[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Proposed Rules]
[Pages 48467-48478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22806]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0133; FRL-8958-7]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to the New Source Review (NSR) State Implementation Plan
(SIP); Prevention of Significant Deterioration (PSD), Nonattainment NSR
(NNSR) for the 1997 8-Hour Ozone Standard, NSR Reform, and a Standard
Permit
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: EPA is proposing disapproval of submittals from the State of
Texas, through the Texas Commission on Environmental Quality (TCEQ), to
revise the Texas Major and Minor NSR SIP. We are proposing to
disapprove the submittals because they do not meet the 2002 revised
Major NSR SIP requirements. We are proposing to disapprove the
submittals as not meeting the Major Nonattainment NSR SIP requirements
for implementation of the 1997 8-hour ozone national ambient air
quality standard (NAAQS) and the 1-hour ozone NAAQS. Additionally, EPA
is proposing to disapprove the submittals to revise the Texas Major PSD
NSR SIP. Finally, EPA proposes disapproval of the submitted Standard
Permit (SP) for Pollution Control Projects (PCP) because it does not
meet the requirements for a minor NSR SIP revision.
EPA is taking comments on this proposal and intends to take final
action. EPA is proposing these actions under section 110, part C, and
part D,
[[Page 48468]]
of the Federal Clean Air Act (the Act or CAA).
DATES: Any comments must arrive by November 23, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2006-0133, 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].
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number 214-665-7263.
Mail: Stanley M. Spruiell, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: 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 am and 4 pm 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-
2006-0133. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 www.regulations.gov or e-mail.
The 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 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 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
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 www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 am and 4:30 pm weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below 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 submittals are also available for public inspection at
the State Air Agency 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, the following terms have the meanings
described below:
``We,'' ``us,'' and ``our'' refer to EPA.
``Act'' and ``CAA'' means Clean Air Act.
``40 CFR'' means Title 40 of the Code of Federal
Regulations-- Protection of the Environment.
``SIP'' means State Implementation Plan as established
under section 110 of the Act.
``NSR'' means new source review, a phrase intended to
encompass the statutory and regulatory programs that regulate the
construction and modification of stationary sources as provided under
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160
through 51.166.
``Minor NSR'' means NSR established under section 110 of
the Act and 40 CFR 51.160.
``NNSR'' means nonattainment NSR established under Title
I, section 110 and part D of the Act and 40 CFR 51.165.
``PSD'' means prevention of significant deterioration of
air quality established under Title I, section 110 and part C of the
Act and 40 CFR 51.166.
``Major NSR'' means any new or modified source that is
subject to NNSR and/or PSD.
``TSD'' means the Technical Support Document for this
action.
``NAAQS'' means national ambient air quality standards
promulgated under section 109 of that Act and 40 CFR part 50.
``PAL'' means ``plantwide applicability limitation.''
``PCP'' means ``pollution control project.''
``TCEQ'' means ``Texas Commission on Environmental
Quality.''
Table of Contents
I. What Action is EPA Proposing?
II. What are the Other Relevant Proposed Actions on the Texas
Permitting SIP Revision Submittals?
III. What has the State Submitted?
IV. Do the Submitted SIP Revisions Meet the Major PSD NSR SIP
Requirements?
A. What are the Requirements for EPA's Review of a Submitted
Major NSR SIP Revision?
B. Do the Submitted SIP Revisions Meet the Act and the PSD SIP
requirements?
V. Do the Submitted SIP Revisions Meet the Major Nonattainment NSR
SIP Requirements for the 1-Hour and the 1997 8-Hour Ozone NAAQS?
A. What are the Anti-Backsliding Major Nonattainment NSR SIP
Requirements for the 1-hour Ozone NAAQS?
B. What are the Major Nonattainment NSR SIP Requirements for of
the 1997 8-hour Ozone NAAQS?
VI. Do the Submitted SIP Revisions Meet the Major NSR SIP
Requirements?
A. Do the SIP Revision Submittals Meet the Major NSR SIP
Requirements with a PALs Provision?
B. Do the Submitted SIP Revisions Meet the Non-PAL Aspects of
the Major NSR SIP Requirements?
VII. Does the Submitted PCP Standard Permit Meet the Minor NSR SIP
Requirements?
VIII. What is Our Evaluation of Other SIP Revision Submittals?
IX. Proposed Action
X. Statutory and Executive Order Reviews
[[Page 48469]]
I. What Action is EPA Proposing?
We are proposing to disapprove the SIP revisions submitted by Texas
on June 10, 2005, and February 1, 2006, as not meeting the 1997 8-hour
ozone major nonattainment NSR SIP requirements, and as not meeting the
Act and Major Nonattainment NSR SIP requirements for the 1-hour ozone
NAAQS. We are proposing to disapprove the SIP revision submitted by
Texas on February 1, 2006, as not meeting the Major NSR Reform SIP
requirements for PAL provisions and the Major NSR Reform SIP
requirements without the PAL provisions. We are proposing to disapprove
the February 1, 2006, SIP revision submittal as not meeting the Act and
the Major NSR PSD SIP requirements. Finally, we are proposing to
disapprove the Standard Permit (SP) for PCP submitted February 1, 2006,
as not meeting the Minor NSR SIP requirements. It is EPA's position
that each of these six identified portions in the SIP revision
submittals, 8-hour ozone, 1-hour ozone, PALs, non PALs, PSD, and PCP
Standard Permit is severable from each other.
We are taking no action on the portions of the June 10, 2005,
submittal concerning 30 TAC 101.1 Definitions, section 112(g) of the
Act, and Emergency Orders.
We have evaluated the SIP submissions for whether they meet the Act
and 40 CFR Part 51, and are consistent with EPA's interpretation of the
relevant provisions. Based upon our evaluation, EPA has concluded that
each of the six portions of the SIP revision submittals does not meet
the requirements of the Act and 40 CFR part 51. Therefore, each portion
of the State submittals is not approvable. As authorized in sections
110(k)(3) and 301(a) of the Act, where portions of the State submittal
are severable, EPA may approve the portions of the submittal that meet
the requirements of the Act, take no action on certain portions of the
submittal,\1\ and disapprove the portions of the submittal that do not
meet the requirements of the Act. When the deficient provisions are not
severable from the all of the submitted provisions, EPA must propose
disapproval of the submittals, consistent with section 301(a) and
110(k)(3) of the Act. Each of the six portions of the State submittals
is severable from each other. Therefore, EPA is proposing to disapprove
each of the following severable provisions of the submittals: (1) The
submitted 1997 8-hour ozone NAAQS Major Nonattainment NSR SIP revision,
(2) the submitted 1-hour ozone NAAQS Major NNSR SIP revision, (3) the
submitted Major NSR reform SIP revision with PAL provisions, (4) the
submitted Major NSR reform SIP revision with no PAL provisions, (5) the
submitted Major NSR PSD SIP revision, and (6) the submitted Minor NSR
Standard Permit for PCP SIP revision.
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\1\ In this action, we are taking no action on certain
provisions that are either outside the scope of the SIP or which
revise an earlier submittal of a base regulation that is currently
undergoing review for appropriate action.
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Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a mandatory requirement of the Act starts a sanctions
clock and a Federal Implementation Plan (FIP) clock. The provisions in
these submittals were not submitted to meet a mandatory requirement of
the Act. Therefore, if EPA takes final action to disapprove any
provision of the submittals, no sanctions and FIP clocks will be
triggered.
II. What are the Other Relevant Proposed Actions on the Texas
Permitting SIP Revision Submittals?
This proposed action should be read in conjunction with two other
proposed actions appearing elsewhere in today's Federal Register, (1)
proposed action on the Texas NSR SIP, the Flexible Permits Program, and
(2) proposed action on the Texas NSR SIP, the Qualified Facilities
Program and the General Definitions.\2\ Also, on November 26, 2008, EPA
proposed limited approval/limited disapproval of the Texas submittals
relating to public participation for air permits of new and modified
facilities (73 FR 72001). EPA believes these actions should be read in
conjunction with each other because the permits issued under these
State programs are the vehicles for regulating a significant universe
of the air emissions from sources in Texas and thus directly impact the
ability of the State to achieve and maintain attainment of the NAAQS
and protect the health of the communities where these sources are
located. The basis for proposing these actions is outlined in each
notice and accompanying technical support document (TSD). Those
interested in any one of these actions are encouraged to review and
comment on the other proposed actions as well.
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\2\ In that proposed action, the submitted definition of BACT is
not severable from the proposed action on the PSD SIP revision
submittals. EPA may choose to take final action on the definition of
BACT in the NSR SIP final action rather than in the Qualified
Facilities and the General Definitions final actions. EPA is
obligated to take final action on the submitted definitions in the
General Definitions for those identified as part of the Texas
Qualified Facilities State Program, the Texas Flexible Permits State
Program, Public Participation, Permit Renewals (there will be a
proposed action published at a later date), and this BACT definition
as part of the NSR SIP.
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EPA intends to take final action on the State's Public
Participation SIP revision submittals in November 2009. EPA intends to
take final action on the submitted Texas Qualified Facilities State
Program by March 31, 2010, the submitted Texas Flexible Permits State
Program by June 30, 2010, and the NSR SIP on August 31, 2010. These
dates are expected to be mandated under a Consent Decree (see, Notice
of Proposed Consent Decree and Proposed Settlement Agreement, 74 FR
38015, July 30, 2009).
III. What has the State Submitted?
This notice provides a summary of our evaluation of Texas' June 10,
2005, and February 1, 2006, SIP revision submittals. We provide our
reasoning in general terms in this preamble, but provide a more
detailed analysis in the TSD that has been prepared for this proposed
rulemaking. Because we are proposing to disapprove the submittals based
on the inconsistencies discussed herein, we have not attempted to
review and discuss all of the issues that would need to be addressed
for approval of these submittals as Major NSR SIP revisions.
On June 10, 2005, Texas submitted revisions to Title 30 of the
Texas Administrative Code (30 TAC) Chapter 116--Control of Air
Pollution by Permits for New Construction or Modification, revising 30
TAC 116.12--Nonattainment Definitions \3\--and 30 TAC 116.150--New
Major Source or Major Modification in Ozone Nonattainment Areas, to
meet the Major Nonattainment NSR requirements for Phase I of the 1997
8-hour NAAQS for ozone as promulgated April 30, 2004 (69 FR 23951). The
June 10, 2005, submittal also includes revisions to the definitions in
30 TAC 101.1--Definitions.
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\3\ In the Texas SIP and in the June 10, 2005, SIP submittal,
the title of 30 TAC 116.12 is ``Nonattainment Review Definitions.''
In the February 1, 2006, SIP submittal, 30 TAC 116.12 was renamed
``Nonattainment and Prevention of Significant Deterioration Review
Definitions.''
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On February 1, 2006, Texas submitted revisions to 30 TAC Chapter
116--Control of Air Pollution by Permits for New Construction or
Modification, to implement the Major NSR Reform SIP requirements with
the PAL provisions and without the PAL provisions. The submittal also
included revisions for the Texas PSD SIP and a new Minor NSR Standard
Permit for Pollution Control Projects. This submittal includes the
following changes:
[[Page 48470]]
Revisions to the following sections: 30 TAC 116.12--
Nonattainment and Prevention of Significant Deterioration Review
Definitions, 30 TAC 116.150--New Major Source or Major Modification in
Ozone Nonattainment Areas, 30 TAC 116.151--New Major Source or Major
Modification in Nonattainment Areas Other Than Ozone, 30 TAC 116.160--
Prevention of Significant Deterioration Requirements, and 30 TAC
116.610(a), (b), and (d) --Applicability;
Addition of the following new sections: 30 TAC 116.121--
Actual to Projected Actual Test for Emissions Increases, 30 TAC
116.180--Applicability, 30 TAC 116.182--Plant-Wide Applicability Limit
Application, 30 TAC 116.184--Application Review Schedule, 30 TAC
116.186--General and Special Conditions, 30 TAC 116.188--Plantwide
Applicability Limit, 30 TAC 116.190--Federal Nonattainment and
Prevention of Significant Deterioration Review, 30 TAC 116.192--Permit
Amendments and Alterations, 30 TAC 116.194--Public Notice and Comment,
30 TAC 116.196--Renewal of Plant-Wide Applicability Limit Permit, and
30 TAC 116.198--Expiration or Voidance.
Removal of 30 TAC 116.617--Standard Permit for Pollution
Control Projects and replacement with new 30 TAC 116.617--State
Pollution Control Project Standard Permit.
The table below summarizes the changes that are in the two SIP
revisions submitted June 10, 2005, and February 1, 2006. A summary of
EPA's evaluation of each section and the basis for this proposal is
discussed in sections IV, V, VI, and VII of this preamble. The TSD
includes a detailed evaluation of the submittals.
Table--Summary of Each SIP Submittal That is Affected by This Action
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Submittal Description of
Section Title dates change Proposed action
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Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
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30 TAC 116.12.................... Nonattainment 6/10/2005 Changed several Disapproval.
Review Definitions. definitions to
implement Federal
phase I rule
implementing 8-
hour ozone
standard.
Nonattainment 2/1/2006 Renamed section and Disapproval.
Review and added and revised
Prevention of definitions to
Significant implement Federal
Deterioration NSR Reform
Definitions. regulations.
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Subchapter B--New Source Review Permits
Division 1--Permit Application
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30 TAC 116.121................... Actual to Projected 2/1/2006 New Section........ Disapproval.
Actual Test for
Emissions Increase.
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Division 5--Nonattainment Review
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30 TAC 116.150................... New Major Source or 6/10/2005 Revised section to Disapproval.
Major Modification implement Federal
in Ozone phase I rule
Nonattainment Area. implementing 8-
hour ozone
standard.
2/1/2006 Revised section to Disapproval.
implement Federal
NSR Reform
regulations.
30 TAC 116.151................... New Major Source or 2/1/2006 Revised section to Disapproval.
Major Modification implement Federal
in Nonattainment NSR Reform
Areas Other Than regulations.
Ozone.
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Division 6--Prevention of Significant Deterioration Review
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30 TAC 116.160................... Prevention of 2/1/2006 Revised section to Disapproval.
Significant implement Federal
Deterioration NSR Reform
Requirements. regulations.
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Subchapter C--Plant-Wide Applicability Limits
Division 1--Plant-Wide Applicability Limits
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30 TAC 116.180................... Applicability...... 2/1/2006 New Section........ Disapproval.
30 TAC 116.182................... Plant-Wide 2/1/2006 New Section........ Disapproval.
Applicability
Limit Permit
Application.
30 TAC 116.184................... Application Review 2/1/2006 New Section........ Disapproval.
Schedule.
30 TAC 116.186................... General and Special 2/1/2006 New Section........ Disapproval.
Conditions.
30 TAC 116.188................... Plant-Wide 2/1/2006 New Section........ Disapproval.
Applicability
Limit.
30 TAC 116.190................... Federal 2/1/2006 New Section........ Disapproval.
Nonattainment and
Prevention of
Significant
Deterioration
Review.
30 TAC 116.192................... Amendments and 2/1/2006 New Section........ Disapproval.
Alterations.
30 TAC 116.194................... Public Notice and 2/1/2006 New Section........ Disapproval.
Comment.
[[Page 48471]]
30 TAC 116.196................... Renewal of a Plant- 2/1/2006 New Section........ Disapproval.
Wide Applicability
Limit Permit.
30 TAC 116.198................... Expiration and 2/1/2006 New Section........ Disapproval.
Voidance.
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Subchapter E--Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec.
112(g), 40 CFR Part 63) \a\
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30 TAC 116.400................... Applicability...... 2/1/2006 Recodification from No action.
section 116.180.
30 TAC 116.402................... Exclusions......... 2/1/2006 Recodification from No action.
section 116.181.
30 TAC 116.404................... Application........ 2/1/2006 Recodification from No action.
section 116.182.
30 TAC 116.406................... Public Notice 2/1/2006 Recodification from No action.
Requirements. section 116.183.
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Subchapter F--Standard Permits
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30 TAC 116.610................... Applicability...... 2/1/2006 Revised paragraphs Disapproval, No
(a), (a)(1) action on
through (a)(5), paragraph (d).
(b), and (d).\b\
30 TAC 116.617................... State Pollution 2/1/2006 Replaced former 30 Disapproval.
Control Project TAC 116.617--
Standard Permit. Standard Permit
for Pollution
Control
Projects.\c\
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Subchapter K--Emergency Orders \d\
----------------------------------------------------------------------------------------------------------------
30 TAC 116.1200.................. Applicability...... .............. Recodification from No action.
30 TAC 116.410.
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\a\ Recodification of former Subchapter C. These provisions are not SIP-approved.
\b\ 30 TAC 116.610(d) is not SIP-approved.
\c\ 30 TAC 116.617 is not SIP-approved.
\d\ Recodification of former Subchapter E. These provisions are not SIP-approved.
IV. Do the Submitted SIP Revisions Meet the Major NSR PSD SIP
Requirements?
A. What are the Requirements for EPA's Review of a Submitted Major NSR
SIP Revision?
Before EPA's 1980 revised major NSR SIP regulations, 45 FR 52676
(August 7, 1980), States were required to adopt and submit a major NSR
SIP revision where the State's provisions and definitions were
identical to or individually more stringent than the Federal rules.
Under EPA's 1980 revised major NSR SIP regulations, States could submit
provisions in a major NSR SIP revision different from those in EPA's
major NSR rules, as long as the State provision was equivalent to a
rule identified by EPA as appropriate for a ``different but
equivalent'' State rule. If a State chose to submit definitions that
were not verbatim, the State was required to demonstrate any different
definition has the effect of being as least as stringent. (Emphasis
added.) See 45 FR 52676, at 52687. The demonstration requirement was
explicitly expanded to include not just different definitions but also
different programs in the EPA's revised major NSR regulations, as
promulgated on December 31, 2002 (67 FR 80186) and reconsidered with
minor changes on November 7, 2003 (68 FR 63021). Therefore, 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. (Emphasis added). See 67 FR 80186,
at 80241.
Moreover, because there is an existing Texas Major NSR SIP, the
submitted Program must meet the anti-backsliding provisions of the Act
in section 193 and meet the requirements in section 110(l) which
provides that EPA may not approve a SIP revision if it will interfere
with any applicable requirement concerning attainment and reasonable
further progress or any other applicable requirement of the Act.
Furthermore, any submitted SIP revision must meet the applicable SIP
regulatory requirements and the requirements for SIP elements in
section 110 of the Act, and be consistent with applicable statutory and
regulatory requirements. These can include, among other things,
enforceability, compliance assurance, replicability of an element in
the program, accountability, test methods, and whether the submitted
rules are vague. There are four fundamental principles for the
relationship between the SIP and any implementing instruments, e.g.,
Major NSR permits. These four principles as applied to the review of a
major or minor NSR SIP revision include: (1) The baseline emissions
from a permitted source be quantifiable; (2) the NSR program be
enforceable by specifying clear, unambiguous, and measurable
requirements, including a legal means for ensuring the sources are in
compliance with the NSR program, and providing means to determine
compliance; (3) the NSR program's measures be replicable by including
sufficiently specific and objective provisions so that two independent
entities applying the permit program's procedures would obtain the same
result; and (4) the major NSR permit program be accountable, including
means to track emissions at sources resulting from the issuance of
permits and permit amendments. See EPA's April 16, 1992, ``General
Preamble for
[[Page 48472]]
the Implementation of Title I of the Clean Air Act Amendments of 1990''
(57 FR 13498) (General Preamble). A discussion illustrating the
principles and elements of SIPs that apply to sources in implementing a
SIP's control strategies begins on page 13567 of the General Preamble.
B. Do the Submitted SIP Revisions Meet the Act and the PSD SIP
requirements?
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 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) \4\. The currently approved PSD SIP requires that a State
include the Federal definition of BACT. See 30 TAC 116.160(a).
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\4\ The January 1972 Texas NSR rules, as revised in July 1972,
require a proposed new facility or modification to utilize the best
available control technology, with consideration to the technical
practicability and economic reasonableness of reducing or
eliminating the emissions resulting from the facility. The Federal
definition for PSD BACT is part of the Texas SIP as codified in the
SIP at 30 TAC 116.160(a). (This current SIP rule citation was
adopted by the State on October 10, 2001, and EPA approved this
recodified SIP rule citation on July 22, 2004 (69 FR 43752).) EPA
approved the Texas PSD program SIP revision submittals, including
the State's incorporation by reference of the Federal definition of
BACT, in 1992. See proposal and final approval of the Texas PSD SIP
at 54 FR 52823 (December 22, 1989) and 57 FR 28093 (June 24, 1992).
EPA specifically found that the SIP BACT requirement (now codified
in the Texas SIP at 30 TAC 116.111(a)(2)(C)) did not meet the
Federal PSD BACT definition. To meet the PSD SIP Federal
requirements, Texas chose to incorporate by reference, the Federal
PSD BACT definition, and submit it for approval by EPA as part of
the Texas PSD SIP. Upon EPA's approval of the Texas PSD SIP
submittals, both EPA and Texas interpreted the SIP BACT provision
now codified in the SIP at 30 TAC 116.111(a)(2)(C) as being a minor
NSR SIP requirement for minor NSR permits.
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The 2006 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 applies 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.
Section 165 of the Act provides that ``No major emitting facility *
* * may be constructed [or modified] in any area to which this part
applies unless-- (1) a permit has been issued for such proposed
facility in accordance with this part setting forth emission
limitations for such facility which conform to the requirements of this
part'' * * * (4) the proposed facility is subject to the best available
control technology for each pollutant subject to regulation under this
chapter * * *.'' Id. 7475(a). Accordingly, under the plain language of
Section 165 a facility may not be constructed unless it will comply
with BACT limits, which conform to the requirements of the Act. As BACT
is a defined term in the Act, see CAA 169(3), we interpret this to mean
that a facility may not be constructed unless the permit it has been
issued conforms to the Act's definition of BACT.
The removal of these two provisions is not approvable as a SIP
revision. The BACT requirement is a basic tenet of a permitting
program. Our conclusion that the BACT and emission limitation
requirements are a statutory minimum flows from the Act itself. See CAA
section 165. These two provisions are required for a SIP revision to
meet the PSD SIP requirements.
Not only is BACT a defined statutory and regulatory term, but it
also constitutes a central requirement of the Act. Accordingly, a
state's submission of a revision that would remove the requirement that
all new major stationary sources or major modifications meet, at a
minimum, BACT as defined by the Act creates a situation where the
submitted SIP revision would be a relaxation of the requirements of the
previous SIP.
Our evaluation considers whether a submitted SIP revision that
removes a statutory requirement can still meet the Act. It is EPA's
position that the removal of a statutory requirement from a State's
program cannot be approved as a SIP revision because the removal does
not meet the requirements of the Act. Additionally, as a SIP
relaxation, we would look to the requirements of section 110(l).
Section 110(l) of the Act prohibits EPA from approving any revision of
a SIP if the revision would interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the Act. The State did not provide any
demonstration showing how the submitted SIP revision would not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of the
Act.
As the mechanism in Texas for ensuring that permits contain such a
requirement, the State PSD SIP must both require BACT and apply the
federal definition of BACT (or one that is more stringent) to be
approved pursuant to part C and Section 110(l) of the Act.
Since Texas' approach fails to ensure that all of the statutory
relevant criteria contained in the statutory BACT definition are
contained in the Texas SIP revision submittal, and the State failed to
submit a demonstration showing how the relaxation would not interfere
with any applicable requirement concerning attainment and reasonable
further progress, or any other CAA requirement, we are proposing to
disapprove this removal pursuant to part C and Section 110(l) of the
Act, as well as failing to meet the Major NSR SIP requirements.
V. Do the Submitted SIP Revisions Meet the Major Non-attainment NSR
Requirements for the 1-Hour and the 1997 8-Hour Ozone NAAQS?
A. What are the Anti-Backsliding Major Nonattainment NSR SIP
Requirements for the 1-hour Ozone NAAQS?
On July 18, 1997, EPA promulgated a new NAAQS for ozone based upon
8-hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of NAAQS was changed
from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38865).\5\ On
April 30, 2004 (69 FR 23951), we published a final rule that addressed
key elements related to implementation of the 1997 8-hour ozone NAAQS
including, but not limited to: revocation of the 1-hour NAAQS and how
anti-backsliding principles will ensure continued progress toward
attainment of the 1997 8-hour ozone NAAQS. We codified the anti-
backsliding provisions governing the transition from the revoked 1-hour
ozone NAAQS to the 1997 8-hour ozone NAAQS in 40 CFR 51.905(a). The 1-
hour ozone major nonattainment NSR SIP requirements indicated that
certain 1-hour ozone standard requirements were not part of the list of
anti-backsliding requirements provided in 40 CFR 51.905(f).
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\5\ On March 12, 2008, EPA significantly strengthened the 1997
8-hour ozone standard, to a level of 0.075 ppm. EPA is developing
rules needed for implementing the 2008 revised 8-hour ozone standard
and has received the States' submittals identifying areas with their
boundaries they identify to be designated nonattainment. EPA is
reviewing the States' submitted data.
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On December 22, 2006, the DC Circuit vacated the Phase 1
Implementation Rule in its entirety. South Coast Air
[[Page 48473]]
Quality Management District, et al., v. EPA, 472 F.3d 882 (DC Cir.
2006), reh'g denied 489 F.3d 1245 (2007) (clarifying that the vacatur
was limited to the issues on which the court granted the petitions for
review). The EPA requested rehearing and clarification of the ruling
and on June 8, 2007, the Court clarified that it was vacating the rule
only to the extent that it had upheld petitioners' challenges. Thus,
the provisions in 40 CFR 51.905(e) that waived obligations under the
revoked 1-hour standard for NSR were vacated. The effect of this
portion of the court's ruling is to restore major nonattainment NSR
applicability thresholds and emission offsets pursuant to
classifications previously in effect for areas designated nonattainment
for the 1-hour ozone NAAQS.
On June 10, 2005 and February 1, 2006, Texas submitted SIP
revisions to 30 TAC 116.12 and 30 TAC 116.150 which relate to the
transition from the major nonattainment NSR requirements applicable for
the 1-hour ozone NAAQS to implementation of the major nonattainment NSR
requirements applicable to the 1997 8-hour ozone NAAQS. Texas'
revisions at 30 TAC 116.12(18) (Footnote 6 under Table I under the
definition of ``major modification'') and 30 TAC 116.150(d)
introductory paragraph, effective as state law on June 15, 2005,
provide that for ``the Houston-Galveston-Brazoria, Dallas-Fort Worth,
and Beaumont-Port Arthur eight hour ozone nonattainment areas, if the
United States Environmental Protection Agency promulgates rules
requiring new source review permit applications in these areas to be
evaluated for nonattainment new source review according to the area's
one-hour standard classification,'' then ``each application will be
evaluated according to that area's one-hour standard classification''
and ``* * * the de minimis threshold test (netting) is required for all
modifications to existing major sources of VOC or NOx in
that area * * *.'' The footnote 6 and the introductory paragraph add a
new requirement for an affirmative regulatory action by the EPA on the
reinstatement of the 1-hour ozone NAAQS major nonattainment NSR
requirements before the major nonattainment NSR requirements under the
1-hour standard will be implemented in the Texas 1-hour ozone
nonattainment areas.
The currently approved Texas major nonattainment NSR SIP does not
require such an affirmative regulatory action by the EPA before the 1-
hour ozone major nonattainment NSR requirements come into effect in the
Texas 1-hour ozone nonattainment areas. Our evaluation of a SIP
revision generally considers whether a revision would be at least as
stringent as the provision in the existing applicable implementation
plan that it would supersede. If we cannot conclude that a SIP revision
is at least as stringent as the corresponding provision in the existing
SIP, we may approve the revision only if the revision would not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of the
Act. The Texas revision would relax the requirements of the approved
SIP.
Texas submitted no section 110(l) analysis demonstrating that this
relaxation would not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable requirement of the Act. Therefore, we are proposing to
disapprove the revisions as not meeting section 110(l) of the Act for
the Major NNSR SIP requirements for the 1-hour ozone NAAQS.
B. What Are the Major Nonattainment NSR SIP Requirements for the 1997
8-hour Ozone NAAQS?
The Act and EPA's NSR SIP rules require that an applicability
determination regarding whether Major NSR applies for a pollutant
should be based upon the attainment or nonattainment designation of the
area in which the source is located on the date of issuance of the
Major NSR permit. See the following: sections 172(c)(5) and 173 of the
Act; 40 CFR 51.165(a)(2)(i); and ``New Source Review (NSR) Program
Transitional Guidance,'' issued March 11, 1991, by John S. Seitz,
Director, Office of Air Quality Planning and Standard. An applicability
determination for a Major NSR permit based upon the date of
administrative completeness, rather than date of issuance, would allow
more sources to avoid the Major NSR requirements where there is a
nonattainment designation between the date of administrative
completeness and the date of issuance, and thus this submitted revision
will reduce the number of sources subject to Major NSR requirements.
Revised 30 TAC 116.150(a), as submitted June 10, 2005 and February
1, 2006, now reads as follows under state law:
(a) This section applies to all new source review authorizations
for new construction or modification of facilities as follows:
(1) For all applications for facilities that will be located in
any area designated as nonattainment for ozone under 42 United
States Code (U.S.C.), Sec. Sec. 7407 et seq. on the effective date
of this section, the issuance date of the authorization; and
(2) For all applications for facilities that will be located in
counties for which nonattainment designation for ozone under 42
U.S.C. 7407 et seq. becomes effective after the effective date of
this section, the date the application is administratively
complete.\6\
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\6\ It is our understanding of State law, that a ``facility''
can be an ``emissions unit,'' i.e., any part of a stationary source
that emits or may have the potential to emit any air contaminant. A
``facility'' also can be a piece of equipment, which is smaller than
an ``emissions unit.'' A ``facility'' can be a ``major stationary
source'' as defined by Federal law. A ``facility'' under State law
can be more than one ``major stationary source.'' It can include
every emissions point on a company site, without limiting these
emissions points to only those belonging to the same industrial
grouping (SIP code). To comment on our understanding of the State
definition of facility, see our proposed action regarding
Modification of Existing Qualified Facilities Program and General
Definitions, published elsewhere in today's Federal Register.
The submitted rule raises two concerns. First, the revised language
in 30 TAC 116.150(a) is not clear as to when and where the
applicability date will be set by the date the application is
administratively complete and when and where the applicability date
will be set by the issuance date of the authorization. The rule,
adopted and submitted in 2005, applies the date of administrative
completeness of a permit application, not the date of permit issuance,
where setting the date for determination of NSR applicability after
June 15, 2004 (the effective date of ozone nonattainment designations).
The submitted 2006 rule adds the date of permit issuance.
Unfortunately, the submitted 2006 rule by introducing a bifurcated
structure creates vagueness rather than clarity. The effective date of
this new bifurcated structure is February 1, 2006. It is unclear
whether this means under subsection (1) that the permit issuance date
is used in existing nonattainment areas designated nonattainment for
ozone before and up through February 1, 2006. Thus, the proposed
revision lacks clarity on its face and is therefore not enforceable.
Second, to the extent that the date of application completeness is
used in certain instances to establish the applicability date, such use
is contrary to the Act and EPA's interpretation thereof, as discussed
above.
The State did not provide any information, which demonstrates that
this revision is at least as stringent as the requirements of the Act
and applicable Federal rules.
Thus, based upon the above and in the absence of any explanation by
the State, EPA is proposing to disapprove the SIP revision submittals
for not
[[Page 48474]]
meeting the Major NNSR SIP requirements for the 1997 8-hour ozone
standard.
VI. Do the Submitted SIP Revisions Meet the Major NSR SIP Requirements?
A. Do the SIP Revision Submittals Meet the Major NSR SIP Requirements
With a PALs Provision?
We are proposing to disapprove the following non-severable
revisions that address the revised Major NSR SIP requirements with a
PALs provision: 30 TAC Chapter 116 submitted February 1, 2006: 30 TAC
116.12--Definitions; 30 TAC 116.180--Applicability; 30 TAC 116.182--
Plant-Wide Applicability Limit Permit Application; 30 TAC 116.184--
Application Review Schedule; 30 TAC 116.186--General and Special
Conditions; 30 TAC 116.188--Plant-Wide Applicability Limit; 30 TAC
116.190--Federal Nonattainment and Prevention of Significant
Deterioration Review; 30 TAC 116.192--Amendments and Alterations; 30
TAC 116.194--Public Notice and Comment; 30 TAC 116.196--Renewal of a
Plant-Wide Applicability Limit Permit; 30 TAC 116.198--Expiration or
Voidance.
Below is a summary of our evaluation. Please see the TSD for
additional information.
The submittal lacks a provision which limits applicability of a PAL
only to an existing major stationary source, and which precludes
applicability of a PAL to a new major stationary source, as required
under 40 CFR 51.165(f)(1)(i) and 40 CFR 51.166(w)(1)(i), which limits
applicability of a PAL to an existing major stationary source. In the
absence of such limitation, this submission would allow a PAL to be
authorized for the construction of a new major stationary source. In
EPA's November 2002 TSD for the revised Major NSR Regulations, we
respond on pages I-7-27 and 28 that actual PALs are available only for
existing major stationary sources, because actual PALs are based on a
source's actual emissions. Without at least 2 years of operating
history, a source has not established actual emissions upon which to
base an actual PAL. However, for individual emissions units with less
than two years of operation, allowable emissions would be considered as
actual emissions. Therefore, an actual PAL can be obtained only for an
existing major stationary source even if not all emissions units have
at least 2 years of emissions data. Moreover, the development of an
alternative to provide new major stationary sources with the option of
obtaining a PAL based on allowable emissions was foreclosed by the
Court in New York v. EPA, 413 F.3d 3 at 38-40 (DC Cir. 2005) (``New
York I'') (holding that the Act since 1977 requires a comparison of
existing actual emissions before the change and projected actual (or
potential emissions) after the change in question is required).
The absence of the applicability limitation creates a provision
less stringent than the Act as interpreted by the Court and the revised
Major NSR SIP PAL requirements. Therefore, we are proposing to
disapprove this submittal as not meeting the revised Major NSR SIP
requirements.
The submittal has no provisions that relate to PAL re-openings, as
required by 40 CFR 51.165(f)(8)(ii), (ii)(A) through (C), and
51.166(w)(8)(ii) and (ii)(a). Nor is there a mandate that failure to
use a monitoring system that meets the requirements of this section
renders the PAL invalid, as required by 40 CFR 51.165(f)(12)(i)(D) and
51.166(w)(12)(i)(d). The absence of these provisions renders the
accountability of this Program inadequate and less stringent than the
Federal requirements of Major NSR. Therefore, EPA is proposing to
disapprove the submittal as not meeting the revised Major NSR SIP
requirements.
The Texas submittal at 30 TAC 116.186 provides for an emissions cap
that may not account for all of the emissions of a pollutant at the
major stationary source. Texas requires the owner or operator to submit
a list of all facilities to be included in the PAL see 30 TAC
116.182(1), such that not all of the facilities at the entire major
stationary source may be specifically required to be included in the
PAL. However, the Federal rules require the owner or operator to submit
a list of all emissions units at the source see 40 CFR 51.166(f)(3)(i)
and 40 CFR 51.166(w)(3)(i). The corresponding Federal rules provide
that a PAL applies to all of the emission units at the entire major
stationary source. Inclusion of all the emissions units subject to the
enforceable PAL limit is an essential feature of the Plantwide
Applicability Limit. The Texas submittal is unclear as to whether the
PAL would apply to all of the emission units at the entire major
stationary source and therefore appears to be less stringent than the
Federal rules. In the absence of any demonstration from the State, EPA
is proposing to disapprove 30 TAC 116.186 and 30 TAC 116.182(1) as not
meeting the revised Major NSR SIP requirements.
Submitted 30 TAC 116.194 requires that an applicant for a PAL
permit must provide for public notice on the draft PAL permit in
accordance with 30 TAC Chapter 39--Public Notice--for all initial
applications, amendments, and renewals or a PAL Permit.\7\ See 73 FR
72001 (November 26, 2008) for more information on Texas' public
participation rules and their relationship to PALs. The November 2008
proposal addressed the public participation provisions in 30 TAC
Chapter 39, but did not specifically propose action on 30 TAC 116.194.
Today, we propose to address 30 TAC 116.194. Because this section
relates to the public participation requirements of the PAL program,
this section is not severable from the PAL program. Because we are
proposing to disapprove the PAL program, we propose to likewise
disapprove 30 TAC 116.194.
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\7\ ``The submittals do not meet the following public
participation provisions for PALs: (1) For PALs for existing major
stationary sources, there is no provision that PALs be established,
renewed, or increased through a procedure that is consistent with 40
CFR 51.160 and 51.161, including the requirement that the reviewing
authority provide the public with notice of the proposed approval of
a PAL permit and at least a 30-day period for submittal of public
comment, consistent with the Federal PAL rules at 40 CFR
51.165(f)(5) and (11) and 51.166(w)(5) and (11). (2) For PALs for
existing major stationary sources, there is no requirement that the
State address all material comments before taking final action on
the permit, consistent with 40 CFR 51.165(f)(5) and 51.166(w)(5).
(3) The applicability provision in section 39.403 does not include
PALs, despite the cross-reference to Chapter 39 in Section
116.194.''
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The Federal definition of the ``baseline actual emissions''
provides that these emissions must be calculated in terms of ``the
average rate, in tons per year at which the unit actually emitted the
pollutant during any consecutive 24-month period.'' See 40 CFR
51.165(a)(1)(xxxv)(A), (B), (D) and (E) and 51.166(b)(47)(i), (ii),
(iv), and (v). Emphasis added. The submitted definition of the term
``baseline actual emissions'' found at 30 TAC 116.12(3)(A), (B), (D),
and (E) differs from the Federal definition by providing that the
baseline shall be calculated as ``the rate, in tons per year at which
the unit actually emitted the pollutant during any consecutive 24-month
period.'' The submitted definition omits reference to the ``average
rate.'' The definition differs from the Federal SIP definition but the
State failed to provide a demonstration showing how the different
definition is at least as stringent as the Federal definition.
Therefore, EPA proposes to disapprove the different definition of
``baseline actual emissions'' found at 30 TAC 116.12(3) as not meeting
the revised Major NSR SIP requirements. On the same grounds for lacking
a demonstration, EPA proposes to
[[Page 48475]]
disapprove 30 TAC 116.182(2) that refers to calculations of the
baseline actual emissions for a PAL, as not meeting the revised Major
NSR SIP requirements.
The State also failed to include the following specific monitoring
definitions: ``Continuous emissions monitoring system (CEMS)'' as
defined in 40 CFR 51.165(a)(1)(xxxi) and 51.166(b)(43); ``Continuous
emissions rate monitoring system (CERMS)'' as defined in 40 CFR
51.165(a)(1)(xxxiv) and 51.166(b)(46); ``Continuous parameter
monitoring system (CPMS)'' as defined in 40 CFR 51.165(a)(1)(xxxiii)
and 51.166(b)(45); and ``Predictive emissions monitoring system
(PEMS)'' as defined in 40 CFR 51.165(a)(1)(xxxii) and 51.166(b)(44).
All of these definitions concerning the monitoring systems in the
revised Major NSR SIP requirements are essential for the enforceability
of and providing the means for determining compliance with a PALs
program. Therefore, we are proposing to disapprove the State's lack of
these four monitoring definitions as not meeting the revised Major NSR
SIP requirements.
Additionally, where, as here, a State has made a SIP revision that
does not contain definitions that are required in the revised Major NSR
SIP program, EPA may approve such a revision only if the State
specifically demonstrates that, despite the absence of the required
definitions, the submitted revision is more stringent, or at least as
stringent, in all respects as the Federal program. See 40 CFR
51.165(a)(1) (non-attainment SIP approval criteria); 51.166 (b) (PSD
SIP definition approval criteria). Texas did not provide such a
demonstration. Therefore, EPA proposes to disapprove the lack of these
definitions as not meeting the revised Major NSR SIP requirements.
None of the provisions and definitions in the February 1, 2006, SIP
revision submittal pertaining to the revised Major NSR SIP requirements
for PALs is severable from each other. Therefore, we are proposing to
disapprove the portion of the February 1, 2006, SIP revision submittal
pertaining to the revised Major NSR PALs SIP requirements as not
meeting the Act and the revised Major NSR SIP regulations.
B. Do the Submitted SIP Revisions Meet the Non-PAL Aspects of the Major
NSR SIP Requirements?
The submitted NNSR non-PAL rules do not explicitly limit the
definition of ``facility'' \8\ to an ``emissions unit'' as do the
submitted PSD non-PAL rules. It is our understanding of State law that
a ``facility'' can be an ``emissions unit,'' i.e., any part of a
stationary source that emits or may have the potential to emit any air
contaminant, as the State explicitly provides in the revised PSD rule
at 30 TAC 116.160(c)(3). A ``facility'' also can be a piece of
equipment, which is smaller than an ``emissions unit.'' A ``facility''
can include more than one ``major stationary source.'' It can include
every emissions point on a company site, without limiting these
emissions points to only those belonging to the same industrial
grouping (SIP code). In our proposed action on the Texas Qualified
Facilities State Program, EPA specifically solicits comment on the
definition for ``facility'' under State law. We encourage anyone
interested in this issue to review and comment on the other proposed
action on the submitted Qualified Facilities State Program, as well.
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\8\ ``Facility'' is defined in the SIP approved 30 TAC 116.10(6)
as ``a discrete or identifiable structure, device, item, equipment,
or enclosure that constitutes or contains a stationary source,
including appurtenances other than emission control equipment.''
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Regardless, the State clearly thought the prudent legal course was
to limit ``facility'' explicitly to ``emissions unit'' in its PSD SIP
non-PALs revision. TCEQ did not submit a demonstration showing how the
lack of this explicit limitation in the NNSR SIP non-PALs revision is
at least as stringent as the revised Major NSR SIP requirements.
Therefore, EPA is proposing to disapprove the submitted definition and
its use as not meeting the revised Major NNSR non-PALs SIP
requirements.
Under the Major NSR SIP requirements, for any physical or
operational change at a major stationary source, a source must include
emissions resulting from startups, shutdowns, and malfunctions in its
determination of the baseline actual emissions (see 40 CFR
51.165(a)(1)(xxxv)(A)(1) and (B)(1) and 40 CFR 51.166(b)(47)(i)(a) and
(ii)(a)) and the projected actual emissions (see 40 CFR
51.165(a)(1)(xxviii)(B) and 40 CFR 51.166(b)(40)(ii)(b)). The
definition of the term ``baseline actual emissions,'' as submitted in
30 TAC 116.12(3)(E), does not require the inclusion of emissions
resulting from startups, shutdowns, and malfunctions.\9\ Our
understanding of State law is that the use of the term ``may''
``creates discretionary authority or grants permission or a power. See
Section 311.016 of the Texas Code Construction Act. Similarly, the
submitted definition of ``projected actual emissions'' at 30 TAC
116.12(29) does not require that emissions resulting from startups,
shutdowns, and malfunctions be included. The submitted definitions
differ from the Federal SIP definitions and the State has not provided
information demonstrating that these definitions are at least as
stringent as the Federal SIP definitions. Therefore, based upon the
lack of a demonstration from the State, EPA proposes to disapprove the
definitions of ``baseline actual emissions'' at 30 TAC 116.12(3) and
``projected actual emissions'' at 30 TAC 116.12(29) as not meeting the
revised Major NSR SIP requirements.
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\9\ The submitted definition of ``baseline actual emissions,''
is as follows: Until March 1, 2016, emissions previously
demonstrated as emissions events or historically exempted under
Chapter 101 of this title * * * may be included to the extent they
have been authorized, or are being authorized, in a permit action
under Chapter 116. 30 TAC 116.12(3)(E) (emphasis added).
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The Federal definition of the ``baseline actual emissions''
provides that these emissions must be calculated in terms of ``the
average rate, in tons per year at which the unit actually emitted the
pollutant during any consecutive 24-month period.'' The submitted
definition of the term ``baseline actual emissions'' found at 30 TAC
116.12 (3)(A), (B), (D), and (E) differs from the Federal definition by
providing that the baseline shall be calculated as ``the rate, in tons
per year at which the unit actually emitted the pollutant during any
consecutive 24-month period.''
Texas has not provided any demonstration showing how this different
definition is at least as stringent as the Federal SIP definition.
Therefore, EPA proposes to disapprove the submitted definition of
``baseline actual emissions'' found at 30 TAC 116.12(3) as not meeting
the revised major NSR SIP requirements.
None of the provisions and definitions in the February 1, 2006, SIP
revision submittal pertaining to the revised Major NSR SIP requirements
for non-PALs is severable from each other. Therefore, we are proposing
to disapprove the portion of the February 1, 2006, SIP revision
submittal pertaining to the revised Major NSR non-PALs SIP requirements
as not meeting the Act and the revised Major NSR SIP regulations.
VII. Does the Submitted PCP Standard Permit Meet the Minor NSR SIP
Requirements?
EPA approved Texas' general regulations for Standard Permits in 30
TAC Subchapter F of 30 TAC Chapter 116 on November 14, 2003 (68 FR
64548) as meeting the minor NSR SIP requirements. The November 14, 2003
[[Page 48476]]
action describes how these rules meet EPA's requirements for new minor
sources and minor modifications. A Standard Permit provides a
streamlined mechanism with all permitting requirements for construction
and operation of certain sources in categories that contain numerous
similar sources. It is not a case-by-case minor NSR SIP permit.
Therefore, each minor NSR SIP Standard Permit must contain all terms
and conditions on the face of it (combined with the SIP general
requirements) and it cannot be used to address site-specific
determinations. This particular type of minor NSR permit is required to
be applicable to narrowly defined categories of emission sources \10\
rather than a category of emission types. A Standard Permit is a minor
NSR permit limited to a particular narrowly defined source category for
which the permit is designed to cover and cannot be used to make site-
specific determinations that are outside the scope of this type of
permit.\11\
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\10\ Examples of narrowly defined categories of emission sources
include oil and gas facilities, asphalt concrete plants, and
concrete batch plants.
\11\ See Guidance on Enforceability Requirements for Limiting
Potential to Emit through SIP and section 112 rules and General
permits, Memorandum from Kathie A Stein, Office of Enforcement and
Compliance Assurance, January 25, 1995, Options for Limiting the
Potential to Emit (PTE) of a Stationary Source under Section 112 and
Title V of the Clean Air Act, Memorandum from John S. Seitz, Office
of Air Quality Planning and Standards (OAQPS), January 25, 1995,
Approaches to Creating Federally-Enforceable Emissions Limits,
Memorandum from John S. Seitz, OAQPS, November 3, 1993, Potential to
Emit (PTE) Guidance for Specific Source Categories, Memorandum from
John S. Seitz, OAQPS and Eric Schaeffer, OECA, April 14, 1998, EPA
Region 7 Permit by Rule Guidance for Minor Source Preconstruction
Permits. See also, rulemakings related to general permits: 61 FR
53633, final approval of Tennessee SIP Revision, October 15, 1996;
62 FR 2587, final approval of Florida SIP revision, January 17,
1997; 71 FR 5979, final approval of Wisconsin SIP revision, February
6, 2006; 71 FR 14439, proposed conditional approval of Missouri SIP
revision, March 22, 2006. EPA guidance documents set out specific
guidelines: (1) General permits apply to a specific and narrow
category of sources, (2) For sources electing coverage under general
permits where coverage is not mandatory, provide notice or reporting
to the permitting authority, reporting or notice to permitting
authority, (3) General permits provide specific and technically
accurate (verifiable) limits that restrict potential to emit, (4)
General permits contain specific compliance requirements, (5) Limits
in general permits are established based on practicably enforceable
averaging times, and (6) Violations of the permit are considered
violations of state and federal requirements and may result in the
source being subject to major source requirements.
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EPA did not approve the Standard Permit for PCPs (30 TAC 116.617)
in the November 14, 2003 action as part of the Texas minor NSR SIP. See
68 FR 64547. On February 1, 2006, Texas submitted a repeal of the
previously submitted PCP Standard Permit and submitted the adoption of
a new PCP Standard Permit at 30 TAC 116.617--State Pollution Control
Project Standard Permit.\12\ One of the main reasons Texas adopted a
new PCP Standard Permit was to meet the new Federal requirements to
explicitly limit this PCP Standard Permit only to Minor NSR. In State
of New York, et al. v. EPA, 413 F.3d 3 (DC Cir. June 24, 2005), the
Court vacated the federal pollution control project provisions for NNSR
and PSD. The new PCP Standard Permit explicitly prohibits the use of
the PCP Standard Permit for new major sources and major modifications.
Still the new PCP Standard Permit is a generic permit that applies to
numerous types of pollution control projects, which can be used at any
source that wants to use a PCP. The definition in this Standard Permit
for what is a PCP is overly broad. For example, it does not delineate
what type of pollution control equipment is authorized.
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\12\ The 2006 submittal also included a revision to 30 TAC
116.610(d), that is a rule in Subchapter F, Standard Permits, to
change an internal cross reference from Subchapter C to Subchapter
E, consistent with the re-designation of this Subchapter by TCEQ.
See section IX for further information on this portion of the 2006
submittal.
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The PCP Standard Permit, as adopted and submitted by Texas to EPA
for approval into the Texas Minor NSR SIP, is not limited in its
applicability to a single category of industrial sources, but to a
broad class of pollution control techniques at all source categories.
An individual Standard Permit must be limited to a single source
category, which consists of numerous similar sources that can meet
standardized permit conditions. In addition to EPA's concerns that this
submitted PCP Standard Permit is not limited in its applicability,
another major concern is that this Standard Permit is designed for
case-by-case additional authorization, source-specific review, and
source-specific technical determinations. For case-by-case additional
authorization, source-specific review, and source specific technical
determinations, under the minor NSR SIP rules, if these types of
determinations are necessary, the State must use its minor NSR SIP
case-by-case permit process under 30 TAC 116.110(a)(1).
There are no replicable conditions in the PCP Standard Permit that
specify how the Director's discretion is to be implemented for the
individual determinations. Of particular concern is the provision that
allows for the exercise of the Executive Director's discretion in
making case-specific determinations in individual cases in lieu of
generic enforceable requirements. Because EPA approval will not be
required in each individual case, specific replicable criteria must be
set forth in the Standard Permit establishing equivalent emissions
rates and ambient impact. Similarly, the PCP Standard Permit is not the
appropriate vehicle in the case-by-case establishing of recordkeeping,
monitoring, and recordkeeping requirements because it requires the
Executive Director to make case-by-case determinations and to establish
case specific terms and conditions for the construction or modification
of each individual PCP that are outside the terms and conditions in the
PCP Standard Permit.
Because the PCP Standard Permit, in 30 TAC 116.617, does not meet
the SIP requirements for Minor NSR, EPA proposes to disapprove the PCP
Standard Permit, as submitted February 1, 2006.
VIII. What Is Our Evaluation of Other SIP Revision Submittals?
We are proposing to take no action upon the June 10, 2005 SIP
revision submittal addressing definitions at 30 TAC Chapter 101,
Subchapter A, section 101.1, because previous revisions to that section
are still pending review by EPA. We will take appropriate action on the
submittals concerning 30 TAC 101.1 in a separate action. As noted
previously, these definitions are severable from the other portions of
the two SIP revision submittals.
Second, Texas originally submitted a new Subchapter C--Hazardous
Air Pollutants: Regulations Governing Constructed and Reconstructed
Sources (FCAA, Sec. 112(g), 40 CFR Part 63) on July 22, 1998. EPA has
not taken action upon the 1998 submittal. In the February 1, 2006, SIP
revision submittal, this Subchapter C is recodified to Subchapter E and
sections are renumbered. This 2006 submittal also includes an amendment
to 30 TAC 116.610(d) to change the cross-reference from Subchapter C to
Subchapter E. These SIP revision submittals apply to the review and
permitting of constructed and reconstructed major sources of hazardous
air pollutants (HAP) under section 112 of the Act and 40 CFR part 63,
subpart B. The process for these provisions is carried out separately
from the SIP activities. SIPs cover criteria pollutants and their
precursors, as regulated by NAAQS. Section 112(g) of the Act regulates
HAPs, this program is not under the auspices of a section 110 SIP, and
this program should not be approved into the SIP. These portions of the
1998 and
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2006 submittals are severable. For these reasons we propose to take no
action on this portion relating to section 112(g) of the Act.
Third, the February 1, 2006, SIP revision submittal includes a new
30 TAC Chapter 116, Subchapter K (as recodified from Subchapter E),
that relates to the issuance of Emergency Orders, and is severable from
all the other portions of the 2006 submittal. EPA is currently
reviewing the SIP revision submittals that relate to Emergency Orders,
including this submittal and will take appropriate action on the
Emergency Order requirements in a separate action, according to the
Consent Decree schedule.
IX. Proposed Action
Under section 110(k)(3) of the Act and for the reasons stated
above, EPA is proposing disapproval of revisions to the Texas Major NSR
SIP that relate to implementation of Major NSR in areas designated
nonattainment for the 1997 8-hour ozone NAAQS, implementation of Major
NSR in areas designated nonattainment for the 1-hour ozone NAAQS, and
implementation of Major NSR SIP requirements in all of Texas. We are
proposing to disapprove the SIP revision submittals for the Texas Major
NSR SIP. Finally, we are proposing to disapprove the submittals for a
Minor Standard Permit for PCP. EPA is also proposing to take no action
on certain severable revisions submitted June 10, 2005, and February 1,
2006.
Specifically, we are proposing:
Disapproval of revisions to 30 TAC 30 TAC 116.12 and
116.150 as submitted June 10, 2005;
Disapproval of revisions 30 TAC 116.12, 116.150, 116.151,
116.160; and disapproval of new sections at 30 TAC 116.121, 116.180,
116.182, 116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196,
116.198, and 116.617, as submitted February 1, 2006.
We are also proposing to take no action on the provisions
identified below:
The revisions to 30 TAC 101.1--Definitions, submitted June
10, 2005;
The recodification of the existing Subchapter C under 30
TAC Chapter 116 to a new Subchapter E under 30 TAC Chapter 116; and
The recodification of the existing Subchapter E under 30
TAC Chapter 116 to a new Subchapter K under 30 TAC Chapter 116.
We will accept comments on this proposal for the next 60 days.
After review of public comments, we will take final action on the SIP
revisions that are identified herein.
EPA intends to take final action on the State's Public
Participation SIP revision submittal in November 2009. EPA intends to
take final action on the submitted Texas Qualified Facilities State
Program by March 31, 2010, the submitted Texas Flexible Permits State
Program by June 30, 2010, and the NSR SIP by August 31, 2010. These
dates are expected to be mandated under a Consent Decree (see Notice of
Proposed Consent Decree and Proposed Settlement Agreement, 74 FR 38015,
July 30, 2009). Sources are reminded that they remain subject to the
requirements of the federally approved Texas Major NSR SIP and subject
to potential enforcement for violations of the SIP (See EPA's Revised
Guidance on Enforcement During Pending SIP Revisions, dated March 1,
1991).
X. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in and of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in and of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have
[[Page 48478]]
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP
EPA is proposing to disapprove would not 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. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This proposed SIP disapproval under section 110 and subchapter I, part
D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapprove certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 8, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E9-22806 Filed 9-22-09; 8:45 am]
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