Approval and Promulgation of Implementation Plans; Texas; Revisions to Emissions Banking and Trading Programs and Compliance Flexibility, 21919-21927 [2017-09472]

Download as PDF Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than three hours per day that will prohibit entry within the 1 mile by .2 mile air show site. It is categorically excluded under section 2.B.2, figure 2–1, paragraph 34(g) of the Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble. G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: Dated: May 5, 2017. Scott B. Lemasters, Captain, U.S. Coast Guard, Captain of the Port Detroit. [FR Doc. 2017–09554 Filed 5–10–17; 8:45 am] BILLING CODE 9110–04–P PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ 2. Add § 165.T09–0303 to read as follows: ■ pmangrum on DSK3GDR082PROD with RULES § 165.T09–0303 Safety Zone; Tuskegee Airmen River Days Air show; Detroit, MI. (a) Location. A safety zone is established to include all U.S. navigable waters of the Detroit River between the following two lines extending 70 feet off the bank to the US/Canadian demarcation line: the first line is drawn directly across the channel at position 42°19.444′ N., 083°03.114′ W. (NAD 83); the second line, to the north, is drawn directly across the channel, at position 42°19.860′ N., 083°01.683′ W. (NAD 83). (b) Enforcement period. The regulated area described in paragraph (a) of this section will be enforced from 12:30 p.m. thru 3 p.m. on June 23, 2017 and June 24, 2017; 3 p.m. through 5:30 p.m. on June 25, 2017; and from 5 p.m. through 7:30 p.m. on June 26, 2017. 14:36 May 10, 2017 Jkt 241001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. VerDate Sep<11>2014 (c) Regulations. (1) No vessel or person may enter, transit through, or anchor within the safety zone unless authorized by the Captain of the Port Detroit, or his on-scene representative. (2) The safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his on-scene representative. (3) The ‘‘on-scene representative’’ of the Captain of the Port Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Detroit to act on his behalf. (4) Vessel operators shall contact the Captain of the Port Detroit or his onscene representative to obtain permission to enter or operate within the safety zone. The Captain of the Port Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313–568–9464. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the Captain of the Port Detroit or his on-scene representative. [EPA–R06–OAR–2015–0585; FRL–9960–22– Region 6] Approval and Promulgation of Implementation Plans; Texas; Revisions to Emissions Banking and Trading Programs and Compliance Flexibility Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) Emissions Banking and Trading Programs submitted on July 15, 2002; December 22, 2008; April 6, 2010; May 14, 2013; and August 14, 2015. Specifically, we are approving revisions to the Texas Emission Credit, Mass Emissions Cap and Trade, Discrete Emission Credit, and Highly Reactive Volatile Organic Compound Emissions Cap and Trade SUMMARY: PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 21919 Programs such that the Texas SIP will include the current state program regulations promulgated and implemented in Texas. We are also approving compliance flexibility provisions for stationary sources using the Texas Emission Reduction Plan submitted on July 15, 2002; May 30, 2007; and July 10, 2015. DATES: This rule is effective on July 10, 2017 without further notice, unless the EPA receives relevant adverse comment by June 12, 2017. If the EPA receives such comment, the EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. ADDRESSES: Submit your comments, identified by Docket No. EPA–R06– OAR–2015–0585, at https:// www.regulations.gov or via email to wiley.adina@epa.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Adina Wiley, 214–665–2115, wiley.adina@epa.gov. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https:// www2.epa.gov/dockets/commentingepa-dockets. Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). FOR FURTHER INFORMATION CONTACT: Adina Wiley, 214–665–2115, wiley.adina@epa.gov. To inspect the hard copy materials, please schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214–665–7253. E:\FR\FM\11MYR1.SGM 11MYR1 21920 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means the EPA. specific sections impacted by this direct final rulemaking. B. Overview of the Texas Emissions Banking and Trading Programs A. CAA and SIPs 1. The Emission Credit (EC) Program Section 110 of the CAA requires states to develop and submit to the EPA a SIP to ensure that state air quality meets the National Ambient Air Quality Standards (NAAQS). These ambient standards currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin through air pollution regulations and control strategies. The EPA approved SIP regulations and control strategies are federally enforceable. The Texas SIP includes several discretionary emissions trading programs developed consistent with the EPA’s Economic Incentive Program Guidance, that are designed to promote flexibility and innovation in complying with State and Federal air emission requirements established in the SIP and the SIP-approved air permitting programs.1 This direct final action will address the revisions to the Texas Emission Credit (EC), Mass Emissions Cap and Trade (MECT), Discrete Emission Credit (DEC), and Highly Reactive Volatile Organic Compound Emissions Cap and Trade (HECT) programs that were submitted to the EPA on July 15, 2002; December 22, 2008; April 6, 2010; May 14, 2013; and August 14, 2015, where the EPA has not yet taken an action on such revisions. This direct final action also addresses another method for compliance flexibility for stationary sources using the Texas Emission Reduction Plan (TERP) as submitted to the EPA on July 15, 2002; May 30, 2007; and July 10, 2015. Where the TCEQ also adopted and submitted revisions to other parts of the Texas SIP, those revisions have been addressed in separate rulemakings. Please see the Technical Support Documents accompanying this rulemaking for an identification of the pmangrum on DSK3GDR082PROD with RULES I. Background The EC Program enacted at 30 Texas Administrative Code (TAC) Chapter 101, Subchapter H, Division 1 allows owners or operators of a facility or mobile source to generate emission credits by reducing emissions of criteria pollutants or their precursors, with the exception of lead, below any applicable regulations or requirements. Emission credits are generated and banked in terms of rate (tons per year). Emission credits, or ECs, encompass reductions generated and banked from stationary sources as emission reduction credits (ERCs) or generated and banked from mobile sources as mobile emission reduction credits (MERCs). The ECs from the bank have traditionally been used as offsets for the permitting of major new or modified facilities in nonattainment areas. ECs have also been banked and traded for alternative compliance with Reasonably Available Control Technology (RACT) requirements. The EPA initially approved the EC program on September 6, 2006 (71 FR 52698) with updates approved on May 18, 2010 (75 FR 27647). On June 5, 2015, the TCEQ adopted revisions to the EC Program, including renaming the program to the Emission Credit Program and revising provisions for mobile and area source credit generation. The June 5, 2015, revisions to the EC Program were submitted to the EPA as a SIP revision on August 14, 2015. 1 ‘‘Improving Air Quality with Economic Incentive Programs’’ (EIP Guidance) (EPA–452/R– 01–001, January 2001) is the EPA guidance document for reviewing and approving discretionary EIP submittals. The EIP Guidance applies to the establishment of a discretionary EIP for attaining or maintaining the national ambient air quality standards (NAAQS) for criteria pollutants. The EIP Guidance supersedes and takes precedence over the discretionary EIP guidance provided in prior documents such as the 1994 EIP (April 7, 1994, 59 FR 16690, 40 CFR part 51, subpart U) and the guidance in the emission trading policy statement (ETPS) (December 4, 1986, 51 FR 43813). VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 2. The Mass Emissions Cap and Trade (MECT) Program The MECT Program enacted at 30 TAC Chapter 101, Subchapter H, Division 3 is mandatory under the Texas SIP for stationary facilities that emit oxides of nitrogen (NOX) in the Houston/Galveston/Brazoria (HGB) ozone nonattainment area which are subject to emission specifications in the TCEQ NOX rules at 30 TAC Sections 117.310, 117.1210, and 117.2010; and which are located as a site where they collectively have an uncontrolled design capacity to emit 10 tons per year or more of NOX. The program sets a cap on NOX emissions beginning January 1, 2002, with a final reduction to the cap occurring in 2007. Facilities are required to meet NOX allowances on an annual basis. Facilities may purchase, bank, or sell their allowances. The EPA published a final rule approving the PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 MECT program on November 14, 2001 (66 FR 57252). The EPA has acted on several updates to the MECT program since our initial program approval. See prior EPA actions on September 6, 2006 (71 FR 52698); July 16, 2009 (74 FR 34503); January 2, 2014 (79 FR 57). TCEQ adopted additional revisions to the MECT on June 5, 2015, and submitted these revisions to the EPA as a SIP revision on August 14, 2015. The revisions make general updates to the MECT and clarify the use of allowances for Nonattainment New Source Review (NNSR) offsets. This rulemaking addresses all revisions to the MECT submitted on August 14, 2015. 3. The Discrete Emission Credit (DEC) Program The DEC Program enacted at 30 TAC Chapter 101, Subchapter H, Division 4 allows an owner or operator of a facility or mobile source to generate discrete emission credits by reducing emissions of criteria pollutants or their precursors, with the exception of lead, below any applicable regulation or requirement. Discrete emission credits (DECs) are quantified, banked and traded in terms of mass (tons), not a rate as is the case with ECs. DECs may be generated from stationary sources and banked as discrete emission reduction credits (DERCs) or may be generated from mobile sources and banked as mobile discrete emission reduction credits (MDERCs). Traditionally DECs have been used for Reasonably Available Control Technology (RACT) compliance for (Volatile Organic Compounds) VOCs and NOX; DECs can also be used to offset new major sources or major modifications to existing sources in nonattainment areas. The EPA initially approved the DEC Program on September 6, 2006, with updates approved on May 18, 2010 (75 FR 27644). TCEQ has adopted and submitted revisions to the DEC Program on December 22, 2008 and May 14, 2013 to address the use of DERCs in the DallasFort Worth (DFW) ozone nonattainment area. Additional revisions to the DEC program adopted on June 5, 2015, and submitted August 14, 2015, rename the program to the Discrete Emission Credit Program, further revise the provisions specific to DERC use in DFW, and address the generation of area and mobile source credits. The EPA is addressing all pending revisions to the DEC Program in this action. E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations 4. The Highly Reactive Volatile Organic Compound (HRVOC) Emissions Cap and Trade (HECT) Program The HECT Program enacted at 30 TAC Chapter 101, Subchapter H, Division 6 is mandatory for covered facilities including vent gas streams, flares, and cooling tower heat exchange systems that emit HRVOCs, as defined in 30 TAC Section 115.10, and that are located at a site subject to Chapter 115, Subchapter H. The EPA published final approval of the HECT program on September 6, 2006 (71 FR 52659). Since our initial approval of the HECT program, the TCEQ adopted revisions on March 10, 2010, in conjunction with the development of the HGB 1997 eighthour ozone attainment demonstration; these HECT amendments were submitted as revisions to the Texas SIP on April 6, 2010. On January 2, 2014, the EPA approved the majority of these HECT amendments in concert with our final approval of the HGB attainment demonstration for the 1997 eight-hour ozone standard (79 FR 57). Note that we did not take action on the submitted revision to 30 TAC Section 101.396(b) at the request of the state. The TCEQ adopted revisions to the HECT program on June 5, 2015, and submitted these revisions to the SIP on August 14, 2015. The submitted revisions clarify the use of HECT allowances as NNSR offsets, update the equations for allowance allocations, update provisions for changing site ownership, and revise provisions to clarify data substation for reporting. This rulemaking addresses the remaining revision to 30 TAC Section 101.396(b) from the April 6, 2010 submittal and all revisions to the HECT submitted on August 14, 2015. pmangrum on DSK3GDR082PROD with RULES C. Compliance Flexibility With the Texas Emission Reduction Plan (TERP) The TERP, implemented with provisions in 30 TAC Chapter 114, Subchapter K, is a SIP-approved program that provides financial incentives for reducing emissions from mobile sources. Examples of TERP grant projects include financial subsidies to upgrade/retrofit diesel exhaust systems in school buses and replacing heavyduty and light-duty on-road diesel vehicles with alternative fuel and hybrid vehicles. TCEQ adopted new revisions to promote compliance flexibility for stationary sources subject to NOX control requirements either under the MECT or under the requirements of 30 TAC Chapter 117 by requiring partial compliance with the stationary source obligation while simultaneously funding mobile VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 emission reductions achieved through the TERP for a set period of time. The compliance flexibility provisions for sources subject to the MECT were initially adopted on March 13, 2002 and submitted as SIP revisions on July 15, 2002 as new 30 TAC Section 101.357; no changes have been made since this initial adoption and submittal. The compliance flexibility provisions for sources subject to the NOX control requirements in Chapter 117 were initially adopted on March 13, 2002 and submitted as a SIP revision on July 15, 2002 as 30 TAC Section117.571. TCEQ has revised this section twice since its initial adoption. Revisions adopted May 23, 2007, and submitted as a SIP revision on May 30, 2007, recodified and revised the provisions as 30 TAC Section 117.9810. The TCEQ adopted further revisions to 30 TAC Section 117.9810 on June 3, 2015, and submitted these provisions as a SIP revision on July 10, 2015; this section now only applies to DFW area sources that seek to use emission reductions generated from TERP to meet NOX emission control requirements. II. The EPA’s Evaluation The TSDs for this action include a detailed analysis of the revisions submitted for EPA’s consideration. In many instances the revisions are minor or non-substantive in nature and do not change the intent of the original SIPapproved program. Following is a summary of our analysis for those revisions that we view as substantive revisions to our initial SIP-approvals. A. Revisions to the MECT and HECT for Using Allowances as NNSR Offsets In the August 14, 2015 submittal, the TCEQ expanded the MECT program at 30 TAC Section 101.352 and the HECT Program at 30 TAC Section 101.393, such that MECT allowances can be used for the entirety of the NNSR NOX offset obligation and HECT allowances can be used for the entirety of the NNSR VOC offset obligation, rather than just the 1:1 portion of the offset, as long as the use is authorized in a NNSR permit issued under the SIP-approved NNSR program at 30 TAC Chapter 116, Subchapter B. The TCEQ adopted and submitted additional clarifications to both the MECT and HECT Program regulations that clarify the applicable offset obligation will be met by a permanent stream of allowances and not through the use of a banked, or vintage allowance or an allowance allocated based on allowable emissions. The owner or operator of the facility must have the necessary allowances in the respective compliance account 30 days PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 21921 prior to operation. The TCEQ will setaside the portion of allowances for the 1:1 offset obligation; the owner/operator is required to set aside additional allowances if there is a short fall in the offset obligation due to allowance devaluation. The TCEQ will also permanently retire the allowances used for the environmental benefit portion of the offset obligation (the greater than 1:1 portion of the offset obligation). The TCEQ also provides the mechanism under the MECT or HECT Programs where the owner or operator can request the release of allowances if an alternative means of compliance with the offset obligation is approved. The TCEQ will not retroactively release allowances and the portion of allowances retired for the environmental benefit contribution will not be released. The requirements for NNSR offsets are established under section 173(c) of the CAA. Section 173(c)(1) provides that an owner or operator of a stationary source may comply with any offset requirement by obtaining emission reductions of the air pollutant from the same source or other sources in the same nonattainment area. Emission reductions used for offsets must be in effect and enforceable by the time the new or modified source commences operation and ensure that the total tonnage of increased emissions of the air pollutant shall be offset by the equal or greater reduction in actual emissions. Sections 173(c)(1)(A) and (B) provide exceptions to the location of the offsetting emission reductions by providing that reductions may be achieved in another nonattainment area if the area is of an equal or higher nonattainment classification and emissions from the other area contribute to a violation of the NAAQS in the nonattainment area where the source will be located. Section 173(c)(2) provides that emission reductions required elsewhere under the Act will not be creditable as emission reductions for purposes of NNSR offsets. The EPA regulations pertaining to NNSR offset requirements are found at 40 CFR 51.165(a)(3). The EPA has provided specific guidance for the interactions between multi-source emission cap and trade programs and the NNSR permitting program in our EIP Guidance under sections 6.3(d) and Appendix 16.14. Together, these sections provide that reductions from an EIP can be used for NNSR purposes provided that the emission reductions independently meet the relevant NNSR requirements in the CAA and in EPA’s regulations and guidance. Further, major sources and modifications may not be exempted E:\FR\FM\11MYR1.SGM 11MYR1 pmangrum on DSK3GDR082PROD with RULES 21922 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations from NSR requirements and the reductions under the EIP may not be used for netting unless they occur contemporaneously with use and occur at the same source as the emission increase. The EIP Guidance reiterates that reductions used for NNSR offsets must be federally enforceable and satisfy the requirements of CAA section 173(c). The revisions to the MECT and HECT offset provisions continue to satisfy the offset requirements under CAA Section 173(c). First as to location, an owner/ operator with a NOX offset obligation in the HGB area could use the MECT allowances to satisfy the offset obligation since the allowances are provided in the HGB ozone nonattainment area. Similarly, an owner/operator with a VOC offset obligation in the HGB area could use the HECT allowances to satisfy the offset obligation since the allowances are provided in the HGB ozone nonattainment area. The use of allowances for the entirety of the offset obligation is not restricted by the CAA, nor is it restricted under the EPA’s EIP at Appendix 16.14. The MECT and HECT revisions specify that the allowances must be obtained 30 days prior to commencement of operation, ensuring that the requirements under CAA section 173(c)(1) regarding timing are satisfied. A source from outside the HGB ozone nonattainment area could theoretically use MECT allowances for NOX offset compliance or HECT allowances for VOC offset compliance, provided that the HGB ozone nonattainment area is of equal or greater nonattainment designation and that the source could demonstrate emissions from HGB contribute to a NAAQS violation in the other nonattainment area of use. The EPA believes that the possibility of the use of MECT or HECT allowances for an offset obligation outside of the HGB area will be extremely limited because any source trying to use MECT or HECT allowances outside of the HGB would be obligated to make the above-referenced demonstrations under CAA section 173(c)(1)(A) and (B) to ensure that the CAA is satisfied. Finally, the MECT and HECT caps and the pending revisions to the MECT and HECT programs are not required by the CAA; therefore, MECT or HECT allowances would be creditable for offset purposes under CAA section 173(c)(2). The revisions to the MECT and HECT also satisfy the NNSR offset criteria established in EPA’s EIP Guidance, Appendix 16.14. The use of MECT or HECT allowances for netting out of NNSR requirements is prohibited under VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 the SIP-approved program requirements. Ultimately, by using a permanent stream of allowances to satisfy the entirety of the NNSR offset obligation, the overall MECT or HECT cap will be reduced. Therefore, the air shed will be protected while still providing for future growth consistent with the goals of the CAA and the NNSR program. B. Revisions to How DERCs Are Used as NNSR Offsets The August 14, 2015 submitted revisions to the DEC Program included revisions on how DERCs can be used as NNSR offsets and how this usage is accounted for in the applicable NNSR permit. The current SIP-approved language requires that if DECs are to be used for the offset obligation in an NNSR permit, the applicable permit will include an enforceable requirement that the facility obtain at least one additional year of DECs for offsets before continuing operation; this creates a rolling requirement for the owner/ operator of the stationary source to obtain and request approval for the use of DECs each year under an NNSR permit. In the August 14, 2015 submittal, the TCEQ revised the regulations so that the prior language applies only to the use of MDERCs as NNSR offsets. For DERCs, the user must complete an application form to use DERCs at least 90 days before operation and at least 90 days before continuing operation for any period that was not included in the initial application. This change has been made to reflect that users of DERCs for offsets are generally obtaining sufficient DERCs to cover several years of operation, if not the entirety of the expected lifetime of the source, before commencing construction. In those situations, the prior SIP-approved language created an undue burden on the owner or operator to annually submit paperwork when the DERCs had already been obtained and approved for use. Under the revised regulations, the enforceable commitment to obtain sufficient DERCs is the NNSR permit requirement that emissions must be offset prior to the commencement of operation. If the owner or operator is using DERCs for the offset obligation they still must obtain the DERCs in advance of operation and have those DERCs approved for use by the TCEQ Executive Director. While the submitted revisions change the method in which users of DERCs as NNSR offsets request approval of such use from the TCEQ, the underlying premise of using DERCs as NNSR offsets is unchanged. The change in methodology is consistent with the offset requirements of the CAA at PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 173(c)(1) that require the offsets to be in effect and enforceable by the time the source commences operation. C. Use of DERCs in the DFW Ozone Nonattainment Area On December 22, 2008, the TCEQ submitted revisions to the Texas SIP Narrative and the state’s Emissions Banking and Trading Rules at 30 TAC Sections 101.376 and 101.379 to address the use of DERCs in the DFW nonattainment area with respect to the 1997 eight-hour ozone NAAQS. The submitted regulations created an enforceable mechanism to restrict the use of DERCs in the DFW eight-hour ozone nonattainment area through the establishment of the DFW DERC limit. The DFW DERC limit was calculated as a ton per day limit based on the TCEQ’s photochemical modeling demonstration, emission reductions from fleet turnover that were not used to satisfy attainment SIP contingency measures and DERCs generated and not used after the inception of the DFW DERC limit. The TCEQ submitted the DFW attainment demonstration for the 2008 ozone NAAQS on July 10, 2015, with updates submitted on August 5, 2016. As part of these revisions, the TCEQ reevaluated the DERC usage limitations for the DFW area. The TCEQ determined that the previously adopted and submitted DFW DERC limit calculation was unsustainable. The July 10, 2015 submittal included sensitivity analyses that modeled a fixed 17.0 tpd limit and enabled the DFW area to reach attainment. The TCEQ submitted the revised DFW DERC limit and associated revisions to the DERC regulations in the August 14, 2015 submittal. In addition to the limit on DERC usage in DFW, the TCEQ adopted and submitted an exemption from this limit in the December 22, 2008 with updates submitted on May 14, 2013. This exemption is specific to DERCs used in the DFW area in response to an emergency situation declared by the Electric Reliability Council of Texas (ERCOT) where the safety or reliability of the Texas electric grid is compromised or threatened. The EPA finds this exemption approvable because the TCEQ Executive Director can only approve these requests if all other requirements for DERC usage are satisfied. The DERC usage requirements are protective of the NAAQS by requiring the TCEQ Executive Director to consider the locations requested for DERC usage and determine whether the requested use would cause or contribute to a violation of the NAAQS through ozone spike formation. E:\FR\FM\11MYR1.SGM 11MYR1 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations pmangrum on DSK3GDR082PROD with RULES The EPA is taking action now to evaluate and approve the revisions to the DEC regulations themselves that adopt and implement the DERC usage limit for the DFW ozone nonattainment area as submitted on December 22, 2008, and revised in the May 14, 2013 and August 14, 2015 submittals. The EPA believes it is appropriate to approve the regulations to restrict DERC usage in the DFW nonattainment area. We support the use of a fixed daily limit as provided in the sensitivity analyses of the DFW Attainment Demonstration for the 2008 ozone NAAQS because of the clarity provided to the sources using DERCs and the TCEQ in implementing the usage restrictions. We find that the adopted revisions for the DFW DERC limit are sufficient to restrict DERC usage consistent with the levels modeled by the TCEQ in the DFW Attainment Demonstration for the 2008 ozone NAAQS. While this direct final action approves the regulations for the DFW DERC limit, we are not evaluating the DFW Attainment Demonstration at this time. D. Analysis of Compliance Flexibility With TERP Site owners or operators subject to the MECT in HGB or the Chapter 117 NOX requirements for DFW 2 have an obligation to meet certain NOX emission limits. Site owners or operators unable to meet these emission limitations and desiring to use TERP emission reductions for compliance relief, can petition the TCEQ Executive Director for a determination of technical infeasibility. The regulations state that an owner or operator should demonstrate that they cannot comply with the entirety of the NOX obligation at the current time, but rather can comply with 80% of their obligation. The owner or operator must further demonstrate that the source will be in full compliance with the NOX obligation within 5 years of the compliance deadline. In determining whether to grant the petition for technical infeasibility, the TCEQ Executive Director will consider at a minimum: Current technology, adaptability of technology to a specific source, age and projected useful life of the source and cost benefits at the time of application. If the TCEQ Executive Director agrees with the petition for technical infeasibility, the site owner or operator can defer 20% of their NOX compliance 2 The compliance flexibility provisions under 30 TAC Section 117.9810 can be used by DFW area sources subject to the requirements at 30 TAC Sections 117.405 (reasonably available control technology), 117.410 (major sources), or 117.1310 (electric generating sources). VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 obligation by paying into the TERP fund at a cost of $75,000 per ton of NOX emissions; not to exceed 25 tons per year or 0.5 tons per day on a site-wide basis. The TCEQ uses this money to fund TERP projects to benefit the community where the site using the emissions reductions is located. Because the cost per ton of NOX ($75,000 per ton) is much greater than the cost effectiveness of TERP programs (an average of $6,165 per ton from the beginning of TERP in 2002 through August 31, 2015) 3 it is expected that this provision will allow for much greater emission reductions and much greater environmental benefit than would otherwise be obtained. E. Analysis Under Section 110(l) of the CAA Our analysis indicates that the July 15, 2002; December 22, 2008; April 6, 2010; May 14, 2013, and August 14, 2015 submitted revisions to the Texas EC, MECT, DEC, and HECT Programs were adopted and submitted as revisions to the Texas SIP after reasonable notice and public hearing. The Texas EC and DEC programs are SIP approved programs that provide for compliance flexibility and generation and use of emission credits in the SIPapproved NNSR permitting program. The Texas MECT and HECT are necessary components of the HGB nonattainment requirements. The submitted revisions to the EC, MECT, DEC and HECT clarify and update the existing programs—these submitted revisions do not change the fundamental premise or structure of the programs. Therefore, we find that the revisions to the EC, MECT, DEC and HECT will not interfere with attainment, reasonable further progress or any other applicable requirements of the Act. The revisions to the MECT adopted on March 13, 2002, and submitted on July 15, 2002, establish a new provision under the MECT allowing for compliance flexibility with MECT requirements by using TERP projects. Similarly, the compliance flexibility provisions for Chapter 117 NOX obligations in DFW initially submitted on July 15, 2002 and revised on May 30, 2007, and July 14, 2015, establish the ability for a source to comply with NOX obligations by funding TERP projects. The EPA believes that the compliance flexibility afforded under 30 TAC Sections 101.357 and 117.9810 is approvable and, if used, would result in an equal or greater reduction of NOX emissions in the respective airshed from 3 March 22, 2016 email from Steve Dayton, TCEQ, to Clovis Steib, EPA Region 6. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 21923 a combination of stationary and mobile sources. Therefore, these compliance flexibility provisions will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of this CAA. III. Final Action We are approving through a direct final action the submitted revisions to the Texas Emissions Banking and Trading Programs from July 15, 2002; December 22, 2008; April 6, 2010; May 14, 2013; and August 14, 2015. The EPA has determined that these revisions are approvable because the submitted rules were adopted and submitted in accordance with the CAA and are necessary to update functionality of the SIP-approved trading programs and are consistent with the CAA and the EPA’s policy and guidance on emissions trading. Therefore, under section 110 of the Act, the EPA is approving the following revisions to the Texas SIP: • Revisions to the 30 TAC Chapter 101, Subchapter H, Division 1 Title submitted August 14, 2015; • Revisions to 30 TAC Section 101.300 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.301 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.302 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.303 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.306 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.309 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.350 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.351 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.352 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.353 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.354 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.356 adopted on June 3, 2015 and submitted August 14, 2015; • New 30 TAC Section 101.357 adopted on March 13, 2002 and submitted July 15, 2002; E:\FR\FM\11MYR1.SGM 11MYR1 pmangrum on DSK3GDR082PROD with RULES 21924 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations • Repeal of 30 TAC Section 101.358 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.359 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.360 adopted on June 3, 2015 and submitted August 14, 2015. • Revisions to the 30 TAC Chapter 101, Subchapter H, Division 4 Title submitted August 14, 2015; • Revisions to 30 TAC Section 101.370 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.371 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.372 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.373 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.376 adopted on December 10, 2008 and submitted December 22, 2008; • Revisions to 30 TAC Section 101.376 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.378 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.379 adopted on December 10, 2008 and submitted December 22, 2008; • Revisions to 30 TAC Section 101.379 adopted on April 10, 2013 and submitted May 14, 2013; • Revisions to 30 TAC Section 101.379 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to the 30 TAC Chapter 101, Subchapter H, Division 6 Title submitted August 14, 2015; • Revisions to 30 TAC Section 101.390 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.391 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.392 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.393 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.394 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.396(b) adopted on March 10, 2010 and submitted on April 6, 2010; • Revisions to 30 TAC Section 101.396 adopted on June 3, 2015 and submitted August 14, 2015; • Revisions to 30 TAC Section 101.399 adopted on June 3, 2015 and submitted August 14, 2015; and VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 • Revisions to 30 TAC Section 101.400 adopted on June 3, 2015 and submitted August 14, 2015. The EPA has also determined that the revisions to the NOX requirements under 30 TAC Chapter 117 submitted on July 15, 2002; May 30, 2007; and July 10, 2015 allowing for compliance flexibility using the TERP are approvable and were adopted and submitted in accordance with the CAA. Therefore, under section 110 of the Act, the EPA is approving the following revisions to the Texas SIP: • Revisions to 30 TAC Section 117.571 adopted on March 13, 2002, and submitted July 15, 2002; • The recodification of 30 TAC Section 117.571 as new 30 TAC Section 117.9810 adopted on May 23, 2007, and submitted on May 30, 2007; and • Revisions to 30 TAC Section 117.9810 adopted on June 3, 2015, and submitted on July 10, 2015. Additionally, we are making a nonsubstantive revision and a ministerial correction to the table in 40 CFR 52.2270(c). The EPA is making a nonsubstantive revision at 40 CFR 52.2270(c) to remove a duplicative entry for 30 TAC Section 117.9800—Use of Emission Credits for Compliance. The EPA initially approved this section as submitted by the State on April 6, 2012, on July 31, 2014 (79 FR 44300). We then approved revisions to this section submitted by the State on July 3, 2015, on April 13, 2016 (81 FR 21750), but did not remove the initial entry of our approval from the table. Additionally, we are making a ministerial correction to reflect that 30 TAC Section 117.410(c), (pertaining to carbon monoxide and ammonia emissions), is not in the EPA-approved Texas SIP. Our April 13, 2016 final action on the Texas SIP did not properly update the CFR table to show a recodification of subsections in 30 TAC Section 117.410 (81 FR 21750). The EPA is also revising the table in 40 CFR 52.2270(e) for Nonregulatory and Quasi-Regulatory Measures to reflect our final action on the DERC SIP Narrative adopted on December 10, 2008 and submitted on December 22, 2008 by the State. The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on July 10, 2017 without further notice unless we receive relevant adverse comment by June 12, 2017. If PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. IV. Incorporation by Reference In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office. V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); E:\FR\FM\11MYR1.SGM 11MYR1 21925 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The 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). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 10, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen oxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Samuel Coleman was designated the Acting Regional Administrator on April 27, 2017, through the order of succession outlined in Regional Order R6–1110.1, a copy of which is included in the docket for this action. Dated: April 27, 2017. Samuel Coleman, Acting Regional Administrator, Region 6. PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. Subpart SS—Texas 2. In § 52.2270: a. In paragraph (c), the table titled ‘‘EPA Approved Regulations in the Texas SIP’’ is amended by: ■ i. Revising the centered headings for Divisions 1, 4 and 6 under Chapter 101, Subchapter H and the entries for Sections 101.300–101.303, 101.306, 101.309, 101.350–101.354, 101.356, 101.359, 101.360, 101.370–101.373, 101.376, 101.378, 101.379, 101.390– 101.394, 101.396, 101.399, 101.400, and 117.410; ■ ii. Removing the entry for Section 101.358 and the second entry for Section 117.9800; and ■ iii. Adding in numerical order entries for Sections 101.357 and 117.9810. ■ b. In paragraph (e), the second table titled ‘‘EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP’’ is amended by adding the entry ‘‘Discrete Emissions Reduction Credits (DERC) SIP’’ at the end. The revisions and additions read as follows: ■ ■ § 52.2270 * 40 CFR part 52 is amended as follows: Identification of plan. * * (c) * * * * * EPA-APPROVED REGULATIONS IN THE TEXAS SIP State citation * State approval/ submittal date Title/subject * * EPA approval date * * Explanation * * * * Chapter 101—General Air Quality Rules * * * * * pmangrum on DSK3GDR082PROD with RULES Subchapter H—Emissions Banking and Trading Division 1—Emission Credit Program Section 101.300 ...................... Definitions .............................. 6/3/2015 Section 101.301 ...................... Purpose .................................. 6/3/2015 Section 101.302 ...................... General Provisions ................ 6/3/2015 VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 PO 00000 Frm 00013 Fmt 4700 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1 21926 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued State citation State approval/ submittal date Title/subject Section 101.303 ...................... Emission Reduction Credit Generation and Certification. EPA approval date Explanation 6/3/2015 5/11/2017, [Insert Federal Register citation]. * * * Section 101.306 ...................... Emission Credit Use .............. * 6/3/2015 * * Section 101.309 ...................... 6/3/2015 * 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. * 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. * * * * * * Emission Credit Banking and Trading. * * * Section 101.350 ...................... Definitions .............................. * 6/3/2015 Section 101.351 ...................... Applicability ............................ 6/3/2015 Section 101.352 ...................... General Provisions ................ 6/3/2015 Section 101.353 ...................... Allocation of Allowances ........ 6/3/2015 Section 101.354 ...................... Allowance Deductions ........... 6/3/2015 Section 101.356 ...................... 6/3/2015 Section 101.359 ...................... Allowance Banking and Trading. Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP). Reporting ............................... Section 101.360 ...................... Level of Activity Certification Section 101.357 ...................... * * * 3/13/2002 6/3/2015 6/3/2015 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. * * Division 4—Discrete Emission Credit Program Section 101.370 ...................... Definitions .............................. 6/3/2015 Section 101.371 ...................... Purpose .................................. 6/3/2015 Section 101.372 ...................... General Provisions ................ 6/3/2015 Section 101.373 ...................... Discrete Emission Reduction Credit Generation and Certification. 6/3/2015 * * * Section 101.376 ...................... Discrete Emission Credit Use * 6/3/2015 Section 101.378 ...................... 6/3/2015 Section 101.379 ...................... Discrete Emission Credit Banking and Trading. Program Audits and Reports 6/3/2015 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. * 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. Division 6—Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program Definitions .............................. 6/3/2015 Section 101.391 ...................... pmangrum on DSK3GDR082PROD with RULES Section 101.390 ...................... Applicability ............................ 6/3/2015 Section 101.392 ...................... Exemptions ............................ 6/3/2015 Section 101.393 ...................... General Provisions ................ 6/3/2015 Section 101.394 ...................... Allocation of Allowances ........ 6/3/2015 Section 101.396 ...................... Allowance Deductions ........... 6/3/2015 VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 PO 00000 Frm 00014 Fmt 4700 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1 21927 Federal Register / Vol. 82, No. 90 / Thursday, May 11, 2017 / Rules and Regulations EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued State approval/ submittal date State citation Title/subject Section 101.399 ...................... Allowance Banking and Trading. Reporting ............................... Section 101.400 ...................... 6/3/2015 6/3/2015 EPA approval date Explanation 5/11/2017, [Insert Federal Register citation]. 5/11/2017, [Insert Federal Register citation]. * * * Section 117.410 ...................... Emission Specifications for Eight-Hour Attainment Demonstration Reporting. * 6/3/2015 * * * 4/13/2016, 81 FR 21750 ........ 117.410(c) NOT in SIP. * * * Section 117.9810 .................... Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP). * 6/3/2015 * 5/11/2017, [Insert Federal Register citation]. * * * * * (e) * * * * * * * * * * * * * * * * * EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP Name of SIP provision Applicable geographic or nonattainment area * * * Discrete Emissions Reduction Collin, Dallas, Denton, Ellis, Credits (DERC) SIP. Johnson, Kaufman, Parker, Rockwall and Tarrant Counties, TX. * * * * * [FR Doc. 2017–09472 Filed 5–10–17; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61 and 63 [EPA–R09–OAR–2017–0071; FRL–9961–79Region 9] Delegation of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for the States of Arizona and Nevada Environmental Protection Agency (EPA). ACTION: Direct final rule. pmangrum on DSK3GDR082PROD with RULES AGENCY: The Environmental Protection Agency (EPA) is taking direct final action to update the Code of Federal Regulations delegation tables to reflect the current delegation status of New SUMMARY: VerDate Sep<11>2014 14:36 May 10, 2017 Jkt 241001 State submittal/ effective date * 12/10/2008 EPA approval date * 5/11/2017, [Insert Federal Register citation]. Source Performance Standards and National Emission Standards for Hazardous Air Pollutants in Arizona and Nevada. DATES: This rule is effective on July 10, 2017 without further notice, unless EPA receives adverse comments by June 12, 2017. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R09– OAR–2017–0071 at https:// www.regulations.gov, or via email to Steckel.Andrew@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 Comments * * Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX, (415) 947– 4152, buss.jeffrey@epa.gov. E:\FR\FM\11MYR1.SGM 11MYR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 82, Number 90 (Thursday, May 11, 2017)]
[Rules and Regulations]
[Pages 21919-21927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09472]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0585; FRL-9960-22-Region 6]

Approval and Promulgation of Implementation Plans; Texas;
Revisions to Emissions Banking and Trading Programs and Compliance
Flexibility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is approving revisions to the
Texas State Implementation Plan (SIP) Emissions Banking and Trading
Programs submitted on July 15, 2002; December 22, 2008; April 6, 2010;
May 14, 2013; and August 14, 2015. Specifically, we are approving
revisions to the Texas Emission Credit, Mass Emissions Cap and Trade,
Discrete Emission Credit, and Highly Reactive Volatile Organic Compound
Emissions Cap and Trade Programs such that the Texas SIP will include
the current state program regulations promulgated and implemented in
Texas. We are also approving compliance flexibility provisions for
stationary sources using the Texas Emission Reduction Plan submitted on
July 15, 2002; May 30, 2007; and July 10, 2015.

DATES: This rule is effective on July 10, 2017 without further notice,
unless the EPA receives relevant adverse comment by June 12, 2017. If
the EPA receives such comment, the EPA will publish a timely withdrawal
in the Federal Register informing the public that this rule will not
take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0585, at https://www.regulations.gov or via email to
wiley.adina@epa.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Adina Wiley, 214-665-
2115, wiley.adina@epa.gov. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Adina Wiley, 214-665-2115,
wiley.adina@epa.gov. To inspect the hard copy materials, please
schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-
665-7253.

[[Page 21920]]

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

I. Background

A. CAA and SIPs

Section 110 of the CAA requires states to develop and submit to the
EPA a SIP to ensure that state air quality meets the National Ambient
Air Quality Standards (NAAQS). These ambient standards currently
address six criteria pollutants: Carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide. Each federally-
approved SIP protects air quality primarily by addressing air pollution
at its point of origin through air pollution regulations and control
strategies. The EPA approved SIP regulations and control strategies are
federally enforceable.
The Texas SIP includes several discretionary emissions trading
programs developed consistent with the EPA's Economic Incentive Program
Guidance, that are designed to promote flexibility and innovation in
complying with State and Federal air emission requirements established
in the SIP and the SIP-approved air permitting programs.\1\ This direct
final action will address the revisions to the Texas Emission Credit
(EC), Mass Emissions Cap and Trade (MECT), Discrete Emission Credit
(DEC), and Highly Reactive Volatile Organic Compound Emissions Cap and
Trade (HECT) programs that were submitted to the EPA on July 15, 2002;
December 22, 2008; April 6, 2010; May 14, 2013; and August 14, 2015,
where the EPA has not yet taken an action on such revisions. This
direct final action also addresses another method for compliance
flexibility for stationary sources using the Texas Emission Reduction
Plan (TERP) as submitted to the EPA on July 15, 2002; May 30, 2007; and
July 10, 2015. Where the TCEQ also adopted and submitted revisions to
other parts of the Texas SIP, those revisions have been addressed in
separate rulemakings. Please see the Technical Support Documents
accompanying this rulemaking for an identification of the specific
sections impacted by this direct final rulemaking.
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\1\ ``Improving Air Quality with Economic Incentive Programs''
(EIP Guidance) (EPA-452/R-01-001, January 2001) is the EPA guidance
document for reviewing and approving discretionary EIP submittals.
The EIP Guidance applies to the establishment of a discretionary EIP
for attaining or maintaining the national ambient air quality
standards (NAAQS) for criteria pollutants. The EIP Guidance
supersedes and takes precedence over the discretionary EIP guidance
provided in prior documents such as the 1994 EIP (April 7, 1994, 59
FR 16690, 40 CFR part 51, subpart U) and the guidance in the
emission trading policy statement (ETPS) (December 4, 1986, 51 FR
43813).
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B. Overview of the Texas Emissions Banking and Trading Programs

1. The Emission Credit (EC) Program
The EC Program enacted at 30 Texas Administrative Code (TAC)
Chapter 101, Subchapter H, Division 1 allows owners or operators of a
facility or mobile source to generate emission credits by reducing
emissions of criteria pollutants or their precursors, with the
exception of lead, below any applicable regulations or requirements.
Emission credits are generated and banked in terms of rate (tons per
year). Emission credits, or ECs, encompass reductions generated and
banked from stationary sources as emission reduction credits (ERCs) or
generated and banked from mobile sources as mobile emission reduction
credits (MERCs). The ECs from the bank have traditionally been used as
offsets for the permitting of major new or modified facilities in
nonattainment areas. ECs have also been banked and traded for
alternative compliance with Reasonably Available Control Technology
(RACT) requirements. The EPA initially approved the EC program on
September 6, 2006 (71 FR 52698) with updates approved on May 18, 2010
(75 FR 27647).
On June 5, 2015, the TCEQ adopted revisions to the EC Program,
including renaming the program to the Emission Credit Program and
revising provisions for mobile and area source credit generation. The
June 5, 2015, revisions to the EC Program were submitted to the EPA as
a SIP revision on August 14, 2015.
2. The Mass Emissions Cap and Trade (MECT) Program
The MECT Program enacted at 30 TAC Chapter 101, Subchapter H,
Division 3 is mandatory under the Texas SIP for stationary facilities
that emit oxides of nitrogen (NOX) in the Houston/Galveston/
Brazoria (HGB) ozone nonattainment area which are subject to emission
specifications in the TCEQ NOX rules at 30 TAC Sections
117.310, 117.1210, and 117.2010; and which are located as a site where
they collectively have an uncontrolled design capacity to emit 10 tons
per year or more of NOX. The program sets a cap on
NOX emissions beginning January 1, 2002, with a final
reduction to the cap occurring in 2007. Facilities are required to meet
NOX allowances on an annual basis. Facilities may purchase,
bank, or sell their allowances. The EPA published a final rule
approving the MECT program on November 14, 2001 (66 FR 57252). The EPA
has acted on several updates to the MECT program since our initial
program approval. See prior EPA actions on September 6, 2006 (71 FR
52698); July 16, 2009 (74 FR 34503); January 2, 2014 (79 FR 57).
TCEQ adopted additional revisions to the MECT on June 5, 2015, and
submitted these revisions to the EPA as a SIP revision on August 14,
2015. The revisions make general updates to the MECT and clarify the
use of allowances for Nonattainment New Source Review (NNSR) offsets.
This rulemaking addresses all revisions to the MECT submitted on August
14, 2015.
3. The Discrete Emission Credit (DEC) Program
The DEC Program enacted at 30 TAC Chapter 101, Subchapter H,
Division 4 allows an owner or operator of a facility or mobile source
to generate discrete emission credits by reducing emissions of criteria
pollutants or their precursors, with the exception of lead, below any
applicable regulation or requirement. Discrete emission credits (DECs)
are quantified, banked and traded in terms of mass (tons), not a rate
as is the case with ECs. DECs may be generated from stationary sources
and banked as discrete emission reduction credits (DERCs) or may be
generated from mobile sources and banked as mobile discrete emission
reduction credits (MDERCs). Traditionally DECs have been used for
Reasonably Available Control Technology (RACT) compliance for (Volatile
Organic Compounds) VOCs and NOX; DECs can also be used to
offset new major sources or major modifications to existing sources in
nonattainment areas. The EPA initially approved the DEC Program on
September 6, 2006, with updates approved on May 18, 2010 (75 FR 27644).
TCEQ has adopted and submitted revisions to the DEC Program on
December 22, 2008 and May 14, 2013 to address the use of DERCs in the
Dallas-Fort Worth (DFW) ozone nonattainment area. Additional revisions
to the DEC program adopted on June 5, 2015, and submitted August 14,
2015, rename the program to the Discrete Emission Credit Program,
further revise the provisions specific to DERC use in DFW, and address
the generation of area and mobile source credits. The EPA is addressing
all pending revisions to the DEC Program in this action.

[[Page 21921]]

4. The Highly Reactive Volatile Organic Compound (HRVOC) Emissions Cap
and Trade (HECT) Program
The HECT Program enacted at 30 TAC Chapter 101, Subchapter H,
Division 6 is mandatory for covered facilities including vent gas
streams, flares, and cooling tower heat exchange systems that emit
HRVOCs, as defined in 30 TAC Section 115.10, and that are located at a
site subject to Chapter 115, Subchapter H. The EPA published final
approval of the HECT program on September 6, 2006 (71 FR 52659).
Since our initial approval of the HECT program, the TCEQ adopted
revisions on March 10, 2010, in conjunction with the development of the
HGB 1997 eight-hour ozone attainment demonstration; these HECT
amendments were submitted as revisions to the Texas SIP on April 6,
2010. On January 2, 2014, the EPA approved the majority of these HECT
amendments in concert with our final approval of the HGB attainment
demonstration for the 1997 eight-hour ozone standard (79 FR 57). Note
that we did not take action on the submitted revision to 30 TAC Section
101.396(b) at the request of the state.
The TCEQ adopted revisions to the HECT program on June 5, 2015, and
submitted these revisions to the SIP on August 14, 2015. The submitted
revisions clarify the use of HECT allowances as NNSR offsets, update
the equations for allowance allocations, update provisions for changing
site ownership, and revise provisions to clarify data substation for
reporting.
This rulemaking addresses the remaining revision to 30 TAC Section
101.396(b) from the April 6, 2010 submittal and all revisions to the
HECT submitted on August 14, 2015.

C. Compliance Flexibility With the Texas Emission Reduction Plan (TERP)

The TERP, implemented with provisions in 30 TAC Chapter 114,
Subchapter K, is a SIP-approved program that provides financial
incentives for reducing emissions from mobile sources. Examples of TERP
grant projects include financial subsidies to upgrade/retrofit diesel
exhaust systems in school buses and replacing heavy-duty and light-duty
on-road diesel vehicles with alternative fuel and hybrid vehicles. TCEQ
adopted new revisions to promote compliance flexibility for stationary
sources subject to NOX control requirements either under the
MECT or under the requirements of 30 TAC Chapter 117 by requiring
partial compliance with the stationary source obligation while
simultaneously funding mobile emission reductions achieved through the
TERP for a set period of time. The compliance flexibility provisions
for sources subject to the MECT were initially adopted on March 13,
2002 and submitted as SIP revisions on July 15, 2002 as new 30 TAC
Section 101.357; no changes have been made since this initial adoption
and submittal. The compliance flexibility provisions for sources
subject to the NOX control requirements in Chapter 117 were
initially adopted on March 13, 2002 and submitted as a SIP revision on
July 15, 2002 as 30 TAC Section117.571. TCEQ has revised this section
twice since its initial adoption. Revisions adopted May 23, 2007, and
submitted as a SIP revision on May 30, 2007, recodified and revised the
provisions as 30 TAC Section 117.9810. The TCEQ adopted further
revisions to 30 TAC Section 117.9810 on June 3, 2015, and submitted
these provisions as a SIP revision on July 10, 2015; this section now
only applies to DFW area sources that seek to use emission reductions
generated from TERP to meet NOX emission control
requirements.

II. The EPA's Evaluation

The TSDs for this action include a detailed analysis of the
revisions submitted for EPA's consideration. In many instances the
revisions are minor or non-substantive in nature and do not change the
intent of the original SIP-approved program. Following is a summary of
our analysis for those revisions that we view as substantive revisions
to our initial SIP-approvals.

A. Revisions to the MECT and HECT for Using Allowances as NNSR Offsets

In the August 14, 2015 submittal, the TCEQ expanded the MECT
program at 30 TAC Section 101.352 and the HECT Program at 30 TAC
Section 101.393, such that MECT allowances can be used for the entirety
of the NNSR NOX offset obligation and HECT allowances can be
used for the entirety of the NNSR VOC offset obligation, rather than
just the 1:1 portion of the offset, as long as the use is authorized in
a NNSR permit issued under the SIP-approved NNSR program at 30 TAC
Chapter 116, Subchapter B. The TCEQ adopted and submitted additional
clarifications to both the MECT and HECT Program regulations that
clarify the applicable offset obligation will be met by a permanent
stream of allowances and not through the use of a banked, or vintage
allowance or an allowance allocated based on allowable emissions. The
owner or operator of the facility must have the necessary allowances in
the respective compliance account 30 days prior to operation. The TCEQ
will set-aside the portion of allowances for the 1:1 offset obligation;
the owner/operator is required to set aside additional allowances if
there is a short fall in the offset obligation due to allowance
devaluation. The TCEQ will also permanently retire the allowances used
for the environmental benefit portion of the offset obligation (the
greater than 1:1 portion of the offset obligation). The TCEQ also
provides the mechanism under the MECT or HECT Programs where the owner
or operator can request the release of allowances if an alternative
means of compliance with the offset obligation is approved. The TCEQ
will not retroactively release allowances and the portion of allowances
retired for the environmental benefit contribution will not be
released.
The requirements for NNSR offsets are established under section
173(c) of the CAA. Section 173(c)(1) provides that an owner or operator
of a stationary source may comply with any offset requirement by
obtaining emission reductions of the air pollutant from the same source
or other sources in the same nonattainment area. Emission reductions
used for offsets must be in effect and enforceable by the time the new
or modified source commences operation and ensure that the total
tonnage of increased emissions of the air pollutant shall be offset by
the equal or greater reduction in actual emissions. Sections
173(c)(1)(A) and (B) provide exceptions to the location of the
offsetting emission reductions by providing that reductions may be
achieved in another nonattainment area if the area is of an equal or
higher nonattainment classification and emissions from the other area
contribute to a violation of the NAAQS in the nonattainment area where
the source will be located. Section 173(c)(2) provides that emission
reductions required elsewhere under the Act will not be creditable as
emission reductions for purposes of NNSR offsets. The EPA regulations
pertaining to NNSR offset requirements are found at 40 CFR
51.165(a)(3).
The EPA has provided specific guidance for the interactions between
multi-source emission cap and trade programs and the NNSR permitting
program in our EIP Guidance under sections 6.3(d) and Appendix 16.14.
Together, these sections provide that reductions from an EIP can be
used for NNSR purposes provided that the emission reductions
independently meet the relevant NNSR requirements in the CAA and in
EPA's regulations and guidance. Further, major sources and
modifications may not be exempted

[[Page 21922]]

from NSR requirements and the reductions under the EIP may not be used
for netting unless they occur contemporaneously with use and occur at
the same source as the emission increase. The EIP Guidance reiterates
that reductions used for NNSR offsets must be federally enforceable and
satisfy the requirements of CAA section 173(c).
The revisions to the MECT and HECT offset provisions continue to
satisfy the offset requirements under CAA Section 173(c). First as to
location, an owner/operator with a NOX offset obligation in
the HGB area could use the MECT allowances to satisfy the offset
obligation since the allowances are provided in the HGB ozone
nonattainment area. Similarly, an owner/operator with a VOC offset
obligation in the HGB area could use the HECT allowances to satisfy the
offset obligation since the allowances are provided in the HGB ozone
nonattainment area. The use of allowances for the entirety of the
offset obligation is not restricted by the CAA, nor is it restricted
under the EPA's EIP at Appendix 16.14. The MECT and HECT revisions
specify that the allowances must be obtained 30 days prior to
commencement of operation, ensuring that the requirements under CAA
section 173(c)(1) regarding timing are satisfied. A source from outside
the HGB ozone nonattainment area could theoretically use MECT
allowances for NOX offset compliance or HECT allowances for
VOC offset compliance, provided that the HGB ozone nonattainment area
is of equal or greater nonattainment designation and that the source
could demonstrate emissions from HGB contribute to a NAAQS violation in
the other nonattainment area of use. The EPA believes that the
possibility of the use of MECT or HECT allowances for an offset
obligation outside of the HGB area will be extremely limited because
any source trying to use MECT or HECT allowances outside of the HGB
would be obligated to make the above-referenced demonstrations under
CAA section 173(c)(1)(A) and (B) to ensure that the CAA is satisfied.
Finally, the MECT and HECT caps and the pending revisions to the MECT
and HECT programs are not required by the CAA; therefore, MECT or HECT
allowances would be creditable for offset purposes under CAA section
173(c)(2).
The revisions to the MECT and HECT also satisfy the NNSR offset
criteria established in EPA's EIP Guidance, Appendix 16.14. The use of
MECT or HECT allowances for netting out of NNSR requirements is
prohibited under the SIP-approved program requirements. Ultimately, by
using a permanent stream of allowances to satisfy the entirety of the
NNSR offset obligation, the overall MECT or HECT cap will be reduced.
Therefore, the air shed will be protected while still providing for
future growth consistent with the goals of the CAA and the NNSR
program.

B. Revisions to How DERCs Are Used as NNSR Offsets

The August 14, 2015 submitted revisions to the DEC Program included
revisions on how DERCs can be used as NNSR offsets and how this usage
is accounted for in the applicable NNSR permit. The current SIP-
approved language requires that if DECs are to be used for the offset
obligation in an NNSR permit, the applicable permit will include an
enforceable requirement that the facility obtain at least one
additional year of DECs for offsets before continuing operation; this
creates a rolling requirement for the owner/operator of the stationary
source to obtain and request approval for the use of DECs each year
under an NNSR permit. In the August 14, 2015 submittal, the TCEQ
revised the regulations so that the prior language applies only to the
use of MDERCs as NNSR offsets. For DERCs, the user must complete an
application form to use DERCs at least 90 days before operation and at
least 90 days before continuing operation for any period that was not
included in the initial application. This change has been made to
reflect that users of DERCs for offsets are generally obtaining
sufficient DERCs to cover several years of operation, if not the
entirety of the expected lifetime of the source, before commencing
construction. In those situations, the prior SIP-approved language
created an undue burden on the owner or operator to annually submit
paperwork when the DERCs had already been obtained and approved for
use. Under the revised regulations, the enforceable commitment to
obtain sufficient DERCs is the NNSR permit requirement that emissions
must be offset prior to the commencement of operation. If the owner or
operator is using DERCs for the offset obligation they still must
obtain the DERCs in advance of operation and have those DERCs approved
for use by the TCEQ Executive Director. While the submitted revisions
change the method in which users of DERCs as NNSR offsets request
approval of such use from the TCEQ, the underlying premise of using
DERCs as NNSR offsets is unchanged. The change in methodology is
consistent with the offset requirements of the CAA at 173(c)(1) that
require the offsets to be in effect and enforceable by the time the
source commences operation.

C. Use of DERCs in the DFW Ozone Nonattainment Area

On December 22, 2008, the TCEQ submitted revisions to the Texas SIP
Narrative and the state's Emissions Banking and Trading Rules at 30 TAC
Sections 101.376 and 101.379 to address the use of DERCs in the DFW
nonattainment area with respect to the 1997 eight-hour ozone NAAQS. The
submitted regulations created an enforceable mechanism to restrict the
use of DERCs in the DFW eight-hour ozone nonattainment area through the
establishment of the DFW DERC limit. The DFW DERC limit was calculated
as a ton per day limit based on the TCEQ's photochemical modeling
demonstration, emission reductions from fleet turnover that were not
used to satisfy attainment SIP contingency measures and DERCs generated
and not used after the inception of the DFW DERC limit.
The TCEQ submitted the DFW attainment demonstration for the 2008
ozone NAAQS on July 10, 2015, with updates submitted on August 5, 2016.
As part of these revisions, the TCEQ reevaluated the DERC usage
limitations for the DFW area. The TCEQ determined that the previously
adopted and submitted DFW DERC limit calculation was unsustainable. The
July 10, 2015 submittal included sensitivity analyses that modeled a
fixed 17.0 tpd limit and enabled the DFW area to reach attainment. The
TCEQ submitted the revised DFW DERC limit and associated revisions to
the DERC regulations in the August 14, 2015 submittal.
In addition to the limit on DERC usage in DFW, the TCEQ adopted and
submitted an exemption from this limit in the December 22, 2008 with
updates submitted on May 14, 2013. This exemption is specific to DERCs
used in the DFW area in response to an emergency situation declared by
the Electric Reliability Council of Texas (ERCOT) where the safety or
reliability of the Texas electric grid is compromised or threatened.
The EPA finds this exemption approvable because the TCEQ Executive
Director can only approve these requests if all other requirements for
DERC usage are satisfied. The DERC usage requirements are protective of
the NAAQS by requiring the TCEQ Executive Director to consider the
locations requested for DERC usage and determine whether the requested
use would cause or contribute to a violation of the NAAQS through ozone
spike formation.

[[Page 21923]]

The EPA is taking action now to evaluate and approve the revisions
to the DEC regulations themselves that adopt and implement the DERC
usage limit for the DFW ozone nonattainment area as submitted on
December 22, 2008, and revised in the May 14, 2013 and August 14, 2015
submittals. The EPA believes it is appropriate to approve the
regulations to restrict DERC usage in the DFW nonattainment area. We
support the use of a fixed daily limit as provided in the sensitivity
analyses of the DFW Attainment Demonstration for the 2008 ozone NAAQS
because of the clarity provided to the sources using DERCs and the TCEQ
in implementing the usage restrictions. We find that the adopted
revisions for the DFW DERC limit are sufficient to restrict DERC usage
consistent with the levels modeled by the TCEQ in the DFW Attainment
Demonstration for the 2008 ozone NAAQS. While this direct final action
approves the regulations for the DFW DERC limit, we are not evaluating
the DFW Attainment Demonstration at this time.

D. Analysis of Compliance Flexibility With TERP

Site owners or operators subject to the MECT in HGB or the Chapter
117 NOX requirements for DFW \2\ have an obligation to meet
certain NOX emission limits. Site owners or operators unable
to meet these emission limitations and desiring to use TERP emission
reductions for compliance relief, can petition the TCEQ Executive
Director for a determination of technical infeasibility. The
regulations state that an owner or operator should demonstrate that
they cannot comply with the entirety of the NOX obligation
at the current time, but rather can comply with 80% of their
obligation. The owner or operator must further demonstrate that the
source will be in full compliance with the NOX obligation
within 5 years of the compliance deadline. In determining whether to
grant the petition for technical infeasibility, the TCEQ Executive
Director will consider at a minimum: Current technology, adaptability
of technology to a specific source, age and projected useful life of
the source and cost benefits at the time of application. If the TCEQ
Executive Director agrees with the petition for technical
infeasibility, the site owner or operator can defer 20% of their
NOX compliance obligation by paying into the TERP fund at a
cost of $75,000 per ton of NOX emissions; not to exceed 25
tons per year or 0.5 tons per day on a site-wide basis. The TCEQ uses
this money to fund TERP projects to benefit the community where the
site using the emissions reductions is located. Because the cost per
ton of NOX ($75,000 per ton) is much greater than the cost
effectiveness of TERP programs (an average of $6,165 per ton from the
beginning of TERP in 2002 through August 31, 2015) \3\ it is expected
that this provision will allow for much greater emission reductions and
much greater environmental benefit than would otherwise be obtained.
---------------------------------------------------------------------------

\2\ The compliance flexibility provisions under 30 TAC Section
117.9810 can be used by DFW area sources subject to the requirements
at 30 TAC Sections 117.405 (reasonably available control
technology), 117.410 (major sources), or 117.1310 (electric
generating sources).
\3\ March 22, 2016 email from Steve Dayton, TCEQ, to Clovis
Steib, EPA Region 6.
---------------------------------------------------------------------------

E. Analysis Under Section 110(l) of the CAA

Our analysis indicates that the July 15, 2002; December 22, 2008;
April 6, 2010; May 14, 2013, and August 14, 2015 submitted revisions to
the Texas EC, MECT, DEC, and HECT Programs were adopted and submitted
as revisions to the Texas SIP after reasonable notice and public
hearing. The Texas EC and DEC programs are SIP approved programs that
provide for compliance flexibility and generation and use of emission
credits in the SIP-approved NNSR permitting program. The Texas MECT and
HECT are necessary components of the HGB nonattainment requirements.
The submitted revisions to the EC, MECT, DEC and HECT clarify and
update the existing programs--these submitted revisions do not change
the fundamental premise or structure of the programs. Therefore, we
find that the revisions to the EC, MECT, DEC and HECT will not
interfere with attainment, reasonable further progress or any other
applicable requirements of the Act.
The revisions to the MECT adopted on March 13, 2002, and submitted
on July 15, 2002, establish a new provision under the MECT allowing for
compliance flexibility with MECT requirements by using TERP projects.
Similarly, the compliance flexibility provisions for Chapter 117
NOX obligations in DFW initially submitted on July 15, 2002
and revised on May 30, 2007, and July 14, 2015, establish the ability
for a source to comply with NOX obligations by funding TERP
projects. The EPA believes that the compliance flexibility afforded
under 30 TAC Sections 101.357 and 117.9810 is approvable and, if used,
would result in an equal or greater reduction of NOX
emissions in the respective airshed from a combination of stationary
and mobile sources. Therefore, these compliance flexibility provisions
will not interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable
requirement of this CAA.

III. Final Action

We are approving through a direct final action the submitted
revisions to the Texas Emissions Banking and Trading Programs from July
15, 2002; December 22, 2008; April 6, 2010; May 14, 2013; and August
14, 2015. The EPA has determined that these revisions are approvable
because the submitted rules were adopted and submitted in accordance
with the CAA and are necessary to update functionality of the SIP-
approved trading programs and are consistent with the CAA and the EPA's
policy and guidance on emissions trading. Therefore, under section 110
of the Act, the EPA is approving the following revisions to the Texas
SIP:
Revisions to the 30 TAC Chapter 101, Subchapter H,
Division 1 Title submitted August 14, 2015;
Revisions to 30 TAC Section 101.300 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.301 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.302 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.303 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.306 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.309 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.350 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.351 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.352 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.353 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.354 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.356 adopted on June 3,
2015 and submitted August 14, 2015;
New 30 TAC Section 101.357 adopted on March 13, 2002 and
submitted July 15, 2002;

[[Page 21924]]

Repeal of 30 TAC Section 101.358 adopted on June 3, 2015
and submitted August 14, 2015;
Revisions to 30 TAC Section 101.359 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.360 adopted on June 3,
2015 and submitted August 14, 2015.
Revisions to the 30 TAC Chapter 101, Subchapter H,
Division 4 Title submitted August 14, 2015;
Revisions to 30 TAC Section 101.370 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.371 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.372 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.373 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.376 adopted on December
10, 2008 and submitted December 22, 2008;
Revisions to 30 TAC Section 101.376 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.378 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.379 adopted on December
10, 2008 and submitted December 22, 2008;
Revisions to 30 TAC Section 101.379 adopted on April 10,
2013 and submitted May 14, 2013;
Revisions to 30 TAC Section 101.379 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to the 30 TAC Chapter 101, Subchapter H,
Division 6 Title submitted August 14, 2015;
Revisions to 30 TAC Section 101.390 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.391 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.392 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.393 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.394 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.396(b) adopted on March
10, 2010 and submitted on April 6, 2010;
Revisions to 30 TAC Section 101.396 adopted on June 3,
2015 and submitted August 14, 2015;
Revisions to 30 TAC Section 101.399 adopted on June 3,
2015 and submitted August 14, 2015; and
Revisions to 30 TAC Section 101.400 adopted on June 3,
2015 and submitted August 14, 2015.
The EPA has also determined that the revisions to the
NOX requirements under 30 TAC Chapter 117 submitted on July
15, 2002; May 30, 2007; and July 10, 2015 allowing for compliance
flexibility using the TERP are approvable and were adopted and
submitted in accordance with the CAA. Therefore, under section 110 of
the Act, the EPA is approving the following revisions to the Texas SIP:
Revisions to 30 TAC Section 117.571 adopted on March 13,
2002, and submitted July 15, 2002;
The recodification of 30 TAC Section 117.571 as new 30 TAC
Section 117.9810 adopted on May 23, 2007, and submitted on May 30,
2007; and
Revisions to 30 TAC Section 117.9810 adopted on June 3,
2015, and submitted on July 10, 2015.
Additionally, we are making a non-substantive revision and a
ministerial correction to the table in 40 CFR 52.2270(c). The EPA is
making a non-substantive revision at 40 CFR 52.2270(c) to remove a
duplicative entry for 30 TAC Section 117.9800--Use of Emission Credits
for Compliance. The EPA initially approved this section as submitted by
the State on April 6, 2012, on July 31, 2014 (79 FR 44300). We then
approved revisions to this section submitted by the State on July 3,
2015, on April 13, 2016 (81 FR 21750), but did not remove the initial
entry of our approval from the table. Additionally, we are making a
ministerial correction to reflect that 30 TAC Section 117.410(c),
(pertaining to carbon monoxide and ammonia emissions), is not in the
EPA-approved Texas SIP. Our April 13, 2016 final action on the Texas
SIP did not properly update the CFR table to show a recodification of
subsections in 30 TAC Section 117.410 (81 FR 21750). The EPA is also
revising the table in 40 CFR 52.2270(e) for Nonregulatory and Quasi-
Regulatory Measures to reflect our final action on the DERC SIP
Narrative adopted on December 10, 2008 and submitted on December 22,
2008 by the State.
The EPA is publishing this rule without prior proposal because we
view this as a non-controversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on July 10, 2017
without further notice unless we receive relevant adverse comment by
June 12, 2017. If we receive relevant adverse comments, we will publish
a timely withdrawal in the Federal Register informing the public that
the rule will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so now. Please note that if we receive relevant
adverse comment on an amendment, paragraph, or section of this rule and
if that provision may be severed from the remainder of the rule, we may
adopt as final those provisions of the rule that are not the subject of
an adverse comment.

IV. Incorporation by Reference

In this rule, we are finalizing regulatory text that includes
incorporation by reference. In accordance with the requirements of 1
CFR 51.5, we are finalizing the incorporation by reference of the
revisions to the Texas regulations as described in the Final Action
section above. We have made, and will continue to make, these documents
generally available electronically through www.regulations.gov and/or
in hard copy at the EPA Region 6 office.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);

[[Page 21925]]

Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The 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).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 10, 2017. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
oxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

Samuel Coleman was designated the Acting Regional Administrator on
April 27, 2017, through the order of succession outlined in Regional
Order R6-1110.1, a copy of which is included in the docket for this
action.

Dated: April 27, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.

40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. In Sec. 52.2270:
0
a. In paragraph (c), the table titled ``EPA Approved Regulations in the
Texas SIP'' is amended by:
0
i. Revising the centered headings for Divisions 1, 4 and 6 under
Chapter 101, Subchapter H and the entries for Sections 101.300-101.303,
101.306, 101.309, 101.350-101.354, 101.356, 101.359, 101.360, 101.370-
101.373, 101.376, 101.378, 101.379, 101.390-101.394, 101.396, 101.399,
101.400, and 117.410;
0
ii. Removing the entry for Section 101.358 and the second entry for
Section 117.9800; and
0
iii. Adding in numerical order entries for Sections 101.357 and
117.9810.
0
b. In paragraph (e), the second table titled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' is amended by adding the entry ``Discrete Emissions Reduction
Credits (DERC) SIP'' at the end.
The revisions and additions read as follows:

Sec. 52.2270 Identification of plan.

* * * * *
(c) * * *

EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
approval/
State citation Title/subject submittal EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter H--Emissions Banking and Trading
----------------------------------------------------------------------------------------------------------------
Division 1--Emission Credit Program
----------------------------------------------------------------------------------------------------------------
Section 101.300.................. Definitions........ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.301.................. Purpose............ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.302.................. General Provisions. 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].

[[Page 21926]]

Section 101.303.................. Emission Reduction 6/3/2015 5/11/2017, [Insert ...................
Credit Generation Federal Register
and Certification. citation].

* * * * * * *
Section 101.306.................. Emission Credit Use 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.309.................. Emission Credit 6/3/2015 5/11/2017, [Insert ...................
Banking and Federal Register
Trading. citation].

* * * * * * *
Section 101.350.................. Definitions........ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.351.................. Applicability...... 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.352.................. General Provisions. 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.353.................. Allocation of 6/3/2015 5/11/2017, [Insert ...................
Allowances. Federal Register
citation].
Section 101.354.................. Allowance 6/3/2015 5/11/2017, [Insert ...................
Deductions. Federal Register
citation].
Section 101.356.................. Allowance Banking 6/3/2015 5/11/2017, [Insert ...................
and Trading. Federal Register
citation].
Section 101.357.................. Use of Emission 3/13/2002 5/11/2017, [Insert ...................
Reductions Federal Register
Generated from the citation].
Texas Emissions
Reduction Plan
(TERP).
Section 101.359.................. Reporting.......... 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.360.................. Level of Activity 6/3/2015 5/11/2017, [Insert ...................
Certification. Federal Register
citation].

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Division 4--Discrete Emission Credit Program
----------------------------------------------------------------------------------------------------------------
Section 101.370.................. Definitions........ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.371.................. Purpose............ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.372.................. General Provisions. 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.373.................. Discrete Emission 6/3/2015 5/11/2017, [Insert ...................
Reduction Credit Federal Register
Generation and citation].
Certification.

* * * * * * *
Section 101.376.................. Discrete Emission 6/3/2015 5/11/2017, [Insert ...................
Credit Use. Federal Register
citation].
Section 101.378.................. Discrete Emission 6/3/2015 5/11/2017, [Insert ...................
Credit Banking and Federal Register
Trading. citation].
Section 101.379.................. Program Audits and 6/3/2015 5/11/2017, [Insert ...................
Reports. Federal Register
citation].
----------------------------------------------------------------------------------------------------------------
Division 6--Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program
----------------------------------------------------------------------------------------------------------------
Section 101.390.................. Definitions........ 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.391.................. Applicability...... 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.392.................. Exemptions......... 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.393.................. General Provisions. 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].
Section 101.394.................. Allocation of 6/3/2015 5/11/2017, [Insert ...................
Allowances. Federal Register
citation].
Section 101.396.................. Allowance 6/3/2015 5/11/2017, [Insert ...................
Deductions. Federal Register
citation].

[[Page 21927]]

Section 101.399.................. Allowance Banking 6/3/2015 5/11/2017, [Insert ...................
and Trading. Federal Register
citation].
Section 101.400.................. Reporting.......... 6/3/2015 5/11/2017, [Insert ...................
Federal Register
citation].

* * * * * * *
Section 117.410.................. Emission 6/3/2015 4/13/2016, 81 FR 117.410(c) NOT in
Specifications for 21750. SIP.
Eight-Hour
Attainment
Demonstration
Reporting.

* * * * * * *
Section 117.9810................. Use of Emission 6/3/2015 5/11/2017, [Insert ...................
Reductions Federal Register
Generated from the citation].
Texas Emissions
Reduction Plan
(TERP).

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
(e) * * *
* * * * *

EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State
Applicable submittal/
Name of SIP provision geographic or effective EPA approval date Comments
nonattainment area date
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Discrete Emissions Reduction Collin, Dallas, 12/10/2008 5/11/2017, [Insert ...................
Credits (DERC) SIP. Denton, Ellis, Federal Register
Johnson, Kaufman, citation].
Parker, Rockwall
and Tarrant
Counties, TX.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-09472 Filed 5-10-17; 8:45 am]
BILLING CODE 6560-50-P

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