[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Proposed Rules]
[Pages 15645-15648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6800]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2010-0147; FRL-9130-4]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Revisions to the Emission Credit Banking and Trading Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve severable portions of two
revisions to the Texas State Implementation Plan (SIP) submitted by the
State of Texas on October 24, 2006, and August 16, 2007. These
revisions amend existing sections and create a new section in Title 30
of the Texas Administrative Code (TAC), Chapter 101--General Air
Quality Rules, Subchapter H--Emissions Banking and Trading, Division
1--Emission Credit Banking and Trading, referred to elsewhere in this
notice as the Emission Reduction Credit (ERC) Program. The October 24,
2006, submittal creates a new section for international emission
reduction provisions and amends existing sections to further clarify
procedures for using emission protocols and to update the approved list
of emission credit uses. The August 16, 2007, submittal amends two
sections of the ERC program to update cross-references to recently
recodified 30 TAC Chapter 117 provisions. EPA has determined that these
SIP revisions comply with the Clean Air Act and EPA regulations, are
consistent with EPA policies, and will improve air quality. This action
is being taken under section 110 and parts C and D of the Federal Clean
Air Act (the Act or CAA).
DATES: Comments must be received on or before April 29, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2010-0147, by one of the following methods:
(1) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: Mr. Jeff Robinson at [email protected]. Please
also cc the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph below.
(3) 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.
(4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at
fax number 214-665-6762.
(5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
(6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, 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 8:30 a.m. and 4:30 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-
2010-0147. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail, if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an 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 name and other contact
information in the body of your comment along with any disk or CD-ROM
submitted. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters and any form of encryption and should be free of any
defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: 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
the disclosure of which 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 to make an appointment. If
possible, please make the appointment at least two working days in
advance of your visit. A 15 cent per page fee will be charged for
making photocopies of documents. On the day of the visit, please check
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal related to this SIP revision, and which is part
of the EPA docket, 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: If you have questions concerning
today's proposed rule, please contact Ms. Adina Wiley (6PD-R), Air
Permits Section, Environmental Protection Agency, Region 6, 1445 Ross
Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number
is (214) 665-2115. Ms. Wiley can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever, any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What Action Is EPA Taking?
II. What Did Texas Submit?
III. What Is EPA's Evaluation of These SIP Revisions?
IV. Final Action
V. Statutory and Executive Order Reviews
[[Page 15646]]
I. What Action Is EPA Taking?
We are proposing to approve severable portions of two revisions to
the Texas SIP submitted by the Texas Commission on Environmental
Quality (TCEQ) on October 24, 2006, and August 16, 2007, specific to
the ERC Program. The ERC Program, SIP-approved by EPA on September 6,
2006, establishes a market-based trading program for the generation and
use of emission credits (generated and used at a specified emission
rate, tons per year) to provide flexibility for sources in complying
with certain State and Federal requirements. The revisions we are
proposing to approve amend existing sections and create a new section
in the ERC Program at Title 30 of the Texas Administrative Code (TAC),
Chapter 101--General Air Quality Rules, Subchapter H--Emissions Banking
and Trading, Division 1--Emission Credit Banking and Trading. The
October 24, 2006, submittal creates a new section for international
emission reduction provisions and amends existing sections to further
clarify procedures for using emission protocols and to update the
approved list of emission credit uses. The severable portions of the
August 16, 2007 submittal that we are proposing to approve non-
substantively revise the ERC Program to correctly update the cross-
references to the stationary source nitrogen oxide (NOX)
rules found in the Texas SIP at 30 TAC Chapter 117 as a result of the
non-substantive recodification of Chapter 117 approved by EPA as part
of the Texas SIP on December 3, 2008 (see 73 FR 73562). Consequently,
we are proposing to approve the revisions to the Texas SIP at 30 TAC
sections 101.302(a), 101.302(d)(1)(C)(vi), 101.302(f), and
101.306(a)(5) and the creation of new section 101.305 submitted on
October 24, 2006. Additionally, we are proposing to approve revisions
to the Texas SIP at 30 TAC sections 101.302(d)(1)(A) and 101.306(b)(3)
submitted on August 16, 2007 by the TCEQ.
II. What Did Texas Submit?
We are proposing to approve severable portions of two revisions to
the Texas SIP specific to the ERC Program. The first revision we are
proposing action on was adopted by the TCEQ on October 4, 2006 and
submitted to EPA on October 24, 2006. At the same time that TCEQ
adopted and submitted revisions to the ERC Program, revisions were also
adopted and submitted for the Discrete Emission Credit Banking and
Trading Program (referred to elsewhere in this notice as the Discrete
Emission Reduction Credit (DERC) Program) and the Emissions Banking and
Trading of Allowances (EBTA) Program. The revisions to the DERC and
EBTA Programs are specific to separate, distinct trading programs and,
as such, are severable from the ERC Program revisions. We are not
proposing to act upon the severable revisions to the DERC Program at 30
TAC Chapter 101, Subchapter H, Division 4, sections 101.372, 101.373,
101.375, 101.376 and 101.378. EPA is processing a separate rulemaking
to address the 2006 and 2007 DERC Program revisions (see EPA-R06-OAR-
2010-0418). EPA has not yet taken action on the EBTA Program at 30 TAC
Chapter 101, Subchapter H, Division 2 and therefore is not proposing
action today on the repeal and replacement of section 101.338 and the
revisions to section 101.339. The second revision upon which we are
proposing action was adopted by the TCEQ on July 25, 2007, and
submitted to EPA on August 16, 2007. Also at this time TCEQ adopted and
submitted revisions to the general air quality definitions, the DERC
Program, and the System Cap Trading (SCT) Program. We are not acting
today upon revisions to the general air quality definitions at 30 TAC
Chapter 101, Subchapter A, section 101.1 because the ERC Program does
not rely upon them (therefore the revisions are severable from the ERC
Program) and previous revisions to section 101.1 are still pending for
review by EPA. We are also not acting today upon the revisions to the
DERC Program at 30 TAC Chapter 101, Subchapter H, Division 4, sections
101.372 and 101.376 because these revisions are severable from the ERC
program and the October 24, 2006, SIP revision is still under EPA
review. EPA intends to take a separate rulemaking action to address the
2006 and 2007 DERC Program revisions (see EPA-R06-OAR-2010-0418). EPA
has not yet taken action on the System Cap Trading Program at 30 TAC
Chapter 101, Subchapter H, Division 5 and therefore is not acting today
upon the severable revisions to sections 101.383 and 101.385.
A copy of the October 24, 2006, and August 16, 2007, SIP submittals
as well as our Technical Support Document (TSD) can be obtained from
the Docket, as discussed in the ``Docket'' section above. A discussion
of the specific Texas rule changes that we are approving is included in
the TSD and summarized below.
A. October 24, 2006 SIP Submittal
1. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.302--
General Provisions
The existing SIP-approved version of section 101.302 was adopted by
the TCEQ on December 13, 2002, and approved by EPA on September 6, 2006
(see 71 FR 52698). The revisions to sections 101.302(a) and (f) adopted
by the TCEQ on October 4, 2006, delete the information pertaining to
international emission reductions and move these provisions to new
section 101.305. Additionally, section 101.302(d)(1)(C)(vi) is revised
to clarify EPA's approval process of the quantification protocols for
the ERC Program.
2. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.305--
Emission Reductions Achieved Outside the United States
On October 4, 2006, TCEQ adopted new section 101.305. This new
section contains the previously SIP-approved international emission
reduction provisions from sections 101.302(a) and (f) and updates the
international provisions consistent with the requirements of Texas
Senate Bill 784.
3. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.306--
Emission Credit Use
The existing SIP-approved version of section 101.306 was adopted by
the TCEQ on December 13, 2002, and approved by EPA on September 6, 2006
(see 71 FR 52698). The proposed SIP revision adopted by the TCEQ on
October 4, 2006, amends section 101.306(a)(5) to update the list of
approved uses of emission credits to include the use of emission
credits as allowances in the Highly-Reactive Volatile Organic Compound
Emission Cap and Trade (HECT) Program at 30 TAC Chapter 101, Subchapter
H, Division 6.
B. August 16, 2007 SIP Submittal
1. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.302--
General Provisions
The revisions to section 101.302 adopted by the TCEQ on July 25,
2007, further revise the revisions adopted by the TCEQ on October 4,
2002. The 2007 revisions non-substantively amend section
101.302(d)(1)(A) to correctly cross-reference the recodified stationary
source nitrogen oxide (NOX) rules to the Texas SIP at 30 TAC
Chapter 117.
[[Page 15647]]
2. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.306--
Emission Credit Use
The revisions to section 101.306 adopted by the TCEQ on July 25,
2007, further revise the revisions adopted by the TCEQ on October 4,
2002. The 2007 revisions non-substantively amend section 101.306(b)(3)
to correctly cross-reference the recodified stationary source
NOX rules to the Texas SIP at 30 TAC Chapter 117.
III. What Is EPA's Evaluation of These SIP Revisions?
A. October 24, 2006 SIP Submittal
1. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.302--
General Provisions
The October 4, 2006, revisions to sections 101.302(a),
101.302(d)(1)(C)(vi) and 101.302(f) are approvable. Sections 101.302(a)
and 101.302(f) were revised to delete the information pertaining to
international emission reductions and relocate these provisions to new
section 101.305. This consolidation of the international emission
reduction provisions improves the clarity of the ERC Program by
creating a new section specific to international emission reductions.
Section 101.302(d)(1)(C)(vi) was revised to clarify EPA's role in the
approval of emission quantification protocols. While the previous SIP-
approved provisions were accurate and consistent with EPA's Economic
Incentive Program (EIP) Guidance (``Improving Air Quality with Economic
Incentive Programs'' (EPA-452/R-01-001, January 2001)), the revised
language has been restructured to more closely follow the provisions
for approving emission quantification protocols at section 5.2(c) of
the EIP Guidance.
The revisions to section 101.302 described above were made pursuant
to TCEQ's September 8, 2005, commitment letter for the DERC Program
(included in the docket for this action). In this commitment letter,
TCEQ committed to revising, among others things, section 101.302 to
more clearly require EPA approval for international emission reduction
transactions and to clarify the EPA's role in approving emission
quantification protocols. Because EPA granted full approval to the ERC
Program on September 6, 2006, the ERC-specific elements in the DERC
commitment letter can be decoupled from EPA's analysis of the DERC-
specific elements submitted by TCEQ in response to our conditional
approval of the DERC Program. Therefore, EPA can propose approval of
the revisions to section 101.302 without analyzing the remainder of the
DERC conditional approval commitments.
2. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.305--
Emission Reductions Achieved Outside the United States
New section 101.305 adopted on October 4, 2006, is approvable. EPA
finds that in addition to relocating the SIP-approved international
emission reduction language from section 101.302, new section 101.305
has expanded the scope of our original ERC Program approval to allow
the use of international reductions in lieu of ERCs to occur in
attainment areas within 100-km of the Texas-Mexico border, consistent
with the requirements of Texas Senate Bill 784. However, the continued
requirement at section 101.305 for EPA approval before any such use is
consistent with the intent of our ERC Program approval on September 6,
2006. EPA approval continues to be through a case-specific SIP revision
that must clearly demonstrate through a detailed CAA section 110(l)
analysis that the use of such international reductions will not
jeopardize attainment or maintenance of the National Ambient Air
Quality Standards or any other applicable standards. As noted in our
September 6, 2006, final approval of the ERC Program ``* * *
international trades present an especially difficult case. For
instance, currently there is no approvable mechanism for demonstrating
that reductions made in another country are surplus or enforceable.
Nonetheless, emission reductions in other countries could potentially
offer substantial air quality benefits in the United States.'' See 71
FR 52698, 52699. In approving this revision to the ERC program, EPA is
continuing to recognize ``the concept of international trading and
describing a framework (i.e., the submission of a SIP revision
demonstrating among other things the validity and enforceability of
foreign reductions) for such trading, in the event that a suitable and
approvable mechanism is ever developed for resolving concerns including
enforceability and surplus. Until such a mechanism is developed and
approved by EPA, however, EPA will not approve international trades
under the ERC rule.'' See 71 FR 52698, 52699. Further, it is important
to note, that even though we are approving the use of international
reductions in lieu of ERCs along the Texas-Mexico border, the use of
these reductions must still meet the requirements of the CAA.
Therefore, the international reductions are not available for use as
Federal NSR offsets since section 173(c)(1) of the CAA requires that
offset reductions come from the same nonattainment area as the proposed
source or modification or another nonattainment area with an equal or
higher nonattainment classification.
3. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.306--
Emission Credit Use
The October 4, 2006, revision to section 101.306(a)(5) is
approvable. TCEQ correctly updated the list of approved uses of
emission credits to include the use of emission credits as allowances
in the HECT. EPA approved the use of emission credits as HECT
allowances in our September 6, 2006, approval of the HECT (see 71 FR
52659).
The revision to section 101.306 described above was also made
pursuant to TCEQ's September 8, 2005, commitment letter for the DERC
Program (included in the docket for this action). In this commitment
letter, TCEQ committed to revising, among others things, section
101.306 to identify that emission credits could be used as HECT
allowances. Because EPA granted full approval to the ERC Program on
September 6, 2006, the ERC-specific elements in the DERC commitment
letter can be decoupled from EPA's analysis of the DERC-specific
elements submitted by TCEQ in response to our conditional approval of
the DERC Program. Therefore, EPA can propose approval of the revisions
to section 101.306 without analyzing the remainder of the DERC
conditional approval commitments.
B. August 16, 2007 SIP Submittal
1. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.302--
General Provisions
The July 25, 2007, revisions to section 101.302(d)(1)(A) are
approvable. As demonstrated further in our TSD, these non-substantive
revisions correctly cross-reference the recodified stationary source
NOX rules in the Texas SIP at 30 TAC Chapter 117. These non-
substantive revisions do not affect the approved emission
quantification protocols established for the ERC Program.
2. 30 TAC Chapter 101, Subchapter H, Division 1, Section 101.306--
Emission Credit Use
The July 25, 2007, revisions to section 101.306(b)(3) are
approvable. As demonstrated further in our TSD, these non-substantive
revisions correctly cross-reference the recodified stationary source
NOX rules in the Texas SIP at 30
[[Page 15648]]
TAC Chapter 117. These non-substantive revisions do not affect the
emission use calculations established for the ERC Program.
IV. Final Action
EPA is proposing to approve severable revisions to the Texas SIP
submitted on October 24, 2006, and August 16, 2007. Specifically from
the October 24, 2006 submittal, EPA is approving the amendments to
section 101.302(a) and (f) that move the international emission
reduction requirements to a new section, the amendments to section
101.302(d)(1)(C)(vi) that clarify EPA's role in approving emission
quantification protocols, and the amendment to section 101.306(a)(5)
that updates the approved uses for ERCs to include the HECT. EPA is
also proposing to approve provisions for international emission
reductions at new section 101.305 submitted on October 24, 2006.
Additionally, we are proposing to approve the following nonsubstantive
revisions to the Texas SIP submitted on August 16, 2007: revisions to
sections 101.302(d)(1)(A) and 101.306(b)(3) to update the cross-
references to recently recodified provisions in 30 TAC Chapter 117.
In a separate rulemaking, EPA is proposing action on the severable
DERC Program revisions at 30 TAC sections 101.372, 101.373, 101.375,
101.376, and 101.378 submitted on October 24, 2006, and 30 TAC sections
101.372 and 101.376 submitted on August 16, 2007 (see EPA-R06-OAR-2010-
0418).
At this time, EPA is not taking action on the revisions to the
Emissions Banking and Trading of Allowances Program at 30 TAC sections
101.338 and 101.339 submitted on October 24, 2006. EPA is also not
taking action at this time on the revisions to the general air quality
definitions at 30 TAC Section 101.1 or the revisions to the System Cap
Trading Program at 30 TAC sections 101.383, and 101.385 submitted on
August 16, 2007. These severable revisions remain under review by EPA
and will be addressed in separate actions.
V. 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 18, 2010.
Lawrence E. Starfied,
Acting Regional Administrator, Region 6.
[FR Doc. 2010-6800 Filed 3-29-10; 8:45 am]
BILLING CODE 6560-50-P