[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Rules and Regulations]
[Pages 1525-1532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-222]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-TX-0031; FRL-9248-9]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Revisions to Rules and Regulations for Control of Air Pollution;
Permitting of Grandfathered and Electing Electric Generating Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to partially approve and partially
disapprove revisions of the Texas State Implementation Plan (SIP)
submitted by the Texas Commission on Environmental Quality (TCEQ, or
Commission) on January 3, 2000, and July 31, 2002, as supplemented on
August 5, 2009. These revisions are to regulations of the TCEQ that
relate to application and permitting procedures for grandfathered
electric generating facilities (EGFs). The revisions address a mandate
by the Texas Legislature under Senate Bill 7 to achieve nitrogen oxide
(NOX), sulfur dioxide (SO2) and particulate
matter (PM) emission reductions from grandfathered EGFs. The emissions
reductions will contribute to achieving attainment and help ensure
attainment and continued maintenance of the National Ambient Air
Quality Standards (NAAQS) for ozone, sulfur dioxide, and particulate
matter in the State of Texas. As a result of these mandated emissions
reductions, in accordance with section 110(l) of the Federal Clean Air
Act, as amended (the Act, or CAA), partial approval of these revisions
will not interfere with attainment of the NAAQS, reasonable further
progress, or any other applicable requirement of the Act. EPA has
determined that the revisions, but for a severable provision, meet
section 110, part C, and part D of the Federal Clean Air Act (the Act
or CAA) and EPA's regulations. Therefore, EPA is taking final action to
approve the revisions but for a severable portion that allows
collateral emissions increases of carbon monoxide (CO) created by the
imposition of technology controls to be permitted under the State's
Standard Permit (SP) for Pollution Control Projects (PCP). EPA is
taking final action to disapprove this severable portion concerning the
issuance of a PCP SP for the CO collateral emissions increases.
DATES: This final rule is effective on February 10, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR-2005-TX-0031. All documents in this
docket are listed at http://www.regulations.gov. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either
[[Page 1526]]
electronically through 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 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 submittal, which is part of the EPA record, is also
available for public inspection at the State Air Agency listed below
during official business hours by appointment:
Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7227; fax number
214-665-7263; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``our,''
and ``us'' refers to EPA.
Outline
I. What action is EPA taking?
II. Background
A. Texas Senate Bill 7
B. January 3, 2000 Submittal
C. July 31, 2002 Submittal
III. What are the grounds for these actions?
A. January 3, 2000 Submittal
B. July 31, 2002 Submittal
IV. Did we receive public comments on the proposed rulemaking?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What action is EPA taking?
We are partially approving and partially disapproving the revision
to Title 30, Chapter 116, of the TAC submitted by the State of Texas on
January 3, 2000. We are also fully approving the revision to Title 30,
Chapter 116, of the TAC submitted by the State of Texas on July 31,
2002. The January 3, 2000 submittal concerns Subchapter A:
``Definitions,'' section 116.18; and Subchapter I: ``Electric
Generating Facility Permits,'' sections 116.910-914, 116.916, 116.920-
922, 116.930, and 116.931. We are fully approving all of this 2000
submittal but for the severable reference in 30 TAC 116.911(a)(2) that,
if approved, would allow the use of a Texas PCP SP for the permitting
of the CO collateral emissions increases. We are disapproving this
reference in submitted 30 TAC 116.911(a)(2) allowing the use of a PCP
SP for the collateral CO emissions. The July 31, 2002 submittal
concerns Subchapter A: ``Definitions,'' sections 116.10 and 116.18; and
Subchapter I: ``Electric Generating Facility Permits,'' sections
116.910, 116.911, 116.913, 116.917, 116.918, 116.921, 116.926, 116.928,
and 116.930. The TCEQ adopted these revisions on December 16, 1999, and
May 22, 2002, respectively.
Please note that in the July 31, 2002 submittal concerning
Subchapter A: ``Definitions,'' section 116.10 is severable and was
approved in a separate rulemaking (See 75 FR 19468 April 14, 2010).
EPA is taking final action on the submitted application and
permitting procedures for grandfathered EGFs, as mandated by the Texas
Legislature, to achieve NOX, SO2 and PM emission
reductions (Texas SB7 SIP) by December 31, 2010, as provided in the
Consent Decree entered on January 21, 2010 in BCCA Appeal Group v. EPA,
Case No. 3:08-cv-01491-N (N.D. Tex).
II. Background
A. Texas Senate Bill 7
Texas Senate Bill 7 (SB 7), formed under the 76th Texas State
Legislature, 1999,amended the Texas Utilities Code (TUC), Title 2,
Public Utility Regulatory Act, Subtitle B, Electric Utilities, and
created a new Texas Utilities Code Chapter 39, ``Restructuring of
Electric Utility Industry.'' SB 7 requires the TCEQ to establish a
regulatory program implementing the statute's mandatory emissions
reductions for ``grandfathered facilities'' under the Texas Utilities
Code section 39.264. A ``grandfathered facility'' is one that existed
at the time the Legislature amended the Texas Clean Air Act (TCAA) in
1971.
These facilities were not required to comply with (i.e.,
grandfathered from) the then new requirement to obtain permits for
construction or modifications of facilities that emit air contaminants.
Texas began permitting new and modified sources in 1971, and sources
built before Texas' permitting rules became effective were not required
to obtain permits for air emissions as long as they were not modified
as defined under Texas' New Source Review SIP program.
Section 39.264 of the TUC now requires EGFs that existed on January
1, 1999, to obtain a permit from the Commission even though these
sources were not previously required to obtain a permit under the TCAA,
section 382.0518(g).
Section 39.264 of the TUC specifically requires owners or operators
of all grandfathered EGFs to apply for a permit to emit NOX
and, for coal-fired grandfathered EGFs, SO2, and PM through
opacity limitations. These applications were due on or before September
1, 2000. A grandfathered EGF that does not obtain a permit may not
operate after May 1, 2003, unless the Commission finds good cause for
an extension. Section 39.264 of the TUC requires that for the 12-month
period beginning May 1, 2003, and for each 12-month period following,
annual emissions of NOX from grandfathered EGFs not exceed
50% of the NOX emissions reported to the Commission for
1997. Furthermore, it requires that emissions of SO2 from
coal-fired grandfathered EGFs not exceed 75% of the SO2
emissions reported to the Commission in 1997. In addition, TUC section
39.264(e) requires electric generating facility permits (EGFPs) for
coal-fired, grandfathered EGFs to contain appropriate opacity
limitations provided by the commission's rules in 30 Texas
Administrative Code (TAC) Ch.111.111, ``Requirements for Specified
Sources.'' As described in more detail below, the emission limitations
may be satisfied by using control technology or by participating in the
banking and trading of allowances under Texas' Emission Banking and
Trading of Allowances (EBTA) program.
Overall, SB 7 mandates specific pollution reduction in an area,
while allowing individual sources flexibility in how they meet
emissions reductions. As participants in the program, EGFs must obtain
a permit allocating them a certain level of emissions which they cannot
exceed. In each defined region, the total level of emissions are
restricted, or capped, to a level consistent with the SB 7 statutory
goals. The individual EGF, to meet its allocated emissions level, can
either choose to install pollution controls, shut down operations, or
purchase allowances from another source that already reduced emission
levels below its permitted amount.
To achieve SB 7's mandate, the TCEQ revised 30 TAC Chapter 116,
``Control of Air Pollution by Permits for New Construction or
Modification,'' by establishing an allowance and permitting program for
regulating grandfathered EGFs under Subchapter I.
[[Page 1527]]
TCEQ concurrently adopted Chapter 101, Subchapter H, ``Emissions
Banking and Trading,'' that establishes a regional cap and trade system
to distribute emission allowances for use by EGFs. The new Division 2,
Chapter 101, Subchapter H, concerning EBTA, sets out the allowance
system to be used to assist grandfathered and electing EGFs in meeting
the emission reduction requirements of TUC, section 39.264. Together,
the two rules define categories of EGFs that are eligible to use the
trading system. As discussed above, the first category consists of
grandfathered facilities. The second category of EGFs consist of
currently permitted EGFs that are not subject to the permitting
requirements mandated by SB 7, yet elect to participate in the
allowance trading system. These are referred to as ``electing'' EGFs
and participation in the permitting program will allow electing EGFs to
obtain allowances under the EBTA.
Please note that EPA's action on 30 TAC Chapter 101, Subchapter H,
Division 2, concerning Emissions Banking and Trading of Allowances, is
being finalized in a separate notice and is evaluated in a separate
TSD. (RME Docket R06-OAR-2005-TX-0012).
The background for today's actions is also discussed in more detail
in our October 19, 2010, proposal to partially approve and partially
disapprove revisions to the Texas SIP (75 FR 64235-64240).
B. January 3, 2000 Submittal
Regarding the January 3, 2000 submittal, SB 7 requires that for the
12-month period beginning May 1, 2003, and for each 12-month period
following, annual emissions of NOX from all grandfathered
EGFs not exceed 50% of the NOX emissions reported to the
Commission for 1997. Furthermore, the legislation requires that
emissions of SO2 from all coal-fired grandfathered EGFs not
exceed 75% of the SO2 emissions reported to the Commission
in 1997, and to contain appropriate opacity limitations by way of
permitting the emissions of particulate matter.
C. July 31, 2002 Submittal
Regarding the July 31, 2002 submittal, this submittal allows the
owners or operators of previously grandfathered and electing EGFs who
have already applied for an electric generating facility (EGF) permit
required by SB 7 to also obtain a permit for all air contaminants,
certain generators and auxiliary fossil fuel fired combustion
facilities.
III. What are the grounds for these actions?
A. January 3, 2000 Submittal
These submitted provisions, with the exception of 116.911(a)(2)
discussed below, meet the requirement in 40 CFR 51.160(a) that each
plan include legally enforceable procedures to determine whether the
construction or modification of a facility, building, structure, or
installation, or combination of these will result in (1) a violation of
applicable portions of the control strategy; or (2) interference with
attainment or maintenance of a national standard in the State in which
the proposed source (or modification) is located or in a neighboring
State. As such, they are consistent with the Act and its permitting
requirements.
Regarding the submitted 30 TAC 116.911(a)(2), EPA approved Texas's
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 Texas Clean Air Act provides that the TCEQ
may issue a standard permit for ``new or existing similar facilities''
if it is enforceable and compliance can be adequately monitored. See
section 382.05195 of the TCAA. EPA approved the State's Standard Permit
program as part of the Texas Minor NSR SIP program on November 14, 2003
(68 FR 64548). However, when EPA approved the Texas Standard Permits
Program as part of the Texas Minor NSR SIP, it explicitly did not
approve the Pollution Control Project (PCP) Standard Permit (30 TAC
116.617). This is the PCP SP referenced in 30 TAC 116.911(a)(2) of this
SIP submittal which owners or operators of grandfathered or electing
electric generating facilities used to permit collateral emissions of
CO which, otherwise, would have triggered PSD review. Following the
State of New York, et al. v. EPA, 413 F.3d 801 (D.C. Cir. 2005) court
decision (New York I), 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, on February 1, 2006. 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 New York I, the Court vacated the federal pollution control
project provisions for NNSR and PSD. Although the new PCP Standard
Permit explicitly prohibits the use of it for Major NSR purposes, TCEQ
failed to demonstrate how this particular Standard Permit met the Texas
Standard Permits NSR SIP since it applies to numerous types of
pollution control projects, which can be used at any source that wants
to use a PCP, and is not an authorization for similar sources. EPA
disapproved the new PCP Standard Permit submittal on September 15,
2010. 75 FR 56,424 (September 15, 2010). Thus, we are disapproving the
submitted 116.911 (a)(2) because it refers to and relies on the PCP SP
that does not meet the applicable requirements of the Act, and was
previously disapproved by EPA as a part of the Texas SIP.
The rationale for today's actions is also discussed in more detail
in our October 19, 2010, proposal to partially approve and partially
disapprove revisions to the Texas SIP (75 FR 64237-64239). See our
Technical Support Document, Attachment A, for additional details.
B. July 31, 2002 Submittal
These provisions meet the requirement in 40 CFR 51.160(a) that each
plan include legally enforceable procedures to determine whether the
construction or modification of a facility, building, structure, or
installation, or combination of these will result in (1) a violation of
applicable portions of the control strategy; or (2) interference with
attainment or maintenance of a national standard in the state in which
the proposed source (or modification) is located or in a neighboring
state. As such, they are consistent with the Act and its permitting
requirements.
The rationale for today's actions is also discussed in more detail
in our October 19, 2010, proposal to partially approve and partially
disapprove revisions to the Texas SIP (75 FR 64239). See our Technical
Support Document, Attachment B, for additional details.
IV. Did we receive public comments on the proposed rulemaking?
In response to our October 19, 2010, proposal, we received comments
from the following: Association of Electric Companies of Texas (AECT);
Baker Botts, L.L.P., on behalf of Texas Industrial Project (TIP);
Jackson Walker L.L.P., on behalf of the Gulf Coast Lignite Coalition
(GCLC); Luminant Generation Company LLC (Luminant); Texas Commission on
Environmental Quality (TCEQ); and Texas Mining and Reclamation
Association (TMRA).
We respond to these comments in our evaluation and review under
this final action below.
[[Page 1528]]
Comment 1: TMRA, Luminant, GCLC, AECT, and TCEQ commented generally
that the submitted 30 TAC 116.911(a)(2) was in compliance with all
federal regulations and policies at the time it was adopted and
submitted to EPA, and the subsequent court decisions including the EPA
appeal decision, to vacate the provision should not be applied
retroactively. Further, these commenters assert that EPA action on this
provision should apply prospectively only and not to any permits issued
prior to the court decisions.
Response: EPA disagrees with this comment. As discussed above, EPA
approved the State's Standard Permit program as part of the Texas Minor
NSR SIP program on November 14, 2003 (68 FR 64548). When EPA approved
the Texas Standard Permits Program as part of the Texas Minor NSR SIP,
it explicitly DID NOT approve the Pollution Control Project (PCP)
Standard Permit (30 TAC 116.617). This is the PCP SP referenced in 30
TAC 116.911(a)(2) of this SIP submittal which owners or operators of
grandfathered or electing electric generating facilities used to permit
collateral emissions of CO which, otherwise, would have triggered PSD
review. Following New York 1, 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, on February 1, 2006. 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 New York 1, the Court vacated the federal pollution control
project provisions for NNSR and PSD. Although the new PCP Standard
Permit explicitly prohibits the use of it for Major NSR purposes, TCEQ
has failed to demonstrate how this particular Standard Permit meets the
Texas Standard Permits NSR SIP since it applies to numerous types of
pollution control projects, which can be used at any source that wants
to use a PCP, and is not an authorization for similar sources. EPA
disapproved the new PCP Standard Permit submittal on September 15,
2010. 75 FR 56,424 (September 15, 2010).
We are disapproving the submitted 116.911(a)(2) because the
reference in it which allows obtaining a PCP SP for the collateral
emissions does not meet the applicable requirements of the Act, as
discussed herein, and was disapproved by EPA as a part of the Texas
SIP. EPA is required to review a SIP revision for its compliance with
the Act and EPA regulations. See CAA section 110(k)(3); see also BCCA
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C.
Cir 1995).
Comment 2: TMRA, TIP, Luminant, GCLC, and AECT commented generally
that the Clean Air Act requires that EPA ``shall not approve a revision
of a plan if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress * *
*.'' EPA should therefore approve 116.911(a)(2) because EPA discusses
in its proposed rule dated October 19, 2010, that the CO increases do
not interfere with attainment or maintenance of the NAAQS for CO, nor
cause or contribute to increase in PSD increments, much less a
violation of any NAAQS.
Response: This comment misunderstands the basis on which we are
disapproving 116.911(a)(2). We are disapproving the submitted 30 TAC
116.911(a)(2) because it allows the source to obtain a permit for its
collateral CO emissions that is not a part of the Texas SIP. EPA
previously disapproved the permit allowed for the collateral CO
emissions because it did not meet the applicable requirements of the
Act. EPA is required to review a SIP revision for its compliance with
the Act and EPA regulations. See CAA section 110(k)(3); see also BCCA
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C.
Cir 1995).
Comment 3: TIP, Luminant, and GCLC commented generally that the
court decision of June 24, 2005, does not apply to 116.911(a)(2). That
court decision dealt with an exclusion from major NSR, whereas the PCP
SP is a minor NSR permitting process and authorization tool and the SP
cannot be used to circumvent major NSR. One commenter noted that ``in
light of'' the court decision, on February 1, 2006, Texas submitted to
EPA a revised version of 30 TAC Sec. 116.617 (Standard Permits for
Pollution Control Projects) to ``limit the use of the state's PCP SP to
Minor NSR''.
Response: EPA disagrees with this comment. See response to comment
1.
Comment 4: TMRA, Luminant, and AECT commented generally that they
disagree with EPA's allegation that there were two facilities where
collateral emissions of Carbon Monoxide (CO) above the PSD significance
level occurred following the installation of pollution control
equipment. Further, that they disagree with EPA's proposal to
disapprove these already issued permits.
Response: EPA disagrees with this comment. EPA is not disapproving
these two already issued permits with this SIP action. Our disapproval
is strictly limited to the provision 30 TAC 116.911(a)(2) of the
January 3, 2000, SIP submittal. Although it is not a basis for EPA's
final action here, EPA stands by its previous discussion of the
facilities where collateral emissions of CO above PSD significance
levels occurred following the installation of pollution control
equipment.
Comment 5: TMRA, Luminant, and AECT commented that EPA should
follow its established position that Pollution Control Project permits
are acceptable under the Clean Air Act.
Response: It is not EPA's position, established or otherwise, that
PCP permits are acceptable under the Clean Air Act for Major NSR.
Furthermore, the New York I opinion addressed the use of PCPs and
disapproved their use for Major NSR requirements. In that decision, the
court vacated the provisions of the Federal 2002 NSR Reform rule that
specifically related to PCPs. The EPA must comply with the court
decision. EPA disapproved the State's submitted PCP SP for Minor NSR.
See response to comment 1.
Comment 6: TMRA and AECT commented generally that the proposed
disapproval has a chilling effect on much needed economic investment
and makes it even more difficult for companies to create jobs and
provide for economic growth. Further, that the Senate Bill 7 program
has achieved substantial emission reductions while providing a fair and
predictable regulatory framework that is protective of human health and
the environment.
Response: Under the NAAQS provisions of the CAA, air pollution
control at its source is the primary responsibility of States and local
governments. EPA is respectful of the Act and cognizant of the
cooperative federalism principle contained therein. However, while the
Act does give States a fair degree of latitude in choosing the mix of
controls necessary to meet and maintain the NAAQS, it also places some
limits on the choices States can make. EPA's role is to ensure that the
SIP submittal is consistent with the CAA. Any SIP submittal must adhere
to applicable requirements of the federal CAA, including the obligation
to provide for attainment and maintenance of the NAAQS and to ensure
that the SIP may be adequately enforced. EPA's statutory
responsibilities in reviewing a SIP are to ensure it meets the
requirements of the Act. As explained in
[[Page 1529]]
the proposal and above, as part of EPA's review, we determined that the
provision providing for the obtaining of a non-SIP PCP SP is
inconsistent with the CAA. See CAA section 110(k)(3); see also BCCA
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C.
Cir 1995).
Comment 7: Luminant commented that EPA incorrectly concludes that
its prior disapproval of 30 TAC 116.617 necessitates disapproval of 30
TAC 116.911(a)(2). Rather, EPA must independently justify its
disapproval of these provisions relating to the Texas Senate Bill No. 7
(``SB7'') permitting program. Further, that EPA's disapproval of 30 TAC
116.617 does not justify or require disapproval of 30 TAC
116.911(a)(2). Also, the obligation thus originates from the SB7 permit
rules, and EPA has an independent obligation to justify its disapproval
of the substance of those requirements in this rulemaking and not
simply rely on a prior one that did not involve the SB7 permit program.
Response: EPA disagrees with this comment. 30 TAC 116.911(a)(2)
allows a SB7 source that has collateral emissions of CO to obtain a
TCEQ PCP SP rather than obtaining a Texas NSR SIP permit, for its CO
collateral emissions. The PCP SP is not a part of the Texas NSR SIP.
See the response to comment 1. Moreover, EPA is required to review a
SIP revision for its compliance with the Act and EPA regulations. See
CAA section 110(k)(3); see also BCCA Appeal Group v. EPA, 355 F 3d.817,
822 (5th Cir 2003); Natural Resources Defense Council, Inc. v. Browner,
57 F.3d 1122, 1123 (D.C. Cir 1995).
Comment 8: Luminant commented that it supports the remainder of
proposed approval of the January 3, 2000 and July 31, 2002 submittals.
It also supports the EPA's November 16, 2010 direct final rule to
approve the EBTA program.
Response: EPA acknowledges this comment.
Comment 9: The TCEQ commented that it maintains its position that
Sec. 116.617 is an efficient and legally supportable authorization for
pollution control projects in Texas.
Response: EPA disagrees with this comment. We disapproved the PCP
SP on September 15, 2010. See 75 FR 56,424 (September 15, 2010).
IV. Final Action
EPA is partially approving and partially disapproving revisions to
the Texas SIP that include 30 TAC Chapter 116, Subchapter A:
``Definitions,'' section 116.18; and Subchapter I: ``Electric
Generating Facility Permits,'' sections 116.910-914, 116.916, 116.920-
922, 116.930, and 116.931, which Texas submitted on January 3, 2000.
EPA is approving all of the January 3, 2000, SIP revision submittal
as part of the Texas NSR SIP but for 30 TAC 116.911(a)(2). EPA is
disapproving the submitted severable 30 TAC 116.911(a)(2) for
collateral emissions increases of CO that are allowed to be permitted
under the Texas PCP SP.
Further, EPA is approving revisions to the Texas SIP that include
30 TAC Chapter 116, Subchapter A: ``Definitions,'' section 116.18; and
Subchapter I: ``Electric Generating Facility Permits,'' sections
116.910, 116.911, 116.913, 116.917, 116.918, 116.921, 116.926, 116.928,
and 116.930, which Texas submitted on July 31, 2002. We are taking no
action on Chapter 116, Subchapter H: ``Permits for Grandfathered
Facilities,'' which Texas submitted on July 31, 2002. The State
understands that EPA will take future action on Subchapter H because it
is independent from Subchapters A and I, and action is not necessary at
this time.
The January 3, 2000 and July 31, 2002 submittals address the
applicability and permitting requirements for grandfathered and
electing electric generating facilities. The revisions will contribute
to improvement in overall air quality in Texas. There will be no
increase in ozone, SO2, and PM concentration levels because
of approving the revisions. We have evaluated the State's submittal,
determined that it meets the applicable requirements of the CAA and EPA
air quality regulations, and is consistent with EPA policy.
V. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This final action has been determined not to be a ``significant
regulatory action'' subject to review by the Office of Management and
Budget under Executive Order 12866 (58 FR 51735, October 4, 1993).
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 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). Because this final action does not impose an information
collection burden, the Paperwork Reduction Act does not apply.
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. This rule will not have a significant
impact on a substantial number of small entities because SIP approvals
and disapprovals under section 110 and part D of the Clean Air Act do
not create any new requirements but simply approve or disapprove
requirements that the States are already imposing.
Furthermore, as explained in this action, the submissions do not
meet the requirements of the Act and EPA cannot approve the
submissions. The final disapproval will not affect any existing State
requirements applicable to small entities in the State of Texas.
Federal disapproval of a State submittal does not affect its State
enforceability. After considering the economic impacts of today's
rulemaking on small entities, and because the Federal SIP disapproval
does not create any new requirements or impact a substantial number of
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. EPA,
[[Page 1530]]
427 U.S. 246, 255-66 (1976); 42 7410(a)(2).
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 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 Federal action determines
that pre-existing requirements under State or local law should not be
approved as part of the Federally approved SIP. It 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 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 disapproving 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. This final rule does not
have tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. This action does not involve or impose
any requirements that affect Indian Tribes. 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 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 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 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 the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
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. Today's action does not require
the public to perform activities conducive to the use of voluntary
consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this 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 disapproves 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 E`xecutive Order
12898.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
[[Page 1531]]
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 14, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxides, Nonattainment, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 29, 2010.
Samuel Coleman,
Acting Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7410 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270 (c) entitled ``EPA Approved Regulations
in the Texas SIP'' is amended under Chapter 116--Control of Air
Pollution by Permits for New Construction or Modification, as follows:
0
a. Immediately following the entry for Section 116.14, by adding a new
entry for Section 116.18, Electric Generating Facility Permits
Definitions; and
0
b. Immediately following section 116.615, by adding a new centered
heading entitled ``Subchapter I--Electric Generating Facility Permits''
followed by new entries for Sections 116.910, 116.911, 116.912,
116.913, 116.914, 116.916, 116.917, 116.918, 116.920, 116.921, 116.922,
116.926, 116.928, 116.930, and 116.931.
The additions read as follows:
Sec. 52.2270 Identification of plan.
(c) * * *
----------------------------------------------------------------------------------------------------------------
State
approval/
State citation Title/subject submittal EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
* * * * * * *
Subchapter A--Definitions
* * * * * * *
Section 116.18................. Electric Generating 5/22/2002 1/11/2011, [Insert ...................
Facility Permits FR page number
Definitions. where document
begins].
* * * * * * *
Subchapter I--Electric Generating Facility Permits
* * * * * * *
Section 116.910................ Applicability....... 5/22/2002 1/11/2011, [Insert ...................
FR page number
where document
begins].
Section 116.911................ Electric Generating 5/22/2002 1/11/2011, [Insert 116.911(a)(2) is
Facility Permit. FR page number not in the SIP.
where document
begins].
Section 116.912................ Electric Generating 12/16/1999 1/11/2011, [Insert ...................
Facilities. FR page number
where document
begins].
Section 116.913................ General and Special 5/22/2002 1/11/2011, [Insert ...................
Conditions. FR page number
where document
begins].
Section 116.914................ Emissions Monitoring 12/16/1999 1/11/2011, [Insert ...................
and Reporting FR page number
Requirements. where document
begins].
Section 116.916................ Permits for 12/16/1999 1/11/2011, [Insert ...................
Grandfathered and FR page number
Electing Generating where document
Facilities in El begins].
Paso County.
Section 116.917................ Electric Generating 5/22/2002 1/11/2011, [Insert ...................
Facility Permit FR page number
Application for where document
Certain begins].
Grandfathered Coal-
Fired Electric
Generating
Facilities and
Certain Facilities
Located at Electric
Generating Facility
Sites.
Section 116.918................ Additional General 5/22/2002 1/11/2011, [Insert ...................
Special Conditions FR page number
for Grandfathered where document
Coal-Fired Electric begins].
Generating
Facilities and
Certain Facilities
Located at Electric
Generating Facility
Sites.
Section 116.920................ Applicability....... 12/16/1999 1/11/2011, [Insert ...................
FR page number
where document
begins].
Section 116.921................ Notice and Comment 5/22/2002 1/11/2011, [Insert ...................
Hearings for FR page number
Initial Issuance. where document
begins].
[[Page 1532]]
Section 116.922................ Notice of Final 12/16/1999 1/11/2011, [Insert ...................
Action. FR page number
where document
begins].
Section 116.926................ Permit Fee.......... 5/22/2002 1/11/2011, [Insert ...................
FR page number
where document
begins].
Section 116.928................ Delegation.......... 5/22/2002 1/11/2011, [Insert ...................
FR page number
where document
begins].
Section 116.930................ Amendments and 5/22/2002 1/11/2011, [Insert ...................
Alterations Issued FR page number
Under this where document
Subchapter. begins].
Section 116.931................ Renewal............. 12/16/1999 1/11/2011, [Insert ...................
FR page number
where document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.2273 is amended by adding a new paragraph (f) to read as
follows:
Sec. 52.2273 Approval status.
* * * * *
(f) EPA is disapproving the Texas SIP revision submittals under 30
TAC Chapter 116--Control of Air Pollution by Permits for New
Construction or Modification as follows:
(1) Subchapter I--Electric Generating Facility Permits--Section
116.911(a)(2) (Electric Generating Facility Permit), adopted December
16, 1999, and submitted January 3, 2000.
[FR Doc. 2011-222 Filed 1-10-11; 8:45 am]
BILLING CODE 6560-50-P