Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); General Definitions; Definition of Modification of Existing Facility, 71260-71267 [2011-29641]
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Federal Register / Vol. 76, No. 222 / Thursday, November 17, 2011 / Rules and Regulations
(B) [Reserved]. For further guidance,
see § 301.7701–2(c)(2)(iv)(B).
(C) Exceptions. For exceptions to the
rule in § 301.7701–2(c)(2)(iv)(B), see
sections 31.3121(b)(3)–1(d), 31.3127–
1(c), and 31.3306(c)(5)–1(d).
(D) through (e)(4) [Reserved]. For
further guidance, see § 301.7701–
2(c)(2)(iv)(D) through (e)(4).
(5) Paragraphs (c)(2)(iv)(A) and
(c)(2)(iv)(C) of this section apply to
wages paid on or after November 17,
2011. For rules that apply to paragraph
(c)(2)(iv)(A) of this section before
November 17, 2011, see 26 CFR part 301
revised as of April 1, 2009. However,
taxpayers may apply paragraphs
(c)(2)(iv)(A) and (c)(2)(iv)(C) of this
section to wages paid on or after January
1, 2009.
(e)(6) through (e)(7) [Reserved]. For
further guidance, see § 301.7701–2(e)(6)
through (e)(7).
(8) Expiration Date. The applicability
of paragraphs (c)(2)(iv)(A) and
(c)(2)(iv)(C) of this section expires on or
before November 14, 2014.
LaNita Van Dyke,
Chief, Publications and Regulations Branch,
Legal Processing Division, Associate Chief
Counsel, (Procedure and Administration).
[FR Doc. 2011–29560 Filed 11–16–11; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1042]
Drawbridge Operation Regulation;
China Basin, San Francisco, CA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
The Commander, Eleventh
Coast Guard District, has issued a
temporary deviation from the regulation
governing the operation of the Third
Street Drawbridge across China Basin,
mile 0.0, at San Francisco, CA. The
deviation is necessary to allow the City
of San Francisco to inspect the bridge
structure as required by the U.S.
Department of Transportation. This
deviation allows the bridge to be
secured in the closed-to-navigation
position during the deviation period.
DATES: This deviation is effective from
10 a.m. to 2 p.m. on November 16, 2011.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of the docket USCG–
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SUMMARY:
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2011–1042 and are available online by
going to https://www.regulations.gov,
inserting USCG–2011–1042 in the
‘‘Keyword’’ box and then clicking
‘‘Search’’. They are also available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
ENVIRONMENTAL PROTECTION
AGENCY
If
you have questions on this rule, call or
email David H. Sulouff, Chief, Bridge
Section, Eleventh Coast Guard District;
telephone (510) 437–3516, email
David.H.Sulouff@uscg.mil If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
AGENCY:
FOR FURTHER INFORMATION CONTACT:
The City
of San Francisco requested a temporary
change to the operation of the Third
Street Drawbridge, mile 0.0, over China
Basin, at San Francisco, CA. The
drawbridge navigation span provides a
vertical clearance of 3 feet above Mean
High Water in the closed-to-navigation
position. As required by 33 CFR
117.149, the draw shall open on signal
if at least one hour notice is given to the
San Francisco Department of Public
Works. Navigation on the waterway is
commercial and recreational.
The Third Street Drawbridge will be
secured in the closed-to-navigation
position from 10 a.m. to 2 p.m. on
November 16, 2011, to allow the City of
San Francisco to inspect the bridge
structure as required by the U.S.
Department of Transportation. This
temporary deviation has been
coordinated with the waterway users.
No objections to the proposed
temporary deviation were received.
Vessels that can transit the bridge,
while in the closed-to-navigation
position, may continue to do so at any
time. In the event of an emergency, the
drawbridge can open upon one hour
notice.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
SUPPLEMENTARY INFORMATION:
Dated: November 3, 2011.
D.H. Sulouff,
Bridge Section Chief, Eleventh Coast Guard
District.
[FR Doc. 2011–29652 Filed 11–16–11; 8:45 am]
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40 CFR Part 52
[EPA–R06–OAR–2005–TX–0025;
FRL–9489–8]
Approval and Promulgation of
Implementation Plans; Texas;
Revisions to the New Source Review
(NSR) State Implementation Plan (SIP);
General Definitions; Definition of
Modification of Existing Facility
Environmental Protection
Agency (EPA).
ACTION: Final rule.
EPA is approving, as
proposed July 18, 2011, several
revisions to the State Implementation
Plan (SIP) for the State of Texas that
relate to severable portions of the
definition of ‘‘modification of existing
facility’’ in the general definitions for
the Texas NSR Program. EPA finds that
these changes to the Texas SIP comply
with the Federal Clean Air Act (the Act
or CAA) and EPA regulations, and are
consistent with EPA policies. EPA is
also disapproving a severable portion of
the definition that was proposed for
disapproval on September 23, 2009.
EPA is taking these actions under
section 110 of the Act.
DATES: This final rule is effective
December 19, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2005–TX–0025. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through 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 Freedom of
Information Act 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
SUMMARY:
FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
(214) 665–7253 to make an
appointment. If possible, please make
the appointment at least two working
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days in advance of your visit. There will
be a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal is also available
for public inspection at the State Air
Agency listed below during official
business hours by appointment:
Texas Commission on Environmental
Quality (TCEQ), Office of Air Quality,
12124 Park 35 Circle, Austin, Texas
78753.
Mr.
Stanley M. Spruiell, Air Permits Section
(6PD–R), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7212; fax number
(214) 665–6762; email address
spruiell.stanley@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
any reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is
used, we mean EPA.
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Table of Contents
I. The State’s Submittals
II. What action is EPA taking?
III. EPA’s Evaluation of the Severable
Portions of the Definition of
‘‘Modification of Existing Facility’’
A. Approval of 30 TAC 116.10(11)—
Introductory Paragraph of the Definition
of ‘‘Modification of Existing Facility’’
1. What is the background of the
introductory paragraph of 30 TAC
116.10(11)?
2. What is EPA’s evaluation of the
submitted revisions to the introductory
paragraph of 30 TAC 116.10(11)?
B. Approval of 30 TAC 116.10(11)(C)—
Exclusion for Maintenance and
Replacement of Equipment
1. What is the background of 30 TAC
116.10(11)(C)?
2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.11(C)?
C. Approval of 30 TAC 116.10(11)(D)—
Exclusion for an Increase in Annual
Hours of Operation
1. What is the background of 30 TAC
116.10(11)(D)?
2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.10(11)(D)?
D. Disapproval of 30 TAC 116.10(11)(G)—
Exclusion of Changes at Certain Natural
Gas Processing, Treating, or Compression
Facilities
1. What is the background of 30 TAC
116.10(11)(G)?
2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.10(11)(G)?
3. What are the grounds for disapproval of
30 TAC 116.10(11)(G)?
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E. Response to Other Comments on the July
18, 2011, Proposal
IV. Final Action
V. Statutory and Executive Order Reviews
I. The State’s Submittals
On March 13, 1996; July 22, 1998; and
September 4, 2002; the State of Texas
submitted revisions to the Texas State
Implementation Plan (SIP) concerning
the definition of ‘‘modification of
existing facility’’ for minor source
permitting under Title 30 of the Texas
Administrative Code (30 TAC), Chapter
116—Control of Air Pollution by
Permits for New Construction or
Modification, Subchapter A—
Definitions. The definition of
‘‘modification of existing facility’’ for
minor NSR permitting is located at 30
TAC 116.10(11) in the September 4,
2002, submittal. The March 13, 1996,
revisions to this definition were
repealed and readopted, and new
versions were submitted to EPA on July
22, 1998. This definition was later
recodified from 30 TAC 116.10(9) to
116.10(11) in a SIP submittal dated
September 4, 2002.
Section 30 TAC 116.10—General
Definitions—is currently approved as
adopted by Texas on August 21, 2002,
and as approved April 14, 2010 (75 FR
19468). As approved, the current SIP
does not include all the definitions
under Section 116.10, including the
definition of ‘‘modification of existing
facility’’ found in Section 116.10(11).
On July 18, 2011 (76 FR 42078), EPA
proposed to approve severable portions
of this definition first adopted by Texas
on February 14, 1996 (submitted March
13, 1996). The next submittal reflects
the Texas repeal and readoption of this
definition as Section 116.10(9) on June
17, 1998 (submitted July 22, 1998). The
regulatory history of the March 13, 1996
submittal was used to evaluate the later
submittals. On July 18, 2011 (76 FR
42078), we proposed to approve
severable portions of the definition
‘‘modification of existing facility’’ as
submitted on July 22, 1998, and the
redesignation of this definition to
Section 116.10(11) adopted August 21,
2002 (submitted September 4, 2002). We
also proposed to approve Subparagraphs
(C) and (D) of this definition as
submitted July 22, 1998, and September
4, 2002. In response to this proposal, we
received comments from the Texas
Industry Project (TIP) and the BCCA
Appeal Group (BCCAAG).
On September 23, 2009 (74 FR 48450),
EPA proposed to disapprove severable
portions of the definition of
‘‘modification of existing facility’’ under
Subparagraph (G). In response to this
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proposal, we received comments from
the University of Texas at Austin,
Environmental Clinic (UT
Environmental Clinic).1 Today, we
finalize our disapproval of
Subparagraph (G) as not meeting the
requirements of the CAA.
EPA is taking these actions under
section 110 of the Act.
Finally, please note that Texas
submitted further revisions to 30 TAC
116.10 on October 5, 2010. This
includes the removal of two definitions,
the renumbering of other definitions,
and revisions to certain definitions. In
this October 2010 submittal, TCEQ
renumbered the definition of
‘‘modification of existing facility’’ to
Section 116.10(9) and relettered
Subparagraphs (C) and (D) to
Subparagraphs (B) and (C), respectively,
with no other changes. We are not
acting on the October 5, 2010, SIP
submittal here. We will address the
October 2010 SIP revisions in a separate
action.
Additional information related to
these SIP submittals is contained in the
Technical Support Documents (TSD) for
the September 23, 2009,2 and July 18,
2011,3 proposals, which are in the
docket for this action.
The table below summarizes the
changes that were submitted and are
affected by this action. A summary of
EPA’s evaluation of each section and the
basis for this proposal is discussed in
section III of this preamble. The TSD
includes a detailed evaluation of the
referenced SIP submittals.
1 The UT Environmental Clinic forwarded its
comments on behalf of: Environmental Integrity
Project: Environmental Defense Fund; GalvestonHouston Association for Smog Prevention; Public
Citizen; Citizens for Environmental Justice; Sierra
Club Lone Star Chapter; Community-In-Power and
Development Association; KIDS for Clean Air;
Clean Air Institute of Texas; Sustainable Energy and
Economic Development Coalition; Robertson
County: Our Land, Our Lives; Texas Protecting Our
Land, Water, and Environment; Citizens for a Clean
Environment; Multi-County Coalition; and Citizens
Opposing Power Plants for Clean Air.
2 The TSD for the September 23, 2009, proposal
is in the docket as document EPA–R06–OAR–2005–
TX–0025–0007. You can access this TSD on line at:
https://www.regulations.gov/
#!documentDetail;D=EPA-R06-OAR-2005-TX-00250007.
3 The TSD for the July 18, 2011, proposal is in the
docket as document EPA–R06–OAR–2005–TX–
0025–0378. You can access this TSD on line at:
https://www.regulations.gov/
#!documentDetail;D=EPA-R06-OAR-2005-TX-00250378.
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Date
submitted
Section
Title
30 TAC 116.10(11) ......
Definition of modification of existing facility—Introductory
paragraph.
Date
adopted by
TCEQ
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II. What action is EPA taking?
We have evaluated severable portions
of the SIP submissions of 30 TAC
116.10(11), which include the
introductory paragraph of the definition
of ‘‘modification of existing facility,’’
and Subparagraphs (C) and (D) of that
definition for consistency with the CAA,
and NSR regulations for new and
modified sources in 40 CFR part 51. We
have also reviewed the rules for
enforceability and legal sufficiency.
This action addresses severable
portions of the definition of
modification of existing facility under
30 TAC 116.10(11), including the
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2/14/1996
6/17/1998
9/4/2002
In a separate proposal published on
September 23, 2009, 74 FR 48450, EPA
proposed to disapprove severable
provisions in Subparagraphs (A), (B),
and (G) of the definition of
‘‘modification of existing facility’’ at 30
TAC 116.10(11). In light of revisions
that were submitted on October 5, 2010,
revising the language of Subparagraph
(A) and eliminating Subparagraph (B),
EPA will withdraw its proposed actions
on Subparagraphs (A) and (B) in a
separate action. Subparagraph (A) as it
appears in the October 5, 2010,
submittal will be evaluated and will be
addressed in a separate future action.
Based upon our proposed disapproval of
30 TAC 116.10(11)(G) and our
evaluation of the comments received on
that proposal, EPA is taking final action
to disapprove 30 TAC 116.10(11)(G)
submitted March 13, 1996; July 22,
1998; and September 4, 2002.
8/21/2002
3/13/1996
7/22/1998
Exclusion of certain
changes natural gas
processing, treating,
or compression facilities.
2/14/1996
6/17/1998
9/4/2002
30 TAC 116.10(11)(G)
8/21/2002
3/13/1996
7/22/1998
Exclusion of increase
in annual hours of
operation.
2/14/1996
6/17/1998
9/4/2002
30 TAC 116.10(11)(D)
8/21/2002
3/13/1996
7/22/1998
Exclusion of maintenance and replacement of equipment.
2/14/1996
6/17/1998
9/4/2002
30 TAC 116.10(11)(C)
3/13/1996
7/22/1998
8/21/2002
Description of change
Date of EPA proposed
action
Initial adoption ............
Repeal and readoption
as Section
116.10(9).
Recodification to Section 116.10(11).
Initial adoption ............
Repeal and readoption
as Section
116.10(9)(C).
Recodification to Section 116.10(11)(C).
Initial adoption ............
Repeal and readoption
as Section
116.10(9)(D).
Recodification to Section 116.10(11)(D).
Initial adoption ............
Repeal and readoption
as Section
116.10(9)(G).
7/18/2011—proposed
approval.
Approval.
7/18/2011—proposed
approval.
Approval.
7/18/2011—proposed
approval.
Approval.
9/23/2009—proposed
disapproval.
Disapproval.
Recodification to Section 116.10(11)(G).
introductory paragraph and
Subparagraphs (C) and (D) of the
definition submitted March 13, 1996;
July 22, 1998; and September 4, 2002. A
technical analysis of the submittals for
this definition has found that these
changes meet the CAA and 40 CFR part
51. EPA received two comments in
support of this proposal and did not
receive any adverse comments.
Therefore, EPA approves as proposed
the severable portions of the definition
of ‘‘modification of existing facility’’
under 30 TAC 116.10(11), including the
introductory paragraph of Section
116.10(11) and Subparagraphs (C) and
(D) of this definition, submitted on
March 13, 1996; July 22, 1998; and
September 4, 2002. As discussed earlier,
in a separate SIP submittal dated
October 5, 2010, 30 TAC 116.10(11)
Subparagraphs (C) and (D) were
renamed as 30 TAC 116.10(9) and
Subparagraphs (B) and (C), respectively.
EPA is not acting on the changes
submitted October 2010, and will
address these revisions in a separate
action.
In a separate proposal published on
September 23, 2009 (74 FR 48450), EPA
proposed to disapprove 30 TAC
116.10(11)(G). Based upon our proposed
disapproval of this rule and our
evaluation of the comments received on
our proposed disapproval of Subsection
(G), EPA is taking final action to
disapprove 30 TAC 116.10(11)(G)
submitted March 13, 1996; July 22,
1998; and September 4, 2002.
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action
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On September 23, 2009, 74 FR 48450,
EPA also proposed to disapprove
severable provisions in Subparagraphs
(A) and (B) of the definition of
‘‘modification of existing facility.’’ In
light of revisions that were submitted on
October 5, 2010, revising the language of
Subparagraph (A) and eliminating
Subparagraph (B), EPA will withdraw
its proposed actions on Subparagraphs
(A) and (B) in a separate action.
Subparagraph (A) as it appears in the
October 5, 2010, submittal will be
evaluated and will be addressed in a
separate future action.
III. EPA’s Evaluation of Severable
Portions of the Definition of
‘‘Modification of Existing Facility’’
A. Approval of 30 TAC 116.10(11)—
Introductory Paragraph of the Definition
of ‘‘Modification of Existing Facility’’
1. What is the background of the
introductory paragraph of 30 TAC
116.10(11)—introductory paragraph?
The TCEQ initially submitted the
introductory paragraph of the general
definition of ‘‘modification of existing
facility’’ on March 13, 1996. On July 22,
1998, TCEQ repealed and resubmitted
this definition as readopted at 30 TAC
116.10(9). On September 4, 2002, TCEQ
submitted revisions that redesignated
this definition to 30 TAC 116.10(11).
The submitted regulatory definition of
the introductory paragraph that we are
addressing here provides that a
modification of an existing facility is
‘‘any physical change in, or change in
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the method of operation of, a facility in
a manner that increases the amount of
air contaminants emitted by the facility
into the atmosphere or which results in
the emission of any air contaminant not
previously emitted.’’
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2. What is EPA’s evaluation of the
submitted revisions to the introductory
paragraph of 30 TAC 116.10(11)?
EPA approved the definition of
‘‘facility’’ in Subchapter A: Definitions
on September 6, 2006 (71 FR 52698) as
part of the Texas SIP. ‘‘Facility’’ is
defined as ‘‘[a] discrete or identifiable
structure, device, item, equipment, or
enclosure that constitutes or contains a
stationary source, including
appurtenances other than emission
control equipment. A mine, quarry, well
test, or road is not a facility.’’ See
approved SIP at 30 TAC 116.10(6). The
submitted regulatory definition for
‘‘modification of existing facility’’ also
is in Subchapter A, Section 116.10.
Therefore, ‘‘existing facility’’ is limited
by the terms of the SIP definition of
‘‘facility.’’ In our evaluation of this
introductory paragraph in the submitted
regulatory definition of modification of
existing facility, we compared it to how
‘‘modification’’ is defined in the CAA
and in our regulations.
The CAA defines modification in
Section 111(a)(4) as ‘‘any physical
change in, or change in the method of
operation of, a stationary source which
increases the amount of any air
pollutant emitted by such source or
which results in the emission of any
pollutant not previously emitted.’’ In 40
CFR 52.01(d), the phrases
‘‘modification’’ and ‘‘modified source’’
are defined as any physical change in,
or change in the method of operation of,
a stationary source which increases the
emission rate of any air pollutant for
which a national standard has been
promulgated under part 50 of this
chapter or which results in the emission
of any such pollutant not previously
emitted.
The introductory paragraph of 30 TAC
116.10(11) is substantially the same as
the definitions in section 111(a)(4) of
the Act and 40 CFR 52.01(d).
The existence of a different definition
for ‘‘major modification,’’ in Section
116.12—Nonattainment and Prevention
of Significant Review Definitions—that
is applicable for Major NSR 4 serves to
4 Section 116.12 as currently approved in the
Texas SIP applies only to the Major NSR Program
for Nonattainment Review. SIP revisions submitted
February 1, 2006, and March 11, 2011, revised the
definition to apply to both Nonattainment Review
and Prevention of Significant Deterioration. EPA is
currently reviewing these revisions and plans to act
upon them shortly. The definitions in Section
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distinguish the provisions in the
introductory paragraph of section
116.10(11) from the Major NSR Program
and limit its application to Minor NSR.
In response to our proposed approval,
we received comments from TIP and
BCCAAG. The commenters agree that
the regulatory language in 30 TAC
116.10(11) is consistent with the CAA
and EPA regulations and that SIP
approval is warranted.
Based upon the proposal and
consideration of the comments we
received, we are approving the
introductory paragraph of 30 TAC
116.10(11), as submitted March 13,
1996; July 22, 1998; and September 4,
2002.
B. Approval of 30 TAC 116.10(11)(C)—
Exclusion for Maintenance and
Replacement of Equipment
1. What is the background of 30 TAC
116.10(11)(C)?
On March 13, 1996, this provision
was submitted as Subparagraph (C)
under the definition of ‘‘modification of
existing facility.’’ In the July 22, 1998,
submittal, the provision was repealed
and resubmitted as 30 TAC 116.10(9)(C).
On September 4, 2002, TCEQ submitted
revisions that redesignated this
definition to 30 TAC 116.10(11)(C). As
submitted, Subparagraph (C) provides
that maintenance or replacement of
equipment components that do not
increase or tend to increase the amount
or change the characteristics of the air
contaminants emitted into the
atmosphere is not a modification to an
existing facility.
2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.10(11)(C)?
The submitted Subparagraph (C)
mirrors the definition in the Texas
Clean Air Act (TCCA). Under
Subparagraph (C), any maintenance and
repair of equipment components that
increases emissions, or tends to increase
emissions, will be considered a
modification consistent with the
introductory paragraph of 30 TAC
116.10(11). Accordingly, the limitation
in Subparagraph (C) protects against
increases in emissions and thereby does
not interfere with attainment or
reasonable further progress. The
definition of ‘‘major modification’’ in
Section 116.12 has a different exclusion
for routine maintenance, repair, and
replacement. The existence of a
different exclusion in the Section 116.12
that is applicable for Major NSR serves
to distinguish the provisions in
116.12 are effective as State rules and the TCEQ
implements them as part of its Major NSR Program.
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71263
paragraph (C) from the Major NSR
Program and limit its application to
Minor NSR.
In response to our proposed approval,
we received comments from TIP and
BCCAAG. The commenters agree that
the regulatory language in 30 TAC
116.10(11)(C) is consistent with the
CAA and EPA regulations and that SIP
approval is warranted.
Based upon the proposal and
consideration of the comments we
received, we are finalizing our approval
of 30 TAC 116.10(11)(C), as submitted
March 13, 1996; July 22, 1998; and
September 4, 2002.
C. Approval of 30 TAC 116.10(11)(D)—
Exclusion for an Increase in Annual
Hours of Operation
1. What is the background of 30 TAC
116.10(11)(D)?
On March 13, 1996, this provision
was submitted as Subparagraph (D)
under the definition of ‘‘modification of
existing facility.’’ In the July 22, 1998,
submittal, the provision was repealed
and resubmitted as 30 TAC
116.10(9)(D). On September 4, 2002,
TCEQ submitted revisions that
redesignated this definition to 30 TAC
116.10(11)(D). As submitted,
Subparagraph (D) provides that an
increase in the annual hours of
operation is not a modification to an
existing facility, unless the existing
facility has received a preconstruction
permit or has been exempted, under
TCAA, § 382.057, from preconstruction
permit requirements.
2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.10(11)(D)?
The submitted Subparagraph (D)
mirrors the definition in the Texas
Clean Air Act (TCCA). Subparagraph (D)
is similar to 40 CFR 52.01(d)(2)(ii),
which provides that an increase in the
hours of operation shall not be
considered a change in the method of
operation. The operative language in the
submitted Subparagraph (D) is
substantially the same as 40 CFR
52.01(d)(2)(ii). Furthermore,
Subparagraph (D) includes additional
language that clarifies that an increase
in hours of operation may be a
modification for existing minor facilities
having preconstruction permits or
exemptions, under TCAA § 382.057 5 for
preconstruction permit requirements.
This language limits the reach of the
5 The term ‘‘exemptions’’ is a misnomer.
Exemptions in Texas now are called Permits by
Rule. An ‘‘exemption’’ since 1972 in Texas and in
the Texas SIP, is an authorization to construct and/
or modify if certain conditions are met.
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exclusion in scenarios where an existing
facility is subject to limitations on hours
of operation under the terms of a
preconstruction permit or an exemption.
This is consistent with Federal
requirements in 40 CFR 52.01(d)(2)(ii).
Subparagraph (D) meets the Federal
requirements as described above. Again,
the definition of ‘‘major modification’’
in Section 116.12 has a different
exclusion for an increase in the annual
hours of operation. The existence of a
different exclusion in the Section 116.12
that is applicable for Major NSR serves
to distinguish the provisions in
paragraph (D) from the Major NSR
Program and limit its application to
Minor NSR.
In response to our proposed approval,
we received comments from TIP and
BCCAAG. The commenters agree that
the regulatory language in 30 TAC
116.10(11)(D) is consistent with the
CAA and EPA regulations and that SIP
approval is warranted.
Based upon the proposal and
consideration of the comments we
received, we are finalizing our approval
of 30 TAC 116.10(11)(D), as submitted
March 13, 1996; July 22, 1998; and
September 4, 2002.
D. Disapproval of 30 TAC
116.10(11)(G)—Exclusions for Changes
at Certain Natural Gas Processing,
Treating, or Compression Facilities
1. What is the background of 30 TAC
116.10(11)(G)?
On March 13, 1996, this provision
was submitted as Subparagraph (G)
under the definition of ‘‘modification of
existing facility.’’ In the July 22, 1998,
submittal, the provision was repealed
and resubmitted as 30 TAC
116.10(9)(D). On September 4, 2002,
TCEQ submitted revisions that
redesignated this definition to 30 TAC
116.10(11)(D). On September 23, 2009,
EPA proposed to disapprove the
submitted revisions relating to 30 TAC
116.10(11)(G).
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2. What is EPA’s evaluation of the
submitted revisions to 30 TAC
116.10(11)(G)?
The submittals provide that changes
at certain natural gas processing,
treating, or compression facilities are
not modifications if the change does not
result in an annual emissions rate of any
air contaminant in excess of the volume
for grandfathered facilities. The ‘‘annual
emissions rate’’ is the same as the
‘‘volume emitted at maximum design
capacity;’’ therefore, this would provide
an exemption for those sources from
permit review for any emission
increases at these facilities. The
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requirements of 40 CFR 51.160(e) allow
a State to identify facilities which will
be subject to review under its minor
NSR program and require its minor NSR
SIP to discuss the basis for determining
which facilities will be subject to
review. The submittals, however, do not
contain an applicability statement or
regulatory provision limiting this type
of change to minor NSR. There is no
explanation of the reason for exempting
this type of change from the permitting
SIP requirements. Without the submittal
by the State of an analysis describing
how this exemption does not negate the
major NSR SIP requirements and meets
the minor NSR SIP requirements in 40
CFR 51.160 and the Act’s
antibacksliding requirements in section
110(l), EPA proposed to disapprove this
submitted definition.
In response to our proposed
disapproval, we received comments
from the UT Environmental Clinic
(Clinic) and TCEQ. The Clinic
supported the disapproval of this
exemption from the definition of
modification of existing facility because
the exemption could apply to major
modifications and because TCEQ did
not demonstrate that the exemption will
not interfere with attainment or cause a
violation of a control strategy. EPA
acknowledges that these comments
support its basis for proposing
disapproval of this exemption because it
could allow major modifications
without undergoing review that satisfies
the applicable permitting requirements
for Major NSR under 40 CFR 51.165
and/or 51.166, as applicable. The
exemption may also allow a source to
increase emissions without a
demonstration that such change will not
interfere with attainment or
maintenance of a National Ambient Air
Quality Standard (NAAQS) or cause a
violation of a control strategy. The
TCEQ commented that it will consider
EPA’s comments regarding its proposed
disapproval of 30 TAC 116.10(11)(G),
but provided no information which
demonstrates that this provision meets
the requirements for SIP approval.6
3. What are the grounds for disapproval
of 30 TAC 116.10(11)(G)?
Based upon the September 23, 2009,
proposal and the consideration of
comments provided, EPA is
disapproving the exemption in 30 TAC
116.10(11)(G) on the following grounds:
• This definition exempts changes at
certain natural gas processing, treating,
6 On October 5, 2010, TCEQ submitted a revision
that renumbered 30 TAC 116.10(11)(G) to 30 TAC
116.10(9)(F), but made no changes to the substance
of this provision.
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or compression facilities as nonmodifications if the change does not
result in an annual emissions rate of any
air contaminant in excess of the volume
for grandfathered facilities from the
definition of modification of existing
facility. However, TCEQ did not provide
any discussion of the basis for this
exemption as required by 40 CFR
51.160(e).
• The submitted definition includes
no applicability statement or regulatory
provision limiting this type of change to
minor NSR.
• The submitted rule includes no
demonstration that the exempted
change at a natural gas processing,
treating, or compression facility does
not result in an annual emissions rate of
any air contaminant in excess of the
volume for grandfathered facilities, and
does not interfere with attainment or
maintenance of a NAAQS or cause a
violation of a control strategy as
required under 40 CFR 51.161(a).
Based upon the September 23, 2009,
proposal, and consideration of the
comments received, we are finalizing
our disapproval of 30 TAC
116.10(11)(G) as submitted March 11,
1996; July 22, 1998; and September 4,
2002.
E. Response to Other Comments on the
July 18, 2011, Proposal
TIP and BCCAAG commented that
EPA should take into account the
dramatic improvements in Texas’s air
quality in acting on the definition of
‘‘modification of existing facility’’ and
other SIP revisions. The commenters
assert that Texas’s integrated air
permitting program, including the
definition which EPA now proposes to
approve, has played a key role in
Texas’s air quality success. TIP and
BCCAAG urge EPA to approve the entire
‘‘modification of existing facility’’ as
part of this integrated program. The
commenters cite to substantial
reductions in several air pollutants and
reductions in ambient concentrations in
monitored levels of ozone, nitrogen
dioxide, sulfur dioxide, and carbon
monoxide from 1990 to 2009.
Our actions on the severable parts of
the definition of ‘‘modification of
existing facility’’ are based upon
whether the definition meets the
applicable requirements of the CAA, as
discussed herein. EPA is required to
review a SIP revision submission for
compliance with the CAA and EPA
regulations. CAA 110(k)(3). See also
BCCA Appeal Group v. EPA, 355 F 3d.
817, 822 (5th Cir. 2003), Natural
Resource Defense Council v. Browner,
57 F.3d 1122, 1123 (DC Cir. 1995).
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V. Statutory and Executive Order
Reviews
IV. Final Action
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The submitted data, even if accepted,
does not show that gains are attributable
to the definition of ‘‘modification of
existing facility,’’ and the commenter’s
claim regarding the data does not take
account of SIP-approved control
strategies (both State and Federal
programs) and other Federal and State
programs. The approvals of revisions
which we finalize today are based on
our review of the Texas submittals
following the analysis furnished in the
proposal in accordance with the CAA.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because this
SIP approval and disapproval under
section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of
itself create any new information
collection burdens but simply approves
and disapproves certain State severable
requirements for inclusion into the SIP.
Burden is defined at 5 CFR 1320.3(b).
Because this final action does not
impose an information collection
burden, the Paperwork Reduction Act
does not apply.
Today, EPA is approving the
following revisions to the Texas SIP to
include severable provisions of the
definition of ‘‘modification of existing
facility’’ under 30 TAC 116.10(11),
submitted March 13, 1996; July 22,
1998; and September 4, 2002. This
includes the following:
• 30 TAC 116.10(11)—the
introductory paragraph of the definition
of ‘‘modification of existing facility;’’
• 30 TAC 116.10(11)(C)—Exclusion
for maintenance and replacement of
equipment; and
• 30 TAC 116.10(11)(D)—Exclusion
for an increase in annual hours of
operation.
Today, EPA is also disapproving the
severable portion of definition of
‘‘modification of existing facility’’ under
30 TAC 116.10(11)(G), submitted March
13, 1996; July 22, 1998; and September
4, 2002.
Final action on these revisions on or
before October 31, 2011, will meet
EPA’s obligation on the NSR Rules
Revisions; 112(g) Revisions component
of the May 21, 2009, Settlement
Agreement between EPA and the
Business Coalition for Clean Air Appeal
Group, Texas Association of Business,
and Texas Oil and Gas Association.
EPA is not taking further action on the
following severable provisions of 30
TAC 116.10(11):
• 30 TAC 116.10(11)(E). EPA
disapproved Subparagraph (E) in a
separate action on April 14, 2010, 75 FR
19468. EPA will address any subsequent
submittals containing Subparagraph (E)
as newly revised in a separate action.
• 30 TAC 116.10(11)(F). EPA
disapproved Subparagraph (F) in a
separate action on July 15, 2010, 75 FR
41312. EPA will address any subsequent
submittals containing Subparagraph (F)
as newly revised in a separate action.
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A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to conduct
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions. For
purposes of assessing the impacts of
today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field. This rule will not
have a significant impact on a
substantial number of small entities
because SIP approvals and disapprovals
under section 110 of the Clean Air Act
do not create any new requirements but
simply approve or disapprove
requirements that the States are already
imposing.
Furthermore, as explained in this
action, a severable portion of the
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71265
submissions does not meet the
requirements of the Act and EPA cannot
approve the severable portion of the
submissions. The final disapproval will
not affect any existing State
requirements applicable to small
entities in the State of Texas. Federal
disapproval of a severable portion of a
State submittal does not affect its State
enforceability. After considering the
economic impacts of today’s rulemaking
on small entities, and because the
Federal SIP disapproval does not create
any new requirements or impact a
substantial number of small entities, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
Moreover, due to the nature of the
Federal-State relationship under the
Clean Air Act, preparation of flexibility
analysis would constitute Federal
inquiry into the economic
reasonableness of state action. The
Clean Air Act forbids EPA to base its
actions concerning SIPs on such
grounds. Union Electric Co., v. U.S.
EPA, 427 U.S. 246, 255–66 (1976); 42
U.S.C. 7410(a)(2).
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 ‘‘for State, local, or tribal
governments or the private sector.’’ EPA
has determined that the approval and
disapproval action does not include a
Federal mandate that may result in
estimated costs of $100 million or more
to either State, local, or tribal
governments in the aggregate, or to the
private sector. This Federal action
determines that pre-existing
requirements under State or local law
should not be approved as part of the
Federally-approved SIP. It imposes no
new requirements. Accordingly, no
additional costs to State, local, or tribal
governments, or to the private sector,
result from this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have Federalism
implications.’’ ‘‘Policies that have
Federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
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Federal Register / Vol. 76, No. 222 / Thursday, November 17, 2011 / Rules and Regulations
power and responsibilities among the
various levels of government.’’
This action does not have Federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely approves and disapproves
severable portions of certain State
requirements for inclusion into the SIP
and does not alter the relationship or
the distribution of power and
responsibilities established in the Clean
Air Act. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175, Coordination
With Indian Tribal Governments
This action does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000) because the rule neither imposes
substantial direct compliance costs on
tribal governments, nor preempts tribal
law. Therefore, the requirements of
sections 5(b) and 5(c) of the Executive
Order do not apply to this action.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it is not
an economically significant regulatory
action based on health or safety risks
subject to Executive Order 13045 (62 FR
19885, April 23, 1997). This SIP
approval and disapproval under section
110 and subchapter I, part D of the
Clean Air Act will not in-and-of itself
create any new regulations but simply
disapproves certain State requirements
for inclusion into the SIP.
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H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211 (66 FR 28355, May 22,
2001) because it is not a significant
regulatory action under Executive Order
12866.
Section 12(d) of the National
Technology Transfer and Advancement
14:30 Nov 16, 2011
Jkt 226001
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
(February 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA lacks the discretionary authority
to address environmental justice in this
action. In reviewing SIP submissions,
EPA’s role is to approve or disapprove
state choices, based on the criteria of the
Clean Air Act. Accordingly, this action
merely disapproves certain State
requirements for inclusion into the SIP
under section 110 and subchapter I of
the Clean Air Act and will not in-andof itself create any new requirements.
Accordingly, it does not provide EPA
with the discretionary authority to
address, as appropriate,
disproportionate human health or
environmental effects, using practicable
and legally permissible methods, under
Executive Order 12898.
K. Congressional Review Act
I. National Technology Transfer and
Advancement Act
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Act of 1995 (‘‘NTTAA’’), Public Law
104–113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. NTTAA directs EPA
to provide Congress, through the Office
of Management and Budget,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
The EPA believes that this action is
not subject to requirements of Section
12(d) of NTTAA because application of
those requirements would be
inconsistent with the Clean Air Act.
Today’s action does not require the
public to perform activities conducive
to the use of VCS.
The Congressional Review Act,
5 U.S.C. section 801 et seq., as added by
the Small Business Regulatory
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Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by January 17, 2012.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations.
Dated: October 31, 2011.
Al Armendariz,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7402 et seq.
Subpart SS—Texas
2. The table in § 52.2270(c) entitled
‘‘EPA Approved Regulations in the
Texas SIP’’ is amended under Chapter
116, Subchapter A, by revising the entry
for Section 116.10 to read as follows:
■
§ 52.2270
Identification of plan.
*
*
*
(c) * * *
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*
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Federal Register / Vol. 76, No. 222 / Thursday, November 17, 2011 / Rules and Regulations
EPA-APPROVED REGULATIONS IN THE TEXAS SIP
State citation
Stateapproval/
submittal
date
Title/subject
*
*
*
EPA approval date
*
Explanation
*
*
*
Chapter 116—Control of Air Pollution by Permits for New Construction or Modification
Subchapter A—Definitions
Section 116.10 .............
General Definitions ......
*
*
*
3. Section 52.2273 is revised by
adding a new paragraph (g) to read as
follows:
■
§ 52.2273
Approval status.
*
*
*
*
*
(g) EPA has disapproved the Texas
SIP revision submittals under 30 TAC
Chapter 116—Control of Air Pollution
by Permits for New Construction or
Modification—Subchapter A—
Definitions—Section 116.10(11)(G),
adopted February 14, 1996, and
submitted March 13, 1996; repealed and
re-adopted June 17, 1998, and submitted
July 22, 1998; and adopted August 21,
2002, and submitted September 4, 2002.
[FR Doc. 2011–29641 Filed 11–16–11; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket Nos. 00–168, 00–44; FCC 11–
162]
Standardized and Enhanced
Disclosure Requirements for
Television Broadcast Licensee Public
Interest Obligations; Extension of the
Filing Requirement for Children’s
Television Programming Report (FCC
Form 398)
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission adopts an Order on
Reconsideration that vacates
Standardized and Enhanced Disclosure
Requirements for Television Broadcast
Licensee Public Interest Obligations;
Extension of the Filing Requirement For
Children’s Television Programming
Report (FCC Form 398), MB Docket No.
00–168, 00–44, FCC 07–205, Report &
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SUMMARY:
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November 17, 2011, [Insert FR
page number where document
begins].
*
*
Order, (‘‘Order’’). The Order created a
standardized form for the quarterly
reporting of programming aired in
response to issues facing a television
station’s community and a requirement
that portions of each television station’s
public inspection file be placed on the
Internet. The Order was never
implemented.
DATES:
Effective November 17, 2011.
FOR FURTHER INFORMATION CONTACT:
Holly Saurer, Holly.Saurer@fcc.gov of
the Policy Division, Media Bureau, (202)
418–2120.
SUPPLEMENTARY INFORMATION: This is a
summary of the Federal
Communications Commission’s Order
on Reconsideration in MB Docket No.
00–168, 00–44, FCC 11–162, adopted
October 27, 2011, and released October
27, 2011. The full text of this document
is available for public inspection and
copying during regular business hours
in the FCC Reference Center, Federal
Communications Commission, 445 12th
Street SW., CY–A257, Washington, DC
20554. These documents will also be
available via ECFS (https://www.fcc.gov/
cgb/ecfs/). (Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text
may be purchased from the
Commission’s copy contractor, 445 12th
Street SW., Room CY–B402,
Washington, DC 20554. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an email to
fcc504@fcc.gov or call the Commission’s
Consumer and Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY).
Summary of the Final Rule
I. Introduction
1. In this Order on Reconsideration
we take steps to modernize the way
television broadcasters inform the
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The SIP does not include paragraphs (1), (2), (3), (7)(F),
(11)(A), (11)(B), (11)(E), (11)(F),
(11)(G), and (16).
Sfmt 4700
*
*
public about how they are serving their
communities. We vacate the prior
Report and Order,1 thereby resolving
pending petitions for reconsideration of
that order, re-codify the public file rules
in existence prior to adoption of the
Report and Order, and seek comment on
the proposals set forth in a Further
Notice of Proposed Rulemaking.
II. Background
2. One of a television broadcaster’s
fundamental public interest obligations
is to air programming responsive to the
needs and interests of its community of
license. Broadcasters are afforded
considerable flexibility in how they
meet that obligation, but they must
maintain a public inspection file, which
gives the public access to information
about the station’s operations and
enables members of the public to engage
in an active dialogue with broadcast
licensees regarding broadcast service.
Among other things, the public
inspection file must contain an issues/
programs list, which describes the
‘‘programs that have provided the
station’s most significant treatment of
community issues during the preceding
three month period.’’ The original
Notice of Proposed Rulemaking in this
proceeding grew out of a prior Notice of
Inquiry, which explored the public
interest obligations of broadcast
television stations as they transitioned
to digital.2 In the 2000 NPRM, the
1 In the Matter of Standardized and Enhanced
Disclosure Requirements for Television Broadcast
Licensee Public Interest Obligations, Report and
Order, 73 FR 13452 (2007) (‘‘Report and Order’’);
In the Matter of Standardized and Enhanced
Disclosure Requirements for Television Broadcast
Licensee Public Interest Obligations, Erratum, 73 FR
30316 (2007).
2 Standardized and Enhanced Disclosure
Requirements for Television Broadcast Licensee
Public Interest Obligations, Notice of Proposed
Rulemaking, 65 FR 62683 (2000) (‘‘NPRM’’); In the
Matter of Public Interest Obligations of TV
E:\FR\FM\17NOR1.SGM
Continued
17NOR1
]]>Agencies
[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Rules and Regulations]
[Pages 71260-71267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29641]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-TX-0025; FRL-9489-8]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to the New Source Review (NSR) State Implementation Plan
(SIP); General Definitions; Definition of Modification of Existing
Facility
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving, as proposed July 18, 2011, several revisions
to the State Implementation Plan (SIP) for the State of Texas that
relate to severable portions of the definition of ``modification of
existing facility'' in the general definitions for the Texas NSR
Program. EPA finds that these changes to the Texas SIP comply with the
Federal Clean Air Act (the Act or CAA) and EPA regulations, and are
consistent with EPA policies. EPA is also disapproving a severable
portion of the definition that was proposed for disapproval on
September 23, 2009. EPA is taking these actions under section 110 of
the Act.
DATES: This final rule is effective December 19, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2005-TX-0025. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through 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 Freedom
of Information Act 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 or Mr. Bill Deese
at (214) 665-7253 to make an appointment. If possible, please make the
appointment at least two working
[[Page 71261]]
days in advance of your visit. There will be a 15 cent per page fee for
making photocopies of documents. On the day of the visit, please check
in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700,
Dallas, Texas.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality (TCEQ), Office of Air
Quality, 12124 Park 35 Circle, Austin, Texas 78753.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number (214) 665-6762; email address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. The State's Submittals
II. What action is EPA taking?
III. EPA's Evaluation of the Severable Portions of the Definition of
``Modification of Existing Facility''
A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the
Definition of ``Modification of Existing Facility''
1. What is the background of the introductory paragraph of 30
TAC 116.10(11)?
2. What is EPA's evaluation of the submitted revisions to the
introductory paragraph of 30 TAC 116.10(11)?
B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance
and Replacement of Equipment
1. What is the background of 30 TAC 116.10(11)(C)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.11(C)?
C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase
in Annual Hours of Operation
1. What is the background of 30 TAC 116.10(11)(D)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(D)?
D. Disapproval of 30 TAC 116.10(11)(G)--Exclusion of Changes at
Certain Natural Gas Processing, Treating, or Compression Facilities
1. What is the background of 30 TAC 116.10(11)(G)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(G)?
3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
E. Response to Other Comments on the July 18, 2011, Proposal
IV. Final Action
V. Statutory and Executive Order Reviews
I. The State's Submittals
On March 13, 1996; July 22, 1998; and September 4, 2002; the State
of Texas submitted revisions to the Texas State Implementation Plan
(SIP) concerning the definition of ``modification of existing
facility'' for minor source permitting under Title 30 of the Texas
Administrative Code (30 TAC), Chapter 116--Control of Air Pollution by
Permits for New Construction or Modification, Subchapter A--
Definitions. The definition of ``modification of existing facility''
for minor NSR permitting is located at 30 TAC 116.10(11) in the
September 4, 2002, submittal. The March 13, 1996, revisions to this
definition were repealed and readopted, and new versions were submitted
to EPA on July 22, 1998. This definition was later recodified from 30
TAC 116.10(9) to 116.10(11) in a SIP submittal dated September 4, 2002.
Section 30 TAC 116.10--General Definitions--is currently approved
as adopted by Texas on August 21, 2002, and as approved April 14, 2010
(75 FR 19468). As approved, the current SIP does not include all the
definitions under Section 116.10, including the definition of
``modification of existing facility'' found in Section 116.10(11). On
July 18, 2011 (76 FR 42078), EPA proposed to approve severable portions
of this definition first adopted by Texas on February 14, 1996
(submitted March 13, 1996). The next submittal reflects the Texas
repeal and readoption of this definition as Section 116.10(9) on June
17, 1998 (submitted July 22, 1998). The regulatory history of the March
13, 1996 submittal was used to evaluate the later submittals. On July
18, 2011 (76 FR 42078), we proposed to approve severable portions of
the definition ``modification of existing facility'' as submitted on
July 22, 1998, and the redesignation of this definition to Section
116.10(11) adopted August 21, 2002 (submitted September 4, 2002). We
also proposed to approve Subparagraphs (C) and (D) of this definition
as submitted July 22, 1998, and September 4, 2002. In response to this
proposal, we received comments from the Texas Industry Project (TIP)
and the BCCA Appeal Group (BCCAAG).
On September 23, 2009 (74 FR 48450), EPA proposed to disapprove
severable portions of the definition of ``modification of existing
facility'' under Subparagraph (G). In response to this proposal, we
received comments from the University of Texas at Austin, Environmental
Clinic (UT Environmental Clinic).\1\ Today, we finalize our disapproval
of Subparagraph (G) as not meeting the requirements of the CAA.
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\1\ The UT Environmental Clinic forwarded its comments on behalf
of: Environmental Integrity Project: Environmental Defense Fund;
Galveston-Houston Association for Smog Prevention; Public Citizen;
Citizens for Environmental Justice; Sierra Club Lone Star Chapter;
Community-In-Power and Development Association; KIDS for Clean Air;
Clean Air Institute of Texas; Sustainable Energy and Economic
Development Coalition; Robertson County: Our Land, Our Lives; Texas
Protecting Our Land, Water, and Environment; Citizens for a Clean
Environment; Multi-County Coalition; and Citizens Opposing Power
Plants for Clean Air.
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EPA is taking these actions under section 110 of the Act.
Finally, please note that Texas submitted further revisions to 30
TAC 116.10 on October 5, 2010. This includes the removal of two
definitions, the renumbering of other definitions, and revisions to
certain definitions. In this October 2010 submittal, TCEQ renumbered
the definition of ``modification of existing facility'' to Section
116.10(9) and relettered Subparagraphs (C) and (D) to Subparagraphs (B)
and (C), respectively, with no other changes. We are not acting on the
October 5, 2010, SIP submittal here. We will address the October 2010
SIP revisions in a separate action.
Additional information related to these SIP submittals is contained
in the Technical Support Documents (TSD) for the September 23, 2009,\2\
and July 18, 2011,\3\ proposals, which are in the docket for this
action.
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\2\ The TSD for the September 23, 2009, proposal is in the
docket as document EPA-R06-OAR-2005-TX-0025-0007. You can access
this TSD on line at: https://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-2005-TX-0025-0007.
\3\ The TSD for the July 18, 2011, proposal is in the docket as
document EPA-R06-OAR-2005-TX-0025-0378. You can access this TSD on
line at: https://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-
2005-TX-0025-0378.
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The table below summarizes the changes that were submitted and are
affected by this action. A summary of EPA's evaluation of each section
and the basis for this proposal is discussed in section III of this
preamble. The TSD includes a detailed evaluation of the referenced SIP
submittals.
[[Page 71262]]
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Date
Section Title Date adopted by Description of change Date of EPA proposed Final EPA action
submitted TCEQ action
--------------------------------------------------------------------------------------------------------------------------------------------------------
30 TAC 116.10(11)................. Definition of 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
modification of 7/22/1998 6/17/1998 Repeal and readoption approval.
existing facility-- as Section 116.10(9).
Introductory
paragraph.
9/4/2002 8/21/2002 Recodification to
Section 116.10(11).
30 TAC 116.10(11)(C).............. Exclusion of 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
maintenance and 7/22/1998 6/17/1998 Repeal and readoption approval.
replacement of as Section
equipment. 116.10(9)(C).
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(C).
30 TAC 116.10(11)(D).............. Exclusion of increase 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
in annual hours of 7/22/1998 6/17/1998 Repeal and readoption approval.
operation. as Section
116.10(9)(D).
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(D).
30 TAC 116.10(11)(G).............. Exclusion of certain 3/13/1996 2/14/1996 Initial adoption..... 9/23/2009--proposed Disapproval.
changes natural gas 7/22/1998 6/17/1998 Repeal and readoption disapproval.
processing, as Section
treating, or 116.10(9)(G).
compression
facilities.
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(G).
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In a separate proposal published on September 23, 2009, 74 FR
48450, EPA proposed to disapprove severable provisions in Subparagraphs
(A), (B), and (G) of the definition of ``modification of existing
facility'' at 30 TAC 116.10(11). In light of revisions that were
submitted on October 5, 2010, revising the language of Subparagraph (A)
and eliminating Subparagraph (B), EPA will withdraw its proposed
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph
(A) as it appears in the October 5, 2010, submittal will be evaluated
and will be addressed in a separate future action. Based upon our
proposed disapproval of 30 TAC 116.10(11)(G) and our evaluation of the
comments received on that proposal, EPA is taking final action to
disapprove 30 TAC 116.10(11)(G) submitted March 13, 1996; July 22,
1998; and September 4, 2002.
II. What action is EPA taking?
We have evaluated severable portions of the SIP submissions of 30
TAC 116.10(11), which include the introductory paragraph of the
definition of ``modification of existing facility,'' and Subparagraphs
(C) and (D) of that definition for consistency with the CAA, and NSR
regulations for new and modified sources in 40 CFR part 51. We have
also reviewed the rules for enforceability and legal sufficiency.
This action addresses severable portions of the definition of
modification of existing facility under 30 TAC 116.10(11), including
the introductory paragraph and Subparagraphs (C) and (D) of the
definition submitted March 13, 1996; July 22, 1998; and September 4,
2002. A technical analysis of the submittals for this definition has
found that these changes meet the CAA and 40 CFR part 51. EPA received
two comments in support of this proposal and did not receive any
adverse comments. Therefore, EPA approves as proposed the severable
portions of the definition of ``modification of existing facility''
under 30 TAC 116.10(11), including the introductory paragraph of
Section 116.10(11) and Subparagraphs (C) and (D) of this definition,
submitted on March 13, 1996; July 22, 1998; and September 4, 2002. As
discussed earlier, in a separate SIP submittal dated October 5, 2010,
30 TAC 116.10(11) Subparagraphs (C) and (D) were renamed as 30 TAC
116.10(9) and Subparagraphs (B) and (C), respectively. EPA is not
acting on the changes submitted October 2010, and will address these
revisions in a separate action.
In a separate proposal published on September 23, 2009 (74 FR
48450), EPA proposed to disapprove 30 TAC 116.10(11)(G). Based upon our
proposed disapproval of this rule and our evaluation of the comments
received on our proposed disapproval of Subsection (G), EPA is taking
final action to disapprove 30 TAC 116.10(11)(G) submitted March 13,
1996; July 22, 1998; and September 4, 2002.
On September 23, 2009, 74 FR 48450, EPA also proposed to disapprove
severable provisions in Subparagraphs (A) and (B) of the definition of
``modification of existing facility.'' In light of revisions that were
submitted on October 5, 2010, revising the language of Subparagraph (A)
and eliminating Subparagraph (B), EPA will withdraw its proposed
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph
(A) as it appears in the October 5, 2010, submittal will be evaluated
and will be addressed in a separate future action.
III. EPA's Evaluation of Severable Portions of the Definition of
``Modification of Existing Facility''
A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the
Definition of ``Modification of Existing Facility''
1. What is the background of the introductory paragraph of 30 TAC
116.10(11)--introductory paragraph?
The TCEQ initially submitted the introductory paragraph of the
general definition of ``modification of existing facility'' on March
13, 1996. On July 22, 1998, TCEQ repealed and resubmitted this
definition as readopted at 30 TAC 116.10(9). On September 4, 2002, TCEQ
submitted revisions that redesignated this definition to 30 TAC
116.10(11). The submitted regulatory definition of the introductory
paragraph that we are addressing here provides that a modification of
an existing facility is ``any physical change in, or change in
[[Page 71263]]
the method of operation of, a facility in a manner that increases the
amount of air contaminants emitted by the facility into the atmosphere
or which results in the emission of any air contaminant not previously
emitted.''
2. What is EPA's evaluation of the submitted revisions to the
introductory paragraph of 30 TAC 116.10(11)?
EPA approved the definition of ``facility'' in Subchapter A:
Definitions on September 6, 2006 (71 FR 52698) as part of the Texas
SIP. ``Facility'' is defined as ``[a] discrete or identifiable
structure, device, item, equipment, or enclosure that constitutes or
contains a stationary source, including appurtenances other than
emission control equipment. A mine, quarry, well test, or road is not a
facility.'' See approved SIP at 30 TAC 116.10(6). The submitted
regulatory definition for ``modification of existing facility'' also is
in Subchapter A, Section 116.10. Therefore, ``existing facility'' is
limited by the terms of the SIP definition of ``facility.'' In our
evaluation of this introductory paragraph in the submitted regulatory
definition of modification of existing facility, we compared it to how
``modification'' is defined in the CAA and in our regulations.
The CAA defines modification in Section 111(a)(4) as ``any physical
change in, or change in the method of operation of, a stationary source
which increases the amount of any air pollutant emitted by such source
or which results in the emission of any pollutant not previously
emitted.'' In 40 CFR 52.01(d), the phrases ``modification'' and
``modified source'' are defined as any physical change in, or change in
the method of operation of, a stationary source which increases the
emission rate of any air pollutant for which a national standard has
been promulgated under part 50 of this chapter or which results in the
emission of any such pollutant not previously emitted.
The introductory paragraph of 30 TAC 116.10(11) is substantially
the same as the definitions in section 111(a)(4) of the Act and 40 CFR
52.01(d).
The existence of a different definition for ``major modification,''
in Section 116.12--Nonattainment and Prevention of Significant Review
Definitions--that is applicable for Major NSR \4\ serves to distinguish
the provisions in the introductory paragraph of section 116.10(11) from
the Major NSR Program and limit its application to Minor NSR.
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\4\ Section 116.12 as currently approved in the Texas SIP
applies only to the Major NSR Program for Nonattainment Review. SIP
revisions submitted February 1, 2006, and March 11, 2011, revised
the definition to apply to both Nonattainment Review and Prevention
of Significant Deterioration. EPA is currently reviewing these
revisions and plans to act upon them shortly. The definitions in
Section 116.12 are effective as State rules and the TCEQ implements
them as part of its Major NSR Program.
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In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11) is consistent with the CAA and EPA regulations and that SIP
approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are approving the introductory paragraph of 30 TAC
116.10(11), as submitted March 13, 1996; July 22, 1998; and September
4, 2002.
B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance and
Replacement of Equipment
1. What is the background of 30 TAC 116.10(11)(C)?
On March 13, 1996, this provision was submitted as Subparagraph (C)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(C). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(C). As
submitted, Subparagraph (C) provides that maintenance or replacement of
equipment components that do not increase or tend to increase the
amount or change the characteristics of the air contaminants emitted
into the atmosphere is not a modification to an existing facility.
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(C)?
The submitted Subparagraph (C) mirrors the definition in the Texas
Clean Air Act (TCCA). Under Subparagraph (C), any maintenance and
repair of equipment components that increases emissions, or tends to
increase emissions, will be considered a modification consistent with
the introductory paragraph of 30 TAC 116.10(11). Accordingly, the
limitation in Subparagraph (C) protects against increases in emissions
and thereby does not interfere with attainment or reasonable further
progress. The definition of ``major modification'' in Section 116.12
has a different exclusion for routine maintenance, repair, and
replacement. The existence of a different exclusion in the Section
116.12 that is applicable for Major NSR serves to distinguish the
provisions in paragraph (C) from the Major NSR Program and limit its
application to Minor NSR.
In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11)(C) is consistent with the CAA and EPA regulations and that
SIP approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are finalizing our approval of 30 TAC 116.10(11)(C), as
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase in
Annual Hours of Operation
1. What is the background of 30 TAC 116.10(11)(D)?
On March 13, 1996, this provision was submitted as Subparagraph (D)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(D). As
submitted, Subparagraph (D) provides that an increase in the annual
hours of operation is not a modification to an existing facility,
unless the existing facility has received a preconstruction permit or
has been exempted, under TCAA, Sec. 382.057, from preconstruction
permit requirements.
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(D)?
The submitted Subparagraph (D) mirrors the definition in the Texas
Clean Air Act (TCCA). Subparagraph (D) is similar to 40 CFR
52.01(d)(2)(ii), which provides that an increase in the hours of
operation shall not be considered a change in the method of operation.
The operative language in the submitted Subparagraph (D) is
substantially the same as 40 CFR 52.01(d)(2)(ii). Furthermore,
Subparagraph (D) includes additional language that clarifies that an
increase in hours of operation may be a modification for existing minor
facilities having preconstruction permits or exemptions, under TCAA
Sec. 382.057 \5\ for preconstruction permit requirements. This
language limits the reach of the
[[Page 71264]]
exclusion in scenarios where an existing facility is subject to
limitations on hours of operation under the terms of a preconstruction
permit or an exemption. This is consistent with Federal requirements in
40 CFR 52.01(d)(2)(ii). Subparagraph (D) meets the Federal requirements
as described above. Again, the definition of ``major modification'' in
Section 116.12 has a different exclusion for an increase in the annual
hours of operation. The existence of a different exclusion in the
Section 116.12 that is applicable for Major NSR serves to distinguish
the provisions in paragraph (D) from the Major NSR Program and limit
its application to Minor NSR.
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\5\ The term ``exemptions'' is a misnomer. Exemptions in Texas
now are called Permits by Rule. An ``exemption'' since 1972 in Texas
and in the Texas SIP, is an authorization to construct and/or modify
if certain conditions are met.
---------------------------------------------------------------------------
In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11)(D) is consistent with the CAA and EPA regulations and that
SIP approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are finalizing our approval of 30 TAC 116.10(11)(D), as
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
D. Disapproval of 30 TAC 116.10(11)(G)--Exclusions for Changes at
Certain Natural Gas Processing, Treating, or Compression Facilities
1. What is the background of 30 TAC 116.10(11)(G)?
On March 13, 1996, this provision was submitted as Subparagraph (G)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(D). On September
23, 2009, EPA proposed to disapprove the submitted revisions relating
to 30 TAC 116.10(11)(G).
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(G)?
The submittals provide that changes at certain natural gas
processing, treating, or compression facilities are not modifications
if the change does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities. The
``annual emissions rate'' is the same as the ``volume emitted at
maximum design capacity;'' therefore, this would provide an exemption
for those sources from permit review for any emission increases at
these facilities. The requirements of 40 CFR 51.160(e) allow a State to
identify facilities which will be subject to review under its minor NSR
program and require its minor NSR SIP to discuss the basis for
determining which facilities will be subject to review. The submittals,
however, do not contain an applicability statement or regulatory
provision limiting this type of change to minor NSR. There is no
explanation of the reason for exempting this type of change from the
permitting SIP requirements. Without the submittal by the State of an
analysis describing how this exemption does not negate the major NSR
SIP requirements and meets the minor NSR SIP requirements in 40 CFR
51.160 and the Act's antibacksliding requirements in section 110(l),
EPA proposed to disapprove this submitted definition.
In response to our proposed disapproval, we received comments from
the UT Environmental Clinic (Clinic) and TCEQ. The Clinic supported the
disapproval of this exemption from the definition of modification of
existing facility because the exemption could apply to major
modifications and because TCEQ did not demonstrate that the exemption
will not interfere with attainment or cause a violation of a control
strategy. EPA acknowledges that these comments support its basis for
proposing disapproval of this exemption because it could allow major
modifications without undergoing review that satisfies the applicable
permitting requirements for Major NSR under 40 CFR 51.165 and/or
51.166, as applicable. The exemption may also allow a source to
increase emissions without a demonstration that such change will not
interfere with attainment or maintenance of a National Ambient Air
Quality Standard (NAAQS) or cause a violation of a control strategy.
The TCEQ commented that it will consider EPA's comments regarding its
proposed disapproval of 30 TAC 116.10(11)(G), but provided no
information which demonstrates that this provision meets the
requirements for SIP approval.\6\
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\6\ On October 5, 2010, TCEQ submitted a revision that
renumbered 30 TAC 116.10(11)(G) to 30 TAC 116.10(9)(F), but made no
changes to the substance of this provision.
---------------------------------------------------------------------------
3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
Based upon the September 23, 2009, proposal and the consideration
of comments provided, EPA is disapproving the exemption in 30 TAC
116.10(11)(G) on the following grounds:
This definition exempts changes at certain natural gas
processing, treating, or compression facilities as non-modifications if
the change does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities from
the definition of modification of existing facility. However, TCEQ did
not provide any discussion of the basis for this exemption as required
by 40 CFR 51.160(e).
The submitted definition includes no applicability
statement or regulatory provision limiting this type of change to minor
NSR.
The submitted rule includes no demonstration that the
exempted change at a natural gas processing, treating, or compression
facility does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities, and
does not interfere with attainment or maintenance of a NAAQS or cause a
violation of a control strategy as required under 40 CFR 51.161(a).
Based upon the September 23, 2009, proposal, and consideration of
the comments received, we are finalizing our disapproval of 30 TAC
116.10(11)(G) as submitted March 11, 1996; July 22, 1998; and September
4, 2002.
E. Response to Other Comments on the July 18, 2011, Proposal
TIP and BCCAAG commented that EPA should take into account the
dramatic improvements in Texas's air quality in acting on the
definition of ``modification of existing facility'' and other SIP
revisions. The commenters assert that Texas's integrated air permitting
program, including the definition which EPA now proposes to approve,
has played a key role in Texas's air quality success. TIP and BCCAAG
urge EPA to approve the entire ``modification of existing facility'' as
part of this integrated program. The commenters cite to substantial
reductions in several air pollutants and reductions in ambient
concentrations in monitored levels of ozone, nitrogen dioxide, sulfur
dioxide, and carbon monoxide from 1990 to 2009.
Our actions on the severable parts of the definition of
``modification of existing facility'' are based upon whether the
definition meets the applicable requirements of the CAA, as discussed
herein. EPA is required to review a SIP revision submission for
compliance with the CAA and EPA regulations. CAA 110(k)(3). See also
BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003), Natural
Resource Defense Council v. Browner, 57 F.3d 1122, 1123 (DC Cir. 1995).
[[Page 71265]]
The submitted data, even if accepted, does not show that gains are
attributable to the definition of ``modification of existing
facility,'' and the commenter's claim regarding the data does not take
account of SIP-approved control strategies (both State and Federal
programs) and other Federal and State programs. The approvals of
revisions which we finalize today are based on our review of the Texas
submittals following the analysis furnished in the proposal in
accordance with the CAA.
IV. Final Action
Today, EPA is approving the following revisions to the Texas SIP to
include severable provisions of the definition of ``modification of
existing facility'' under 30 TAC 116.10(11), submitted March 13, 1996;
July 22, 1998; and September 4, 2002. This includes the following:
30 TAC 116.10(11)--the introductory paragraph of the
definition of ``modification of existing facility;''
30 TAC 116.10(11)(C)--Exclusion for maintenance and
replacement of equipment; and
30 TAC 116.10(11)(D)--Exclusion for an increase in annual
hours of operation.
Today, EPA is also disapproving the severable portion of definition
of ``modification of existing facility'' under 30 TAC 116.10(11)(G),
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
Final action on these revisions on or before October 31, 2011, will
meet EPA's obligation on the NSR Rules Revisions; 112(g) Revisions
component of the May 21, 2009, Settlement Agreement between EPA and the
Business Coalition for Clean Air Appeal Group, Texas Association of
Business, and Texas Oil and Gas Association.
EPA is not taking further action on the following severable
provisions of 30 TAC 116.10(11):
30 TAC 116.10(11)(E). EPA disapproved Subparagraph (E) in
a separate action on April 14, 2010, 75 FR 19468. EPA will address any
subsequent submittals containing Subparagraph (E) as newly revised in a
separate action.
30 TAC 116.10(11)(F). EPA disapproved Subparagraph (F) in
a separate action on July 15, 2010, 75 FR 41312. EPA will address any
subsequent submittals containing Subparagraph (F) as newly revised in a
separate action.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this SIP approval and disapproval under section 110 and
subchapter I, part D of the Clean Air Act will not in-and-of itself
create any new information collection burdens but simply approves and
disapproves certain State severable requirements for inclusion into the
SIP. Burden is defined at 5 CFR 1320.3(b). Because this final action
does not impose an information collection burden, the Paperwork
Reduction Act does not apply.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. This rule will not have a significant
impact on a substantial number of small entities because SIP approvals
and disapprovals under section 110 of the Clean Air Act do not create
any new requirements but simply approve or disapprove requirements that
the States are already imposing.
Furthermore, as explained in this action, a severable portion of
the submissions does not meet the requirements of the Act and EPA
cannot approve the severable portion of the submissions. The final
disapproval will not affect any existing State requirements applicable
to small entities in the State of Texas. Federal disapproval of a
severable portion of a State submittal does not affect its State
enforceability. After considering the economic impacts of today's
rulemaking on small entities, and because the Federal SIP disapproval
does not create any new requirements or impact a substantial number of
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or tribal governments or the private
sector.'' EPA has determined that the approval and disapproval action
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
determines that pre-existing requirements under State or local law
should not be approved as part of the Federally-approved SIP. It
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of
[[Page 71266]]
power and responsibilities among the various levels of government.''
This action does not have Federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely approves and
disapproves severable portions of certain State requirements for
inclusion into the SIP and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act. Thus, Executive Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000) because the rule
neither imposes substantial direct compliance costs on tribal
governments, nor preempts tribal law. Therefore, the requirements of
sections 5(b) and 5(c) of the Executive Order do not apply to this
action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This SIP approval and disapproval under section 110 and subchapter I,
part D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 (66 FR 28355, May
22, 2001) because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act. Today's action does not require
the public to perform activities conducive to the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove state choices, based on the criteria of the Clean
Air Act. Accordingly, this action merely disapproves certain State
requirements for inclusion into the SIP under section 110 and
subchapter I of the Clean Air Act and will not in-and-of itself create
any new requirements. Accordingly, it does not provide EPA with the
discretionary authority to address, as appropriate, disproportionate
human health or environmental effects, using practicable and legally
permissible methods, under Executive Order 12898.
K. Congressional Review Act
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
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 17, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations.
Dated: October 31, 2011.
Al Armendariz,
Regional Administrator, 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. 7402 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 116, Subchapter A, by revising
the entry for Section 116.10 to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 71267]]
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State- approval/
State citation Title/subject submittal date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10.................. General Definitions 8/21/2002 November 17, 2011, The SIP does not
[Insert FR page include
number where paragraphs (1),
document begins]. (2), (3), (7)(F),
(11)(A), (11)(B),
(11)(E), (11)(F),
(11)(G), and
(16).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.2273 is revised by adding a new paragraph (g) to read as
follows:
Sec. 52.2273 Approval status.
* * * * *
(g) EPA has disapproved the Texas SIP revision submittals under 30
TAC Chapter 116--Control of Air Pollution by Permits for New
Construction or Modification--Subchapter A--Definitions--Section
116.10(11)(G), adopted February 14, 1996, and submitted March 13, 1996;
repealed and re-adopted June 17, 1998, and submitted July 22, 1998; and
adopted August 21, 2002, and submitted September 4, 2002.
[FR Doc. 2011-29641 Filed 11-16-11; 8:45 am]
BILLING CODE 6560-50-P
