Approval and Disapproval and Promulgation of Implementation Plans; Texas; Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM2.5, 81371-81393 [2011-33253]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81371-81393]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33253]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0638; FRL-9613-7]


Approval and Disapproval and Promulgation of Implementation 
Plans; Texas; Infrastructure and Interstate Transport Requirements for 
the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is partially approving and partially disapproving 
submittals from the state of Texas pursuant to the Clean Air Act (CAA 
or Act) that address the infrastructure elements specified in the CAA 
section 110(a)(2), necessary to implement, maintain, and enforce the 
1997 8-hour ozone and 1997 and 2006 fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS or 
standards). We are determining that the current Texas State 
Implementation Plan (SIP) meets the infrastructure requirements for the 
1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS at 
110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of 
(C), (D)(ii) and (J). We are determining that the current Texas SIP 
does not meet the infrastructure requirements for the 1997 8-hour ozone 
and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) for portions 
of (C), (D)(ii) and (J). The EPA is also partially approving and 
partially disapproving SIP revisions submitted by the state of Texas 
for the purpose of addressing the provisions of CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS. These SIP revisions address the requirement 
that the Texas SIP have adequate provisions to prohibit air emissions 
from adversely affecting another state's air quality through interstate 
transport. The EPA is partially approving and partially disapproving 
the provisions of these SIP submissions that emissions from sources in 
Texas do not interfere with measures required in the SIP of any other 
state under part C of the CAA to prevent significant deterioration of 
air quality, with regard to the 1997 8-hour ozone NAAQS and the 1997 
and 2006 PM2.5 NAAQS. The partial disapprovals herein are 
because Texas has stated it cannot issue permits for and does not 
intend to regulate greenhouse gas (GHG) emissions. The EPA is also 
approving SIP revisions that modify the Texas SIP for Prevention of 
Significant Deterioration (PSD) to include nitrogen oxides 
(NOX) as an ozone precursor. This action is being taken 
under section 110 and part C of the Act.

DATES: This rule is effective on January 27, 2012.

ADDRESSES: The EPA established a docket for this action under Docket ID 
No. EPA-R06-OAR-2008-0638. All documents in the docket are listed at 
www.regulations.gov. Although listed in the index, some information is 
not publicly available, e.g., Confidential Business Information or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), 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 (FOIA) Review Room between the hours of 8:30 a.m. and 
4:30

[[Page 81372]]

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. Please make the appointment 
at least two working days in advance of your visit. There is a fee of 
15 cents per page 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.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-6521; fax 
number (214) 665-7263; email address paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

Table of Contents

I. Background
II. What action is the EPA taking?
A. What is the EPA approving in this action?
    B. What is the EPA disapproving in this action?
III. Comments
    A. What comments did the EPA receive on the September 22, 2011 
action for Texas?
    B. General Format
    C. Comments That Address the Consideration of Existing SIP 
Provisions
    D. Comments That Address Implementation Issues
    E. Comments That Address Greenhouse Gases (GHGs)
    F. Comments That Address Section 110(a)(2)(E)
    G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)
    H. Comments That Address Best Available Control Technology 
(BACT)
    I. Comments That Address Regulation of PM2.5
    J. Comments That Address Single Source Ozone Modeling
    K. Comments That Address Cumulative Air Quality Impacts
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    The background for today's action is discussed in detail in our 
September 22, 2011 proposal to partially approve and partially 
disapprove revisions \1\ to the Texas SIP (76 FR 58748). In that 
action, we proposed to partially approve and partially disapprove the 
current Texas SIP for meeting the provisions of the CAA sections 
110(a)(1) and 110(a)(2) (i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-(H), and 
(J)-(M)) for the 1997 ozone and the 1997 and 2006 PM2.5 
NAAQS. We also proposed to approve severable \2\ portions of revisions 
to the Texas PSD SIP that address NOX as a precursor to 
ozone, submitted by the TCEQ to the EPA on March 11, 2011 and May 26, 
2011.
---------------------------------------------------------------------------

    \1\ The specific submittals and our actions are detailed in 
Section II of this rulemaking.
    \2\ By severable, we mean that the portions of the SIP revision 
that address NOX as a precursor can be implemented 
independently of the remaining portions of the submittal, without 
affecting the stringency of the submitted rules. In addition, the 
remaining portions of the submittal are not necessary for approval 
of the provisions addressing NOX as a precursor.
---------------------------------------------------------------------------

    Our September 22, 2011 proposal provides a detailed description of 
the revisions and the rationale for the EPA's proposed actions, 
together with a discussion of the opportunity to comment. The public 
comment period for these actions closed on October 24, 2011. See the 
Technical Support Document (TSD) and our proposed rulemaking at 76 FR 
58748 for more information.

II. What action is the EPA taking?

    The EPA is partially approving and partially disapproving 
submittals from the state of Texas pursuant to the CAA that address the 
infrastructure elements specified in section 110(a)(2) of the Act, 
necessary to implement, maintain, and enforce the 1997 8-hour ozone and 
1997 and 2006 PM2.5 standards.

A. What is the EPA approving in this action?

    The EPA is approving portions of the December 12, 2007; March 11, 
2008; April 4, 2008; and November 23, 2009 submissions from Texas, 
determining that the following section 110(a)(2) elements are contained 
in the current Texas SIP and provide the infrastructure for 
implementing the 1997 ozone and 1997 and 2006 PM2.5 
standards: Emission limits and other control measures (section 
110(a)(2)(A)); ambient air quality monitoring/data system (section 
110(a)(2)(B)); the program for enforcement of control measures, except 
for the portion that addresses GHGs (section 110(a)(2)(C)); 
international and interstate pollution abatement, except for the 
portion that addresses GHGs (section 110(a)(2)(D)(ii)); adequate 
resources (section 110(a)(2)(E)); stationary source monitoring system 
(section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future 
SIP revisions (section 110(a)(2)(H)); consultation with government 
officials (section 110(a)(2)(J)); public notification (section 
110(a)(2)(J)); PSD and visibility protection, except for the PSD 
portion that addresses GHGs (section 110(a)(2)(J)); air quality 
modeling/data (section 110(a)(2)(K)); permitting fees (section 
110(a)(2)(L)); and consultation/participation by affected local 
entities (section 110(a)(2)(M)).
    We are also approving portions of the May 1, 2008 (Texas Interstate 
Transport SIP) and the November 23, 2009 submissions from Texas, 
demonstrating that Texas has adequately addressed one of the four 
required elements (or prongs) of the CAA section 110(a)(2)(D)(i), the 
element that requires that the SIP prohibit air emissions from sources 
within a state from interfering with measures required to prevent 
significant deterioration of air quality in any other state.\3\ We are 
determining that emissions from sources in Texas do not interfere with 
measures to prevent significant deterioration of air quality in any 
other state for the 1997 8-hour ozone NAAQS or the 1997 and 2006 
PM2.5 NAAQS (CAA section 110(a)(2)(D)(i)(II)), except for 
the portions that address GHGs. We are not addressing the three 
remaining prongs of section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
and 1997 and 2006 PM2.5 NAAQS, that pertain to prohibiting 
air emissions within Texas from: (1) Significantly contributing to 
nonattainment in any other state, (2) interfering with maintenance of 
the relevant NAAQS in any other state and (3) interfering with measures 
required to protect visibility in any other state. We will take action 
on the three remaining prongs of section 110(a)(2)(D)(i) for these 
three NAAQS, which addresses interstate transport, in separate 
rulemakings.
---------------------------------------------------------------------------

    \3\ As noted in the proposed rulemaking for this action, the May 
1, 2008 submittal addresses the 1997 ozone and PM2.5 
standards; it does not address the 2006 PM2.5 standard. 
The November 23, 2009 submittal addresses the 110(a)(2) 
infrastructure and interstate transport elements for the 2006 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    In conjunction with our finding that the Texas SIP meets the 
section 110(a)(1) and (2) infrastructure and interstate transport SIP 
elements listed above for the three NAAQS, we are also approving 
severable portions of the SIP revisions submitted by the TCEQ to the 
EPA on March 11, 2011 and a correction submitted on May 26, 2011. These 
portions address revisions to 30 TAC sections 101.1 and 116.12. The 
revisions to 116.12 add PSD to the title of the section, such that the 
section will address Nonattainment and Prevention of Significant 
Deterioration Review Definitions and thus provide that NOX 
is an ozone precursor for the PSD program; and add the definition of 
Federally Regulated NSR Pollutant, which identifies volatile organic 
compounds (VOCs) and NOX as

[[Page 81373]]

precursors in all attainment and unclassifiable areas. Thus, the 
definitions for Major stationary source, Major modification, and the 
table identifying the Significant Level for emission thresholds for 
major sources and major modifications apply under PSD. These revisions 
addressing PSD also specify that a major source that is major for VOCs 
or NOX shall be considered major for ozone and provide that 
the significant emission threshold for ozone (identified as VOC, 
NOX) is 40 tons per year (tpy). The EPA intends to act on 
the remaining Texas New Source Review (NSR) SIP revisions at a later 
date. The inclusion of these requirements in the SIP means that Texas 
has met the requirement to treat NOX as a precursor for 
ozone as necessary to implement the 1997 ozone standard.

B. What is the EPA Disapproving in this Action?

    We are determining that portions of three section 110(a)(2) 
elements are not contained in the current Texas SIP and thus do not 
provide the infrastructure for implementing the 1997 ozone and 1997 and 
2006 PM2.5 standards. We are therefore disapproving portions 
of the December 12, 2007; March 11, 2008; April 4, 2008; and November 
23, 2009 submissions from Texas, and determining that the current Texas 
SIP does not meet the infrastructure requirements for the 1997 8-hour 
ozone and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) for 
portions of (C), (D)(ii) and (J) because Texas has stated it cannot 
issue permits for and does not intend to regulate greenhouse gas (GHG) 
emissions.
    We are also disapproving the portion of the Texas Interstate 
Transport SIP element that prohibits GHG emissions from sources within 
Texas from interfering with measures required to prevent significant 
deterioration of air quality in any other state (section 
110(a)(2)(D)(i)).
    For the disapproved infrastructure elements (the portions of 
section 110(a)(2)(C), section 110(a)(2)(D)(ii), and section 
110(a)(2)(J) described in this section), the EPA remains obligated to 
implement a FIP at the same time the disapproval is finalized. The 
EPA's disapproval here, however, does not engender an additional 
statutory obligation, because the EPA has already promulgated a FIP for 
the Texas PSD program to address permitting GHGs at or above the 
Tailoring Rule thresholds (76 FR 25178). As noted earlier, we will take 
action on the remaining three prongs of section 110(a)(2)(D)(i), which 
addresses interstate transport, in a separate rulemaking.

III. Comments

A. What comments did the EPA receive on the September 22, 2011 action 
for Texas?

    We received five comment letters on the proposed rulemaking. These 
comments are available for review in the docket for this rulemaking. 
The comment letters came from the following sources:
    1. October 24, 2011 letter from Gabriel Clark-Leach, for 
Environmental Integrity Project and on behalf of Public Citizen and the 
Sustainable Energy and Economic Development (SEED) Coalition.
    2. October 24, 2011 letter from Tangela Niemann, Texas Commission 
on Environmental Quality.
    3. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for 
the BCCA Appeal Group.
    4. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for 
the Texas Industry Project.
    5. October 24, 2011 letter from Elena Saxonhouse, for Sierra Club 
and on behalf of its members in Texas and states downwind of Texas, 
such as Arkansas, Louisiana and Oklahoma.

B. General Format

    Our responses to comments (RTCs) received follow a general format 
of summarizing the comment or group of similar comments, and then 
providing our response to that particular summary of comments. Thus the 
general format provided herein is ``Comment'' and then ``Response.'' 
The RTCs in Sections III-C and D however, do not follow the general 
format, but still provide a summary of the comments with our responses.

C. Comments That Address the Consideration of Existing SIP Provisions

    Two commenters objected generally to the EPA's statements in the 
proposal concerning substantive issues the Agency considers outside the 
scope of actions on infrastructure SIP submissions. In the proposal, 
the EPA explained that in the context of acting upon the infrastructure 
SIP submissions required by section 110(a)(1) and (2), the Agency must 
determine what substantive issues states and the EPA need to address in 
this specific type of SIP submission. In particular, the EPA noted four 
substantive issues that may exist in the previously existing SIPs that 
the Agency wanted to be clear were not among the issues that states and 
the EPA are addressing in actions on infrastructure SIPs: (i) Start-up, 
shut-down, malfunction (SSM) provisions; (ii) director's discretion 
provisions; (iii) minor source NSR provisions; and (iv) NSR Reform 
related provisions.\4\
---------------------------------------------------------------------------

    \4\ See 76 FR 58750-53.
---------------------------------------------------------------------------

    One commenter expressed that it was ``not sympathetic'' to the 
EPA's assertion that an action on an infrastructure SIP is ``not the 
appropriate time and place to address all potential existing SIP 
problems.'' Instead, the commenter argued that the EPA's position that 
it could act on ``deficient'' portions of the existing SIP at another 
time through more appropriate statutory mechanisms is inconsistent with 
the requirements of section 110(a)(2), and with section 110(k)(3). The 
commenter noted that the latter provision of the CAA only contemplates 
a partial EPA approval of a state's SIP submission if that part ``meets 
all the applicable requirements.''
    The EPA disagrees with the premise of the commenter that the Agency 
must address all possible substantive issues in existing SIPs in the 
context of acting on an infrastructure SIP submission, whether in a 
full or partial approval. As explained in the proposal, the EPA 
considers action on the infrastructure SIP submissions required by 
section 110(a)(1) and (2) to be an exercise to assure that a state's 
SIP meets the basic structural requirements for the new or revised 
NAAQS, not a time to address all potential defects in existing SIP 
provisions. The EPA believes this approach is permissible under the 
statute because the individual provisions of section 110(a)(2) are 
worded in ways that require interpretation and do not explicitly 
require that the EPA address certain issues in existing SIPs that the 
EPA identified in the proposal.
    Moreover, the commenter's reference to section 110(k)(3) as 
permitting a partial approval only when the part approved ``meets all 
applicable requirements'' suggests that the commenter believes either 
that the EPA is deferring action on issues that are integral to action 
on an infrastructure SIP, or alternatively that the EPA is approving 
the infrastructure SIP with respect to the substantive issues in the 
existing SIP that the EPA explicitly indicated it was not acting upon. 
In either case, the EPA believes that the commenter is mistaken on this 
point. As explained in more detail in the proposal, the EPA 
specifically noted certain issues that it considers outside the scope 
of an action on an infrastructure SIP as required by section 110(a)(1) 
and (2), and explained the

[[Page 81374]]

statutory basis for this position. Therefore, the EPA does not agree 
that it is deferring action on substantive issues that are integral to 
acting on an infrastructure SIP, e.g., the EPA does not agree that it 
is necessary to address existing SSM provisions already in the SIP in 
the context of acting on an infrastructure SIP submission. As the EPA 
also explained in the proposal, the agency intentionally highlighted 
specific substantive issues that it considers outside the scope of an 
action on an infrastructure SIP because it did ``not want states, 
regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state.'' 76 FR 58750. In other words, the EPA's 
approval of the state's infrastructure SIP should not be viewed as 
approving an existing deficient provision in the state's SIP, such as 
an exemption for excess emissions during SSM events that does not meet 
CAA requirements. To the contrary, the EPA explicitly noted that if 
there were problematic provisions in the state's existing SIP with 
respect to the four issues identified as outside the scope of action on 
an infrastructure SIP, the EPA may elect to deal with those issues 
separately in another action.
    The other commenter likewise objected in general to the EPA's view 
that certain substantive issues are beyond the scope of an action on an 
infrastructure SIP, but also critiqued the specific explanations and 
rationale provided by the EPA for its position in the proposal. The 
commenter raised four specific arguments in response to the EPA's 
reasoning: (1) The existence of other tools to rectify SIP deficiencies 
does not make an infrastructure SIP approvable; (2) a SIP cannot meet 
``basic structure'' requirements if it contains known deficiencies; (3) 
it may not be possible to review every provision of a SIP in acting on 
an infrastructure SIP, but the EPA has to consider any issues that 
commenters bring to the EPA's attention; and (4) the EPA action on a 
state SIP submission that relies on existing SIP provisions combined 
with the Agency's decision not to examine certain types of deficiencies 
in the existing SIP provisions ``deprives the public of any opportunity 
to comment upon or challenge the submissions.'' We will address these 
concerns in turn.
    First, the commenter argued that the mere existence of other 
statutory tools, such as a section 110(k)(5) SIP call, to address SIP 
deficiencies ``has no bearing'' on the fundamental question of whether 
the EPA should approve a state's infrastructure SIP submission if the 
underlying SIP contains any deficiencies. The commenter reasoned that 
the ability of the EPA to use section 110(k)(5) to rectify a problem 
does not mean that the EPA should not address the problem when acting 
on an infrastructure SIP for a new or revised NAAQS. Indeed, the 
commenter asserts that if the existing provisions in a SIP could be the 
basis for a section 110(k)(5) SIP call, then those issues ``should be 
addressed during the SIP approval process for the new NAAQS.''
    The EPA agrees that the mere existence of other statutory tools to 
address SIP deficiencies, such as a section 110(k)(5) SIP call, does 
not per se answer the question of whether the EPA must address all 
potential existing SIP deficiencies in the context of acting on a 
state's infrastructure SIP submission. However, the EPA did not make 
such an argument in the proposal. The EPA's point in noting the 
existence of other statutory tools to address existing SIP deficiencies 
was merely that the availability of these tools supported the EPA's 
reasonable reading of section 110(a)(2) as not requiring that any and 
all possible issues in the existing SIP be addressed in the context of 
acting on an infrastructure SIP submittal, when those issues are not 
explicitly among those that must be addressed in this context. As 
explained in more detail in the proposal, the EPA believes that the 
provisions of section 110(a)(2) are in some cases ambiguous and it is 
necessary to interpret what they require in the specific context of the 
infrastructure SIP as contemplated in section 110(a)(1). The EPA 
pointed to other statutory tools such as a section 110(k)(5) SIP call 
as support for its reading of the statute that permits the EPA to 
address existing SIP deficiencies outside of an action on an 
infrastructure SIP, because Congress provided other mechanisms for the 
EPA to use as appropriate for such problems. To reiterate, the EPA 
believes that even though it is not necessary to address a particular 
issue while acting on an infrastructure SIP submission, it should not 
be viewed as precluding the EPA from separately exercising other 
authority such as section 110(k)(5) to address any existing deficiency 
in the SIP. Thus the EPA indicated that it may take steps to address 
such problems via a SIP call or other means.
    Second, the commenter disagreed with the EPA's view that a state 
could meet basic structural requirements for a SIP even if there may be 
potential deficiencies in the existing SIP. The commenter focused in 
particular on the description of the deficiencies as merely 
``potential'' deficiencies and asserted that the EPA cannot acknowledge 
deficiencies and nevertheless approve the infrastructure SIP submission 
as meeting the requirements of section 110(a). According to the 
commenter, there is ``no `basic structure' requirement in Section 
110(a)'' and that if there were such a requirement the EPA must 
evaluate the basic structure of the state's SIP ``as it actually 
exists.''
    With respect to this point, the EPA disagrees with the commenter's 
view that the specific SIP submission required in section 110(a)(1) and 
(2) within three years after the promulgation of a new or revised NAAQS 
is not intended to be a submission directed at basic structural 
requirements for a SIP. The commenter can take issue with the EPA's 
characterization or terminology when the agency refers to ``basic 
structure'' requirements, but the fact remains that the agency has to 
evaluate whether the SIP submission in question meets the various 
requirements of section 110(a)(2), as applicable, in this specific type 
of SIP submission.
    As the EPA articulated in the proposal, the various elements of 
section 110(a)(2) address a host of different issues, some of which 
entail legal authority requirements, some of which entail substantive 
requirements, and some of which entail both. Many of the elements of 
section 110(a)(2) are ambiguous with respect to what they require in 
the context of an infrastructure SIP. In order to act on the 
infrastructure SIP, the EPA has to interpret the provisions of section 
110(a)(2) to ascertain which of those provisions apply to this specific 
type of SIP submission, and how they apply. The commenter objected to 
the EPA's approach, but did not support its contentions with specific 
arguments based upon the actual wording of section 110(a)(2), nor did 
the commenter explain how or why it disagreed with the interpretation 
of the statutory language provided by the EPA in the proposal. Having 
had to determine which issues are properly within the scope of an 
action on an infrastructure SIP, for informational purposes the EPA 
sought to make clear that its action should not be construed as 
reapproving existing provisions of certain types because the EPA 
considers those issues that may be dealt with separately. The EPA did 
not, therefore, determine definitively whether the state's existing SIP 
contained any of these types of provisions that may be deficiencies, 
hence the agency referred

[[Page 81375]]

to any such provisions as ``potential'' deficiencies. Contrary to the 
commenter's view, the EPA believes it is appropriate to refer to any 
such provisions as potential deficiencies, until such time that the EPA 
can undertake the requisite analysis and undergo the proper procedures 
to establish that any such provisions are in fact inconsistent with the 
requirements of the CAA.
    Third, the commenter objected to the EPA's statement that it is 
reasonable to defer action on a deficient provision in an existing SIP 
because it is not possible ``for [the] EPA to consider whether every 
provision of every SIP in every state meets the current requirements of 
the federal Clean Air Act.'' The commenter asserted that it was not 
asking the EPA ``to evaluate every word of the Texas SIP,'' but rather 
that it believes that the EPA must evaluate the SIP for the four 
substantive issues that the Agency concluded were outside the scope of 
infrastructure SIP actions as well as any other substantive issue that 
the commenter brings to the EPA's attention in this rulemaking context.
    With respect to this point, the EPA believes that the commenter 
misunderstood the reason that the Agency stated that it is not required 
to review SIPs for all possible existing deficiencies when evaluating 
an infrastructure SIP submission, including any related to the four 
issues specifically identified in the proposal. The EPA noted this 
practical point as part of explaining its view that where the specific 
requirements of the provisions of section 110(a)(2) are ambiguous, it 
is appropriate for the EPA to interpret the statute in a way that makes 
logical and feasible sense. Thus, for example, because the provisions 
of section 110(a)(2) do not explicitly provide that the SIP submission 
required by section 110(a)(1) after the promulgation of a new or 
revised NAAQS must rectify any and all potential substantive issues 
concerning any pre-existing SSM provisions in the state's SIP, the EPA 
concluded that it was reasonable to interpret the statute as not 
requiring the EPA to address that issue in this specific action on an 
infrastructure SIP submission. The SSM issue in and of itself is 
complex and could take substantial time and resources by both the state 
and EPA to identify, evaluate, and address as necessary any such 
provisions.
    Rather than a basic structural SIP requirement for a new or revised 
NAAQS, such as having state law authority to carry out the SIP, an 
overarching permitting program in place, or a monitoring network 
deployed, such an SSM issue might arise in the context of an individual 
existing emission limit that might apply only to a small number of 
sources of a certain type as part of the nonattainment area plan for a 
particular geographic area within the state. The EPA does not disagree 
that such a provision might be problematic in and of itself and that 
once examined through the appropriate mechanisms could prove to be 
inconsistent with the CAA and EPA's policy guidance on excess 
emissions. However, such a provision could be but one substantive issue 
among many in the existing SIP for which in depth analysis as part of 
the action on an infrastructure SIP is not practicable. To attempt to 
do such an analysis in this action would detract from the larger 
exercise to assure that the state SIP meets basic structural 
requirements for a new or revised NAAQS.
    The EPA agrees that where the specific provisions of section 
110(a)(2) clearly indicate that the EPA should evaluate a state's 
infrastructure SIP submission with respect to a given issue, the EPA 
must do so. Thus, the EPA has evaluated the state's submission on an 
element by element basis in the proposal, and explained why the agency 
believes that the state has or has not met the various individual 
requirements of section 110(a)(2), as applicable and as the EPA 
interprets them. For example, the EPA explained in detail why the 
agency believes that the state has adequately complied with section 
110(a)(2)(A) concerning enforceable emissions limits and other control 
measures; section 110(a)(2)(B) concerning air quality monitoring. By 
contrast, the EPA explained in detail why the agency believes that the 
state has not met the requirements of a component of section 
110(a)(2)(C) with respect to permitting new or modified sources for all 
federally regulated pollutants including GHGs. It does not follow, 
however, that the specific provisions of section 110(a)(2) require the 
EPA to address any and all issues within the existing SIP in the 
context of acting on an infrastructure SIP submission, and the EPA has 
noted four such substantive issues that it believes are outside the 
scope of this exercise as explained in more detail in the proposal.
    Where commenters raise concerns with a state's compliance with an 
element of section 110(a)(2) that the EPA agrees is germane to the 
infrastructure SIP, the EPA is responding to those comments separately 
in this action.
    Fourth, the commenter opposed the EPA's view that some substantive 
issues should be addressed separately from action on the infrastructure 
SIP on the grounds that this approach would deprive the public from any 
opportunity to comment upon or challenge the state's submission. The 
commenter evidently believes that because the state's infrastructure 
SIP submission did not include new provisions and merely confirmed how 
the existing SIP meets the applicable requirements of section 110(a)(2) 
that this precluded any comment on the merits of the state's 
submission.
    The EPA shares the commenter's concern with adequate public process 
and opportunity to comment on a state's infrastructure SIP submission. 
In this context, however, the EPA disagrees with the commenter's 
implication that the EPA should address any and all possible issues 
relating to the existing SIP in any action on a pending SIP submittal. 
First, the mere fact that the state's infrastructure SIP submission 
does not include actual revisions to the existing EPA-approved SIP does 
not alter the fact that it is a SIP submission and therefore its 
contents are subject to notice and comment, to the extent that the 
issues raised are germane to the action in question. To the extent that 
an issue is applicable in the context of the infrastructure SIP 
submission, the EPA itself is scrutinizing the content of the 
submission for compliance with the CAA, and when the Agency proposes 
action on the submission it is providing notice and inviting public 
comment on its proposed action. This does not automatically mean, 
however, that it is appropriate for the EPA to address, and for the 
public to comment upon, all possible substantive issues relating to the 
existing SIP beyond those that the EPA interprets as applicable for 
evaluation in the context of this specific type of SIP submission. The 
same principle, applied more precisely to the actual submission at 
hand, suggests that it is reasonable for the EPA to determine that 
certain substantive issues are outside the scope of the infrastructure 
SIP process and may be assessed separately in another context. This 
decision does not foreclose public comment on such issues, it merely 
indicates that public comment on such issues should occur at the point 
when the EPA is taking an action that more appropriately addresses the 
specific issue.
    Additionally, the EPA notes that although the Texas infrastructure 
SIP submission was comprised of the state's explanations of why the 
state believes its existing SIP meets the applicable requirements of 
section 110(a)(2), that approach has not precluded public

[[Page 81376]]

comment on the relevant issues. The commenter's own comments illustrate 
that this process affords the public an opportunity to comment on the 
EPA's proposed action on the infrastructure SIP submission. Where those 
comments raise concerns about issues properly within the scope of an 
action on an infrastructure SIP, the EPA is evaluating those comments 
as part of this action.
    Finally, one commenter more specifically objects to the EPA's 
evaluation of the state's infrastructure SIP submissions with respect 
to the minor NSR permitting program in Texas. The commenter expresses 
concern that the state has ``failed to implement its minor source NSR 
program in a way that complies with federal requirements'' and claims 
that ``because Texas's failures undermine its ability to implement, 
maintain, and enforce the new NAAQS, [the] EPA's action on Texas's 
submissions fails to comply with the clear and unambiguous requirements 
of section 110(a)(2)(C).'' As further explanation of its concerns, the 
commenter contends in more detailed comments that the ``Permit by 
Rule'' (PBR) provisions in the Texas SIP must be limited to narrowly 
defined source categories and include a mechanism for pre-construction 
application and agency review. Another commenter echoes these 
statements, and additionally contends the PBR provisions do not allow 
for adequate public participation. According to the commenters, these 
concerns preclude the EPA approving the state's infrastructure SIP 
submissions. Additionally, the commenters contend another component of 
Texas's SIP-approved minor NSR program, permit ``alterations,'' fails 
to meet the requirements of section 110(a)(2). One commenter states the 
alterations rules interfere with NAAQS attainment strategies, fail to 
prevent circumvention of NSR permitting requirements for major 
stationary sources, and undermine public participation in the 
permitting process. Another commenter also states the alteration 
provisions violate 40 CFR part 51 notice requirements, fail to provide 
adequate mechanisms for denial for cause, and fail to protect the 
NAAQS.
    The EPA disagrees with the commenter's view that concerns with 
certain components of the minor NSR program in the Texas SIP preclude 
approval of the state's infrastructure SIP submissions for the ozone 
and PM2.5 NAAQS. In the case of the minor NSR permitting 
requirements for a SIP, the EPA agrees that section 110(a)(2)(C) 
provides the general statutory basis for this program and for the 
agency's regulations that govern such programs. However, in the 
proposal and in this response, the EPA explains that the EPA considers 
action on the infrastructure SIP submissions required by section 
110(a)(1) and (2) to be an exercise to assure that a state's SIP meets 
the basic structural requirements for the new or revised NAAQS, not a 
time to address all potential substantive defects, or alleged defects, 
in existing SIP provisions Therefore, EPA considers an evaluation of 
any component of a state's existing minor NSR program to be outside the 
scope of an infrastructure SIP review rather than an unambiguous 
requirement of the EPA's action on an infrastructure SIP with regard to 
section 110(a)(2)(C). The specific concerns the commenters raise are 
over the PBR and alterations rules, which were approved into the Texas 
SIP as components of the minor NSR program.\5\ Because an action upon 
an infrastructure SIP is not the correct place to evaluate the 
commenter's specific substantive concerns about existing components of 
the state's minor NSR program that the commenters consider defective, 
the EPA will not address those concerns at this time. As with the other 
substantive issues that the EPA determined to be outside the scope of 
infrastructure SIP actions, the EPA notes that the CAA provides other 
mechanisms to address existing substantive deficiencies in SIPs, 
including potential deficiencies with a state's minor NSR program.
---------------------------------------------------------------------------

    \5\ The PBR rules were approved into the Texas SIP at 68 FR 
64543, November 14, 2003. The alterations rules were approved into 
the Texas SIP at 67 FR 58697, September 18, 2002.
---------------------------------------------------------------------------

D. Comments That Address Implementation Issues

    Comment: One commenter states that if provisions in Texas's 
existing SIP are facially deficient, or if the EPA is aware of the 
state's inadequate implementation of facially sufficient SIP-approved 
provisions, then the submitted infrastructure SIP is also deficient 
with respect to section 110(a)(2) requirements for the relevant NAAQS. 
The commenter states the EPA is aware of Texas's inadequate 
implementation of the SIP, and posits the EPA does not have discretion 
to approve Texas's infrastructure SIP if there is improper 
implementation of the existing SIP or deficiencies in the existing SIP.
    Response: The EPA agrees with the commenter that facial 
deficiencies in SIP provisions could preclude the EPA from approving an 
infrastructure SIP submittal that relies on those provisions. The 
commenter's statements highlight an important issue concerning the 
distinction between a state's SIP meeting the requirements of the CAA 
on its face (i.e., facial sufficiency of the SIP) and a state's actual 
compliance with those SIP requirements (i.e., adequacy of 
implementation of the SIP), and the question of when implementation 
concerns should be considered an issue in the context of acting on a 
state's infrastructure SIP.
    However, it is important to note as explained in our previous 
response to comment under B, the EPA is not evaluating potential 
deficiencies for substantive issues it has determined to be outside the 
scope of action on an infrastructure SIP. Because the EPA has 
determined certain substantive issues to be outside the scope of action 
on an infrastructure SIP, the EPA accordingly is not evaluating those 
provisions for facial sufficiency. For the EPA's action on submitted 
provisions it has determined to appropriately be within the scope of an 
infrastructure SIP, the EPA has evaluated whether the SIP provisions 
identified or submitted by the state as part of that submission are 
facially sufficient to meet the applicable requirements of section 
110(a)(2) of the CAA. In its analysis of the state's infrastructure SIP 
submission, the EPA evaluated the provisions submitted within the scope 
of the infrastructure SIP for facial sufficiency against the relevant 
elements of section 110(a)(2). In the proposal, the EPA explicitly 
evaluated the state's submission on a requirement by requirement basis 
and explained its views on the adequacy of the state's SIP for purposes 
of meeting the infrastructure SIP requirements. Where the EPA had 
concerns about the facial adequacy of the state's infrastructure SIP 
submission, the Agency proposed disapproval of the submission (e.g., 
deficiencies concerning adequate regulation of GHGs in the PSD 
permitting program that are inconsistent with the requirements of 
section 110(a)(2)(C)). Aside from the GHG component of the PSD element 
of section 110(a)(2)(C), the EPA believes that the other portions of 
the infrastructure SIP submission facially meet the applicable 
requirements of section 110(a)(2).
    The commenter also contends that a state's failure to implement an 
otherwise facially sufficient SIP, in contravention of statutory 
requirements, could also preclude the EPA's approval of a state's 
infrastructure SIP. First, the EPA does not believe that any concerns 
whatsoever regarding adequate implementation of the SIP should be the 
basis for a disapproval of an infrastructure SIP.

[[Page 81377]]

    The EPA acknowledges, as commenter asserts, there have been 
instances regarding particular components of the Texas Major NSR PSD 
SIP permitting program where the EPA itself has raised concerns with 
the state about implementation issues. The EPA is continuing to 
evaluate its review of the implementation issues that have arisen at 
this time but believes that it may move forward with finalizing its 
proposed approval in the absence of a final EPA determination pursuant 
to 110(m) and 179(a)(4) that the SIP is not being implemented 
adequately. EPA has not finalized such a determination. EPA believes 
that such a determination would undermine the approvability of SIP 
language that is otherwise facially sufficient.
    The EPA is not determining in this action that the implementation 
concerns that have arisen do not exist, but that the EPA will continue 
to examine and analyze the implementation concerns we are currently 
aware of and have already communicated to the state, as well as any 
others we become aware of in the future. It is important to note that 
EPA has already taken a number of actions to attempt to correct some 
issues with SIP implementation, including disapproval of certain 
proposed SIP packages and objections to individual Title V permits that 
did not include all applicable SIP requirements. If the EPA determines 
that outstanding implementation issues are sufficiently serious it will 
take appropriate action, which could include the use of other 
regulatory tools, including the issuance of a SIP call, making a 
finding of failure to implement, or taking measures to address specific 
permits pursuant to the EPA's case by case permitting oversight. Which 
action would be appropriate would depend on the nature and extent of 
the particular implementation problems at issue. The commenters raise 
additional specific contentions regarding problems with implementation 
of particular components of the PSD NSR SIP program. The EPA will 
respond to those comments in the following relevant subsections.

E. Comments That Address Greenhouse Gases (GHGs)

    Comment: The EPA received identically phrased comments from two 
industry groups on this proposal. These commenters support the EPA's 
proposal to the extent of the proposed partial approval of Texas's 
infrastructure SIP, but oppose the proposal to the extent of the 
proposed partial disapproval of the SIP. The commenters make two 
objections as the basis of their opposition to the partial disapproval.
    The commenters' first objection is that the EPA's proposed 
disapproval is based on grounds that are outside this rulemaking. They 
explain that, in their view, this rulemaking relates to the 
requirements of CAA section 110 for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS, and that the GHG permitting requirements--which 
were the subject of the EPA's proposed disapproval--are not related to 
those NAAQS requirements.
    Response: We disagree with these comments. The premise of these 
comments seems to be that CAA PSD permitting requirements apply on a 
pollutant-by-pollutant basis, but that premise is incorrect. Those 
requirements apply on a source-by-source basis for all pollutants 
emitted by that source that meet the PSD applicability thresholds. For 
example, a new source that triggers PSD because of its emissions of 
ozone precursors or PM2.5 is also subject to PSD for any 
other conventional pollutants that it emits above the applicable 
significance levels and for GHGs, if it emits those above the Tailoring 
Rule thresholds. Accordingly, for the ozone and PM2.5 NAAQS 
Texas infrastructure SIP to be fully approvable, that SIP must include 
the appropriate PSD requirements for all other pollutants, including 
GHGs. Thus, contrary to the commenters' objections, those PSD 
requirements are related to--and, in fact, are part and parcel of--the 
ozone and PM2.5 infrastructure SIP. Because the 
infrastructure SIP fails to include some of those requirements, the EPA 
must disapprove that SIP to that extent.\6\
---------------------------------------------------------------------------

    \6\ As discussed below, the Error Correction Rule identified, 
and issued a partial disapproval for, flaws in the Texas SIP PSD 
program that were broader than the lack of application to GHGs.
---------------------------------------------------------------------------

    Comment: The commenters' second objection is that disapproval of 
the infrastructure SIP is ``redundant'' in light of what we call the 
GHG PSD SIP Call or, simply, the SIP Call,\7\ and what we call the 
Texas GHG PSD Error Correction Rule, or, simply, the Error Correction 
Rule.\8\ The commenters add that they have ``serious concerns about, 
among other things, the extent to which the GHG SIP Call and [Error 
Correction Rule] have a sound basis in the CAA * * *. In light of the 
highly questionable basis for these past actions, * * * there is no 
reason for [the] EPA to introduce the legal uncertainty associated with 
the federal program for GHG permitting at Texas sources to the 
straightforward and unrelated action'' concerning the infrastructure 
SIP. The commenters incorporate by reference their comments on the SIP 
Call and the Error Correction Rule, in which they argue that those 
rules are not authorized under the CAA.
---------------------------------------------------------------------------

    \7\ ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final Rule,'' 75 FR 77698 (December 13, 2010).
    \8\ ``Determinations Concerning Need for Error Correction, 
Partial Approval and Partial Disapproval, and Federal Implementation 
Plan Regarding Texas's Prevention of Significant Deterioration 
Program,'' Interim Final Rule, 75 FR 82430 (December 30, 2010) 
(Interim Final Error Correction Rule); ``Determinations Concerning 
Need for Error Correction, Partial Approval and Partial Disapproval, 
and Federal Implementation Plan Regarding Texas's Prevention of 
Significant Deterioration Program,'' Final Rule, 76 FR 25187 (May 3, 
2011) (Error Correction Rule).
---------------------------------------------------------------------------

    Response: We disagree with these comments. The infrastructure SIP 
action is not unrelated to or redundant in light of the EPA's past 
actions regarding GHG permitting. As explained in the proposal for this 
infrastructure SIP action, the Texas infrastructure SIP submittals do 
not include revisions to the SIP, but document how the current Texas 
SIP already includes the required infrastructure elements. Our proposed 
determination evaluated how section 110(a)(2) elements, including the 
PSD element of section 110(a)(2)(C), are contained in the current Texas 
SIP. In the two recent actions cited by commenters, the EPA identified 
substantial deficiencies in the Texas PSD SIP provisions. In the SIP 
Call, promulgated under CAA section 110(k)(5) on December 13, 2010, the 
EPA determined that the Texas PSD SIP is substantially inadequate to 
meet CAA requirements because it does not apply PSD requirements to 
GHG-emitting sources. Accordingly, the EPA issued a ``SIP call'' for 
Texas, which required the state to revise its SIP as necessary to 
correct the inadequacy. The EPA also established the deadline of 
December 1, 2011 for Texas to submit the corrective SIP revision. See 
75 FR 77698.
    In the Error Correction Rule, we stated that Texas's PSD SIP was 
flawed because it ``failed to address or to include assurances of 
adequate legal authority * * * for the application of PSD to each newly 
regulated pollutant, including non-NAAQS pollutants, under the CAA,'' 
among them GHGs (see 76 FR 25178, 25192). Accordingly, we stated that 
our approval of the SIP with those flaws was in error. Although our 
approval took place in 1992, and concerned SIP submittals in the late 
1980s, we made clear that Texas had never corrected those flaws and, in 
fact, in the context of participating in the EPA's CAA rulemakings 
concerning

[[Page 81378]]

GHGs in 2010, had made statements that highlighted those flaws. As a 
result, under CAA section 110(k)(6), we revised our previous approval 
of the SIP to be a partial approval and partial disapproval. Further, 
we promulgated a FIP, the scope of which was commensurate with the 
error that we were correcting. We explained that we were promulgating a 
FIP to apply appropriate measures to assure that the EPA's PSD 
regulatory requirements will apply to non-NAAQS pollutants that are 
newly subject to regulation under the CAA that the Texas PSD program 
does not already cover. At present, the only pollutant is GHGs. 
Therefore, the EPA's FIP will apply the EPA regulatory PSD program for 
the GHG portion of PSD permits for GHG-emitting sources in Texas, and 
the EPA commits to take whatever steps are appropriate if, in the 
future, Texas fails to apply PSD to another newly regulated non-NAAQS 
pollutant. Id.
    Therefore the SIP Call and the Error Correction Rule are not only 
inextricable from, but are also important for today's rulemaking. As 
described in those prior actions, the EPA determined that the Texas PSD 
SIP provisions have deficiencies. Texas's infrastructure SIP includes 
those same PSD provisions. Accordingly, the EPA is fully justified in 
disapproving the Texas infrastructure SIP to the extent those PSD 
provisions are deficient.
    Contrary to the commenters' statements, the fact that the EPA 
determined the deficiencies in the SIP Call and Error Correction Rule 
also does not make the current rulemaking ``redundant.'' As we explain 
in the proposal for this rulemaking, Texas is required to have an 
infrastructure SIP that meets the applicable requirements of CAA 
section 110(a)(2). That obligation is not changed by the fact that the 
EPA conducted previous rulemakings--the SIP Call and Error Correction 
Rule--that determined that Texas's SIP PSD program has deficiencies.
    As noted above, the industry commenters on this infrastructure 
rulemaking commented on the SIP call and the Error Correction Rule, and 
we responded to those comments, during the course of those rulemakings. 
See 75 FR 77698, 77705-77716 (SIP Call); Response to Comment on 
Proposed Rule, ``Action to Ensure Authority to Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call,'' December 2010; 76 FR 25178, 25192-25205 (Error Correction 
Rule); ``Determinations Concerning Need for Error Correction, Partial 
Approval and Partial Disapproval, and Federal Implementation Plan 
Regarding Texas's Prevention of Significant Deterioration Program; 
Proposed Rule--Response to Comments (April 2011) (response to comments 
for Error Correction Rule). As of the date of the current rulemaking, 
Texas has not submitted the corrective SIP revision required by the SIP 
Call, and has taken no action to remedy the flaws that were the basis 
for the Error Correction Rule. Texas has challenged both rulemakings in 
the U.S. Court of Appeals for the DC Circuit.
    In addition, contrary to the commenters' statements, their 
objections to the SIP Call and Error Correction Rule are not relevant 
in the current rulemaking. As noted above, those rulemakings made 
determinations that the Texas SIP PSD program has deficiencies. 
Commenters had the opportunity to, and did, comment on those 
rulemakings, and have brought challenges to those rulemakings in court. 
The EPA is not re-opening those determinations in this rulemaking. 
These determinations apply in this rulemaking to the extent the SIP PSD 
provisions at issue in the SIP Call and Error Correction rules are the 
same as the SIP provisions at issue in the current rulemaking. In the 
alternative, if the comments are relevant, then we respond to them by 
incorporating by reference our responses to comments in the SIP Call 
and Error Correction Rule, cited above.
    As we noted in the proposal for this rulemaking, Texas did not 
submit additional SIP provisions to assure that its 1997 
PM2.5 and ozone, and 2006 PM2.5, infrastructure 
SIPs met the substantive requirements of CAA section 110(a)(2). See 76 
FR 58748, 58750. Rather, in 2008 and 2009, Texas took the position that 
its existing SIP provisions meet the infrastructure SIP requirements, 
including CAA section 110(a)(2)(C) and (D)(i)(II). Id. Among its 
existing SIP provisions are the PSD provisions that the EPA 
subsequently, in the 2010 SIP Call and the 2011 Error Correction Rule, 
determined to have deficiencies. Accordingly, the EPA's determination 
in the SIP Call that Texas's SIP PSD program is deficient because it 
does not apply PSD to GHGs, and the EPA's determination in the Error 
Correction Rule that Texas's SIP PSD program is deficient because it 
does not address, or provide assurances of adequate legal authority to 
address, pollutants newly subject to regulation--including non-NAAQS 
pollutants, among them GHGs--apply as well for purposes of the current 
rulemaking. In this manner, the SIP Call and Error Correction Rule 
provide the basis for our disapproval in the current rulemaking of the 
Texas SIP for failing to meet the infrastructure requirements for the 
1997 ozone and PM2.5 NAAQS and the 2006 PM2.5 
NAAQS with respect to the PSD requirements of CAA section 110(a)(2)(C) 
that concern GHGs and that concern the applicability of PSD to 
pollutants newly subject to regulation.
    The same determinations in the SIP Call and the Error Correction 
Rule that the Texas SIP PSD program has deficiencies provide a basis 
for our disapproval in the current rulemaking of the Texas SIP for 
failing to meet the infrastructure requirements under CAA section 
110(a)(2)(D)(i)(II),\9\ under which Texas's SIP must contain adequate 
provisions prohibiting emissions that interfere with any other state's 
required PSD program; and under CAA section 110(a)(2)(D)(ii), under 
which Texas's SIP must require new or modified sources to notify 
neighboring states of potential impacts from such sources. As discussed 
in the proposal for this rulemaking, Texas's PSD program is the primary 
measure that must be included to meet the requirements of section 
110(a)(2)(D)(i)(II). See 76 FR 58748, 58760. The EPA's determinations 
in the SIP Call and the Error Correction Rule that the Texas SIP does 
not meet PSD requirements because it has the deficiencies of failing to 
apply to GHGs or to address pollutants newly subject to regulation 
means that the infrastructure SIP fails to meet the requirements of (i) 
section 110(a)(2)(D)(i)(II) because the PSD program has the same 
deficiencies, and (ii) section 110(a)(2)(D)(ii) because, by not 
addressing pollutants newly subject to regulation, the infrastructure 
SIP does not require new or modifying sources that emit those 
pollutants to notify neighboring states of potential impacts.
---------------------------------------------------------------------------

    \9\ As noted above, the EPA is not reopening those 
determinations in this rulemaking.
---------------------------------------------------------------------------

F. Comments That Address Section 110(a)(2)(E)

    Comment 1: The commenter states that Texas does not have adequate 
authority to enforce the SIP pursuant to section 110(a)(2)(E) 
specifically because of Article 6 of Senate Bill 12, Texas state 
legislation passed in 2007. The commenter states the EPA's position is 
Senate Bill 12 does not disallow the EPA's approval of the 
infrastructure SIP for section 110(a)(2)(E) in part because the 
legislation does not alter the enforcement authority ascribed to the 
EPA, citizens, and other parties other than the TCEQ by the CAA. 
According to the commenter's assertion, under

[[Page 81379]]

section 110(a)(2)(E) the TCEQ may not cede its authority to other 
parties and must have authority to enforce all infractions and not just 
repeat infractions, and because Senate Bill 12 partially undermines the 
state's enforcement authority the Texas infrastructure SIP does not 
meet section 110(a)(2)(E). The commenter also states that the EPA's 
separate evaluation of Senate Bill 12 under the Agency's Title V 
authority does not make the infrastructure SIP any more compliant with 
section 110 requirements.
    Response: Regarding the commenter's assertion that under section 
110(a)(2)(E) the TCEQ must have authority to enforce all infractions 
and cannot cede this authority to others, Senate Bill 12 (SB 12) does 
not preclude the TCEQ from taking certain types of enforcement actions 
against sources covered under SB12. The TCEQ has authority to impose 
injunctive relief with respect to all violations from the sources 
including those for which the legislation altered the TCEQ's 
enforcement authority (76 FR 58748). Senate Bill 12, codified at TWC 
Section 7.00251, by its own statutory terms alters the TCEQ's 
enforcement authority for ``violations based on information [the TCEQ] 
receives as required by Title V of the Clean Air Act'' upon first 
infraction. In particular, Senate Bill 12 alters the TCEQ's enforcement 
authority with respect to particular self-certified\10\ violations, 
further classified as ``Category B'' violations, documented in a Title 
V deviation report. Under the Title V regulations states must 
specifically have the authority to collect civil penalties for the 
violation of any applicable requirement; any permit condition; any fee 
or filing requirement; any duty to allow or carry out inspection, entry 
or monitoring activities or, any regulation or orders issued by the 
permitting authority. This provision is in contrast to the more general 
requirements for the states to have an enforcement program under Title 
I. The EPA reads SB 12 to not legislatively impede the TCEQ's 
enforcement authority to seek injunctive relief for any violations, and 
as described in the proposal, also does not impede the TCEQ from 
collecting penalties for repeat infractions. Therefore, the state has 
the authority to subject all infractions to some level of enforcement. 
Because the TCEQ has generic enforcement authorities evinced by various 
state statute provisions described in the proposal, the authority to 
seek injunctive relief for all violations and authority to seek 
penalties and injunctive relief for repeat infractions, and SB 12 did 
not alter the CAA enforcement authority of the EPA or other parties, 
the EPA determined this state legislation did not bar the EPA's 
approval and these facts conjunctively supported the EPA's proposal for 
approval of the infrastructure SIP as meeting section 110(a)(2)(E), as 
discussed in our proposal.
---------------------------------------------------------------------------

    \10\ A self-certified violation is a violation certified by the 
source. Category B violations are identified in the TCEQ Enforcement 
Initiation Criteria (EIC); the EIC is in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    The EPA's approval is based on the specific facts described in this 
rulemaking regarding the effects of SB 12. As discussed in our 
proposal, the EPA is evaluating SB 12 pursuant to its Title V authority 
as the legislation, by the face of its own terms, alters the TCEQ's 
enforcement authority with respect to violations based on information 
the TCEQ receives as required by Title V of the CAA upon first 
infraction. The EPA reiterates that for the bases described in this 
response to comment and the proposal for this action, such as generic 
enforcement authority under state statutory provisions, the EPA finds 
the Texas SIP meets the infrastructure SIP requirements for section 
110(a)(2)(E). As described in the proposal, Title V is subject to 
statutory and regulatory mechanisms outside the scope of section 
110(a), and the scope of this SIP action is limited to determining 
whether the existing SIP meets certain infrastructure and interstate 
transport SIP requirements of section 110(a)(2) with respect to the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS. The reasons 
for the EPA's proposed determination of approvability under section 
110(a)(2)(E) are discussed in this response and in the proposal, and 
are separate and adequate bases that do not preclude the agency's 
evaluation of this legislation under Title V.
    Comment 2: The TCEQ agrees with the EPA's proposed finding for this 
action that the SIP meets the infrastructure SIP requirements for 
adequate enforcement authority and resources pursuant to section 
110(a)(2)(E). However, the commenter considers the EPA's discussion of 
Senate Bill 12 as inappropriate for inclusion in the proposal for this 
rulemaking because the commenter contends the EPA's stated awareness 
regarding Senate Bill 12, a Title V program, has no bearing on the 
evaluation of the Texas SIP which is solely a Title I program. The 
commenter concludes it fails to see the purpose served by the EPA's 
discussion of Senate Bill 12 in the proposed action.
    Response: The EPA appreciates the commenter's support for the 
proposed finding pursuant to section 110(a)(2)(E). Though the EPA's 
evaluation of SB 12 under Title V ultimately does not factor into the 
EPA's proposed approval of the infrastructure SIP for reasons explained 
in the proposal and in our response to Comment 1 under this subsection, 
the EPA believes it was not inappropriate in this particular matter 
that involved an overlapping concern--the adequacy of the state's 
enforcement authority--to put interested parties and the public on 
notice that the agency is evaluating this matter, albeit under another 
part of the Act.

G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)

    Comment: One commenter states that the Texas SIP does not provide 
for appropriate monitoring of ambient air quality, particularly for 
ozone. The commenter also states that the EPA's prior approvals of the 
Texas Statewide Air Quality Surveillance network and the 2010 Annual 
Air Monitoring Network Plan (AAMNP) do not nullify the EPA's need to 
evaluate Texas's monitoring program in this rulemaking. The commenter 
additionally cites to the