Approval and Promulgation of Implementation Plans; Texas; Revisions to Permits by Rule and Regulations for Control of Air Pollution by Permits for New Construction or Modification, 44271-44276 [2011-18578]
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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations
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[FR Doc. 2011–18423 Filed 7–22–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2011–0426; FRL–9442–7]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to Permits by Rule and
Regulations for Control of Air Pollution
by Permits for New Construction or
Modification
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is taking a direct final
action to approve portions of three
revisions to the Texas State
Implementation Plan (SIP) submitted by
the State of Texas on August 31, 1993,
July 22, 1998, and October 5, 2010.
These revisions amend existing sections
and create new sections in Title 30 of
the Texas Administrative Code (TAC),
Chapter 116—Control of Air Pollution
by Permits for New Construction or
Modification. The August 31, 1993,
revision creates two new sections at
116.174 and 116.175 for the use of
emission reductions as offsets in new
source review permitting. The July 22,
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1998, revision creates new section
116.116(f) allowing for the use of
Discrete Emission Reduction Credits
(DERC) to exceed emission limits in
permits (permit allowables) and amends
section 116.174 to update internal
citations to other Texas regulations. The
October 5, 2010, revision amends
section 116.116(f) to update internal
citations to other Texas regulations. EPA
has determined that these SIP revisions
comply with the Clean Air Act and EPA
regulations and are consistent with EPA
policies. This action is being taken
under section 110 and parts C and D of
the Federal Clean Air Act (the Act or
CAA).
DATES: This direct final rule is effective
on September 23, 2011 without further
notice, unless EPA receives relevant
adverse comment by August 24, 2011. 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.
Submit your comments,
identified by Docket ID No. EPA–R06–
OAR–2011–0426, by one of the
following methods:
(1) https://www.regulations.gov:
Follow the on-line instructions for
submitting comments.
(2) E-mail: Ms. Erica Le Doux at
ledoux.erica@epa.gov.
ADDRESSES:
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(3) Fax: Ms. Erica Le Doux, Air
Permits Section (6PD–R), at fax number
214–665–6762.
(4) Mail: Ms. Erica Le Doux, Air
Permits Section (6PD–R), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
(5) Hand or Courier Delivery: Ms.
Erica Le Doux, 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 AM and 4:30 PM
weekdays except for legal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2011–
0426. 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 Web
site is an ‘‘anonymous access’’ system,
which means that EPA will not know
your identity or contact information
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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations
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
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 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. 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.
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FOR FURTHER INFORMATION CONTACT: If
you have questions concerning today’s
direct final action, please contact Ms.
Erica Le Doux (6PD–R), Air Permits
Section, Environmental Protection
Agency, Region 6, 1445 Ross Avenue
(6PD–R), Suite 1200, Dallas, Texas
75202–2733, telephone (214) 665–7265;
fax number (214) 665–6762; e-mail
address ledoux.erica@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 EPA’s evaluation of these SIP
revisions?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
We are taking direct final action to
approve severable portions of three
revisions to the Texas SIP submitted on
August 31, 1993, July 22, 1998, and
October 5, 2010. The August 31, 1993,
SIP submittal creates two new sections,
116.174 and 116.175, establishing the
requirements for use and recordkeeping
of emission reductions in New Source
Review (NSR) permitting. The July 22,
1998 SIP submittal creates a new section
at 116.116(f) that allows the use of
Discrete Emission Reduction Credits
(DERCs) to be used to exceed permit
allowables and amends existing section
116.174 to correctly cross-reference
other Texas permitting regulations. The
October 5, 2010, SIP submittal amends
section 116.116(f) to correctly crossreference the SIP-approved DERC rules
at Title 30 of the Texas Administrative
Code (30 TAC) Chapter 101, Subchapter
H, Division 4. We are approving new
sections 116.174 and 116.175 submitted
on August 31, 1993. We are approving
new section 116.116(f) and amendments
to section 116.174 submitted on July 22,
1998. Finally, we are approving the
amendment to section 116.116(f)
submitted on October 5, 2010.
We are publishing this rule without
prior proposal because we view this as
a noncontroversial amendment and
anticipate no relevant adverse
comments. As explained in our
technical support document (TSD), we
are finding this action noncontroversial
because the three rules that are the
subject of our approval serve to crossreference current SIP-approved sections.
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
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comments are received. This rule will
be effective on September 23, 2011
without further notice unless we receive
relevant adverse comment by August 24,
2011. 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?
We are approving severable
provisions of three SIP revisions that the
Texas Commission on Environmental
Quality (TCEQ) adopted on August 16,
1993; June 17, 1998; and September 15,
2010 and submitted to EPA on August
31, 1993; July 22, 1998; and October 5,
2010, respectively. Copies of the revised
rules as well as the Technical Support
Document (TSD) can be obtained from
the Docket, as discussed in the ‘‘Docket’’
section above. A discussion of the
specific Texas rule changes that we are
approving is included in the TSD and
summarized below. The TSD also
contains a discussion as to why EPA is
not taking action on certain provisions
of each Texas SIP submittal and
documents why these provisions are
severable from the provisions that we
are approving.
• We are taking no action in this
direct final rule upon revisions to 30
TAC Section 116.410 for emergency
orders, submitted on August 31, 1993,
because this provision is severable from
the emission reduction provisions and
subsequent emergency order provisions
are still pending EPA review. EPA will
address this rule in a separate action.
EPA is currently under a Settlement
Agreement to take action on the
emergency order provisions on or before
December 31, 2012.
• We are also taking no action in this
direct final rule upon revisions to 30
TAC Section 116.620 for Installation
and/or Modification of Oil and Gas
Facilities submitted on July 22, 1998.
The provisions are severable from the
emission reduction provisions that are
the subject of today’s action. EPA will
address this rule in a separate action.
Additionally, EPA is currently under a
Consent Decree to take action on the
Installation and/or Modification of Oil
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and Gas Facilities provisions on or
before October 31, 2011.
• We are taking no action upon
revisions to 30 TAC Section 116.311(a)
pertaining to qualified facilities for
permit renewals submitted on July 22,
1998, because the qualified facility
program provisions are severable from
the emission reduction provisions for
permitting and will be addressed by
EPA at a later date in a separate action.
• We are taking no action upon
revisions to 30 TAC Section 116.312
submitted on July 22, 1998, which
relates to public participation for permit
renewals. These public participation
provisions are severable from the
emission reduction provisions for
permitting and will be addressed by
EPA at a later date in a separate action.
• We are taking no action upon the
remainder of the revisions to 30 TAC
Chapter 116 submitted on October 5,
2010. The remainder of this SIP
submittal package concerns the
qualified facilities program, which is
severable from the emission reductions
provisions for permitting and will be
addressed by EPA at a later date in a
separate action.
A. August 31, 1993 Submittal
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1. Section 116.174—Determination by
Executive Director To Authorize
Reductions
The TCEQ adopted section 116.174 on
August 16, 1993, to provide the criteria
by which the TCEQ Executive Director
(ED) will determine whether emission
reductions can be used for purposes of
NSR permitting. Section 116.174
requires that the ED approve reductions
for use pursuant with requirements set
forth in SIP-approved section 116.170.
Additionally, any emission reductions
approved for use as offsets by the ED
must be made as enforceable permit
conditions.
2. Section 116.175—Recordkeeping
The TCEQ adopted new section
116.175 on August 16, 1993, to establish
that the recordkeeping burden for the
generation and use of emission
reductions in NSR permitting is on the
applicant. The TCEQ will only maintain
records associated with the permit
application and files. The permit
applicant is responsible for making all
records related to the emission
reductions available upon request by the
ED.
banking and trading provisions at 30
TAC Section 101.29 can be used to
exceed permit allowables, if all
applicable requirements of section
101.29 are satisfied. Since the adoption
of section 116.116(f), the TCEQ has
recodified the SIP-approved DERC
provisions from 30 TAC Section 101.29
to 30 TAC Section 101.376. The use of
DERCs cannot be used to authorize any
physical changes to a facility.
EPA reviewed and conditionally
approved the DERC program on
September 6, 2006 (see 71 FR 52703).
This conditional approval was
converted to a full approval on May 18,
2010 (see 75 FR 27644). The full
approval action resulted after we found
TCEQ to have satisfied all elements that
were outlined in a commitment letter
submitted by TCEQ, dated September 8,
2005. This commitment letter can be
found in the docket for our approval of
the DERC program at EPA–R06–OAR–
2005–TX–0029. The DERC rules
establish a type of Economic Incentive
Program (EIP), in particular an open
market emission trading (OMT) program
as described in EPA’s EIP Guidance
document, ‘‘Improving Air Quality with
Economic Incentive Programs’’ (EPA–
452/R–01–001, January 2001). In an
OMT program, a source generates shortterm emission credits (called discrete
emission reduction credits, or DERCs, in
the Texas program) by reducing its
emissions. The source can then use
these DERCs at a later time, or trade
them to another source to use at a later
time. The trading program assumes that
many sources will participate and
continuously generate new DERCs to
balance with other sources using
previously generated discrete credits.
DERCs are quantified, banked and
traded in terms of mass (tons) and may
be generated and used statewide.
Reductions of all criteria pollutants,
with the exception of lead, may be
certified as DERCs.
2. Section 116.174—Determination by
Executive Director To Authorize
Reductions
The TCEQ adopted amendments to
section 116.174 on June 17, 1998, to
remove outdated references to the Texas
Air Control Board, and to update
references to other sections of the Texas
NSR permitting regulations where
emission reductions can be used in
permits.
B. July 22, 1998 Submittal
C. October 5, 2010 Submittal
1. Section 116.116(f)—Use of Credits
The TCEQ adopted new section
116.116(f) on June 17, 1998, to provide
that DERCs generated under the TCEQ’s
Section 116.116(f)—Use of Credits
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The TCEQ adopted amendments to
section 116.116(f) on September 15,
2010, to change references to outdated
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section 101.29 to the current SIPapproved section 101.376.
III. What is EPA’s evaluation of these
SIP revisions?
A. August 31, 1993 Submittal
1. Section 116.174—Determination by
Executive Director To Authorize
Reductions
The August 31, 1993 submittal
(adopted by TCEQ on August 16, 1993)
of new section 116.174 is approvable.
New section 116.174 requires that the
ED approve the use of emission
reductions pursuant to the requirements
in section 116.170. We approved section
116.170 on March 20, 2009, as
consistent with the requirements of
section 173 of the CAA and 40 CFR Part
51, Subpart I (see 74 FR 11851).
2. Section 116.175—Recordkeeping
The August 31, 1993 submittal
(adopted by TCEQ on August 16, 1993)
of new section 116.175 is approvable.
New section 116.175 was adopted to
place the recordkeeping burden on the
use of emission reductions in NSR
permitting in accordance with section
116.170 on the permit applicant rather
than the TCEQ. The TCEQ will maintain
records contained in the permit
application and permit files, but all
other information necessary to verify the
emission reductions used in the permit
are the responsibility of the permit
holder and must be made available at
the request of the TCEQ ED. Placing the
burden of proof on the permit holder is
consistent with the requirements in NSR
and Prevention of Significant
Deterioration (PSD) permitting at 40
CFR Part 51, Subpart I, that the permit
holder maintain all necessary records to
substantiate emission reductions and
verify emission limitations. Further, the
SIP-approved Emissions Banking and
Trading Provisions at 30 TAC Chapter
101, Subchapter H, Divisions 1 and 4 for
the Emission Reduction Credit and
Discrete Emission Reduction Credit
programs, makes clear that the generator
and user of the emission reductions—
not the TCEQ—is responsible for
maintaining all necessary records to
substantiate the reduction (see 30 TAC
Sections 101.302(g) and 101.372(h)).
B. July 22, 1998 Submittal
1. Section 116.116(f)—Use of Credits
The July 22, 1998 submittal (adopted
by TCEQ on June 17, 1998), which
created new section 116.116(f) is
approvable. New section 116.116(f) is
necessary to adequately implement the
Chapter 116 permitting program for new
construction and modification. The new
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section 116.116(f) provides that DERCs
can be used as offsets in NSR
permitting, consistent with the TCEQ’s
banking and trading provisions at
former 30 TAC Section 101.29. EPA
approved the use of DERCs in NSR
permitting as consistent with the
requirements of section 173 of the CAA
on September 6, 2006 (see 71 FR 52703).
Since the adoption of section 116.116(f),
the TCEQ has recodified the SIPapproved DERC provisions from 30 TAC
Section 101.29 to 30 TAC Section
101.376. EPA is approving the July 22,
1998 adoption of section 116.116(f) and
a subsequent revision that updates the
cross-reference.
2. Section 116.174—Determination by
Executive Director To Authorize
Reductions
The July 22, 1998 submittal which
amends section 116.174 is approvable.
The amendments remove outdated
references to the Texas Air Control
Board and update internal cross
references to other sections (in Chapter
116) where emission reductions can be
used in NSR permitting. The TCEQ has
a responsibility under the CAA to
routinely update the permitting
regulations to include accurate
information.
C. October 5, 2010 Submittal
Section 116.116(f)—Use of Credits
The October 5, 2010 submittal
(adopted by the TCEQ on September 15,
2010) of the amendments to section
116.116(f) are approvable. These
amendments update the outdated
references to obsolete section 101.29
with the current citation to section
101.376, and are necessary to
adequately implement the Chapter 116
permitting program for new
construction and modifications. EPA
approved the use of DERCs as NSR
offsets consistent with section 173 of the
CAA on September 6, 2006 (see 71 FR
52703).
D. Does approval of Texas’s rule
revisions interfere with attainment,
reasonable further progress, or any other
applicable requirement of the act?
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Section 110(l) of the Clean Air Act
states:
Each revision to an implementation plan
submitted by a State under this Act shall be
adopted by such State after reasonable notice
and public hearing. The Administrator shall
not approve a revision of a plan if the
revision would interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined in
section 171), or any other applicable
requirement of this Act.
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Thus, under section 110(l), sections
116.116(f), 116.174, and 116.175 must
not interfere with attainment,
reasonable further progress, or any other
applicable requirement of the Act. The
three sections are necessary components
of the Texas NSR permitting program.
Without these provisions, permit
applicants will not have the necessary
flexibility provided to them in the Texas
SIP and the CAA.
Section 116.116(f) will not interfere
with attainment, reasonable further
progress, or any other applicable
requirement of the Act. Section
116.116(f) refers to a SIP-approved
usage of DERCs to exceed permit
allowables. This use of DERCs to exceed
permit allowables was previously
conditionally approved into the SIP on
September 6, 2006, and fully approved
by EPA on May 18, 2010, to be
consistent with section 110(l) of the
CAA, see 70 FR 58165 and 75 FR 27644,
respectively. In our proposed approval
notice of the DERC program we stated
that:
We have also considered whether the
potential use of DECs 1 to exceed allowable
emission levels under 30 TAC § 101.376(b)(1)
is contrary to section 110(l) in that it could
allow sources to exceed limits in their CAA
Title V permits, which are ‘‘applicable
requirements’’ under the Act. We conclude
that this aspect of the rule does not violate
section 110(l), for the following reasons.
First, EPA has addressed the interface of Title
V permits and trading programs in the EIP
guidance, which provides:
If a facility that has a title V operating
permit wishes to participate in your
approved EIP, you must modify the facility’s
operating permit to include the detailed
compliance provisions necessary to assure
compliance with the EIP. Thus, the permit
becomes a valuable tool to ensure the source
meets the requirements of the EIP.
Once the permit includes terms and
conditions necessary to implement the EIP
(as described below), the source may
typically make individual trades under the
EIP without the need for future formal permit
revisions. This is true because most trading
activity under such a permit would already
be addressed and allowed by the specific
terms and conditions of the permit and such
trading would not normally conflict with the
permit. This is the principle expressed by
section 70.6(a)(8) of the CFR, which states
that permit revisions are not required for
1 In the OMT program, a source generates
emission credits by reducing its emissions during
a discrete period of time. These credits, called
discrete emission credits or DECs in the Texas
program, are quantified in units of mass. DEC is a
generic term that encompasses reductions from
stationary sources (discrete emission reduction
credits, or DERCs), and reductions from mobile
sources (mobile discrete emission reduction credits,
or MDERCs). This footnote is to provide an
explanation of the term DEC and is not a part of
the above quote from a previous notice.
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trading program changes that are ‘‘provided
for’’ in the permit.
(EIP Guidance, Appendix 16.8.) Texas has
modified its Title V permit template so as to
address the permissible use of DECs to meet
Title V permit requirements. As further
explained in this TSD, we find that the Texas
permit language satisfies the concerns
identified in Appendix 16.8.
In reaching this conclusion, we also
considered that a Title V permit is not itself
a source of substantive limits. Rather, it
incorporates applicable requirements under
other permits and programs. In Texas, as
elsewhere, many of the allowable emission
levels in Title V permits are determined
through New Source Performance Standards
(NSPS), Best Available Control Technology
(BACT), Lowest Achievable Emission Rate
(LAER), or National Emission Standards for
Hazardous Air Pollutants (NESHAPs). Under
the Texas rules, DECs may not be used for
compliance with any of these programs. The
rule does allow DECs to be used for
compliance with Reasonably Available
Control Technology (RACT) standards, in
accordance with EPA’s guidance.
Specifically, the guidance provides that ‘‘[i]f
your EIP allows sources to avoid direct
application of RACT technology, your EIP
must ensure that the level of emission
reductions resulting from implementation of
the EIP will be equal to those reductions
expected from the direct application of
RACT.’’ (EIP Guidance, Appendix 16.7) The
Texas program ensures consistency with that
element of the EIP Guidance through the
requirement that a user of DECs must retire
10 percent more credits than are needed.
Accordingly, any use of DECs for RACT
compliance will have been preceded by a ten
percent greater reduction.
The above discussion concerns criteria
pollutants for which an area is classified as
nonattainment. As for pollutants for which
an area is in attainment, EPA believes that
the DERC rule is consistent with section
110(l). Discrete credit use in attainment areas
could potentially result in temporary local
increases in such attainment pollutants, but
only in the sense of authorizing limited
exceedances of state-only permit
requirements. That is, in attainment areas in
Texas, the federally enforceable permit limits
are all based on programs, such as BACT and
NSPS, for which DEC use is not authorized
under the Texas rule. DEC use for attainment
pollutants can therefore only affect non-SIP
requirements. Irrespective of the DERC rule,
such non-SIP requirements are subject to
change without undergoing a 110(l) analysis.
Accordingly, the DERC SIP revision is not
itself causing any increases in attainment
pollutants that might be contrary to section
110(l).
[See 70 FR 58165–58166, October 5,
2005]
Section 116.174 will not interfere
with attainment, reasonable further
progress, or any other applicable
requirement of the Act. Section 116.174
states that the TCEQ ED will approve
the use of emission reductions for NSR
permitting consistent with the
requirements of section 116.170. EPA
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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations
approved section 116.170 into the SIP
and found that it is consistent with
section 110(l) of the CAA on March 20,
2009 (74 FR 11851).
Section 116.175 will not interfere
with attainment, reasonable further
progress, or any other applicable
requirement of the Act. Section 116.175
states that the recordkeeping burden for
emission reduction usage will be on the
permit holder, but all other information
necessary to verify the emission
reductions used in the permit are the
responsibility of the permit holder and
must be made available at the request of
the TCEQ ED. These recordkeeping
requirements will not violate section
110(l).
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IV. Final Action
EPA is taking direct final action to
approve revisions to the Texas SIP
submitted on August 31, 1993, July 22,
1998, and October 5, 2010. Specifically,
EPA is approving new sections 116.174
and 116.175, submitted on August 31,
1993, establishing the approval criteria
and recordkeeping requirements for
emission reductions used in NSR
permitting. We are also approving new
section 116.116(f) that provides for the
use of DERCs in NSR permitting and
amendments to section 116.174
submitted on July 22, 1998. We are also
approving amendments to section
116.116(f), submitted on October 5,
2010 to correctly update internal
citations to the TCEQ DERC program.
As explained previously, EPA is not
acting on other severable portions of the
August 31, 1993; July 22, 1998; and
October 5, 2010 SIP submittals.
Specifically, EPA is not taking action on
the revisions to section 116.410
submitted on August 31, 1993. EPA is
not taking action on the revisions to
sections 116.311(a), 116.312, or 116.610
submitted on July 22, 1998.
Additionally, EPA is not taking action
on the remainder of the October 5, 2010,
submittal. These revisions remain under
review by EPA and will be addressed in
separate actions.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
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14:55 Jul 22, 2011
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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
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44275
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 September 23,
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: July 12, 2011.
Al Armendariz,
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 as follows:
■ a. By revising the entry for Section
116.116;
■ b. By adding new entries for Sections
116.174 and 116.175.
The additions and revisions read as
follows:
■
§ 52.2270
*
Identification of plan.
*
*
(c) * * *
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Federal Register / Vol. 76, No. 142 / Monday, July 25, 2011 / Rules and Regulations
EPA-APPROVED REGULATIONS IN THE TEXAS SIP
State citation
State
approval/
Submittal
date
Title/Subject
*
*
*
EPA approval date
*
Explanation
*
*
*
Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification
*
*
*
*
*
*
*
Subchapter B—New Source Review Permits
Division 1—Permit Application
*
Section 116.116 ........
*
*
Changes to Facilities ..................
*
*
*
9/15/2010
*
*
7/25/2011, [Insert FR page number where document begins].
*
*
*
*
The SIP does not include paragraphs (b)(3) and (b)(4) and
subsection (e).
*
*
*
7/25/2011, [Insert FR page number where document begins].
7/25/2011, [Insert FR page number where document begins].
*
*
*
*
*
Division 7—Emission Reductions: Offsets
*
Section 116.174 ........
Section 116.175 ........
*
*
Determination by Executive Director to Authorize Reductions.
Recordkeeping ...........................
*
*
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 65
The modified BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
respective addresses are listed in the
table below.
ADDRESSES:
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–B–1201]
Changes in Flood Elevation
Determinations
rmajette on DSK89S0YB1PROD with RULES
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Interim rule.
SUMMARY: This interim rule lists
communities where modification of the
Base (1% annual-chance) Flood
Elevations (BFEs) is appropriate because
of new scientific or technical data. New
flood insurance premium rates will be
calculated from the modified BFEs for
new buildings and their contents.
DATES: These modified BFEs are
currently in effect on the dates listed in
the table below and revise the Flood
Insurance Rate Maps (FIRMs) in effect
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*
prior to this determination for the listed
communities.
From the date of the second
publication of these changes in a
newspaper of local circulation, any
person has ninety (90) days in which to
request through the community that the
Deputy Federal Insurance and
Mitigation Administrator reconsider the
changes. The modified BFEs may be
changed during the 90-day period.
BILLING CODE 6560–50–P
17:17 Jul 22, 2011
8/16/1993
*
[FR Doc. 2011–18578 Filed 7–22–11; 8:45 am]
VerDate Mar<15>2010
*
6/17/1998
FOR FURTHER INFORMATION CONTACT: Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
The
modified BFEs are not listed for each
community in this interim rule.
However, the address of the Chief
Executive Officer of the community
where the modified BFE determinations
are available for inspection is provided.
SUPPLEMENTARY INFORMATION:
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Any request for reconsideration must
be based on knowledge of changed
conditions or new scientific or technical
data.
The modifications are made pursuant
to section 201 of the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4105,
and are in accordance with the National
Flood Insurance Act of 1968, 42 U.S.C.
4001 et seq., and with 44 CFR part 65.
For rating purposes, the currently
effective community number is shown
and must be used for all new policies
and renewals.
The modified BFEs are the basis for
the floodplain management measures
that the community is required either to
adopt or to show evidence of being
already in effect in order to qualify or
to remain qualified for participation in
the National Flood Insurance Program
(NFIP).
These modified BFEs, together with
the floodplain management criteria
required by 44 CFR 60.3, are the
minimum that are required. They
should not be construed to mean that
the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
E:\FR\FM\25JYR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44271-44276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18578]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2011-0426; FRL-9442-7]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to Permits by Rule and Regulations for Control of Air
Pollution by Permits for New Construction or Modification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking a direct final action to approve portions of
three revisions to the Texas State Implementation Plan (SIP) submitted
by the State of Texas on August 31, 1993, July 22, 1998, and October 5,
2010. These revisions amend existing sections and create new sections
in Title 30 of the Texas Administrative Code (TAC), Chapter 116--
Control of Air Pollution by Permits for New Construction or
Modification. The August 31, 1993, revision creates two new sections at
116.174 and 116.175 for the use of emission reductions as offsets in
new source review permitting. The July 22, 1998, revision creates new
section 116.116(f) allowing for the use of Discrete Emission Reduction
Credits (DERC) to exceed emission limits in permits (permit allowables)
and amends section 116.174 to update internal citations to other Texas
regulations. The October 5, 2010, revision amends section 116.116(f) to
update internal citations to other Texas regulations. EPA has
determined that these SIP revisions comply with the Clean Air Act and
EPA regulations and are consistent with EPA policies. This action is
being taken under section 110 and parts C and D of the Federal Clean
Air Act (the Act or CAA).
DATES: This direct final rule is effective on September 23, 2011
without further notice, unless EPA receives relevant adverse comment by
August 24, 2011. 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-2011-0426, by one of the following methods:
(1) https://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(2) E-mail: Ms. Erica Le Doux at ledoux.erica@epa.gov.
(3) Fax: Ms. Erica Le Doux, Air Permits Section (6PD-R), at fax
number 214-665-6762.
(4) Mail: Ms. Erica Le Doux, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
(5) Hand or Courier Delivery: Ms. Erica Le Doux, 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 AM and 4:30 PM weekdays except for legal
holidays. Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0426. 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 Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
[[Page 44272]]
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 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 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. 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. Erica Le Doux (6PD-R),
Air Permits Section, Environmental Protection Agency, Region 6, 1445
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone
(214) 665-7265; fax number (214) 665-6762; e-mail address
ledoux.erica@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 EPA's evaluation of these SIP revisions?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
We are taking direct final action to approve severable portions of
three revisions to the Texas SIP submitted on August 31, 1993, July 22,
1998, and October 5, 2010. The August 31, 1993, SIP submittal creates
two new sections, 116.174 and 116.175, establishing the requirements
for use and recordkeeping of emission reductions in New Source Review
(NSR) permitting. The July 22, 1998 SIP submittal creates a new section
at 116.116(f) that allows the use of Discrete Emission Reduction
Credits (DERCs) to be used to exceed permit allowables and amends
existing section 116.174 to correctly cross-reference other Texas
permitting regulations. The October 5, 2010, SIP submittal amends
section 116.116(f) to correctly cross-reference the SIP-approved DERC
rules at Title 30 of the Texas Administrative Code (30 TAC) Chapter
101, Subchapter H, Division 4. We are approving new sections 116.174
and 116.175 submitted on August 31, 1993. We are approving new section
116.116(f) and amendments to section 116.174 submitted on July 22,
1998. Finally, we are approving the amendment to section 116.116(f)
submitted on October 5, 2010.
We are publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no relevant adverse
comments. As explained in our technical support document (TSD), we are
finding this action noncontroversial because the three rules that are
the subject of our approval serve to cross-reference current SIP-
approved sections. However, in the proposed rules section of this
Federal Register publication, we are publishing a separate document
that will serve as the proposal to approve the SIP revision if relevant
adverse comments are received. This rule will be effective on September
23, 2011 without further notice unless we receive relevant adverse
comment by August 24, 2011. 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?
We are approving severable provisions of three SIP revisions that
the Texas Commission on Environmental Quality (TCEQ) adopted on August
16, 1993; June 17, 1998; and September 15, 2010 and submitted to EPA on
August 31, 1993; July 22, 1998; and October 5, 2010, respectively.
Copies of the revised rules as well as the Technical Support Document
(TSD) can be obtained from the Docket, as discussed in the ``Docket''
section above. A discussion of the specific Texas rule changes that we
are approving is included in the TSD and summarized below. The TSD also
contains a discussion as to why EPA is not taking action on certain
provisions of each Texas SIP submittal and documents why these
provisions are severable from the provisions that we are approving.
We are taking no action in this direct final rule upon
revisions to 30 TAC Section 116.410 for emergency orders, submitted on
August 31, 1993, because this provision is severable from the emission
reduction provisions and subsequent emergency order provisions are
still pending EPA review. EPA will address this rule in a separate
action. EPA is currently under a Settlement Agreement to take action on
the emergency order provisions on or before December 31, 2012.
We are also taking no action in this direct final rule
upon revisions to 30 TAC Section 116.620 for Installation and/or
Modification of Oil and Gas Facilities submitted on July 22, 1998. The
provisions are severable from the emission reduction provisions that
are the subject of today's action. EPA will address this rule in a
separate action. Additionally, EPA is currently under a Consent Decree
to take action on the Installation and/or Modification of Oil
[[Page 44273]]
and Gas Facilities provisions on or before October 31, 2011.
We are taking no action upon revisions to 30 TAC Section
116.311(a) pertaining to qualified facilities for permit renewals
submitted on July 22, 1998, because the qualified facility program
provisions are severable from the emission reduction provisions for
permitting and will be addressed by EPA at a later date in a separate
action.
We are taking no action upon revisions to 30 TAC Section
116.312 submitted on July 22, 1998, which relates to public
participation for permit renewals. These public participation
provisions are severable from the emission reduction provisions for
permitting and will be addressed by EPA at a later date in a separate
action.
We are taking no action upon the remainder of the
revisions to 30 TAC Chapter 116 submitted on October 5, 2010. The
remainder of this SIP submittal package concerns the qualified
facilities program, which is severable from the emission reductions
provisions for permitting and will be addressed by EPA at a later date
in a separate action.
A. August 31, 1993 Submittal
1. Section 116.174--Determination by Executive Director To Authorize
Reductions
The TCEQ adopted section 116.174 on August 16, 1993, to provide the
criteria by which the TCEQ Executive Director (ED) will determine
whether emission reductions can be used for purposes of NSR permitting.
Section 116.174 requires that the ED approve reductions for use
pursuant with requirements set forth in SIP-approved section 116.170.
Additionally, any emission reductions approved for use as offsets by
the ED must be made as enforceable permit conditions.
2. Section 116.175--Recordkeeping
The TCEQ adopted new section 116.175 on August 16, 1993, to
establish that the recordkeeping burden for the generation and use of
emission reductions in NSR permitting is on the applicant. The TCEQ
will only maintain records associated with the permit application and
files. The permit applicant is responsible for making all records
related to the emission reductions available upon request by the ED.
B. July 22, 1998 Submittal
1. Section 116.116(f)--Use of Credits
The TCEQ adopted new section 116.116(f) on June 17, 1998, to
provide that DERCs generated under the TCEQ's banking and trading
provisions at 30 TAC Section 101.29 can be used to exceed permit
allowables, if all applicable requirements of section 101.29 are
satisfied. Since the adoption of section 116.116(f), the TCEQ has
recodified the SIP-approved DERC provisions from 30 TAC Section 101.29
to 30 TAC Section 101.376. The use of DERCs cannot be used to authorize
any physical changes to a facility.
EPA reviewed and conditionally approved the DERC program on
September 6, 2006 (see 71 FR 52703). This conditional approval was
converted to a full approval on May 18, 2010 (see 75 FR 27644). The
full approval action resulted after we found TCEQ to have satisfied all
elements that were outlined in a commitment letter submitted by TCEQ,
dated September 8, 2005. This commitment letter can be found in the
docket for our approval of the DERC program at EPA-R06-OAR-2005-TX-
0029. The DERC rules establish a type of Economic Incentive Program
(EIP), in particular an open market emission trading (OMT) program as
described in EPA's EIP Guidance document, ``Improving Air Quality with
Economic Incentive Programs'' (EPA-452/R-01-001, January 2001). In an
OMT program, a source generates short-term emission credits (called
discrete emission reduction credits, or DERCs, in the Texas program) by
reducing its emissions. The source can then use these DERCs at a later
time, or trade them to another source to use at a later time. The
trading program assumes that many sources will participate and
continuously generate new DERCs to balance with other sources using
previously generated discrete credits. DERCs are quantified, banked and
traded in terms of mass (tons) and may be generated and used statewide.
Reductions of all criteria pollutants, with the exception of lead, may
be certified as DERCs.
2. Section 116.174--Determination by Executive Director To Authorize
Reductions
The TCEQ adopted amendments to section 116.174 on June 17, 1998, to
remove outdated references to the Texas Air Control Board, and to
update references to other sections of the Texas NSR permitting
regulations where emission reductions can be used in permits.
C. October 5, 2010 Submittal
Section 116.116(f)--Use of Credits
The TCEQ adopted amendments to section 116.116(f) on September 15,
2010, to change references to outdated section 101.29 to the current
SIP-approved section 101.376.
III. What is EPA's evaluation of these SIP revisions?
A. August 31, 1993 Submittal
1. Section 116.174--Determination by Executive Director To Authorize
Reductions
The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993)
of new section 116.174 is approvable. New section 116.174 requires that
the ED approve the use of emission reductions pursuant to the
requirements in section 116.170. We approved section 116.170 on March
20, 2009, as consistent with the requirements of section 173 of the CAA
and 40 CFR Part 51, Subpart I (see 74 FR 11851).
2. Section 116.175--Recordkeeping
The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993)
of new section 116.175 is approvable. New section 116.175 was adopted
to place the recordkeeping burden on the use of emission reductions in
NSR permitting in accordance with section 116.170 on the permit
applicant rather than the TCEQ. The TCEQ will maintain records
contained in the permit application and permit files, but all other
information necessary to verify the emission reductions used in the
permit are the responsibility of the permit holder and must be made
available at the request of the TCEQ ED. Placing the burden of proof on
the permit holder is consistent with the requirements in NSR and
Prevention of Significant Deterioration (PSD) permitting at 40 CFR Part
51, Subpart I, that the permit holder maintain all necessary records to
substantiate emission reductions and verify emission limitations.
Further, the SIP-approved Emissions Banking and Trading Provisions at
30 TAC Chapter 101, Subchapter H, Divisions 1 and 4 for the Emission
Reduction Credit and Discrete Emission Reduction Credit programs, makes
clear that the generator and user of the emission reductions--not the
TCEQ--is responsible for maintaining all necessary records to
substantiate the reduction (see 30 TAC Sections 101.302(g) and
101.372(h)).
B. July 22, 1998 Submittal
1. Section 116.116(f)--Use of Credits
The July 22, 1998 submittal (adopted by TCEQ on June 17, 1998),
which created new section 116.116(f) is approvable. New section
116.116(f) is necessary to adequately implement the Chapter 116
permitting program for new construction and modification. The new
[[Page 44274]]
section 116.116(f) provides that DERCs can be used as offsets in NSR
permitting, consistent with the TCEQ's banking and trading provisions
at former 30 TAC Section 101.29. EPA approved the use of DERCs in NSR
permitting as consistent with the requirements of section 173 of the
CAA on September 6, 2006 (see 71 FR 52703). Since the adoption of
section 116.116(f), the TCEQ has recodified the SIP-approved DERC
provisions from 30 TAC Section 101.29 to 30 TAC Section 101.376. EPA is
approving the July 22, 1998 adoption of section 116.116(f) and a
subsequent revision that updates the cross-reference.
2. Section 116.174--Determination by Executive Director To Authorize
Reductions
The July 22, 1998 submittal which amends section 116.174 is
approvable. The amendments remove outdated references to the Texas Air
Control Board and update internal cross references to other sections
(in Chapter 116) where emission reductions can be used in NSR
permitting. The TCEQ has a responsibility under the CAA to routinely
update the permitting regulations to include accurate information.
C. October 5, 2010 Submittal
Section 116.116(f)--Use of Credits
The October 5, 2010 submittal (adopted by the TCEQ on September 15,
2010) of the amendments to section 116.116(f) are approvable. These
amendments update the outdated references to obsolete section 101.29
with the current citation to section 101.376, and are necessary to
adequately implement the Chapter 116 permitting program for new
construction and modifications. EPA approved the use of DERCs as NSR
offsets consistent with section 173 of the CAA on September 6, 2006
(see 71 FR 52703).
D. Does approval of Texas's rule revisions interfere with attainment,
reasonable further progress, or any other applicable requirement of the
act?
Section 110(l) of the Clean Air Act states:
Each revision to an implementation plan submitted by a State
under this Act shall be adopted by such State after reasonable
notice and public hearing. The Administrator shall not approve a
revision of a plan if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of this Act.
Thus, under section 110(l), sections 116.116(f), 116.174, and 116.175
must not interfere with attainment, reasonable further progress, or any
other applicable requirement of the Act. The three sections are
necessary components of the Texas NSR permitting program. Without these
provisions, permit applicants will not have the necessary flexibility
provided to them in the Texas SIP and the CAA.
Section 116.116(f) will not interfere with attainment, reasonable
further progress, or any other applicable requirement of the Act.
Section 116.116(f) refers to a SIP-approved usage of DERCs to exceed
permit allowables. This use of DERCs to exceed permit allowables was
previously conditionally approved into the SIP on September 6, 2006,
and fully approved by EPA on May 18, 2010, to be consistent with
section 110(l) of the CAA, see 70 FR 58165 and 75 FR 27644,
respectively. In our proposed approval notice of the DERC program we
stated that:
We have also considered whether the potential use of DECs \1\ to
exceed allowable emission levels under 30 TAC Sec. 101.376(b)(1) is
contrary to section 110(l) in that it could allow sources to exceed
limits in their CAA Title V permits, which are ``applicable
requirements'' under the Act. We conclude that this aspect of the
rule does not violate section 110(l), for the following reasons.
First, EPA has addressed the interface of Title V permits and
trading programs in the EIP guidance, which provides:
---------------------------------------------------------------------------
\1\ In the OMT program, a source generates emission credits by
reducing its emissions during a discrete period of time. These
credits, called discrete emission credits or DECs in the Texas
program, are quantified in units of mass. DEC is a generic term that
encompasses reductions from stationary sources (discrete emission
reduction credits, or DERCs), and reductions from mobile sources
(mobile discrete emission reduction credits, or MDERCs). This
footnote is to provide an explanation of the term DEC and is not a
part of the above quote from a previous notice.
---------------------------------------------------------------------------
If a facility that has a title V operating permit wishes to
participate in your approved EIP, you must modify the facility's
operating permit to include the detailed compliance provisions
necessary to assure compliance with the EIP. Thus, the permit
becomes a valuable tool to ensure the source meets the requirements
of the EIP.
Once the permit includes terms and conditions necessary to
implement the EIP (as described below), the source may typically
make individual trades under the EIP without the need for future
formal permit revisions. This is true because most trading activity
under such a permit would already be addressed and allowed by the
specific terms and conditions of the permit and such trading would
not normally conflict with the permit. This is the principle
expressed by section 70.6(a)(8) of the CFR, which states that permit
revisions are not required for trading program changes that are
``provided for'' in the permit.
(EIP Guidance, Appendix 16.8.) Texas has modified its Title V
permit template so as to address the permissible use of DECs to meet
Title V permit requirements. As further explained in this TSD, we
find that the Texas permit language satisfies the concerns
identified in Appendix 16.8.
In reaching this conclusion, we also considered that a Title V
permit is not itself a source of substantive limits. Rather, it
incorporates applicable requirements under other permits and
programs. In Texas, as elsewhere, many of the allowable emission
levels in Title V permits are determined through New Source
Performance Standards (NSPS), Best Available Control Technology
(BACT), Lowest Achievable Emission Rate (LAER), or National Emission
Standards for Hazardous Air Pollutants (NESHAPs). Under the Texas
rules, DECs may not be used for compliance with any of these
programs. The rule does allow DECs to be used for compliance with
Reasonably Available Control Technology (RACT) standards, in
accordance with EPA's guidance. Specifically, the guidance provides
that ``[i]f your EIP allows sources to avoid direct application of
RACT technology, your EIP must ensure that the level of emission
reductions resulting from implementation of the EIP will be equal to
those reductions expected from the direct application of RACT.''
(EIP Guidance, Appendix 16.7) The Texas program ensures consistency
with that element of the EIP Guidance through the requirement that a
user of DECs must retire 10 percent more credits than are needed.
Accordingly, any use of DECs for RACT compliance will have been
preceded by a ten percent greater reduction.
The above discussion concerns criteria pollutants for which an
area is classified as nonattainment. As for pollutants for which an
area is in attainment, EPA believes that the DERC rule is consistent
with section 110(l). Discrete credit use in attainment areas could
potentially result in temporary local increases in such attainment
pollutants, but only in the sense of authorizing limited exceedances
of state-only permit requirements. That is, in attainment areas in
Texas, the federally enforceable permit limits are all based on
programs, such as BACT and NSPS, for which DEC use is not authorized
under the Texas rule. DEC use for attainment pollutants can
therefore only affect non-SIP requirements. Irrespective of the DERC
rule, such non-SIP requirements are subject to change without
undergoing a 110(l) analysis. Accordingly, the DERC SIP revision is
not itself causing any increases in attainment pollutants that might
be contrary to section 110(l).
[See 70 FR 58165-58166, October 5, 2005]
Section 116.174 will not interfere with attainment, reasonable
further progress, or any other applicable requirement of the Act.
Section 116.174 states that the TCEQ ED will approve the use of
emission reductions for NSR permitting consistent with the requirements
of section 116.170. EPA
[[Page 44275]]
approved section 116.170 into the SIP and found that it is consistent
with section 110(l) of the CAA on March 20, 2009 (74 FR 11851).
Section 116.175 will not interfere with attainment, reasonable
further progress, or any other applicable requirement of the Act.
Section 116.175 states that the recordkeeping burden for emission
reduction usage will be on the permit holder, but all other information
necessary to verify the emission reductions used in the permit are the
responsibility of the permit holder and must be made available at the
request of the TCEQ ED. These recordkeeping requirements will not
violate section 110(l).
IV. Final Action
EPA is taking direct final action to approve revisions to the Texas
SIP submitted on August 31, 1993, July 22, 1998, and October 5, 2010.
Specifically, EPA is approving new sections 116.174 and 116.175,
submitted on August 31, 1993, establishing the approval criteria and
recordkeeping requirements for emission reductions used in NSR
permitting. We are also approving new section 116.116(f) that provides
for the use of DERCs in NSR permitting and amendments to section
116.174 submitted on July 22, 1998. We are also approving amendments to
section 116.116(f), submitted on October 5, 2010 to correctly update
internal citations to the TCEQ DERC program.
As explained previously, EPA is not acting on other severable
portions of the August 31, 1993; July 22, 1998; and October 5, 2010 SIP
submittals. Specifically, EPA is not taking action on the revisions to
section 116.410 submitted on August 31, 1993. EPA is not taking action
on the revisions to sections 116.311(a), 116.312, or 116.610 submitted
on July 22, 1998. Additionally, EPA is not taking action on the
remainder of the October 5, 2010, submittal. These revisions remain
under review by EPA and will be addressed in separate actions.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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 September 23, 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: July 12, 2011.
Al Armendariz,
Regional Administrator, EPA Region 6.
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 as follows:
0
a. By revising the entry for Section 116.116;
0
b. By adding new entries for Sections 116.174 and 116.175.
The additions and revisions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 44276]]
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State approval/
State citation Title/Subject Submittal EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
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Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter B--New Source Review Permits
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.116................ Changes to 9/15/2010 7/25/2011, [Insert The SIP does not
Facilities. FR page number include paragraphs
where document (b)(3) and (b)(4)
begins]. and subsection
(e).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Division 7--Emission Reductions: Offsets
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.174................ Determination by 6/17/1998 7/25/2011, [Insert ...................
Executive Director FR page number
to Authorize where document
Reductions. begins].
Section 116.175................ Recordkeeping....... 8/16/1993 7/25/2011, [Insert ...................
FR page number
where document
begins].
* * * * * * *
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[FR Doc. 2011-18578 Filed 7-22-11; 8:45 am]
BILLING CODE 6560-50-P
