Approval and Promulgation of Implementation Plans; Texas; Emissions Banking and Trading of Allowances Program, 69884-69889 [2010-28659]
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69884
Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations
attaining the 1997 PM2.5 National
Ambient Air Quality Standard (62 FR
38652, July 18, 1997). New York State’s
submittal included motor vehicle
emissions budgets (‘‘budgets’’) for 2009
for use by the State’s metropolitan
planning organizations in making
transportation conformity
determinations. On January 19, 2010,
EPA posted the availability of the
budgets on our Web site for the purpose
of soliciting public comments. The
comment period closed on February 18,
2010, and we received no comments.
Today’s notice is simply an
announcement of a finding that we have
already made. EPA Region 2 sent a letter
to New York State on October 15, 2010,
stating that the 2009 motor vehicle
emissions budgets in New York’s SIP for
the New York portion of the New YorkNorthern New Jersey-Long Island, NY–
NJ–CT PM2.5 nonattainment area are
adequate because they are consistent
with the required attainment
demonstration.
Transportation conformity is required
by section 176(c) of the Clean Air Act.
EPA’s conformity rule requires that
transportation plans, programs, and
projects conform to SIPs and establishes
the criteria and procedures for
determining whether or not they
conform. Conformity to a SIP means that
transportation activities will not
produce new air quality violations,
worsen existing violations, or delay
timely attainment of the National
Ambient Air Quality Standards.
The criteria by which we determine
whether a SIP’s motor vehicle emission
budgets are adequate for conformity
purposes are outlined in 40 CFR
93.118(e)(4). Please note that an
adequacy review is separate from EPA’s
completeness review, and it also should
not be used to prejudge EPA’s ultimate
approval of the SIP. Even if we find a
budget adequate, the SIP could later be
disapproved.
We have described our process for
determining the adequacy of submitted
SIP budgets in 40 CFR 93.118(f). We
have followed this rule in making our
adequacy determination. The motor
vehicle emissions budgets being found
adequate today are listed in Table 1.
EPA’s finding will also be announced
on EPA’s conformity Web site: https://
www.epa.gov/otaq/stateresources/
transconf/adequacy.htm.
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DATES: This direct final rule is effective
TABLE 1—2009 ATTAINMENT PM2.5
MOTOR VEHICLE EMISSIONS BUDG- on January 18, 2011 without further
notice, unless EPA receives relevant
ETS FOR NEW YORK
adverse comment by December 16,
2010. If EPA receives such comment,
EPA will publish a timely withdrawal in
Metropolitan Planning
NOX
PM2.5
the Federal Register informing the
Organization
public that this rule will not take effect.
NYMTC (excluding PutADDRESSES: Submit your comments,
nam County) and OCTC
1,750 77,571 identified by Docket ID No. EPA–R06–
OAR–2005–TX–0012, by one of the
List of Subjects in 40 CFR Part 52
following methods:
Environmental protection, Air
• www.regulations.gov: Follow the
pollution control, Incorporation by
on-line instructions for submitting
reference, Intergovernmental relations,
comments.
Nitrogen dioxide, Particulate matter,
• E-mail: Mr. Jeff Robinson at
Reporting and record keeping
robinson.jeffrey@epa.gov. Please also cc
requirements.
the person listed in the FOR FURTHER
INFORMATION CONTACT paragraph below.
Authority: 42 U.S.C. 7401–7671q.
• U.S. EPA Region 6 ‘‘Contact Us’’
Dated: October 29, 2010.
Web site: https://epa.gov/region6/
Judith A. Enck,
r6coment.htm. Please click on ‘‘6PD’’
Regional Administrator, Region 2.
(Multimedia) and select ‘‘Air’’ before
[FR Doc. 2010–28658 Filed 11–15–10; 8:45 am]
submitting comments.
BILLING CODE 6560–50–P
• Fax: Mr. Jeff Robinson, Chief, Air
Permits Section (6PD–R), at fax number
214–665–6762.
ENVIRONMENTAL PROTECTION
• Mail: Mr. Jeff Robinson, Chief, Air
AGENCY
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
40 CFR Part 52
Suite 1200, Dallas, Texas 75202–2733.
[EPA–R06–OAR–2005–TX–0012; FRL–9226–
• Hand or Courier Delivery: Mr. Jeff
2]
Robinson, Chief, Air Permits Section
(6PD–R), Environmental Protection
Approval and Promulgation of
Agency, 1445 Ross Avenue, Suite 1200,
Implementation Plans; Texas;
Dallas, Texas 75202–2733. Such
Emissions Banking and Trading of
deliveries are accepted only between the
Allowances Program
hours of 8:30 a.m. and 4:30 p.m.
weekdays except for legal holidays.
AGENCY: Environmental Protection
Special arrangements should be made
Agency (EPA).
for deliveries of boxed information.
ACTION: Direct final rule.
Instructions: Direct your comments to
SUMMARY: EPA is taking a direct final
Docket ID No. EPA–R06–OAR–2005–
action to approve portions of four
TX–0012. EPA’s policy is that all
revisions to the Texas State
comments received will be included in
Implementation Plan (SIP) that create
the public docket without change and
and amend the Emissions Banking and
may be made available online at
Trading of Allowances (EBTA) Program. https://www.regulations.gov, including
The EBTA Program establishes a cap
any personal information provided,
and trade program to reduce emissions
unless the comment includes
of oxides of nitrogen (NOX) and sulfur
information claimed to be Confidential
dioxide (SO2) from participating electric Business Information (CBI) or other
generating facilities. The Texas
information the disclosure of which is
Commission on Environmental Quality
restricted by statute. Do not submit
(TCEQ) originally submitted the EBTA
information through https://www.
program to EPA as a SIP revision on
regulations.gov or e-mail, if you believe
January 3, 2000. Since that time, the
that it is CBI or otherwise protected
TCEQ has submitted SIP revisions for
from disclosure. The https://www.
the EBTA Program on September 11,
regulations.gov website is an
2000; July 15, 2002; and October 24,
‘‘anonymous access’’ system, which
2006. EPA has determined that these
means that EPA will not know your
changes to the Texas SIP comply with
identity or contact information unless
the Federal Clean Air Act (the Act or
you provide it in the body of your
CAA) and EPA regulations, are
comment. If you send an e-mail
consistent with EPA policies, and will
comment directly to EPA without going
improve air quality. This action is being through https://www.regulations.gov,
taken under section 110 and parts C and your e-mail address will be
D of the Act.
automatically captured and included as
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Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010 / Rules and Regulations
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 https://www.
epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://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 https://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
direct final action, 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)
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665–2115. Ms. Wiley can also be
reached via electronic mail at
wiley.adina@epa.gov.
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 the Emissions Banking and
Trading of Allowances Program?
IV. What is EPA’s evaluation of the
Emissions Banking and Trading of
Allowances Program?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Action is EPA Taking?
We are taking direct final action to
approve portions of four revisions to the
Texas SIP submitted by the Texas
Commission on Environmental Quality
(TCEQ) on January 3, 2000; September
11, 2000; July 15, 2002; and October 24,
2006. These four revisions create and
amend the Emissions Banking and
Trading of Allowances Program at 30
Texas Administrative Code (TAC)
Chapter 101, Subchapter H, Division 2.
Specifically, we are approving through
direct final action the adoption of 30
TAC sections 101.330–101.336,
submitted on January 3, 2000; the
revisions to 30 TAC section 101.333
submitted on September 11, 2000; the
adoption of new 30 TAC section
101.338 submitted on July 15, 2002; and
the revisions to 30 TAC section 101.338
and the adoption of new 30 TAC section
101.339 submitted on October 24, 2006.
Our analysis as presented in this
rulemaking action and the
accompanying Technical Support
Document finds these revisions to the
Texas SIP to be consistent with the
CAA, 40 CFR Part 51, and EPA’s
Economic Incentive Program Guidance,
‘‘Improving Air Quality with Economic
Incentive Programs’’ (EPA–452/R–01–
001, January 2001).
EPA’s direct final approval of the
EBTA program does not extend to the
portions of the 4 SIP revisions that are
not related to the EBTA program.
Section II of this rulemaking action,
titled ‘‘What Did Texas Submit?’’ further
explains the state’s SIP submittals and
EPA’s actions on the non-EBTA program
provisions.
We are publishing this rule without
prior proposal because we view this as
a noncontroversial amendment and
anticipate no relevant adverse
comments. However, in the proposed
rules section of this Federal Register
publication, we are publishing a
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separate document that will serve as the
proposal to approve the SIP revision if
relevant adverse comments are received.
This direct final rule will be effective on
January 18, 2011 without further notice
unless we receive relevant adverse
comment by December 16, 2010. If we
receive relevant adverse comments, we
will publish a timely withdrawal in the
Federal Register informing the public
that the rule will not take effect. We will
address all public comments in a
subsequent final rule based on the
proposed rule. We will not institute a
second comment period on this action.
Any parties interested in commenting
must do so now. Please note that if we
receive adverse comment on an
amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
we may adopt as final those provisions
of the rule that are not the subject of an
adverse comment.
II. What did Texas submit?
The TCEQ has submitted four SIP
revisions concerning the EBTA Program.
Below is an itemized listing of each of
these submittals which details all
sections submitted for EPA review and
any rulemaking actions taken to date on
these submissions.
January 3, 2000
• On December 16, 1999, the Texas
Natural Resource Conservation
Commission (TNRCC) (the predecessor
agency to the TCEQ) adopted new
provisions establishing the EBTA
program, pursuant to Senate Bill 7, 76th
Legislature, 1999 (SB 7). These new
provisions created 30 TAC Chapter 101,
Subchapter H, Division 2, Sections
101.330–101.337. Governor George W.
Bush submitted these provisions as a
SIP revision in a letter dated January 3,
2000, for rule log number 99033–116–
AI.
• On December 16, 1999, TNRCC also
adopted new provisions at 30 TAC
Chapter 116, Sections 116.18, 116.910–
116.914, 116.916, 116.920–116.922,
116.930, and 116.931 concerning the
permitting of grandfathered electric
generating facilities, also pursuant to
Senate Bill 7. These provisions were
also submitted to EPA on January 3,
2000, as part of rule project number
99033–116–AI.
• EPA is taking separate action on the
provisions for the permitting of
grandfathered electric generating
facilities at 30 TAC Chapter 116,
Sections 116.18, 116.910–116.914,
116.916, 116.920–116.922, 116.930, and
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116.931.1 See 75 FR 64235, October 19,
2010 at docket EPA–R06–OAR–2005–
TX–0031.
September 11, 2000
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• On August 9, 2000, the TNRCC
adopted amendments to the EBTA
program at 30 TAC Chapter 101,
Subchapter H, Division 2, Section
101.333. Governor George W. Bush
submitted these amendments as a SIP
revision in a letter dated September 11,
2000, for rule log number 1999–029B–
116–AI.
• On August 9, 2000, TNRCC also
adopted amendments to 30 TAC
Chapter 101, Subchapter A, Section
101.27 for revised emission fees
calculations. The TNRCC also adopted
amendments to 30 TAC Chapter 116,
Sections 116.10, 116.110, 116.116,
116.603, 116.620, 116.621, 116.710,
116.715, 116.721, 116.722 and 116.750
pursuant to Senate Bill 766, 76th
Legislature, 1999. All of these
provisions were submitted to EPA on
September 11, 2000, as part of rule log
number 1999–029B–116–AI.
• On December 28, 2009, EPA
returned the submittal of 30 TAC 101.27
to the Texas Commission on
Environmental Quality (TCEQ) as part
of the Title V Operating Permit Program
rather than a Title I program that is
implemented through the SIP. TCEQ
submitted a letter on January 14, 2010,
concurring with our assessment and
withdrawing 30 TAC 101.27 from
consideration as a SIP submittal.
• On November 14, 2003, EPA
approved the amendments to 30 TAC
Sections 116.110, 116.116, and 116.603.
See 68 FR 64548.
• On April 14, 2010, EPA approved
the amendments to 30 TAC Section
116.10(6) submitted on September 11,
2000. Also in this action EPA
disapproved the amendments to 30 TAC
Section 116.10(2) and took no action on
30 TAC Section 116.10(5)(F). See 75 FR
19468.
• On June 30, 2010, EPA issued a
final disapproval of the Texas Flexible
Permits Program, including disapproval
of 30 TAC Sections 116.710, 116.715,
116.721, 116.722, and 116.750
submitted on September 11, 2000. See
(75 FR 41312, July 15, 2010).
• The amendments to 30 TAC Section
116.620 remain open for review and
action by EPA at a later date. EPA is
1 A grandfathered facility is defined as a facility
that is not a new facility, was constructed prior to
August 30, 1971 (or no construction contract was
executed on or before August 30, 1971 that
specified a beginning construction date on or before
February 29, 1972) and has not been modified since
August 30, 1971. EPA SIP-approved this definition
on April 14, 2010, see 75 FR 19468.
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under a consent decree deadline to take
final action no later than October 31,
2011.
• The amendments to 30 TAC Section
116.621 were repealed by the TCEQ on
March 1, 2006, as part of Rule Project
Number 2003–066–116–PR. No further
action is needed by EPA on this section.
July 15, 2002
• On March 13, 2002, the TNRCC
adopted new provisions in the EBTA
Program for emission reductions
achieved outside the United States at 30
TAC Chapter 101, Subchapter H,
Division 2, Section 101.338. The
Chairman of the TNRCC, Mr. Robert J.
Huston, submitted this section as a SIP
revision in a letter dated July 15, 2002,
for rule project number 2001–063–101–
AI.
• On March 13, 2002, the TNRCC also
adopted revisions to the Emission Credit
Banking and Trading Program (referred
to elsewhere in this document as the
Emission Reduction Credit (ERC)
Program) at 30 TAC Chapter 101,
Subchapter H, Division 1, Section
101.302; the Mass Emissions Cap and
Trade (MECT) Program at 30 TAC
Chapter 101, Subchapter H, Division 3,
Section 101.357, and the Discrete
Emission Credit Banking and Trading
Program (referred to elsewhere in this
document as the Discrete Emission
Reduction Credit (DERC) Program) at 30
TAC Chapter 101, Subchapter H,
Division 4, Section 101.372. The TNRCC
also adopted new 30 TAC 117.571. All
of these provisions were also submitted
to EPA on July 15, 2002, as part of rule
project number 2001–063–101–AI.
• EPA fully approved the
amendments to section 101.302 on
September 6, 2006. See 71 FR 52698.
• EPA conditionally approved the
amendments to section 101.372 on
September 6, 2006. See 71 FR 52703.
The conditional approval of the DERC
Program was converted to a full
approval on May 18, 2010. See 75 FR
27644.
• EPA has taken no action to date on
new section 101.357. This section is
severable from our analysis and action
on the EBTA program because the
MECT Program is a separate, standalone cap and trade program specific to
the Houston-Galveston-Brazoria (HGB)
ozone nonattainment area. This action
remains open for review and action at
a later date by EPA.
• EPA has taken no action to date on
new section 117.571. This section is
severable from our analysis and action
on the EBTA program because section
117.571 establishes provisions to allow
the substitution of emissions reductions
achieved under the Texas Emission
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Reduction Program (TERP) for NOX
emission reductions required in the
HGB and Dallas/Fort Worth ozone
nonattainment areas. This section
remains open for review and action at
a later date by EPA.
October 24, 2006
• On October 4, 2006, the Texas
Commission on Environmental Quality
(TCEQ) adopted the repeal of 30 TAC
Section 101.338 and new 30 TAC
Sections 101.338 and 101.339. The
Chairman of the TCEQ, Ms. Kathleen
Hartnett White, submitted these
provisions as a SIP revision in a letter
dated October 24, 2006, for rule project
number 2005–054–101–PR. In this SIP
submittal cover letter, Chairman White
requested that EPA take no federal
action on 30 TAC Section 101.337
submitted on January 3, 2000; section
101.337 establishes requirements
unique to the El Paso Region which will
be state only requirements.
• On October 4, 2006, TCEQ also
adopted revisions to the ERC program at
30 TAC Chapter 101, Sections 101.302,
101.305 and 101.306 to address the
mandates of Texas Senate Bill 784 and
the conditions of EPA’s final
conditional approval of the DERC
Program, September 6, 2006. See 71 FR
52703. Also at this time, the TCEQ
adopted revisions to the DERC Program
at 30 TAC Chapter 101, Sections
101.372, 101.373, 101.375, 101.376, and
101.378 to address the mandates of
Texas SB 784 and the conditions of
EPA’s final conditional approval of the
DERC Program, September 6, 2006. All
of these revisions were submitted to
EPA on October 24, 2006, as part of rule
project number 2005–054–101–PR.
• On April 30, 2010, EPA fully
approved the amendments to the ERC
and DERC Programs at 30 TAC Chapter
101, Sections 101.302, 101.305, 101.306,
101.372, 101.373, 101.375, 101.376, and
101.378. See 75 FR 27644 and 75 FR
27647, May 18, 2010.
III. What is the Emissions Banking and
Trading of Allowances Program?
Why did Texas develop the EBTA
Program?
The TCEQ created the EBTA Program
to implement the requirements of Texas
SB 7, from the 76th Legislature, 1999,
which deregulated the electric utility
industry. Under SB 7, TCEQ was
required to develop a permitting system
and a mass cap and trade system to
distribute allowances for use by electric
generating facilities. The EBTA program
is designed to achieve a 50 percent
reduction in NOX emissions and a 25
percent reduction in SO2 emissions,
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both based on 1997 heat input data,
from participating sources. The
permitting system required under SB 7
and established at 30 TAC Chapter 116,
Subchapter I, is being evaluated in a
separate rulemaking action (See 75 FR
64235, October 19, 2010 at docket EPA–
R06–OAR–2005–TX–0031).
How does the EBTA Program work?
The EBTA Program is similar to the
source specific emissions cap as
described in EPA’s Economic Incentive
Program (EIP) Guidance, ‘‘Improving Air
Quality with Economic Incentive
Programs’’ (EPA–452/R–01–001, January
2001) (EIP Guidance). A source specific
emissions cap (SSEC) allows a limited
group of sources that are subject to a
rate-based emission limit to meet that
requirement by accepting a mass-based
emission limit, or cap, rather than
complying directly with a rate-based
limit. Some attributes that characterize
a successful SSEC include a welldefined group of sources, little potential
for emissions to shift from included
sources to excluded sources, and a
relatively low level of uncertainty
associated with the program. In the
EBTA Program, the participating
sources are limited to grandfathered and
electing electric generating facilities
(EGFs). An electing EGF is a facility
permitted under 30 TAC Chapter 116,
Subchapter B that elects to comply with
the permitting program established in
Texas SB 7 at 30 TAC Chapter 116,
Subchapter I.
The EBTA divides Texas into three
regions—East Texas, West Texas, and El
Paso. The East Texas Region includes all
counties traversed by or east of
Interstate Highway 35 north of San
Antonio or traversed by or east of
Highway 37 south of San Antonio, also
including Bexar, Bosque, Coryell, Hood,
Parker, Somervell, and Wise Counties.
The West Texas Region includes all
counties not contained in the East Texas
or El Paso Regions. The El Paso Region
is defined at 30 TAC section 101.330(13)
as all of El Paso County, Ciudad Juarez,
Mexico, and Sunland Park, New
Mexico. Note that on October 24, 2006,
TCEQ requested no Federal action on
the portions of the EBTA that pertain to
the El Paso region.
To achieve the reductions of 50
percent NOX emissions and 25 percent
SO2 emissions, the TCEQ established
emission caps for each region. The caps
consist of allowances allocated by the
TCEQ to each facility in the EBTA
initially by January 1, 2000, for
grandfathered EGFs and by January 1,
2001, for electing EGFs. Beginning in
2004, the TCEQ will allocate the
allowances to all facilities in the EBTA
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by May 1 of each year. The TCEQ will
deposit the same amount of allowances
into each grandfathered or electing
EGF’s compliance account at the
beginning of each control period, with
the exception that the allocation for
electing EGFs may be adjusted to reflect
new state or Federal requirements. An
allowance is the authorization to emit
one ton of NOX or SO2 during a control
period and does not constitute a
security or property right. All
allowances will be allocated,
transferred, or used as whole
allowances. The control period for the
EBTA is the 12-month period beginning
May 1 of each year and ending April 30
of the following year, with the initial
control period beginning May 1, 2003.
A facility can choose to operate at,
above, or below its allowance budget. A
source operating below its allowance
budget can bank or trade its allowances
for use in subsequent control periods. A
source operating above its allowance
budget must purchase excess
allowances from another source to
demonstrate compliance with the cap.
Beginning June 1, 2004, and no later
than June 1 following the end of every
control period, each facility must hold
a quantity of allowances in its
compliance account that is equal to or
greater than the total emissions of air
contaminant emitted during the control
period just ending. If a facility’s actual
emissions of air contaminant during a
control period exceed the amount of
allowances held in the compliance
account on June 1, allowances for the
next control period will be reduced by
an amount equal to the emissions
exceeding the allowances in the
compliance account. This deduction
does not preclude any additional
enforcement action by the TCEQ.
Facilities subject to the EBTA must
submit a report to the TCEQ by June 30
of each year following the completed
control period. This report must include
the amount of emissions of each
allocated air contaminant and a
summary of all final trades for the
preceding control period. Additionally,
facilities subject to the EBTA will
quantify and report emissions using the
monitoring and reporting requirements
of 30 TAC 116.914 (See 75 FR 64235,
October 19, 2010 at docket EPA–R06–
OAR–2005–TX–0031).
A grandfathered or electing EGF may
use emission reductions achieved from
Mexico in lieu of allowances for
compliance with the EBTA. The
emission reductions may be criteria
pollutants or precursors of criteria
pollutants, with the exception of lead
emissions. The reductions may be used
in lieu of the same pollutant
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requirement (i.e., NOX reductions from
Mexico are substituted for NOX
requirements in Texas). Or, the
reductions of criteria pollutants or their
precursors may be substituted for
emission reduction requirements for
other criteria pollutants (i.e., reductions
in CO emissions could be substituted for
NOX or SO2 emission requirements). In
the event the Mexican reduction is
being substituted for a criteria pollutant
requirement (CO for NOX or SO2), the
substitution must result in greater
health benefits and must be of equal or
greater benefit to the overall air quality
of the area; or the substitution occurs
between criteria pollutants for which
the area has been designated
nonattainment. Generally, the use of
reductions from outside the United
States must be approved by the TCEQ
executive director and the EPA, and the
user of the emission reduction must:
1. Demonstrate to the TCEQ executive
director and to the EPA that the
reduction is real, permanent,
enforceable, quantifiable and surplus to
any applicable Mexican, federal, state,
or local law;
2. Demonstrate that the use of the
reduction does not cause localized
health impacts, as determined by the
TCEQ executive director and EPA;
3. Submit all supporting information
for calculations and modeling, and any
additional information requested by the
TCEQ executive director and EPA; and
4. Be located within 100 kilometers of
the Texas-Mexico border.
Sources subject to the EBTA submit
an annual compliance report to the
TCEQ by June 30 of each year. This
report details the amount of emissions
of each allocated air contaminant and a
summary of all final trades for the
preceding control period. Through
review of these reports, the TCEQ is able
to determine which facilities are in
compliance with the program.
The TCEQ executive director will also
develop a report no later than
September 30th following each control
period that includes the number of
allowances allocated to each
compliance account; the total number of
allowances allocated under the EBTA
program; the number of actual NOX and
SO2 allowances subtracted from each
compliance account based on the actual
NOX and SO2 emissions from the site;
and a summary of all trades completed
under the EBTA program.
Additionally, the TCEQ executive
director will audit the program no later
than three years after the effective date
of the EBTA program, and every three
years thereafter. The audit will evaluate
the impact of the program on the state’s
ozone attainment demonstrations, the
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availability and cost of allowances,
compliance by the participants, and any
other elements the executive director
deems necessary. If any problems are
identified, the executive director will
recommend remedies, including the
discontinuation of trading in whole or
part. This audit will be submitted to the
EPA and made available for public
inspection within six months after the
audit begins.
IV. What is EPA’s evaluation of the
Emissions Banking and Trading of
Allowances Program?
Generally, SIP rules must be
enforceable and must not relax existing
requirements. See Clean Air Act
sections 110(a), 110(l), and 193. EPA’s
review of the January 3, 2000;
September 11, 2000; July 15, 2002; and
October 24, 2006 SIP revisions finds
that all 4 SIP submittals are consistent
with the requirements at 40 CFR part 51
and are considered complete SIP
submittals in accordance with 40 CFR
part 51, Appendix V. This detailed
analysis is available in the TSD for this
rulemaking. Additionally, we reviewed
the EBTA program with respect to EPA’s
EIP Guidance ‘‘Improving Air Quality
with Economic Incentive Programs’’
(EPA–452/R–01–001, January 2001) (EIP
Guidance). Our analysis, as detailed in
the TSD accompanying this rulemaking,
finds that the EBTA program is
consistent with the criteria for
discretionary source specific emissions
cap programs. The EBTA program will
provide compliance flexibility to
participating EGFs and achieve the
programmatic emission reduction goals
of Texas SB 7. Further, EPA finds that
the EBTA program is consistent with
section 110(l) of the CAA and will not
interfere with any applicable
requirements concerning attainment and
reasonable further progress towards
attainment of the NAAQS or any other
applicable requirements of the Act.
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IV. Final Action
EPA is taking direct final action to
approve portions of four revisions to the
Texas SIP submitted on January 3, 2000;
September 11, 2000; July 15, 2002; and
October 24, 2006. Specifically, EPA is
approving 30 TAC Chapter 101,
Subchapter H, Division 2, Sections
101.330–101.336, submitted on January
3, 2000; the revisions to 30 TAC section
101.333 submitted on September 11,
2000; the adoption of new 30 TAC
section 101.338 submitted on July 15,
2002; and the revisions to 30 TAC
section 101.338 and the adoption of new
30 TAC section 101.339 submitted on
October 24, 2006.
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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
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Sfmt 4700
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. section 801 et seq., as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by January 18, 2011.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: November 5, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, EPA 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. 7401 et seq.
Subpart SS—Texas
2. The table in § 52.2270(c) entitled
‘‘EPA-Approved Regulations in the
Texas SIP’’ is amended by adding a new
centered heading titled ‘‘Division 2—
Emissions Banking and Trading of
Allowances’’ immediately after the entry
■
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for Section 101.311 under Chapter
101—General Air Quality Rules,
Subchapter H—Emissions Banking and
Trading, followed by new entries for
§ 52.2270
sections 101.330, 101.331, 101.332,
101.333, 101.334, 101.335, 101.336,
101.338 and 101.339.
The additions read as follows:
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED REGULATIONS IN THE TEXAS SIP
State citation
State approval/submittal date
Title/subject
EPA approval date
Explanation
Chapter 101—General Air Quality Rules
*
*
*
*
*
*
*
*
*
Subchapter H—Emissions Banking and Trading
*
*
Section 101.311 ...........................
*
Program Audits and Reports .......
*
11/10/04
*
9/6/06, 71 FR 52698.
Division 2—Emissions Banking and Trading of Allowances
Section 101.330 ...........................
Definitions ....................................
12/16/1999
Section 101.331 ...........................
Applicability ..................................
12/16/1999
Section 101.332 ...........................
General Provisions ......................
12/16/1999
Section 101.333 ...........................
Allocation of Allowances ..............
08/09/2000
Section 101.334 ...........................
Allowance Deductions .................
12/16/1999
Section 101.335 ...........................
Allowance Banking and Trading ..
12/16/1999
Section 101.336 ...........................
Emission Monitoring, Compliance
Demonstration, and Reporting.
12/16/1999
Section 101.338 ...........................
Emission Reductions Achieved
Outside the United States.
10/04/2006
Section 101.339 ...........................
Program Audits and Reports .......
10/04/2006
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
jlentini on DSKJ8SOYB1PROD with RULES
[EPA–HQ–OAR–2010–0473; FRL–9227–6]
Extension of Deadline for Action on
the Second Section 126 Petition From
New Jersey
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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16:46 Nov 15, 2010
Jkt 223001
*
In this action, EPA is
determining that 60 days is insufficient
time to complete the technical and other
analyses and the public notice and
comment process required for our
review of a petition submitted by the
State of New Jersey Department of
Environmental Protection (New Jersey)
pursuant to section 126 of the Clean Air
Act (CAA). The petition requests that
EPA make a finding that the coal-fired
Portland Generating Station in Upper
Mount Bethel Township, Northampton
County, Pennsylvania, is emitting air
pollutants that significantly contribute
to nonattainment or interfere with
maintenance of the 1-hour sulfur
SUMMARY:
[FR Doc. 2010–28659 Filed 11–15–10; 8:45 am]
AGENCY:
*
November 16, 2010 [Insert
FR page number where
document begins].
November 16, 2010 [Insert
FR page number where
document begins].
November 16, 2010 [Insert
FR page number where
document begins].
November 16, 2010 [Insert
FR page number where
document begins].
November 16, 2010 [Insert
FR page number where
document begins].
November 16, 2010 [Insert
FR page number where
document begins].
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FR page number where
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document begins].
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FR page number where
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*
*
dioxide (SO2) national ambient air
quality standards (NAAQS). Under the
CAA, EPA is authorized to grant a time
extension for responding to the petition
if EPA determines that the extension is
necessary, among other things, to meet
the purposes of the CAA’s rulemaking
requirements. By this action, EPA is
making that determination. EPA is
therefore extending the deadline for
acting on the petition to no later than
May 16, 2011.
DATES: The effective date of this action
is November 16, 2010.
ADDRESSES: EPA has established a
docket for this rulemaking under Docket
ID number EPA–HQ–OAR–2010–0473.
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]]>Agencies
[Federal Register Volume 75, Number 220 (Tuesday, November 16, 2010)]
[Rules and Regulations]
[Pages 69884-69889]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28659]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-TX-0012; FRL-9226-2]
Approval and Promulgation of Implementation Plans; Texas;
Emissions Banking and Trading of Allowances Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking a direct final action to approve portions of
four revisions to the Texas State Implementation Plan (SIP) that create
and amend the Emissions Banking and Trading of Allowances (EBTA)
Program. The EBTA Program establishes a cap and trade program to reduce
emissions of oxides of nitrogen (NOX) and sulfur dioxide
(SO2) from participating electric generating facilities. The
Texas Commission on Environmental Quality (TCEQ) originally submitted
the EBTA program to EPA as a SIP revision on January 3, 2000. Since
that time, the TCEQ has submitted SIP revisions for the EBTA Program on
September 11, 2000; July 15, 2002; and October 24, 2006. EPA has
determined that these changes to the Texas SIP comply with the Federal
Clean Air Act (the Act or CAA) 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 Act.
DATES: This direct final rule is effective on January 18, 2011 without
further notice, unless EPA receives relevant adverse comment by
December 16, 2010. If EPA receives such comment, EPA will publish a
timely withdrawal in the Federal Register informing the public that
this rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-TX-0012, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: Mr. Jeff Robinson at robinson.jeffrey@epa.gov.
Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph below.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-
R), at fax number 214-665-6762.
Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
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-
2005-TX-0012. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at https://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 https://www.regulations.gov or e-mail, if you believe that it is
CBI or otherwise protected from disclosure. The https://www.regulations.gov website 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 https://www.regulations.gov, your e-mail address will be automatically captured
and included as
[[Page 69885]]
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 https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://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 https://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 direct final action, 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 wiley.adina@epa.gov.
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 the Emissions Banking and Trading of Allowances
Program?
IV. What is EPA's evaluation of the Emissions Banking and Trading of
Allowances Program?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Action is EPA Taking?
We are taking direct final action to approve portions of four
revisions to the Texas SIP submitted by the Texas Commission on
Environmental Quality (TCEQ) on January 3, 2000; September 11, 2000;
July 15, 2002; and October 24, 2006. These four revisions create and
amend the Emissions Banking and Trading of Allowances Program at 30
Texas Administrative Code (TAC) Chapter 101, Subchapter H, Division 2.
Specifically, we are approving through direct final action the adoption
of 30 TAC sections 101.330-101.336, submitted on January 3, 2000; the
revisions to 30 TAC section 101.333 submitted on September 11, 2000;
the adoption of new 30 TAC section 101.338 submitted on July 15, 2002;
and the revisions to 30 TAC section 101.338 and the adoption of new 30
TAC section 101.339 submitted on October 24, 2006. Our analysis as
presented in this rulemaking action and the accompanying Technical
Support Document finds these revisions to the Texas SIP to be
consistent with the CAA, 40 CFR Part 51, and EPA's Economic Incentive
Program Guidance, ``Improving Air Quality with Economic Incentive
Programs'' (EPA-452/R-01-001, January 2001).
EPA's direct final approval of the EBTA program does not extend to
the portions of the 4 SIP revisions that are not related to the EBTA
program. Section II of this rulemaking action, titled ``What Did Texas
Submit?'' further explains the state's SIP submittals and EPA's actions
on the non-EBTA program provisions.
We are publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no relevant adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This direct final rule will be effective on
January 18, 2011 without further notice unless we receive relevant
adverse comment by December 16, 2010. If we receive relevant adverse
comments, we will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. We will
address all public comments in a subsequent final rule based on the
proposed rule. We will not institute a second comment period on this
action. Any parties interested in commenting must do so now. Please
note that if we receive adverse comment on an amendment, paragraph, or
section of this rule and if that provision may be severed from the
remainder of the rule, we may adopt as final those provisions of the
rule that are not the subject of an adverse comment.
II. What did Texas submit?
The TCEQ has submitted four SIP revisions concerning the EBTA
Program. Below is an itemized listing of each of these submittals which
details all sections submitted for EPA review and any rulemaking
actions taken to date on these submissions.
January 3, 2000
On December 16, 1999, the Texas Natural Resource
Conservation Commission (TNRCC) (the predecessor agency to the TCEQ)
adopted new provisions establishing the EBTA program, pursuant to
Senate Bill 7, 76th Legislature, 1999 (SB 7). These new provisions
created 30 TAC Chapter 101, Subchapter H, Division 2, Sections 101.330-
101.337. Governor George W. Bush submitted these provisions as a SIP
revision in a letter dated January 3, 2000, for rule log number 99033-
116-AI.
On December 16, 1999, TNRCC also adopted new provisions at
30 TAC Chapter 116, Sections 116.18, 116.910-116.914, 116.916, 116.920-
116.922, 116.930, and 116.931 concerning the permitting of
grandfathered electric generating facilities, also pursuant to Senate
Bill 7. These provisions were also submitted to EPA on January 3, 2000,
as part of rule project number 99033-116-AI.
EPA is taking separate action on the provisions for the
permitting of grandfathered electric generating facilities at 30 TAC
Chapter 116, Sections 116.18, 116.910-116.914, 116.916, 116.920-
116.922, 116.930, and
[[Page 69886]]
116.931.\1\ See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-
2005-TX-0031.
---------------------------------------------------------------------------
\1\ A grandfathered facility is defined as a facility that is
not a new facility, was constructed prior to August 30, 1971 (or no
construction contract was executed on or before August 30, 1971 that
specified a beginning construction date on or before February 29,
1972) and has not been modified since August 30, 1971. EPA SIP-
approved this definition on April 14, 2010, see 75 FR 19468.
---------------------------------------------------------------------------
September 11, 2000
On August 9, 2000, the TNRCC adopted amendments to the
EBTA program at 30 TAC Chapter 101, Subchapter H, Division 2, Section
101.333. Governor George W. Bush submitted these amendments as a SIP
revision in a letter dated September 11, 2000, for rule log number
1999-029B-116-AI.
On August 9, 2000, TNRCC also adopted amendments to 30 TAC
Chapter 101, Subchapter A, Section 101.27 for revised emission fees
calculations. The TNRCC also adopted amendments to 30 TAC Chapter 116,
Sections 116.10, 116.110, 116.116, 116.603, 116.620, 116.621, 116.710,
116.715, 116.721, 116.722 and 116.750 pursuant to Senate Bill 766, 76th
Legislature, 1999. All of these provisions were submitted to EPA on
September 11, 2000, as part of rule log number 1999-029B-116-AI.
On December 28, 2009, EPA returned the submittal of 30 TAC
101.27 to the Texas Commission on Environmental Quality (TCEQ) as part
of the Title V Operating Permit Program rather than a Title I program
that is implemented through the SIP. TCEQ submitted a letter on January
14, 2010, concurring with our assessment and withdrawing 30 TAC 101.27
from consideration as a SIP submittal.
On November 14, 2003, EPA approved the amendments to 30
TAC Sections 116.110, 116.116, and 116.603. See 68 FR 64548.
On April 14, 2010, EPA approved the amendments to 30 TAC
Section 116.10(6) submitted on September 11, 2000. Also in this action
EPA disapproved the amendments to 30 TAC Section 116.10(2) and took no
action on 30 TAC Section 116.10(5)(F). See 75 FR 19468.
On June 30, 2010, EPA issued a final disapproval of the
Texas Flexible Permits Program, including disapproval of 30 TAC
Sections 116.710, 116.715, 116.721, 116.722, and 116.750 submitted on
September 11, 2000. See (75 FR 41312, July 15, 2010).
The amendments to 30 TAC Section 116.620 remain open for
review and action by EPA at a later date. EPA is under a consent decree
deadline to take final action no later than October 31, 2011.
The amendments to 30 TAC Section 116.621 were repealed by
the TCEQ on March 1, 2006, as part of Rule Project Number 2003-066-116-
PR. No further action is needed by EPA on this section.
July 15, 2002
On March 13, 2002, the TNRCC adopted new provisions in the
EBTA Program for emission reductions achieved outside the United States
at 30 TAC Chapter 101, Subchapter H, Division 2, Section 101.338. The
Chairman of the TNRCC, Mr. Robert J. Huston, submitted this section as
a SIP revision in a letter dated July 15, 2002, for rule project number
2001-063-101-AI.
On March 13, 2002, the TNRCC also adopted revisions to the
Emission Credit Banking and Trading Program (referred to elsewhere in
this document as the Emission Reduction Credit (ERC) Program) at 30 TAC
Chapter 101, Subchapter H, Division 1, Section 101.302; the Mass
Emissions Cap and Trade (MECT) Program at 30 TAC Chapter 101,
Subchapter H, Division 3, Section 101.357, and the Discrete Emission
Credit Banking and Trading Program (referred to elsewhere in this
document as the Discrete Emission Reduction Credit (DERC) Program) at
30 TAC Chapter 101, Subchapter H, Division 4, Section 101.372. The
TNRCC also adopted new 30 TAC 117.571. All of these provisions were
also submitted to EPA on July 15, 2002, as part of rule project number
2001-063-101-AI.
EPA fully approved the amendments to section 101.302 on
September 6, 2006. See 71 FR 52698.
EPA conditionally approved the amendments to section
101.372 on September 6, 2006. See 71 FR 52703. The conditional approval
of the DERC Program was converted to a full approval on May 18, 2010.
See 75 FR 27644.
EPA has taken no action to date on new section 101.357.
This section is severable from our analysis and action on the EBTA
program because the MECT Program is a separate, stand-alone cap and
trade program specific to the Houston-Galveston-Brazoria (HGB) ozone
nonattainment area. This action remains open for review and action at a
later date by EPA.
EPA has taken no action to date on new section 117.571.
This section is severable from our analysis and action on the EBTA
program because section 117.571 establishes provisions to allow the
substitution of emissions reductions achieved under the Texas Emission
Reduction Program (TERP) for NOX emission reductions
required in the HGB and Dallas/Fort Worth ozone nonattainment areas.
This section remains open for review and action at a later date by EPA.
October 24, 2006
On October 4, 2006, the Texas Commission on Environmental
Quality (TCEQ) adopted the repeal of 30 TAC Section 101.338 and new 30
TAC Sections 101.338 and 101.339. The Chairman of the TCEQ, Ms.
Kathleen Hartnett White, submitted these provisions as a SIP revision
in a letter dated October 24, 2006, for rule project number 2005-054-
101-PR. In this SIP submittal cover letter, Chairman White requested
that EPA take no federal action on 30 TAC Section 101.337 submitted on
January 3, 2000; section 101.337 establishes requirements unique to the
El Paso Region which will be state only requirements.
On October 4, 2006, TCEQ also adopted revisions to the ERC
program at 30 TAC Chapter 101, Sections 101.302, 101.305 and 101.306 to
address the mandates of Texas Senate Bill 784 and the conditions of
EPA's final conditional approval of the DERC Program, September 6,
2006. See 71 FR 52703. Also at this time, the TCEQ adopted revisions to
the DERC Program at 30 TAC Chapter 101, Sections 101.372, 101.373,
101.375, 101.376, and 101.378 to address the mandates of Texas SB 784
and the conditions of EPA's final conditional approval of the DERC
Program, September 6, 2006. All of these revisions were submitted to
EPA on October 24, 2006, as part of rule project number 2005-054-101-
PR.
On April 30, 2010, EPA fully approved the amendments to
the ERC and DERC Programs at 30 TAC Chapter 101, Sections 101.302,
101.305, 101.306, 101.372, 101.373, 101.375, 101.376, and 101.378. See
75 FR 27644 and 75 FR 27647, May 18, 2010.
III. What is the Emissions Banking and Trading of Allowances Program?
Why did Texas develop the EBTA Program?
The TCEQ created the EBTA Program to implement the requirements of
Texas SB 7, from the 76th Legislature, 1999, which deregulated the
electric utility industry. Under SB 7, TCEQ was required to develop a
permitting system and a mass cap and trade system to distribute
allowances for use by electric generating facilities. The EBTA program
is designed to achieve a 50 percent reduction in NOX
emissions and a 25 percent reduction in SO2 emissions,
[[Page 69887]]
both based on 1997 heat input data, from participating sources. The
permitting system required under SB 7 and established at 30 TAC Chapter
116, Subchapter I, is being evaluated in a separate rulemaking action
(See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-2005-TX-0031).
How does the EBTA Program work?
The EBTA Program is similar to the source specific emissions cap as
described in EPA's Economic Incentive Program (EIP) Guidance,
``Improving Air Quality with Economic Incentive Programs'' (EPA-452/R-
01-001, January 2001) (EIP Guidance). A source specific emissions cap
(SSEC) allows a limited group of sources that are subject to a rate-
based emission limit to meet that requirement by accepting a mass-based
emission limit, or cap, rather than complying directly with a rate-
based limit. Some attributes that characterize a successful SSEC
include a well-defined group of sources, little potential for emissions
to shift from included sources to excluded sources, and a relatively
low level of uncertainty associated with the program. In the EBTA
Program, the participating sources are limited to grandfathered and
electing electric generating facilities (EGFs). An electing EGF is a
facility permitted under 30 TAC Chapter 116, Subchapter B that elects
to comply with the permitting program established in Texas SB 7 at 30
TAC Chapter 116, Subchapter I.
The EBTA divides Texas into three regions--East Texas, West Texas,
and El Paso. The East Texas Region includes all counties traversed by
or east of Interstate Highway 35 north of San Antonio or traversed by
or east of Highway 37 south of San Antonio, also including Bexar,
Bosque, Coryell, Hood, Parker, Somervell, and Wise Counties. The West
Texas Region includes all counties not contained in the East Texas or
El Paso Regions. The El Paso Region is defined at 30 TAC section
101.330(13) as all of El Paso County, Ciudad Juarez, Mexico, and
Sunland Park, New Mexico. Note that on October 24, 2006, TCEQ requested
no Federal action on the portions of the EBTA that pertain to the El
Paso region.
To achieve the reductions of 50 percent NOX emissions
and 25 percent SO2 emissions, the TCEQ established emission
caps for each region. The caps consist of allowances allocated by the
TCEQ to each facility in the EBTA initially by January 1, 2000, for
grandfathered EGFs and by January 1, 2001, for electing EGFs. Beginning
in 2004, the TCEQ will allocate the allowances to all facilities in the
EBTA by May 1 of each year. The TCEQ will deposit the same amount of
allowances into each grandfathered or electing EGF's compliance account
at the beginning of each control period, with the exception that the
allocation for electing EGFs may be adjusted to reflect new state or
Federal requirements. An allowance is the authorization to emit one ton
of NOX or SO2 during a control period and does
not constitute a security or property right. All allowances will be
allocated, transferred, or used as whole allowances. The control period
for the EBTA is the 12-month period beginning May 1 of each year and
ending April 30 of the following year, with the initial control period
beginning May 1, 2003.
A facility can choose to operate at, above, or below its allowance
budget. A source operating below its allowance budget can bank or trade
its allowances for use in subsequent control periods. A source
operating above its allowance budget must purchase excess allowances
from another source to demonstrate compliance with the cap. Beginning
June 1, 2004, and no later than June 1 following the end of every
control period, each facility must hold a quantity of allowances in its
compliance account that is equal to or greater than the total emissions
of air contaminant emitted during the control period just ending. If a
facility's actual emissions of air contaminant during a control period
exceed the amount of allowances held in the compliance account on June
1, allowances for the next control period will be reduced by an amount
equal to the emissions exceeding the allowances in the compliance
account. This deduction does not preclude any additional enforcement
action by the TCEQ.
Facilities subject to the EBTA must submit a report to the TCEQ by
June 30 of each year following the completed control period. This
report must include the amount of emissions of each allocated air
contaminant and a summary of all final trades for the preceding control
period. Additionally, facilities subject to the EBTA will quantify and
report emissions using the monitoring and reporting requirements of 30
TAC 116.914 (See 75 FR 64235, October 19, 2010 at docket EPA-R06-OAR-
2005-TX-0031).
A grandfathered or electing EGF may use emission reductions
achieved from Mexico in lieu of allowances for compliance with the
EBTA. The emission reductions may be criteria pollutants or precursors
of criteria pollutants, with the exception of lead emissions. The
reductions may be used in lieu of the same pollutant requirement (i.e.,
NOX reductions from Mexico are substituted for
NOX requirements in Texas). Or, the reductions of criteria
pollutants or their precursors may be substituted for emission
reduction requirements for other criteria pollutants (i.e., reductions
in CO emissions could be substituted for NOX or
SO2 emission requirements). In the event the Mexican
reduction is being substituted for a criteria pollutant requirement (CO
for NOX or SO2), the substitution must result in
greater health benefits and must be of equal or greater benefit to the
overall air quality of the area; or the substitution occurs between
criteria pollutants for which the area has been designated
nonattainment. Generally, the use of reductions from outside the United
States must be approved by the TCEQ executive director and the EPA, and
the user of the emission reduction must:
1. Demonstrate to the TCEQ executive director and to the EPA that
the reduction is real, permanent, enforceable, quantifiable and surplus
to any applicable Mexican, federal, state, or local law;
2. Demonstrate that the use of the reduction does not cause
localized health impacts, as determined by the TCEQ executive director
and EPA;
3. Submit all supporting information for calculations and modeling,
and any additional information requested by the TCEQ executive director
and EPA; and
4. Be located within 100 kilometers of the Texas-Mexico border.
Sources subject to the EBTA submit an annual compliance report to
the TCEQ by June 30 of each year. This report details the amount of
emissions of each allocated air contaminant and a summary of all final
trades for the preceding control period. Through review of these
reports, the TCEQ is able to determine which facilities are in
compliance with the program.
The TCEQ executive director will also develop a report no later
than September 30th following each control period that includes the
number of allowances allocated to each compliance account; the total
number of allowances allocated under the EBTA program; the number of
actual NOX and SO2 allowances subtracted from
each compliance account based on the actual NOX and
SO2 emissions from the site; and a summary of all trades
completed under the EBTA program.
Additionally, the TCEQ executive director will audit the program no
later than three years after the effective date of the EBTA program,
and every three years thereafter. The audit will evaluate the impact of
the program on the state's ozone attainment demonstrations, the
[[Page 69888]]
availability and cost of allowances, compliance by the participants,
and any other elements the executive director deems necessary. If any
problems are identified, the executive director will recommend
remedies, including the discontinuation of trading in whole or part.
This audit will be submitted to the EPA and made available for public
inspection within six months after the audit begins.
IV. What is EPA's evaluation of the Emissions Banking and Trading of
Allowances Program?
Generally, SIP rules must be enforceable and must not relax
existing requirements. See Clean Air Act sections 110(a), 110(l), and
193. EPA's review of the January 3, 2000; September 11, 2000; July 15,
2002; and October 24, 2006 SIP revisions finds that all 4 SIP
submittals are consistent with the requirements at 40 CFR part 51 and
are considered complete SIP submittals in accordance with 40 CFR part
51, Appendix V. This detailed analysis is available in the TSD for this
rulemaking. Additionally, we reviewed the EBTA program with respect to
EPA's EIP Guidance ``Improving Air Quality with Economic Incentive
Programs'' (EPA-452/R-01-001, January 2001) (EIP Guidance). Our
analysis, as detailed in the TSD accompanying this rulemaking, finds
that the EBTA program is consistent with the criteria for discretionary
source specific emissions cap programs. The EBTA program will provide
compliance flexibility to participating EGFs and achieve the
programmatic emission reduction goals of Texas SB 7. Further, EPA finds
that the EBTA program is consistent with section 110(l) of the CAA and
will not interfere with any applicable requirements concerning
attainment and reasonable further progress towards attainment of the
NAAQS or any other applicable requirements of the Act.
IV. Final Action
EPA is taking direct final action to approve portions of four
revisions to the Texas SIP submitted on January 3, 2000; September 11,
2000; July 15, 2002; and October 24, 2006. Specifically, EPA is
approving 30 TAC Chapter 101, Subchapter H, Division 2, Sections
101.330-101.336, submitted on January 3, 2000; the revisions to 30 TAC
section 101.333 submitted on September 11, 2000; the adoption of new 30
TAC section 101.338 submitted on July 15, 2002; and the revisions to 30
TAC section 101.338 and the adoption of new 30 TAC section 101.339
submitted on October 24, 2006.
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.
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 18, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 5, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, EPA Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA-Approved Regulations in
the Texas SIP'' is amended by adding a new centered heading titled
``Division 2--Emissions Banking and Trading of Allowances'' immediately
after the entry
[[Page 69889]]
for Section 101.311 under Chapter 101--General Air Quality Rules,
Subchapter H--Emissions Banking and Trading, followed by new entries
for sections 101.330, 101.331, 101.332, 101.333, 101.334, 101.335,
101.336, 101.338 and 101.339.
The additions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Texas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
State approval/
State citation Title/subject submittal date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chapter 101--General Air Quality Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subchapter H--Emissions Banking and Trading
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 101.311................... Program Audits and 11/10/04 9/6/06, 71 FR 52698...................
Reports.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Division 2--Emissions Banking and Trading of Allowances
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 101.330................... Definitions.......... 12/16/1999 November 16, 2010 [Insert FR page
number where document begins].
Section 101.331................... Applicability........ 12/16/1999 November 16, 2010 [Insert FR page
number where document begins].
Section 101.332................... General Provisions... 12/16/1999 November 16, 2010 [Insert FR page
number where document begins].
Section 101.333................... Allocation of 08/09/2000 November 16, 2010 [Insert FR page
Allowances. number where document begins].
Section 101.334................... Allowance Deductions. 12/16/1999 November 16, 2010 [Insert FR page
number where document begins].
Section 101.335................... Allowance Banking and 12/16/1999 November 16, 2010 [Insert FR page
Trading. number where document begins].
Section 101.336................... Emission Monitoring, 12/16/1999 November 16, 2010 [Insert FR page
Compliance number where document begins].
Demonstration, and
Reporting.
Section 101.338................... Emission Reductions 10/04/2006 November 16, 2010 [Insert FR page
Achieved Outside the number where document begins].
United States.
Section 101.339................... Program Audits and 10/04/2006 November 16, 2010 [Insert FR page
Reports. number where document begins].
* * * * * * *
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[FR Doc. 2010-28659 Filed 11-15-10; 8:45 am]
BILLING CODE 6560-50-P
