PSD definition of
``best available control technology (BACT)'' as defined in
52.21(b)(12). The currently approved Texas PSD SIP includes the Federal
definition of BACT. See 30 TAC 116.160(a). This submitted SIP revision
violates the Act and relaxes the requirements of the current Texas SIP.
In the July 16, 2010, SIP submittal, however, TCEQ revised 30 TAC
116.160 to incorporate into its PSD Program the federal PSD BACT
definition in 40 CFR 52.21(b)(12). TCEQ also incorporated by reference
40 CFR 52.21(j). TCEQ recognized that over the years since EPA's
original approval of the Texas PSD SIP, there was confusion about the
difference between the PSD BACT definition and the requirement to
conduct a PSD BACT determination versus the State's BACT definition and
the requirement to conduct a Minor NSR BACT determination. Based upon
our evaluation of the July 2010, SIP revision, we conclude that Texas
has corrected the deficiencies identified in the proposal and in
addition addressed a potential ambiguity.
Comment 8: TCC commented that one can search the entire Texas Clean
Air Act, which is the sole authority under which TCEQ can issue any
permits, and find no mention of PSD at all; again, the governing law
establishes the need for BACT for all permits, major or minor. And the
governing statute does not define BACT beyond its own terms, leaving
substantial degrees of freedom for TCEQ to compel the best available
control technology. TCEQ's implementing rules also do not further
define BACT at all, either, other than to emphasize the need for giving
``consideration * * * to the technical practicability and the economic
reasonableness of reducing or eliminating emissions from the
facility.''
Response: See responses to Comments 5 and 7.
Comment 9: TCC commented that Texas accomplishes the PSD reviews
required by Part C of Subtitle I of the federal Clean Air Act by
including various applicability provisions in its rules, but the only
effect of ``triggering'' PSD review is to require an increment analysis
(the ``significant deterioration'' review) for all preconstruction
permits for PSD projects. Again, BACT reviews are universal, and do not
depend on triggering PSD. (This is one of the great strengths of
Texas's permitting program, not a weakness). The nature of the BACT
review doesn't change depending on whether the application triggers
PSD; TCEQ determines BACT using its 3-tiered process regardless of the
size of project under review.
Response: EPA disagrees. See response to Comment 5. Furthermore,
the implementation by TCEQ of the PSD SIP is outside the scope of this
rulemaking action.
Comment 10: TCC commented that EPA may not condition approval of
Texas's permitting programs on adherence to specific definitions. SIP
approval of a PSD program is conditioned on accomplishing some very
general statutory objectives, as outlined in Section 165(a) of the
federal Clean Air Act, including mechanisms to ensure that each
proposed major source or modification is subject to the best available
control technology.\5\ Congress expressly left the particulars to each
state.\6\ Not even EPA's rules describing its expectations for
approvable SIPs mandate adoption of the exact definitions. Variations
are allowed ``if the State specifically demonstrates that the submitted
definition is more stringent, or at least as stringent, in all
respects'' as those adopted by EPA.\7\ TCEQ of course has made that
demonstration in its various SIP submittals over the years, but mostly
by decades of actual BACT determinations made pursuant to its
definition. EPA has not identified even one TCEQ BACT determination
that yielded an inadequate result because of the different definitions.
In fact, EPA has agreed that the TCEQ BACT review process is perfectly
adequate.
---------------------------------------------------------------------------
\5\ CAA Sec. 165(a)(4): 42 U.S.C. 7475(a)(4).
\6\ CAA Sec. 101(a)(3); 42 U.S.C. 7401(a)(3).
\7\ 40 CFR 51.166(b).
---------------------------------------------------------------------------
Response: EPA disagrees. See response to Comment 5. Furthermore,
TCEQ's implementation of the PSD SIP is outside the scope of this
rulemaking action.
Comment 11: ERCC commented that the proposed deficiencies fall far
short of demonstrating an interference with achieving the national
standard.
Response: As noted previously, EPA must evaluate the submitted
Program based upon the content of the regulations and associated record
that have been submitted and are currently before EPA for appropriate
approval or disapproval action. Furthermore, Texas, as a state
submitting a customized major NSR SIP revision, must demonstrate why
its program and definitions are in fact at least as stringent as the
major NSR revised base program. See 67 FR 80185, at 80241. Moreover,
EPA lacks sufficient information to determine whether the 2006
submittal would not interfere with NAAQS attainment and RFP. See
response to comment 5 above for further information. However, in the
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal PSD BACT definition in 40
CFR 52.21(b)(12), the requirements of 40 CFR 52.21(r)(4), and the
requirements of 40 CFR 52.21(j). Based upon our evaluation of the July
2010, SIP revision, we conclude that Texas has corrected the
deficiencies identified in the proposal. See response to comment 2
above for further information.
Comment 12: ERCC commented that the mere removal of a reference to
the federal definition of BACT does not create a permitting deficiency
or interfere with attainment. The mere statement that the Texas BACT
definition differs from the federal regulation fails to explain how it
interferes with the state SIP. Many States have BACT definitions in
their EPA-approved SIPs that do not conform, word for word, to the BACT
statutory language. See Connecticut--CONN. AGENCIES REGS. Sec. 22a-
174-1 (EPA effective date, February 27, 2003);
[[Page 55984]]
Maine--06-096 ME. CODE R. Sec. 100-17 (EPA effective date, November
21, 2007); New Hampshire--N.H. CODE ADMIN. R. ANN. ENV-A: Sec. 101.13
(EPA effective date, August 14, 1992); and Oklahoma--OKLA. ADMIN. CODE
Sec. 252:100-1-3 (EPA effective date, January 7, 2000).
Response: EPA disagrees. See responses to comments 5 and 11.
Furthermore, in the July 16, 2010, SIP submittal, TCEQ revised 30 TAC
116.160 to incorporate into its PSD Program the federal PSD BACT
definition in 40 CFR 52.21(b)(12). Based upon our evaluation of the
July 2010, SIP revision, we conclude that Texas has corrected the
deficiencies identified in the proposal.
Comment 13: ERCC commented that the both EPA's and Texas' BACT
definitions require the consideration of technical limitations, such as
energy and environmental concerns, as well as the economic
reasonableness of the emissions limitation, in order to determine BACT.
Compare 40 CFR 51.166(b)(12) with 30 TAC 116.111(2)(C). Further, both
processes address the same fundamental concepts as expressed in the
Clean Air Act. The key question is whether the ``state permitting
program provides a framework for adequate consideration of regulatory
criteria and consistency within the PSD program.'' In re ConocoPhillips
Co., PSD Appeal 07-02 slip op. at 30 (EAB June 2, 2008) (quoting In re
Cardinal, FG Co, 12 E.A.D. 153 at 161 (EAB 2005).
Response: See the response to comment 5. Based upon our evaluation
of the July 2010, SIP revision, we conclude that Texas has corrected
the deficiencies identified in the proposal.
Comment 14: ERCC commented that to the extent EPA is asserting that
the TCEQ staff was required to follow the exact ``top down'' approach
to BACT analysis, and that such an argument has already been disclaimed
by EPA and the Environmental Appeals Board and rejected by the U.S.
Supreme Court. As stated by EPA when it actually approved the Texas PSD
program in 1992, EPA did require Texas to follow EPA's interpretations
and guidance issued under the Act in the sense that those
pronouncements have independent status as enforceable provisions of the
Texas PSD SIP. See 57 FR 28095 (June 24, 1992). During this same
approval promulgation, EPA expressly confirmed that the State of Texas
is not required to follow the EPA ``top down'' approach to BACT. Id. at
28095-6. Likewise in the case of Alaska Department of Environmental
Conservation v. EPA, 540 U.S. 461, 476 n. 7 (2004), the U.S. Supreme
Court wrote: ``Nothing in the act or its implementing regulations
mandates top-down analysis.'' The ability to deviate from the top-down
analysis is also supported by the Environmental Appeals Board, which
has recognized in prior rulings the permitting authority's ability to
vary from the NSR review manual as long as all regulatory criteria are
considered and applied appropriately. ConocoPhillips, PSD Appeal 07-02
slip op. at 30 (EAB June 2, 2008) (citing In re Knauf Fiber Glass GmbH,
8 E.A.D. 121 at 129-30 n. 14, 135 n.25). Absent a showing from EPA that
the Texas definition of BACT somehow inescapably leads to failure to
consider and apply the appropriate regulatory criteria, or inexorably
leads to the NAAQS not being protected, EPA must defer to the State's
authority under the Clean Air Act to address air quality issues. Texas'
BACT definition has resulted in some of the most stringent pollution
control emission rates in the United States. EPA has not identified one
instance where application of Texas' BACT definition resulted in less
pollution control than if EPA's top down analysis was used. The issue
that EPA has identified is non-substantive and solely one of semantics.
Response: EPA's proposed disapproval is not based on an evaluation
of the Texas three-tier approach; it is based on an evaluation of the
submitted revision. See our response to Comments 4, 5 and 11. The
comments on the approaches and implementation of the PSD SIP by TCEQ
are outside the scope of this rulemaking action. Furthermore, in the
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal PSD BACT definition in 40
CFR 52.21(b)(12). Based upon our evaluation of the July 2010, SIP
revision, we conclude that Texas has corrected the deficiencies
identified in the proposal.
Comment 15: GCLC commented that furthermore, EPA has voiced its
support for Texas three-tier approach during negotiations with TCEQ
over these issues. While responding to TCEQ submittals, the EPA on
October 27, 2008, stated that it ``agreed with many'' of the statements
made by TCEQ defending their BACT program in a June 13, 2008,
letter.\8\ TCEQ statements included that, to its understanding, the
three-tiered approach is an acceptable and approved approach by the
EPA. If the EPA did have concerns with that assessment, the EPA had the
opportunity to voice them at that time or since Texas (and other
states) began using this type of three-tiered approach.
---------------------------------------------------------------------------
\8\ Letter from Carl E. Edlund, Director, EPA Multimedia
Planning and Permitting Division to Mark Vickery, Executive
Director, Texas Commission on Environmental Quality. (Oct. 27, 2008)
available at http://www.tceq.state.tx.us/assets/public/permitting/air/Announcements/epa_response_10_27_08.pdf.
---------------------------------------------------------------------------
Response: Implementation by the State of its PSD SIP is outside the
scope of this rulemaking action.
Comment 16: TCC commented that EPA's proposal to disapprove this
rule is based in part on false distinctions between what it refers to
as ``PSD BACT'' and ``Minor NSR BACT.'' Assuming such distinctions, EPA
concludes that the Texas rules fail to clearly apply the ``PSD
definition of BACT'' to all actions subject to PSD, and conversely
fails to delimit the minor NSR definition to activities triggering only
minor NSR. But there are no distinctions, legal or practical, in Texas
BACT reviews.
Response: EPA disagrees. See our response to Comment 5. Based upon
our evaluation of the July 2010, SIP revision, we conclude that Texas
has corrected the deficiencies identified in the proposal.
Comment 17: BCCA and TIP commented that the preamble to the 2006
revisions to 30 TAC 116.160 in which the incorporations by reference of
40 CFR 52.21 were changed, demonstrate a consistency with the approach
taken by the State in the preceding years. The preamble explains the
incorporation by reference of certain sections of 40 CFR 52.21 and
further states, ``[o]ther definitions used for the PSD program or
visibility in Class I areas program are currently in [TCEQ's] rules.''
\9\
---------------------------------------------------------------------------
\9\ 31 Tex. Reg. 519 (Jan. 27, 2006).
---------------------------------------------------------------------------
Response: The 2006 revisions to 30 TAC 116.160 did not just
``change'' the incorporations by reference of 40 CFR 52.21; they
removed two of them entirely. The result is that the submitted 2006
revision did not meet the Act's PSD requirements and EPA's PSD SIP
regulations. Moreover, the State did not provide the requisite
demonstration to show how its customized Major NSR SIP revision was at
least as stringent as EPA's PSD SIP requirements. Furthermore, in the
July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal PSD BACT definition in 40
CFR 52.21(b)(12) and the provisions of 40 CFR 52.21(r)(4). Based upon
our evaluation of the July 2010, SIP revision, we conclude that Texas
has corrected the deficiencies identified in the proposal. See response
to comment 2 above for further information.
[[Page 55985]]
Comment 18: BCCA and TIP commented that the appropriate BACT
definition exists in Texas's rules, as demonstrated by EPA's past
approval of those rules. All permits Texas has issued under the
existing permitting program reflect the current TCEQ SIP-approved
approach to BACT, and are valid and enforceable.
Response: EPA disagrees that the 2006 SIP revision submittal
maintained the appropriate PSD BACT definition. See the response to
Comment 5. Furthermore, in the July 16, 2010, SIP submittal, TCEQ
revised 30 TAC 116.160 to incorporate into its PSD Program the federal
PSD BACT definition in 40 CFR 52.21(b)(12). Based upon our evaluation
of the July 2010, SIP revision, we conclude that Texas has corrected
the deficiencies identified in the proposal. Comments on the
implementation by the State of the PSD SIP are outside the scope of
this rulemaking action.
Comment 19: TCC commented that Texas law does not create two
different types of permits, one called a minor NSR permit and one
called a PSD permit. There is only one kind of pre-construction permit
described in the Texas Clean Air Act, a ``preconstruction permit''
under Texas Health & Safety Code Sec. 382.05 18(b). The issuance of
all such permits is conditioned on use of ``best available control
technology.''
Response: EPA disagrees. See responses to comments 5 and 18. Based
upon our evaluation of the July 2010, SIP revision, we conclude that
Texas has corrected the deficiencies identified in the proposal.
Comment 20: TCC commented that the definitions do not determine
stringency. The stringency of BACT determinations are not determined by
definitions, anyway. Even the far wordier ``federal definition'' is but
a litany of factors that go into what is inevitably a highly
discretion-laden determination. A more ``specific'' definition, it may
truly be argued, has the effect of being less stringent, because it
limits the factors to be considered. Absent a definition of BACT beyond
its own self-description, TCEQ is free to be even stricter than the
wordier federal definition. Again, the proposed disapproval fails to
identify even one determination that (a) depended on the definition
applied, and (b) yielded a determination less strict than would
resulted from application of the ``federal definition.''
Response: See response to comment 5.
Comment 21: TCC commented that EPA itself does not follow the
``federal definition.'' EPA is in a difficult position to insist on
word-for-word adoption when it does not itself follow the federal
definition. The definition EPA would impose on the states is not the
one that Congress prescribes. Which federal definition would EPA like
Texas to follow, the one in its rule or the one in its governing
statute? In what way does either ``federal definition'' necessarily
require BACT determinations any more strict than the Texas definition?
Response: The differences between the regulatory definition of PSD
BACT at 40 CFR 52.21(b)(12) and the statutory definition of that term
in section 169(3) of the Act are not significant and the regulatory
definition of PSD BACT is consistent with the statutory definition. We
addressed the reasons why the federal BACT definition is more stringent
than the Texas definition in the proposal at 74 FR 48467, at 48472.
Also see our response to comment 5 above for further information. To
the extent this comment relates to TCEQ's implementation of the PSD
SIP, it is outside the scope of this rulemaking action. Finally, based
upon our evaluation of the July 2010, SIP revision, we conclude that
Texas has corrected the deficiencies identified in the proposal.
Comment 22: TCC commented that the proposed disapproval draws on
distinctions without differences. The definition is designed to
identify relevant factors that go into what is ultimately a highly
discretion-laden determination. No matter the definition, the objective
is the same. And no matter the definitions, the resources consulted for
each BACT determination are the same. In Texas, for example, all BACT
determinations are made using its 3-tier process, which elaborates in
detail how TCEQ makes the determinations. All reviews are based on
consideration of national determinations codified in the RACT/BACT/LAER
Clearinghouse; EPA has agreed that this process yields results
equivalent to its top-down approach, which itself is not compelled by
any definition. In both cases, responsible agencies make discretionary
determinations based on aggressive efforts to ensure that new
technologies are applied when they become available to new sources.
Pharisaical parsing over definitions does not accomplish sound BACT
determinations, which instead result from good faith efforts by
responsible regulators.
Response: EPA disagrees. See responses to comments 5, 7, and 14.
TCEQ's implementation of the PSD SIP is outside the scope of this
rulemaking action. Based upon our evaluation of the July 2010, SIP
revision, we conclude that Texas has corrected the deficiencies
identified in the proposal.
Comment 23: TCC commented that to the very extent there were
differences in a result based on the definition; EPA would be
prohibited from disapproving the definition. EPA presumes without proof
a difference in result arising out of TCEQ's BACT definition. But,
regardless, EPA cannot elect to approve the broader reach of the Texas
program (e.g., application of BACT to all sources), but disapprove what
it perceives to be a lesser definition of BACT. States are the primary
architects of their implementation plans, and EPA is not free to change
the state's choices by selective approvals of interrelated elements.
Accordingly, the extent to which EPA would make any substantive changes
in TCEQ's permitting program by selectively disapproving its BACT
definition is the very extent to which it is forbidden to disapprove
it. EPA must either accept the permit program or reject it in its
entirety, and not cut it to pieces so that it looks like a ransom note.
Response: EPA disagrees. See response to Comments 5, 7, and 14.
TCEQ's implementation of the PSD SIP is outside the scope of this
rulemaking action. Based upon our evaluation of the July 2010, SIP
revision, we conclude that Texas has corrected the deficiencies
identified in the proposal.
Comment 24: The Clinic commented (under Docket No. EPA-R06-OAR-
2006-0133) on EPA's proposed disapproval of TCEQ's rules that removed a
requirement under 40 CFR 52.21(r)(4) that provides that if a project
becomes a major stationery source or major modification solely because
or relaxation of an enforceable limitation on the source or
modifications capacity to emit the pollutant, then the source or
modification is subject to PSD as though construction had not
commenced. This provision prohibits the use of ``sham'' operational
limits that a source may take to avoid PSD and provides an extra
deterrent to facilities that may take such limits that they know they
cannot achieve in order to avoid federal permitting. Approval of this
deletion also violates the anti-backsliding provisions in 42 U.S.C.
7515 and would render the Texas SIP less stringent that federal
requirements and inadequate for preventing significant deterioration of
air quality.
Response: EPA appreciates the Clinic's support for the proposal. In
the July 16, 2010, SIP submittal, TCEQ revised 30 TAC 116.160 to
incorporate into its PSD Program the federal requirements of 40 CFR
52.21(r)(4). Based upon our evaluation of the July 2010, SIP revision,
we conclude that Texas has corrected the deficiencies
[[Page 55986]]
identified in the proposal. See response to comment 2 above for further
information.
V. What are the grounds for approval?
A. Adoption of Cross-Reference to 40 CFR 52.21(b)(12), Which Is the
Federal Definition of Best Available Control Technology (BACT), and the
Cross-Reference of 40 CFR 52.21(j) Which Implements the Requirement for
a PSD BACT Analysis
The February 1, 2006, submittal of revisions to 30 TAC 116.160
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. EPA
observed that under the PSD Program, PSD BACT is a central requirement
of the Act and that the State's submission of a revision that removes
the requirement that all new major stationary sources and modifications
meet, at a minimum, PSD BACT as defined by the Act creates a situation
where the submitted SIP revision would violate the Act and also be a
relaxation of the requirements of the Texas PSD SIP. See the proposed
disapproval at 74 FR 48467, at 48472. On July 16, 2010, Texas submitted
a revision to 30 TAC 116.160 that reinstates the federal PSD BACT
definition in 40 CFR 52.21(b)(12). See submitted 30 TAC
116.160(c)(1)(A). The revision also includes a reference to 40 CFR
52.21(j) which implements the BACT definition. See submitted 30 TAC
116.160(c)(2)(A).
The adoption of the reference to the federal definition of PSD BACT
in 40 CFR 52.21(b)(12) corrects a deficiency in the 2006 submittal
because it reinstates a requirement that is a central requirement of
the Act. Approval of this 2010 revision maintains the Texas PSD SIP as
what EPA first approved in 1992.
The TCEQ also submitted on July 16, 2010, a revision to 30 TACT
116.160 that adds a reference to 40 CFR 52.21(j)--Control technology
review. This provision was not referenced in the Texas PSD SIP approved
in 1992. Texas chose to reference 40 CFR 52.21(j) because of the
confusion over the years about the PSD versus the Minor NSR BACT
determination requirements. It complements the reinserted federal
definition of PSD BACT. Accordingly, EPA is approving the reinstatement
of the reference to federal PSD BACT in 40 CFR 52.21(b)(21) and the
addition of a reference to 40 CFR 52.21(j).
B. Adoption of Cross-Reference to 40 CFR 52.21(r)(4), Which Relates to
PSD Review for Projects That Become Major Stationary Sources or Major
Modifications Solely Because of Relaxation of an Enforceable Limitation
on the Source or Modification Capacity to Emit a Pollutant
The February 1, 2006, submittal of revisions to 30 TAC 116.160 also
removed the reference to 40 CFR 52.21(r)(4) that the State had
previously incorporated into its PSD SIP. This provision specifies that
if a project becomes a major stationary source or major modification
solely because of a relaxation of an enforceable limitation on the
source's or modification's capacity to emit a pollutant, then the
source or modification is subject to PSD as if construction had not yet
commenced. The removal of this requirement meant that the State's rules
would not regulate these types of major stationary sources or major
modifications as stringently as the federal program. See the proposed
disapproval at 74 FR 48467, at 48472. On July 16, 2010, Texas submitted
a revision to 30 TAC 116.160 that reinstates the reference to 40 CFR
52.21(r)(4). See submitted 30 TAC 116.160(c)(2)(C).
The adoption of the reference to 40 CFR 52.21(r)(4) in the July
2010 submittal corrects a deficiency in the 2006 submittal because it
reinstates a requirement that is mandated in the federal program.
Approval of this 2010 revision maintains the Texas PSD SIP to its
status when EPA first approved the SIP in 1992. Accordingly, EPA is
approving the reinstatement of the reference to 40 CFR 52.21(r)(4).
C. How EPA's action does not affect the substance of the Texas PSD SIP
originally approved in 1992?
The 2006 and 2010 SIP revisions to 30 TAC 116.160 reorganized the
sections but made no substantive changes to the approved SIP except
that the 2006 submittal omitted references to the definition of PSD
BACT in 40 CFR 52.21(b)(12) and the requirements of 40 CFR 52.21(r)(4)
which resulted in the 2006 revisions not meeting the federal
requirements. See sections IV.A and B above. The 2010 SIP revision
submittal reinstates these provisions into the State's rules and
corrects the above-identified deficiencies. Texas also added a
reference to 40 CFR 52.21(j)--Control technology review--which
complements the implementation of the definition PSD BACT. The specific
changes are described in section II of this notice. A detailed outline
of the specific changes made to 30 TAC 116.160 by the 2006 and 2010 SIP
revisions is available in the Technical Support Document which is in
the docket for this action. Our evaluation of these changes
demonstrates that the submitted changes to the Texas PSD Program are
insignificant and with the changes submitted in 2010 essentially
restore the Program to what it was in 1992. The 2006 revision also
removed the definitions of ``building, structure, facility, or
installation'' and ``secondary emissions'' in 30 TAC 116.160(c)(1) and
(2), respectively. The removal of these definitions is not significant
because these terms are also defined using the same definitions in the
Texas SIP at 30 TAC 116.12(4) and (17), respectively, as approved at 74
FR 11851 (March 20, 2009).
For further information see:
The 1989 proposed Texas PSD SIP approval at 54 FR 52823,
at 52824-52825 (December 22, 1989);
The final Texas PSD SIP approval at 57 FR 28093, at 28095-
28096 (July 24, 1992);
The proposed disapproval of the February 1, 2006,
submitted revisions to 30 TAC 116.160 at 74 FR 48467, at 48472;
The submitted SIP revisions to 30 TAC 116.160 dated July
16, 2010;
The background for this action in section II of this
preamble;
The responses to comments 1 through 26 in section III of
this preamble; and
The technical support document for this action.
VI. Final Action
The EPA is approving certain revisions to the Texas PSD SIP,
submitted February 1, 2006, and as amended July 16, 2010, which apply
to 30 TAC Chapter 116--Control of Air Pollution by Permits for New
Construction or Modification. EPA finds that the July 16, 2010,
submittal corrects these deficiencies in the February 1, 2006,
submission identified in the September 23, 2009, proposed disapproval
of revisions to 30 TAC 116.160. These revisions submitted in 2006 were
nonsubstantive except for the removal of the PSD BACT definition and
the removal of the reference to 40 CFR 52.21(r)(4). With the
restoration of the PSD BACT definition and the reference to 40 CFR
52.21(r)(4) and the addition of a reference to 40 CFR 52.21(j) in the
Texas NSR Program, we find that the aspects of the submitted PSD
Program covered in these submissions meet section 110 and part C of the
Act.
[[Page 55987]]
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no relevant 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 November 15, 2010
without further notice unless we receive relevant adverse comment by
October 15, 2010. If we receive relevant adverse comments, we will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. We will address all public
comments 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 at this time. Please note that if
we receive relevant 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.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 15, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides,
Volatile organic compounds.
Dated: August 31, 2010.
Al Armendariz,
Regional Administrator, Region 6.
0
Accordingly, 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
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2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 116 (Reg 6)--Control of Air
Pollution by Permits for New Construction or Modification, Subchapter
B--New Source Review Permits, Division 6--Prevention of Significant
Deterioration Review, by revising the entry for Section 116.160--
Prevention of Significant Deterioration Review to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 55988]]
EPA Approved Regulations in the Texas SIP
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State approval/
State citation Title/subject submittal date EPA approval date Explanation
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* * * * * * *
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Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
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* * * * * * *
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Subchapter B--New Source Review Permits
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* * * * * * *
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Division 6--Prevention of Significant Deterioration Review
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Section 116.160................ Prevention of 6/2/2010 9/15/2010 [Insert ....................
Significant FR page number
Deterioration where document
Requirements. begins].
* * * * * * *
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* * * * *
[FR Doc. 2010-22672 Filed 9-14-10; 8:45 am]
BILLING CODE 6560-50-P