
[Federal Register: January 11, 2011 (Volume 76, Number 7)]
[Rules and Regulations]               
[Page 1525-1532]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja11-10]                         

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0031; FRL-9248-9]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revisions to Rules and Regulations for Control of Air Pollution; 
Permitting of Grandfathered and Electing Electric Generating Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to partially approve and partially 
disapprove revisions of the Texas State Implementation Plan (SIP) 
submitted by the Texas Commission on Environmental Quality (TCEQ, or 
Commission) on January 3, 2000, and July 31, 2002, as supplemented on 
August 5, 2009. These revisions are to regulations of the TCEQ that 
relate to application and permitting procedures for grandfathered 
electric generating facilities (EGFs). The revisions address a mandate 
by the Texas Legislature under Senate Bill 7 to achieve nitrogen oxide 
(NOX), sulfur dioxide (SO2) and particulate 
matter (PM) emission reductions from grandfathered EGFs. The emissions 
reductions will contribute to achieving attainment and help ensure 
attainment and continued maintenance of the National Ambient Air 
Quality Standards (NAAQS) for ozone, sulfur dioxide, and particulate 
matter in the State of Texas. As a result of these mandated emissions 
reductions, in accordance with section 110(l) of the Federal Clean Air 
Act, as amended (the Act, or CAA), partial approval of these revisions 
will not interfere with attainment of the NAAQS, reasonable further 
progress, or any other applicable requirement of the Act. EPA has 
determined that the revisions, but for a severable provision, meet 
section 110, part C, and part D of the Federal Clean Air Act (the Act 
or CAA) and EPA's regulations. Therefore, EPA is taking final action to 
approve the revisions but for a severable portion that allows 
collateral emissions increases of carbon monoxide (CO) created by the 
imposition of technology controls to be permitted under the State's 
Standard Permit (SP) for Pollution Control Projects (PCP). EPA is 
taking final action to disapprove this severable portion concerning the 
issuance of a PCP SP for the CO collateral emissions increases.

DATES: This final rule is effective on February 10, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2005-TX-0031. All documents in this 
docket are listed at http://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either

[[Page 1526]]

electronically through http://www.regulations.gov or in hard copy at 
the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 am and 4:30 pm weekdays except 
for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. There will be a 15 cent per page fee for making 
photocopies of documents. On the day of the visit, please check in at 
the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, 
Texas.
    The State submittal, which is part of the EPA record, is also 
available for public inspection at the State Air Agency listed below 
during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality, 
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7227; fax number 
214-665-7263; e-mail address: barrett.richard@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``our,'' 
and ``us'' refers to EPA.

Outline

I. What action is EPA taking?
II. Background
    A. Texas Senate Bill 7
    B. January 3, 2000 Submittal
    C. July 31, 2002 Submittal
III. What are the grounds for these actions?
    A. January 3, 2000 Submittal
    B. July 31, 2002 Submittal
IV. Did we receive public comments on the proposed rulemaking?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are partially approving and partially disapproving the revision 
to Title 30, Chapter 116, of the TAC submitted by the State of Texas on 
January 3, 2000. We are also fully approving the revision to Title 30, 
Chapter 116, of the TAC submitted by the State of Texas on July 31, 
2002. The January 3, 2000 submittal concerns Subchapter A: 
``Definitions,'' section 116.18; and Subchapter I: ``Electric 
Generating Facility Permits,'' sections 116.910-914, 116.916, 116.920-
922, 116.930, and 116.931. We are fully approving all of this 2000 
submittal but for the severable reference in 30 TAC 116.911(a)(2) that, 
if approved, would allow the use of a Texas PCP SP for the permitting 
of the CO collateral emissions increases. We are disapproving this 
reference in submitted 30 TAC 116.911(a)(2) allowing the use of a PCP 
SP for the collateral CO emissions. The July 31, 2002 submittal 
concerns Subchapter A: ``Definitions,'' sections 116.10 and 116.18; and 
Subchapter I: ``Electric Generating Facility Permits,'' sections 
116.910, 116.911, 116.913, 116.917, 116.918, 116.921, 116.926, 116.928, 
and 116.930. The TCEQ adopted these revisions on December 16, 1999, and 
May 22, 2002, respectively.
    Please note that in the July 31, 2002 submittal concerning 
Subchapter A: ``Definitions,'' section 116.10 is severable and was 
approved in a separate rulemaking (See 75 FR 19468 April 14, 2010).
    EPA is taking final action on the submitted application and 
permitting procedures for grandfathered EGFs, as mandated by the Texas 
Legislature, to achieve NOX, SO2 and PM emission 
reductions (Texas SB7 SIP) by December 31, 2010, as provided in the 
Consent Decree entered on January 21, 2010 in BCCA Appeal Group v. EPA, 
Case No. 3:08-cv-01491-N (N.D. Tex).

II. Background

A. Texas Senate Bill 7

    Texas Senate Bill 7 (SB 7), formed under the 76th Texas State 
Legislature, 1999,amended the Texas Utilities Code (TUC), Title 2, 
Public Utility Regulatory Act, Subtitle B, Electric Utilities, and 
created a new Texas Utilities Code Chapter 39, ``Restructuring of 
Electric Utility Industry.'' SB 7 requires the TCEQ to establish a 
regulatory program implementing the statute's mandatory emissions 
reductions for ``grandfathered facilities'' under the Texas Utilities 
Code section 39.264. A ``grandfathered facility'' is one that existed 
at the time the Legislature amended the Texas Clean Air Act (TCAA) in 
1971.
    These facilities were not required to comply with (i.e., 
grandfathered from) the then new requirement to obtain permits for 
construction or modifications of facilities that emit air contaminants. 
Texas began permitting new and modified sources in 1971, and sources 
built before Texas' permitting rules became effective were not required 
to obtain permits for air emissions as long as they were not modified 
as defined under Texas' New Source Review SIP program.
    Section 39.264 of the TUC now requires EGFs that existed on January 
1, 1999, to obtain a permit from the Commission even though these 
sources were not previously required to obtain a permit under the TCAA, 
section 382.0518(g).
    Section 39.264 of the TUC specifically requires owners or operators 
of all grandfathered EGFs to apply for a permit to emit NOX 
and, for coal-fired grandfathered EGFs, SO2, and PM through 
opacity limitations. These applications were due on or before September 
1, 2000. A grandfathered EGF that does not obtain a permit may not 
operate after May 1, 2003, unless the Commission finds good cause for 
an extension. Section 39.264 of the TUC requires that for the 12-month 
period beginning May 1, 2003, and for each 12-month period following, 
annual emissions of NOX from grandfathered EGFs not exceed 
50% of the NOX emissions reported to the Commission for 
1997. Furthermore, it requires that emissions of SO2 from 
coal-fired grandfathered EGFs not exceed 75% of the SO2 
emissions reported to the Commission in 1997. In addition, TUC section 
39.264(e) requires electric generating facility permits (EGFPs) for 
coal-fired, grandfathered EGFs to contain appropriate opacity 
limitations provided by the commission's rules in 30 Texas 
Administrative Code (TAC) Ch.111.111, ``Requirements for Specified 
Sources.'' As described in more detail below, the emission limitations 
may be satisfied by using control technology or by participating in the 
banking and trading of allowances under Texas' Emission Banking and 
Trading of Allowances (EBTA) program.
    Overall, SB 7 mandates specific pollution reduction in an area, 
while allowing individual sources flexibility in how they meet 
emissions reductions. As participants in the program, EGFs must obtain 
a permit allocating them a certain level of emissions which they cannot 
exceed. In each defined region, the total level of emissions are 
restricted, or capped, to a level consistent with the SB 7 statutory 
goals. The individual EGF, to meet its allocated emissions level, can 
either choose to install pollution controls, shut down operations, or 
purchase allowances from another source that already reduced emission 
levels below its permitted amount.
    To achieve SB 7's mandate, the TCEQ revised 30 TAC Chapter 116, 
``Control of Air Pollution by Permits for New Construction or 
Modification,'' by establishing an allowance and permitting program for 
regulating grandfathered EGFs under Subchapter I.

[[Page 1527]]

TCEQ concurrently adopted Chapter 101, Subchapter H, ``Emissions 
Banking and Trading,'' that establishes a regional cap and trade system 
to distribute emission allowances for use by EGFs. The new Division 2, 
Chapter 101, Subchapter H, concerning EBTA, sets out the allowance 
system to be used to assist grandfathered and electing EGFs in meeting 
the emission reduction requirements of TUC, section 39.264. Together, 
the two rules define categories of EGFs that are eligible to use the 
trading system. As discussed above, the first category consists of 
grandfathered facilities. The second category of EGFs consist of 
currently permitted EGFs that are not subject to the permitting 
requirements mandated by SB 7, yet elect to participate in the 
allowance trading system. These are referred to as ``electing'' EGFs 
and participation in the permitting program will allow electing EGFs to 
obtain allowances under the EBTA.
    Please note that EPA's action on 30 TAC Chapter 101, Subchapter H, 
Division 2, concerning Emissions Banking and Trading of Allowances, is 
being finalized in a separate notice and is evaluated in a separate 
TSD. (RME Docket R06-OAR-2005-TX-0012).
    The background for today's actions is also discussed in more detail 
in our October 19, 2010, proposal to partially approve and partially 
disapprove revisions to the Texas SIP (75 FR 64235-64240).

B. January 3, 2000 Submittal

    Regarding the January 3, 2000 submittal, SB 7 requires that for the 
12-month period beginning May 1, 2003, and for each 12-month period 
following, annual emissions of NOX from all grandfathered 
EGFs not exceed 50% of the NOX emissions reported to the 
Commission for 1997. Furthermore, the legislation requires that 
emissions of SO2 from all coal-fired grandfathered EGFs not 
exceed 75% of the SO2 emissions reported to the Commission 
in 1997, and to contain appropriate opacity limitations by way of 
permitting the emissions of particulate matter.

C. July 31, 2002 Submittal

    Regarding the July 31, 2002 submittal, this submittal allows the 
owners or operators of previously grandfathered and electing EGFs who 
have already applied for an electric generating facility (EGF) permit 
required by SB 7 to also obtain a permit for all air contaminants, 
certain generators and auxiliary fossil fuel fired combustion 
facilities.

III. What are the grounds for these actions?

A. January 3, 2000 Submittal

    These submitted provisions, with the exception of 116.911(a)(2) 
discussed below, meet the requirement in 40 CFR 51.160(a) that each 
plan include legally enforceable procedures to determine whether the 
construction or modification of a facility, building, structure, or 
installation, or combination of these will result in (1) a violation of 
applicable portions of the control strategy; or (2) interference with 
attainment or maintenance of a national standard in the State in which 
the proposed source (or modification) is located or in a neighboring 
State. As such, they are consistent with the Act and its permitting 
requirements.
    Regarding the submitted 30 TAC 116.911(a)(2), EPA approved Texas's 
general regulations for Standard Permits in 30 TAC Subchapter F of 30 
TAC Chapter 116 on November 14, 2003 (68 FR 64548) as meeting the minor 
NSR SIP requirements. The Texas Clean Air Act provides that the TCEQ 
may issue a standard permit for ``new or existing similar facilities'' 
if it is enforceable and compliance can be adequately monitored. See 
section 382.05195 of the TCAA. EPA approved the State's Standard Permit 
program as part of the Texas Minor NSR SIP program on November 14, 2003 
(68 FR 64548). However, when EPA approved the Texas Standard Permits 
Program as part of the Texas Minor NSR SIP, it explicitly did not 
approve the Pollution Control Project (PCP) Standard Permit (30 TAC 
116.617). This is the PCP SP referenced in 30 TAC 116.911(a)(2) of this 
SIP submittal which owners or operators of grandfathered or electing 
electric generating facilities used to permit collateral emissions of 
CO which, otherwise, would have triggered PSD review. Following the 
State of New York, et al. v. EPA, 413 F.3d 801 (D.C. Cir. 2005) court 
decision (New York I), Texas submitted a repeal of the previously 
submitted PCP Standard Permit and submitted the adoption of a new PCP 
Standard Permit at 30 TAC 116.617--State Pollution Control Project 
Standard Permit, on February 1, 2006. One of the main reasons Texas 
adopted a new PCP Standard Permit was to meet the new Federal 
requirements to explicitly limit this PCP Standard Permit only to Minor 
NSR. In New York I, the Court vacated the federal pollution control 
project provisions for NNSR and PSD. Although the new PCP Standard 
Permit explicitly prohibits the use of it for Major NSR purposes, TCEQ 
failed to demonstrate how this particular Standard Permit met the Texas 
Standard Permits NSR SIP since it applies to numerous types of 
pollution control projects, which can be used at any source that wants 
to use a PCP, and is not an authorization for similar sources. EPA 
disapproved the new PCP Standard Permit submittal on September 15, 
2010. 75 FR 56,424 (September 15, 2010). Thus, we are disapproving the 
submitted 116.911 (a)(2) because it refers to and relies on the PCP SP 
that does not meet the applicable requirements of the Act, and was 
previously disapproved by EPA as a part of the Texas SIP.
    The rationale for today's actions is also discussed in more detail 
in our October 19, 2010, proposal to partially approve and partially 
disapprove revisions to the Texas SIP (75 FR 64237-64239). See our 
Technical Support Document, Attachment A, for additional details.

B. July 31, 2002 Submittal

    These provisions meet the requirement in 40 CFR 51.160(a) that each 
plan include legally enforceable procedures to determine whether the 
construction or modification of a facility, building, structure, or 
installation, or combination of these will result in (1) a violation of 
applicable portions of the control strategy; or (2) interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state. As such, they are consistent with the Act and its permitting 
requirements.
    The rationale for today's actions is also discussed in more detail 
in our October 19, 2010, proposal to partially approve and partially 
disapprove revisions to the Texas SIP (75 FR 64239). See our Technical 
Support Document, Attachment B, for additional details.

IV. Did we receive public comments on the proposed rulemaking?

    In response to our October 19, 2010, proposal, we received comments 
from the following: Association of Electric Companies of Texas (AECT); 
Baker Botts, L.L.P., on behalf of Texas Industrial Project (TIP); 
Jackson Walker L.L.P., on behalf of the Gulf Coast Lignite Coalition 
(GCLC); Luminant Generation Company LLC (Luminant); Texas Commission on 
Environmental Quality (TCEQ); and Texas Mining and Reclamation 
Association (TMRA).
    We respond to these comments in our evaluation and review under 
this final action below.

[[Page 1528]]

    Comment 1: TMRA, Luminant, GCLC, AECT, and TCEQ commented generally 
that the submitted 30 TAC 116.911(a)(2) was in compliance with all 
federal regulations and policies at the time it was adopted and 
submitted to EPA, and the subsequent court decisions including the EPA 
appeal decision, to vacate the provision should not be applied 
retroactively. Further, these commenters assert that EPA action on this 
provision should apply prospectively only and not to any permits issued 
prior to the court decisions.
    Response: EPA disagrees with this comment. As discussed above, EPA 
approved the State's Standard Permit program as part of the Texas Minor 
NSR SIP program on November 14, 2003 (68 FR 64548). When EPA approved 
the Texas Standard Permits Program as part of the Texas Minor NSR SIP, 
it explicitly DID NOT approve the Pollution Control Project (PCP) 
Standard Permit (30 TAC 116.617). This is the PCP SP referenced in 30 
TAC 116.911(a)(2) of this SIP submittal which owners or operators of 
grandfathered or electing electric generating facilities used to permit 
collateral emissions of CO which, otherwise, would have triggered PSD 
review. Following New York 1, Texas submitted a repeal of the 
previously submitted PCP Standard Permit and submitted the adoption of 
a new PCP Standard Permit at 30 TAC 116.617--State Pollution Control 
Project Standard Permit, on February 1, 2006. One of the main reasons 
Texas adopted a new PCP Standard Permit was to meet the new Federal 
requirements to explicitly limit this PCP Standard Permit only to Minor 
NSR. In New York 1, the Court vacated the federal pollution control 
project provisions for NNSR and PSD. Although the new PCP Standard 
Permit explicitly prohibits the use of it for Major NSR purposes, TCEQ 
has failed to demonstrate how this particular Standard Permit meets the 
Texas Standard Permits NSR SIP since it applies to numerous types of 
pollution control projects, which can be used at any source that wants 
to use a PCP, and is not an authorization for similar sources. EPA 
disapproved the new PCP Standard Permit submittal on September 15, 
2010. 75 FR 56,424 (September 15, 2010).
    We are disapproving the submitted 116.911(a)(2) because the 
reference in it which allows obtaining a PCP SP for the collateral 
emissions does not meet the applicable requirements of the Act, as 
discussed herein, and was disapproved by EPA as a part of the Texas 
SIP. EPA is required to review a SIP revision for its compliance with 
the Act and EPA regulations. See CAA section 110(k)(3); see also BCCA 
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural 
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. 
Cir 1995).
    Comment 2: TMRA, TIP, Luminant, GCLC, and AECT commented generally 
that the Clean Air Act requires that EPA ``shall not approve a revision 
of a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress * * 
*.'' EPA should therefore approve 116.911(a)(2) because EPA discusses 
in its proposed rule dated October 19, 2010, that the CO increases do 
not interfere with attainment or maintenance of the NAAQS for CO, nor 
cause or contribute to increase in PSD increments, much less a 
violation of any NAAQS.
    Response: This comment misunderstands the basis on which we are 
disapproving 116.911(a)(2). We are disapproving the submitted 30 TAC 
116.911(a)(2) because it allows the source to obtain a permit for its 
collateral CO emissions that is not a part of the Texas SIP. EPA 
previously disapproved the permit allowed for the collateral CO 
emissions because it did not meet the applicable requirements of the 
Act. EPA is required to review a SIP revision for its compliance with 
the Act and EPA regulations. See CAA section 110(k)(3); see also BCCA 
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural 
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. 
Cir 1995).
    Comment 3: TIP, Luminant, and GCLC commented generally that the 
court decision of June 24, 2005, does not apply to 116.911(a)(2). That 
court decision dealt with an exclusion from major NSR, whereas the PCP 
SP is a minor NSR permitting process and authorization tool and the SP 
cannot be used to circumvent major NSR. One commenter noted that ``in 
light of'' the court decision, on February 1, 2006, Texas submitted to 
EPA a revised version of 30 TAC Sec.  116.617 (Standard Permits for 
Pollution Control Projects) to ``limit the use of the state's PCP SP to 
Minor NSR''.
    Response: EPA disagrees with this comment. See response to comment 
1.
    Comment 4: TMRA, Luminant, and AECT commented generally that they 
disagree with EPA's allegation that there were two facilities where 
collateral emissions of Carbon Monoxide (CO) above the PSD significance 
level occurred following the installation of pollution control 
equipment. Further, that they disagree with EPA's proposal to 
disapprove these already issued permits.
    Response: EPA disagrees with this comment. EPA is not disapproving 
these two already issued permits with this SIP action. Our disapproval 
is strictly limited to the provision 30 TAC 116.911(a)(2) of the 
January 3, 2000, SIP submittal. Although it is not a basis for EPA's 
final action here, EPA stands by its previous discussion of the 
facilities where collateral emissions of CO above PSD significance 
levels occurred following the installation of pollution control 
equipment.
    Comment 5: TMRA, Luminant, and AECT commented that EPA should 
follow its established position that Pollution Control Project permits 
are acceptable under the Clean Air Act.
    Response: It is not EPA's position, established or otherwise, that 
PCP permits are acceptable under the Clean Air Act for Major NSR. 
Furthermore, the New York I opinion addressed the use of PCPs and 
disapproved their use for Major NSR requirements. In that decision, the 
court vacated the provisions of the Federal 2002 NSR Reform rule that 
specifically related to PCPs. The EPA must comply with the court 
decision. EPA disapproved the State's submitted PCP SP for Minor NSR. 
See response to comment 1.
    Comment 6: TMRA and AECT commented generally that the proposed 
disapproval has a chilling effect on much needed economic investment 
and makes it even more difficult for companies to create jobs and 
provide for economic growth. Further, that the Senate Bill 7 program 
has achieved substantial emission reductions while providing a fair and 
predictable regulatory framework that is protective of human health and 
the environment.
    Response: Under the NAAQS provisions of the CAA, air pollution 
control at its source is the primary responsibility of States and local 
governments. EPA is respectful of the Act and cognizant of the 
cooperative federalism principle contained therein. However, while the 
Act does give States a fair degree of latitude in choosing the mix of 
controls necessary to meet and maintain the NAAQS, it also places some 
limits on the choices States can make. EPA's role is to ensure that the 
SIP submittal is consistent with the CAA. Any SIP submittal must adhere 
to applicable requirements of the federal CAA, including the obligation 
to provide for attainment and maintenance of the NAAQS and to ensure 
that the SIP may be adequately enforced. EPA's statutory 
responsibilities in reviewing a SIP are to ensure it meets the 
requirements of the Act. As explained in

[[Page 1529]]

the proposal and above, as part of EPA's review, we determined that the 
provision providing for the obtaining of a non-SIP PCP SP is 
inconsistent with the CAA. See CAA section 110(k)(3); see also BCCA 
Appeal Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural 
Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. 
Cir 1995).
    Comment 7: Luminant commented that EPA incorrectly concludes that 
its prior disapproval of 30 TAC 116.617 necessitates disapproval of 30 
TAC 116.911(a)(2). Rather, EPA must independently justify its 
disapproval of these provisions relating to the Texas Senate Bill No. 7 
(``SB7'') permitting program. Further, that EPA's disapproval of 30 TAC 
116.617 does not justify or require disapproval of 30 TAC 
116.911(a)(2). Also, the obligation thus originates from the SB7 permit 
rules, and EPA has an independent obligation to justify its disapproval 
of the substance of those requirements in this rulemaking and not 
simply rely on a prior one that did not involve the SB7 permit program.
    Response: EPA disagrees with this comment. 30 TAC 116.911(a)(2) 
allows a SB7 source that has collateral emissions of CO to obtain a 
TCEQ PCP SP rather than obtaining a Texas NSR SIP permit, for its CO 
collateral emissions. The PCP SP is not a part of the Texas NSR SIP. 
See the response to comment 1. Moreover, EPA is required to review a 
SIP revision for its compliance with the Act and EPA regulations. See 
CAA section 110(k)(3); see also BCCA Appeal Group v. EPA, 355 F 3d.817, 
822 (5th Cir 2003); Natural Resources Defense Council, Inc. v. Browner, 
57 F.3d 1122, 1123 (D.C. Cir 1995).
    Comment 8: Luminant commented that it supports the remainder of 
proposed approval of the January 3, 2000 and July 31, 2002 submittals. 
It also supports the EPA's November 16, 2010 direct final rule to 
approve the EBTA program.
    Response: EPA acknowledges this comment.
    Comment 9: The TCEQ commented that it maintains its position that 
Sec.  116.617 is an efficient and legally supportable authorization for 
pollution control projects in Texas.
    Response: EPA disagrees with this comment. We disapproved the PCP 
SP on September 15, 2010. See 75 FR 56,424 (September 15, 2010).

IV. Final Action

    EPA is partially approving and partially disapproving revisions to 
the Texas SIP that include 30 TAC Chapter 116, Subchapter A: 
``Definitions,'' section 116.18; and Subchapter I: ``Electric 
Generating Facility Permits,'' sections 116.910-914, 116.916, 116.920-
922, 116.930, and 116.931, which Texas submitted on January 3, 2000.
    EPA is approving all of the January 3, 2000, SIP revision submittal 
as part of the Texas NSR SIP but for 30 TAC 116.911(a)(2). EPA is 
disapproving the submitted severable 30 TAC 116.911(a)(2) for 
collateral emissions increases of CO that are allowed to be permitted 
under the Texas PCP SP.
    Further, EPA is approving revisions to the Texas SIP that include 
30 TAC Chapter 116, Subchapter A: ``Definitions,'' section 116.18; and 
Subchapter I: ``Electric Generating Facility Permits,'' sections 
116.910, 116.911, 116.913, 116.917, 116.918, 116.921, 116.926, 116.928, 
and 116.930, which Texas submitted on July 31, 2002. We are taking no 
action on Chapter 116, Subchapter H: ``Permits for Grandfathered 
Facilities,'' which Texas submitted on July 31, 2002. The State 
understands that EPA will take future action on Subchapter H because it 
is independent from Subchapters A and I, and action is not necessary at 
this time.
    The January 3, 2000 and July 31, 2002 submittals address the 
applicability and permitting requirements for grandfathered and 
electing electric generating facilities. The revisions will contribute 
to improvement in overall air quality in Texas. There will be no 
increase in ozone, SO2, and PM concentration levels because 
of approving the revisions. We have evaluated the State's submittal, 
determined that it meets the applicable requirements of the CAA and EPA 
air quality regulations, and is consistent with EPA policy.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This final action has been determined not to be a ``significant 
regulatory action'' subject to review by the Office of Management and 
Budget under Executive Order 12866 (58 FR 51735, October 4, 1993).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this SIP disapproval under section 110 and subchapter I, part D 
of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b). Because this final action does not impose an information 
collection burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. This rule will not have a significant 
impact on a substantial number of small entities because SIP approvals 
and disapprovals under section 110 and part D of the Clean Air Act do 
not create any new requirements but simply approve or disapprove 
requirements that the States are already imposing.
    Furthermore, as explained in this action, the submissions do not 
meet the requirements of the Act and EPA cannot approve the 
submissions. The final disapproval will not affect any existing State 
requirements applicable to small entities in the State of Texas. 
Federal disapproval of a State submittal does not affect its State 
enforceability. After considering the economic impacts of today's 
rulemaking on small entities, and because the Federal SIP disapproval 
does not create any new requirements or impact a substantial number of 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Clean Air 
Act forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. EPA,

[[Page 1530]]

427 U.S. 246, 255-66 (1976); 42 7410(a)(2).

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 ``for State, local, or tribal governments or the private 
sector.'' EPA has determined that the disapproval action does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action determines 
that pre-existing requirements under State or local law should not be 
approved as part of the Federally approved SIP. It imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP 
EPA is disapproving would not apply in Indian country located in the 
State, and EPA notes that it will not impose substantial direct costs 
on tribal governments or preempt tribal law. This final rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This SIP disapproval under section 110 and subchapter I, part D of the 
Clean Air Act will not in-and-of itself create any new regulations but 
simply disapproves certain State requirements for inclusion into the 
SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 (66 FR 28355, May 
22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act. Today's action does not require 
the public to perform activities conducive to the use of voluntary 
consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this action. In reviewing SIP submissions, EPA's role is to 
approve or disapprove state choices, based on the criteria of the Clean 
Air Act. Accordingly, this action merely disapproves certain State 
requirements for inclusion into the SIP under section 110 and 
subchapter I, part D of the Clean Air Act and will not in-and-of itself 
create any new requirements. Accordingly, it does not provide EPA with 
the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under E`xecutive Order 
12898.

K. Congressional Review Act

    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. 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).

[[Page 1531]]

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 14, 2011. 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, Nitrogen 
oxides, Nonattainment, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide.

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

    Dated: December 29, 2010.
Samuel Coleman,
Acting Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

    Authority:  42 U.S.C. 7410 et seq.

Subpart SS--Texas

0
2. The table in Sec.  52.2270 (c) entitled ``EPA Approved Regulations 
in the Texas SIP'' is amended under Chapter 116--Control of Air 
Pollution by Permits for New Construction or Modification, as follows:
0
a. Immediately following the entry for Section 116.14, by adding a new 
entry for Section 116.18, Electric Generating Facility Permits 
Definitions; and
0
b. Immediately following section 116.615, by adding a new centered 
heading entitled ``Subchapter I--Electric Generating Facility Permits'' 
followed by new entries for Sections 116.910, 116.911, 116.912, 
116.913, 116.914, 116.916, 116.917, 116.918, 116.920, 116.921, 116.922, 
116.926, 116.928, 116.930, and 116.931.
    The additions read as follows:


Sec.  52.2270  Identification of plan.

    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
                                                          approval/
         State citation              Title/subject        submittal      EPA approval date       Explanation
                                                            date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification

                                                  * * * * * * *
                                            Subchapter A--Definitions

                                                  * * * * * * *
Section 116.18.................  Electric Generating        5/22/2002  1/11/2011, [Insert    ...................
                                  Facility Permits                      FR page number
                                  Definitions.                          where document
                                                                        begins].

                                                  * * * * * * *
                               Subchapter I--Electric Generating Facility Permits

                                                  * * * * * * *
Section 116.910................  Applicability.......       5/22/2002  1/11/2011, [Insert    ...................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 116.911................  Electric Generating        5/22/2002  1/11/2011, [Insert    116.911(a)(2) is
                                  Facility Permit.                      FR page number        not in the SIP.
                                                                        where document
                                                                        begins].
Section 116.912................  Electric Generating       12/16/1999  1/11/2011, [Insert    ...................
                                  Facilities.                           FR page number
                                                                        where document
                                                                        begins].
Section 116.913................  General and Special        5/22/2002  1/11/2011, [Insert    ...................
                                  Conditions.                           FR page number
                                                                        where document
                                                                        begins].
Section 116.914................  Emissions Monitoring      12/16/1999  1/11/2011, [Insert    ...................
                                  and Reporting                         FR page number
                                  Requirements.                         where document
                                                                        begins].
Section 116.916................  Permits for               12/16/1999  1/11/2011, [Insert    ...................
                                  Grandfathered and                     FR page number
                                  Electing Generating                   where document
                                  Facilities in El                      begins].
                                  Paso County.
Section 116.917................  Electric Generating        5/22/2002  1/11/2011, [Insert    ...................
                                  Facility Permit                       FR page number
                                  Application for                       where document
                                  Certain                               begins].
                                  Grandfathered Coal-
                                  Fired Electric
                                  Generating
                                  Facilities and
                                  Certain Facilities
                                  Located at Electric
                                  Generating Facility
                                  Sites.
Section 116.918................  Additional General         5/22/2002  1/11/2011, [Insert    ...................
                                  Special Conditions                    FR page number
                                  for Grandfathered                     where document
                                  Coal-Fired Electric                   begins].
                                  Generating
                                  Facilities and
                                  Certain Facilities
                                  Located at Electric
                                  Generating Facility
                                  Sites.
Section 116.920................  Applicability.......      12/16/1999  1/11/2011, [Insert    ...................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 116.921................  Notice and Comment         5/22/2002  1/11/2011, [Insert    ...................
                                  Hearings for                          FR page number
                                  Initial Issuance.                     where document
                                                                        begins].

[[Page 1532]]


Section 116.922................  Notice of Final           12/16/1999  1/11/2011, [Insert    ...................
                                  Action.                               FR page number
                                                                        where document
                                                                        begins].
Section 116.926................  Permit Fee..........       5/22/2002  1/11/2011, [Insert    ...................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 116.928................  Delegation..........       5/22/2002  1/11/2011, [Insert    ...................
                                                                        FR page number
                                                                        where document
                                                                        begins].
Section 116.930................  Amendments and             5/22/2002  1/11/2011, [Insert    ...................
                                  Alterations Issued                    FR page number
                                  Under this                            where document
                                  Subchapter.                           begins].
Section 116.931................  Renewal.............      12/16/1999  1/11/2011, [Insert    ...................
                                                                        FR page number
                                                                        where document
                                                                        begins].

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


0
3. Section 52.2273 is amended by adding a new paragraph (f) to read as 
follows:


Sec.  52.2273  Approval status.

* * * * *
    (f) EPA is disapproving the Texas SIP revision submittals under 30 
TAC Chapter 116--Control of Air Pollution by Permits for New 
Construction or Modification as follows:
    (1) Subchapter I--Electric Generating Facility Permits--Section 
116.911(a)(2) (Electric Generating Facility Permit), adopted December 
16, 1999, and submitted January 3, 2000.

[FR Doc. 2011-222 Filed 1-10-11; 8:45 am]
BILLING CODE 6560-50-P

