
[Federal Register Volume 76, Number 184 (Thursday, September 22, 2011)]
[Proposed Rules]
[Pages 58748-58766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24384]



[[Page 58748]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0638; FRL-9470-4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
submittals from the state of Texas pursuant to the Clean Air Act (CAA 
or Act) that address the infrastructure elements specified in the CAA 
section 110(a)(2), necessary to implement, maintain, and enforce the 
1997 8-hour ozone and 1997 and 2006 fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS or 
standards). We are proposing to find that the current Texas State 
Implementation Plan (SIP) meets the infrastructure requirements for the 
1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS at 
110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of 
(C), (D)(ii) and (J). We are proposing to find that the current Texas 
SIP does not meet the infrastructure requirements for the 1997 8-hour 
ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) 
for portions of (C), (D)(ii) and (J) because Texas has stated it cannot 
issue permits for and does not intend to regulate greenhouse gas (GHG) 
emissions. (See letter from Bryan W. Shaw and Greg Abbott to Lisa 
Jackson and Al Armendariz, dated August 2, 2010, in the docket for this 
rulemaking). EPA is also proposing to partially approve and partially 
disapprove SIP revisions submitted by the state of Texas for the 
purpose of addressing the ``good neighbor'' provisions of CAA section 
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS. These SIP revisions address the requirement 
that the Texas SIP have adequate provisions to prohibit air emissions 
from adversely affecting another state's air quality through interstate 
transport. In this action, EPA is proposing to partially approve and 
partially disapprove the provisions of these SIP submissions that 
emissions from sources in Texas do not interfere with measures required 
in the SIP of any other state under part C of the CAA to prevent 
significant deterioration of air quality, with regard to the 1997 8-
hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. The 
partial disapproval is again because Texas cannot issue permits for 
emissions of GHG. For purposes of the 1997 8-hour ozone NAAQS, EPA is 
also proposing to approve SIP revisions that modify the Texas SIP for 
Prevention of Significant Deterioration (PSD) to include nitrogen 
oxides (NOx) as an ozone precursor. This action is being 
taken under section 110 and part C of the Act.

DATES: Comments must be received on or before October 24, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0638, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://www.epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) 
and select ``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by email to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0638. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a fee of 15 cents per page for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The Texas 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: Ms. Carrie Paige, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,

[[Page 58749]]

Suite 700, Dallas, Texas 75202-2733; telephone (214) 665-6521; fax 
number 214-665-7263; e-mail address paige.carrie@epa.gov.

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

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    2. Section 110(a)(1) and (2) Interstate Transport SIP Elements
    3. Revisions to the Texas PSD SIP
    4. Greenhouse Gas (GHG) Component of PSD Programs
    5. PM2.5 SIP Revisions
    D. What elements are required under section 110(a)(2)?
II. What action is EPA proposing?
    A. Section 110(a)(1) and (2)
    B. Why is EPA proposing a partial approval, partial disapproval?
    C. What are the implications of a partial approval, partial 
disapproval?
    D. SIP Revisions to 30 TAC 101.1
III. How has Texas addressed the elements of section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What are the National Ambient Air Quality Standards?

    Section 109 of the Act requires EPA to establish NAAQS for 
pollutants that ``may reasonably be anticipated to endanger public 
health and welfare,'' and to develop a primary and secondary standard 
for each NAAQS. The primary standard is designed to protect human 
health with an adequate margin of safety, and the secondary standard is 
designed to protect public welfare and the environment. EPA has set 
NAAQS for six common air pollutants, referred to as criteria 
pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, particulate 
matter, and sulfur dioxide. These standards present state and local 
governments with the minimum air quality levels they must meet to 
comply with the Act. Also, these standards provide information to 
residents of the United States about the air quality in their 
communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies, 
other means or techniques, and technical analyses developed by the 
state, to ensure that the state meets the NAAQS. The SIP is required by 
section 110 and other provisions of the Act. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emissions inventories, monitoring 
networks, and modeling demonstrations. Each state must submit these 
regulations and control strategies to EPA for approval and 
incorporation into the federally enforceable SIP. Another important 
aspect of the SIP is to ensure that emissions from within the state do 
not have certain prohibited impacts upon the ambient air in other 
states through interstate transport of pollutants. This SIP requirement 
is specified in section 110(a)(2)(D) of the CAA. Pursuant to that 
provision, each state's SIP must contain provisions adequate to 
prevent, among other things, emissions that interfere with measures 
required to be included in the SIP of any other state to prevent 
significant deterioration of air quality in any other state. Such EPA-
approved SIPs protect air quality primarily by addressing air pollution 
at its point of origin.

C. What is the background for this rulemaking?

    Under sections 110(a)(1) and (2) of the Act, states are required to 
submit SIPs that provide for the implementation, maintenance, and 
enforcement of a new or revised NAAQS within three years following the 
promulgation of the NAAQS, or within such shorter period as EPA may 
prescribe. Section 110(a)(2) lists the specific infrastructure elements 
that must be incorporated into the SIPs, including for example, 
requirements for air pollution control measures, and monitoring that 
are designed to assure attainment and maintenance of the NAAQS. Table 
1, listing all 14 infrastructure elements, is included in Section D of 
this proposed rulemaking.\1\ EPA refers to the requirements of section 
110(a)(2)(A)-(C), (D)(ii), (E)-(H), and (J)-(M) as the 
``infrastructure'' SIPs. Additionally, EPA refers to the requirements 
of section 110(a)(2)(D)(i) as the ``interstate transport'' SIPs. EPA 
provided separate guidance to states on each type of SIP, 
infrastructure and interstate transport, and these actions are on 
separate tracks and timelines.
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the 3-year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within 3 years after promulgation of a new or 
revised NAAQS, but rather are due at the time the nonattainment area 
plan requirements are due pursuant to section 172 of the CAA. These 
elements are: (1) Submissions required by section 110(a)(2)(C) to 
the extent that subsection refers to a permit program as required in 
part D Title I of the CAA and (2) submissions required by section 
110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D Title I of the CAA. Therefore, this action 
does not cover these specific SIP elements.
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1. Section 110(a)(1) and (2) Infrastructure SIP Eelements
    On July 18, 1997, we published new and revised NAAQS for ozone (62 
FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of 
0.08 parts per million (ppm) to replace the 1-hour standard of 0.12 
ppm. For PM we set a new annual and a new 24-hour NAAQS for particles 
with an aerodynamic diameter less than or equal to a nominal 2.5 
micrometers (denoted PM2.5). The annual PM2.5 
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. On October 17, 
2006, we published revised standards for PM (71 FR 61144). For 
PM2.5 the annual standard of 15 [mu]g/m\3\ was retained and 
the 24-hour standard was revised to 35 [mu]g/m\3\. For PM10 
the annual standard was revoked and the 24-hour standard (150 [mu]g/
m\3\) was retained. For more information on these standards please see 
the 1997 and 2006 Federal Register notices (62 FR 38856, 62 FR 38652, 
and 71 FR 61144).
    Thus states were required to submit such SIPs for the 1997 8-hour 
ozone and PM2.5 NAAQS to EPA no later than June 2000.\2\ 
However, intervening litigation over the 1997 8-hour ozone and 
PM2.5 NAAQS created uncertainty about how to proceed and 
many states did not provide the required ``infrastructure'' SIP 
submission for these newly promulgated NAAQS.
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    \2\ EPA issued a revised 8-hour ozone standard on March 27, 2008 
(73 FR 16436). On September 16, 2009, the EPA Administrator 
announced that EPA would take rulemaking action to reconsider the 
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA 
proposed to set different primary and secondary ozone standards than 
those set in 2008 to provide requisite protection of public health 
and welfare, respectively (75 FR 2938). The final reconsidered ozone 
NAAQS have yet to be promulgated. This rulemaking does not address 
the 2008 ozone standard.
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    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS. EPA entered into a consent decree with 
Earthjustice which required EPA, among other things, to complete a 
Federal Register notice announcing EPA's determinations pursuant to 
section 110(k)(1)(B) of the Act as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA 
received an

[[Page 58750]]

extension of the date to complete this Federal Register notice until 
March 17, 2008, based upon agreement to make the findings with respect 
to submissions made by January 7, 2008. In accordance with the consent 
decree, EPA made completeness findings for each state based upon what 
the Agency had received from each state as of January 7, 2008. With 
regard to the 1997 PM2.5 NAAQS, EPA entered into a consent 
decree with Earthjustice which required EPA, among other things, to 
complete a Federal Register notice announcing EPA's determinations 
pursuant to section 110(k)(1)(B) of the Act as to whether each state 
had made complete submissions to meet the requirements of section 
110(a)(2) for the 1997 PM2.5 NAAQS by October 5, 2008.
    On March 27, 2008, and October 22, 2008, we published findings 
concerning whether states had made the 110(a)(2) submissions for the 
1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 62902). 
In the March 27, 2008 action, we found that Texas had not made the 
necessary submission for ozone. This finding established a 24-month 
deadline for the promulgation by EPA of a Federal Implementation Plan 
(FIP) addressing these specific SIP elements for ozone, in accordance 
with section 110(c)(1) of the Act. On April 4, 2008 the Texas 
Commission on Environmental Quality (TCEQ) submitted a letter stating 
that Texas has addressed any potential infrastructure issues associated 
with the 1997 ozone and PM2.5 NAAQS and fulfilled its 
infrastructure SIP obligations. An enclosure to the letter provided 
information on Texas SIP provisions supporting the 110(a)(2) elements 
for the 1997 ozone and PM2.5 standards. Thus, in the October 
22, 2008 action, we found that Texas had made a complete submission 
that provides for the basic program elements specified in section 
110(a)(2) of the Act necessary to implement the 1997 PM2.5 
NAAQS.
    On October 2, 2007, we issued ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' Memorandum 
from William T. Harnett, Director, Air Quality Policy Division (AQPD), 
Office of Air Quality Planning and Standards (OAQPS).\3\ On September 
25, 2009, we issued ``Guidance on SIP Elements Required Under Sections 
110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS),'' Memorandum also from 
William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos 
addresses the SIP elements found in 110(a)(2). In each of these 
guidance memos, the guidance states that to the extent that existing 
SIPs already meet the requirements, states need only certify that fact 
to us.
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    \3\ This and any other guidance documents referenced in this 
action are in the docket for this rulemaking.
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    On November 23, 2009, the TCEQ submitted a letter to fulfill its 
infrastructure SIP obligations for the 2006 PM2.5 NAAQS. An 
enclosure to the letter provided information on Texas SIP provisions 
supporting the 110(a)(2) elements for the 2006 PM2.5 
standards. The submittal became complete by operation of law.
    Additional information: EPA is currently acting upon SIPs that 
address the infrastructure requirements of CAA section 110(a)(1) and 
(2) for ozone and PM2.5 NAAQS for various states across the 
country. Commenters on EPA's recent proposals for some states raised 
concerns about EPA statements that it was not addressing certain 
substantive issues in the context of acting on those infrastructure SIP 
submissions.\4\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction at sources, that may be contrary to the CAA 
and EPA's policies addressing such excess emissions (``SSM''); and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with the requirements 
of the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR''); and (ii) existing provisions for Prevention of 
Significant Deterioration programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). In light of the comments, EPA believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth. It is important to emphasize that EPA is taking the same 
position with respect to these four substantive issues in this action 
on the infrastructure SIP submittals for the 1997 8-hour ozone NAAQS 
and the 1997 and 2006 PM2.5 NAAQS submissions from Texas.
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    \4\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
these infrastructure SIP submittals for Texas.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the

[[Page 58751]]

potential for certain types of deficiencies in existing SIPs, and to 
prevent any misunderstanding that it was reapproving any such existing 
provisions. EPA's intention was to convey its position that the statute 
does not require that infrastructure SIPs address these specific 
substantive issues in existing SIPs and that these issues may be dealt 
with separately, outside the context of acting on the infrastructure 
SIP submission of a state. To be clear, EPA did not mean to imply that 
it was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPS are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\5\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\6\
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    \5\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\7\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\8\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\9\
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    \7\ See, e.g., Id., 70 FR 25162, at 63--65 (May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \8\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section

[[Page 58752]]

110(a)(1) and (2), EPA believes that it is appropriate for EPA to 
interpret that language in the context of acting on the infrastructure 
SIPs for a given NAAQS. Because of the inherent ambiguity of the list 
of requirements in section 110(a)(2), EPA has adopted an approach in 
which it reviews infrastructure SIPs against this list of elements ``as 
applicable.'' In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the purpose 
of the submission or the NAAQS in question, would meet each of the 
requirements, or meet each of them in the same way. EPA elected to use 
guidance to make recommendations for infrastructure SIPs for these 
ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS. \10\ Within this guidance 
document, EPA described the duty of states to make these submissions to 
meet what the Agency characterized as the ``infrastructure'' elements 
for SIPs, which it further described as the ``basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance of the standards.'' \11\ As further 
identification of these basic structural SIP requirements, ``attachment 
A'' to the guidance document included a short description of the 
various elements of section 110(a)(2) and additional information about 
the types of issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \12\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \13\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's SIP for the NAAQS in question.
---------------------------------------------------------------------------

    \10\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \11\ Id., at page 2.
    \12\ Id., at attachment A, page 1.
    \13\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\14\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS.
---------------------------------------------------------------------------

    \14\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T. Harnett, Director, Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
states might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA 
did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in existing SIP provisions in the context of the 
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance 
merely indicated its belief that the states should make submissions in 
which they established that they have the basic SIP structure necessary 
to implement, maintain, and enforce the NAAQS. EPA believes that states 
can establish that they have the basic SIP structure, notwithstanding 
that there may be potential deficiencies within the existing SIP. Thus, 
EPA's proposals for other states mentioned these issues not because the 
Agency considers them issues that must be addressed in the context of 
an infrastructure SIP as required by section 110(a)(1) and (2), but 
rather because EPA wanted to be clear that it considers these potential 
existing SIP problems as separate from the pending infrastructure SIP 
actions. The same holds true for this action on the infrastructure SIP 
submittals for Texas.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or

[[Page 58753]]

maintain the NAAQS, to mitigate interstate transport, or otherwise to 
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\16\ 
Significantly, EPA's determination that an action on the infrastructure 
SIP submittal is not the appropriate time and place to address all 
potential existing SIP problems does not preclude the Agency's 
subsequent reliance on provisions in section 110(a)(2) as part of the 
basis for action at a later time. For example, although it may not be 
appropriate to require a state to eliminate all existing inappropriate 
director's discretion provisions in the course of acting on the 
infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among 
the statutory bases that the Agency cites in the course of addressing 
the issue in a subsequent action.\17\
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    \15\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

2. 110(a)(2)(D)(i) Interstate Transport SIP Elements
    Section 110(a)(2)(D)(i) pertains to interstate transport of certain 
emissions. On August 15, 2006, EPA issued its ``Guidance for State 
Implementation Plan (SIP) Submission to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2006 
Guidance). EPA developed the 2006 Guidance to make recommendations to 
states for making submissions to meet the requirements of section 
110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997 
PM2.5 standards. As identified in the 2006 Guidance, the 
``good neighbor'' provisions in section 110(a)(2)(D)(i) require each 
state to submit a SIP that prohibits emissions that adversely affect 
another state in the ways contemplated in the statute. Section 
110(a)(2)(D)(i) contains four distinct requirements related to the 
impacts of interstate transport. The SIP must prevent sources in the 
state from emitting pollutants in amounts which will: (1) Contribute 
significantly to nonattainment of the NAAQS in other states; (2) 
interfere with maintenance of the NAAQS in other states; (3) interfere 
with provisions to prevent significant deterioration of air quality in 
other states; and (4) interfere with efforts to protect visibility in 
other states.
    On May 1, 2008, we received a SIP revision from the State of Texas 
intended to address the requirements of section 110(a)(2)(D)(i) for 
both the 1997 8-hour ozone and 1997 PM2.5 standards. On 
November 23, 2009 we received a SIP revision \18\ from the State 
intended to address the requirements of section 110(a)(2)(D)(i) for the 
2006 PM2.5 NAAQS. In this rulemaking, we are addressing only 
the requirement that pertains to preventing sources in Texas from 
emitting pollutants that will interfere with measures required to 
prevent significant deterioration of air quality in other states.\19\ 
In its submission, Texas indicated that its current New Source Review 
(NSR) SIP is adequate to prevent such interference.
---------------------------------------------------------------------------

    \18\ This is the same submittal that addresses the 110(a)(2) 
infrastructure SIP elements for the 2006 PM2.5 NAAQS.
    \19\ EPA published a finding on April 25, 2005 (70 FR 21147) 
that all states had failed to submit SIPs addressing interstate 
transport for the 1997 ozone and PM2.5 standards, as 
required by section 110(a)(2)(D)(i). EPA proposed a FIP on August 2, 
2010 (75 FR 45210) to limit emissions of ozone precursors and PM 
that contribute significantly to nonattainment of the 1997 ozone and 
1997 and 2006 PM NAAQS in other states and interfere with 
maintenance of these three NAAQS in other states. EPA finalized the 
FIP on July 6, 2011; known as the Cross-State Air Pollution Rule, it 
requires that Texas (and 26 other states in the eastern half of the 
United States) must significantly improve air quality by reducing 
power plant emissions that cross state lines and contribute to 
ground-level ozone and fine particle pollution in other states. See 
76 FR 48208 (published August 8, 2011) and http://www.epa.gov/crossstaterule.
---------------------------------------------------------------------------

3. Revisions to the Texas PSD SIP
    To meet the infrastructure requirements of section 110(a)(2)(C) of 
the Act for the 1997 ozone standard, the EPA believes the State must 
have updated its rules for PSD to treat NOX as a precursor 
to ozone (70 FR 71612, November 29, 2005). PSD rules to treat 
NOX as a precursor to ozone are also required to meet the 
third interstate transport prong, interference with provisions to 
prevent significant deterioration of air quality in other states.
    On March 11, 2011, the TCEQ submitted two revisions to its NSR 
program to meet the requirements of the ``NSR Reform'' published on 
December 31, 2002 (67 FR 80186), the 1997 8-hour ozone NAAQS, and the 
revocation of the 1-hour ozone NAAQS. On May 26, 2011, the TCEQ 
submitted a correction to the March 2011 revisions. The March 11, and 
May 26, 2011 submissions include, but are not limited to, revisions 
that provide for NOX to be treated as a precursor to ozone 
formation in the state's preconstruction permitting program for PSD, 
found in Title 30 of the Texas Administrative Code, Chapter 116, 
Section 12 (denoted 30 TAC 116.12).\20\ We are proposing action on a 
limited number of revisions to the PSD program that implement the 
provisions for NOX as a precursor. At this time, EPA is not 
taking action on other portions of the NSR SIP revisions submitted by 
Texas together with the PSD revision. EPA intends to act on the other 
revisions submitted together with the PSD program revisions at a later 
time.
---------------------------------------------------------------------------

    \20\ The Texas Administrative Code (TAC) is a compilation of all 
state agency rules in Texas. Each title represents a subject 
category and related agencies are assigned to the appropriate title; 
Title 30 is environmental quality and contains the TCEQ rules.
---------------------------------------------------------------------------

4. Greenhouse Gas (GHG) Component of PSD Programs
    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part are distinct from 
one another, impact today's proposed action on the Texas SIP. Four of 
these actions include, as they are commonly called, the ``Endangerment 
Finding'' and ``Cause or Contribute Finding,'' which EPA issued in a 
single final action,\21\ the ``Johnson Memo Reconsideration,'' \22\ the 
``Light-Duty Vehicle Rule,'' \23\ and the ``Tailoring Rule.'' \24\ 
Taken together and in conjunction with the CAA, these actions 
established regulatory requirements for GHGs emitted from new motor 
vehicles and new motor vehicle engines; determined that such 
regulations, when they took effect on

[[Page 58754]]

January 2, 2011, subjected GHGs emitted from stationary sources to 
permitting requirements for PSD; and limited the applicability of PSD 
requirements to GHG sources on a phased-in basis. EPA took this last 
action in the Tailoring Rule, which, more specifically, established 
appropriate GHG emission thresholds for determining the applicability 
of PSD requirements to GHG-emitting sources.
---------------------------------------------------------------------------

    \21\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \22\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \23\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \24\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
---------------------------------------------------------------------------

    However, the approved Texas SIP contained errors that resulted in 
its failure to address, or provide adequate legal authority for, the 
implementation of a GHG PSD program in Texas. On this basis, on 
December 30, 2010, EPA corrected its previous full approval of Texas's 
PSD program to be a partial approval and partial disapproval (75 FR 
82430). Further, as required following the partial disapproval, EPA in 
this same action promulgated a FIP to establish a PSD permitting 
program in Texas for GHG-emitting sources (75 FR 82430). EPA took these 
actions through interim final rulemaking, effective upon publication, 
to ensure the availability of a permitting authority--EPA--in Texas for 
GHG-emitting sources when they became subject to PSD on January 2, 
2011. The interim FIP allowed those sources to proceed with plans to 
construct or expand. The interim rule expired on April 30, 2011 and is 
replaced by the final rule (76 FR 25178, May 3, 2011).
    As we discuss further in this proposal and in the TSD, Texas 
currently does not have adequate legal authority to address the new GHG 
PSD permitting requirements at or above the levels of emissions set in 
the Tailoring Rule, or at other appropriate levels, and thus, the Texas 
SIP does not satisfy portions of elements within the infrastructure and 
transport requirements. EPA's disapproval here does not engender an 
additional statutory obligation, because EPA has already promulgated a 
FIP for the Texas PSD program to address permitting GHGs at or above 
the Tailoring Rule thresholds (76 FR 25178).
5. PM2.5 SIP Revisions
    To implement section 110(a)(2)(C) for the 1997 PM2.5 
standard, states must provide revisions to implement the 
PM2.5 standard due May 16, 2011 under 73 FR 28321.\25\ On 
April 20, 2011, the TCEQ adopted revisions to the Texas SIP to amend 
their PSD and nonattainment NSR programs to implement the 
PM2.5 NAAQS. These revisions became effective and 
enforceable by the state on May 12, 2011. The state submitted these 
changes to EPA as a SIP revision on May 19, 2011. EPA will act on this 
submission in a separate rulemaking.
---------------------------------------------------------------------------

    \25\ The Federal Register action at 73 FR 28321 was published 
May 16, 2008.
---------------------------------------------------------------------------

D. What elements are required under Section 110(a)(2)?

    Pursuant to the October 2, 2007, EPA guidance for addressing the 
SIP infrastructure elements required under section 110(a)(2) for the 
1997 ozone and 1997 and 2006 PM2.5 NAAQS, there are 14 
essential components that must be in the SIP. These are listed in Table 
1 below.

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
         Clean Air Act citation                 Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)...................  Enforceable emission limits and
                                          other control measures.
Section 110(a)(2)(B)...................  Ambient air quality monitoring/
                                          data system.
Section 110(a)(2)(C)...................  Program for enforcement of
                                          control measures.
Section 110(a)(2)(D)...................  International and interstate
                                          transport.
Section 110(a)(2)(E)...................  Adequate resources.
Section 110(a)(2)(F)...................  Stationary source monitoring
                                          system.
Section 110(a)(2)(G)...................  Emergency power.
Section 110(a)(2)(H)...................  Future SIP revisions.
Section 110(a)(2)(J) \26\..............  Consultation with government
                                          officials.
Section 110(a)(2)(J)...................  Public notification.
Section 110(a)(2)(J)...................  Prevention of significant
                                          deterioration (PSD) and
                                          visibility protection.
Section 110(a)(2)(K)...................  Air quality modeling/submission
                                          of such data.
Section 110(a)(2)(L)...................  Permitting fees.
Section 110(a)(2)(M)...................  Consultation/participation by
                                          affected local entities.
------------------------------------------------------------------------

II. What action is EPA proposing?
---------------------------------------------------------------------------

    \26\ Section 110(a)(2)(I) is omitted from the list. Section 
110(a)(2)(I) pertains to the nonattainment planning requirements of 
part D, Title I of the Act. This section is not governed by the 3-
year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not 
due within 3 years after promulgation of a new or revised NAAQS, but 
are due at the time the nonattainment area plan requirements are due 
pursuant to section 172. Thus this action does not cover section 
110(a)(2)(I).
---------------------------------------------------------------------------

A. Section 110(a)(1) and (2)

    The EPA is proposing to partially approve and partially disapprove 
the Texas SIP submittals that identify where and how the 14 basic 
infrastructure elements are in the EPA-approved SIP specified in 
section 110(a)(2) of the Act. The Texas infrastructure SIP submittals 
do not include revisions to the SIP, but document how the current Texas 
SIP already includes the required infrastructure elements. In today's 
action, we are proposing to determine and approve that the following 
section 110(a)(2) elements are contained in the current Texas SIP and 
provide the infrastructure for implementing the 1997 ozone and 1997 and 
2006 PM2.5 standards: Emission limits and other control 
measures (section 110(a)(2)(A)); ambient air quality monitoring/data 
system (section 110(a)(2)(B)); the program for enforcement of control 
measures, except for the portion that addresses GHGs (section 
110(a)(2)(C)); international and interstate pollution abatement, except 
for the portion that addresses GHGs (section 110(a)(2)(D)(ii)); 
adequate resources (section 110(a)(2)(E)); stationary source monitoring 
system (section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); 
future SIP revisions (section 110(a)(2)(H)); consultation with 
government officials (section 110(a)(2)(J)); public notification 
(section 110(a)(2)(J)); PSD and visibility protection, except for the 
PSD portion that addresses GHGs (section 110(a)(2)(J)); air quality 
modeling/data (section 110(a)(2)(K)); permitting fees (section 
110(a)(2)(L)); and consultation/participation by affected local 
entities (section 110(a)(2)(M)). In addition, we are proposing to 
determine that portions of three section 110(a)(2) elements are

[[Page 58755]]

not contained in the current Texas SIP and thus do not provide the 
infrastructure for implementing the 1997 ozone and 1997 and 2006 
PM2.5 standards. We are proposing to disapprove the GHG 
portion of the element addressing the program for enforcement of 
control measures (section 110(a)(2)(C)); the GHG portion of the element 
addressing international and interstate pollution abatement (section 
110(a)(2)(D)(ii)); and the GHG portion of the element addressing PSD 
(section 110(a)(2)(J)).
    We are also proposing to approve portions of the May 1, 2008 (the 
Texas Interstate Transport SIP) and the November 23, 2009 submissions 
from Texas, demonstrating that Texas has adequately addressed one of 
the four required elements (or prongs) of the CAA section 
110(a)(2)(D)(i), the element that requires that the SIP prohibit air 
emissions from sources within a state from interfering with measures 
required to prevent significant deterioration of air quality in any 
other state.\27\ We are proposing to determine that emissions from 
sources in Texas do not interfere with measures to prevent significant 
deterioration of air quality in any other state for the 1997 8-hour 
ozone NAAQS or the 1997 and 2006 PM2.5 NAAQS (CAA section 
110(a)(2)(D)(i)(II)), except for the portion that addresses GHGs. We 
are proposing to disapprove the portion of the Texas Interstate 
Transport SIP element that prohibits GHG emissions from sources within 
Texas from interfering with measures required to prevent significant 
deterioration of air quality in any other state (section 
110(a)(2)(D)(i)). As noted previously in this action, we are not 
addressing the three remaining prongs of section 110(a)(2)(D)(i) for 
the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS, that 
pertain to prohibiting air emissions within Texas from: (1) 
Significantly contributing to nonattainment in any other state, (2) 
interfering with maintenance of the relevant NAAQS in any other state 
and (3) interfering with measures required to protect visibility in any 
other state. We will take action on the three remaining prongs of 
section 110(a)(2)(D)(i) for these three NAAQS, which addresses 
interstate transport, in separate rulemakings (see footnote 19).
---------------------------------------------------------------------------

    \27\ As noted in Section I.C.2 of this action, the May 1, 2008 
submittal addresses the 1997 ozone and PM2.5 standards; 
it does not address the 2006 PM2.5 standard. The November 
23, 2009 submittal addresses the 110(a)(2) infrastructure and 
interstate transport elements for the 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    In conjunction with our proposed finding that the Texas SIP meets 
the section 110(a)(1) and (2) infrastructure and interstate transport 
SIP elements listed above for the three NAAQS, we are also proposing to 
approve severable \28\ portions of the SIP revisions submitted by the 
TCEQ to EPA on March 11, 2011 and a correction submitted on May 26, 
2011. These portions contain rule revisions by TCEQ to: (1) Add PSD to 
the title of the section, such that the section will address 
Nonattainment and PSD Review Definitions; (2) add the definition of 
Federally Regulated NSR Pollutant, which identifies volatile organic 
compounds (VOCs) and NOX as precursors in all attainment and 
unclassifiable areas; and (3) revise the section title, so the 
definitions for Major stationary source, Major modification, and the 
table identifying the Significant Level for emission thresholds for 
major sources and major modifications will apply under PSD. These 
revisions addressing PSD also specify that a major source that is major 
for VOCs or NOX shall be considered major for ozone and 
provide that the significant emission threshold for ozone (identified 
as VOC, NOX) is 40 tons per year (tpy). The actions proposed 
herein are described in greater detail in Section III of this 
rulemaking and in the TSD. In this proposal, EPA is not taking action 
on other submitted NSR revisions; EPA intends to act on the other NSR 
SIP revisions at a later date.
---------------------------------------------------------------------------

    \28\ By severable, we mean that the portions of the SIP revision 
that address NOX as a precursor can be implemented 
independently of the remaining portions of the submittal, without 
affecting the stringency of the submitted rules. In addition, the 
remaining portions of the submittal are not necessary for approval 
of the provisions addressing NOX as a precursor.
---------------------------------------------------------------------------

B. Why is EPA proposing a partial approval, partial disapproval?

    Section 110(k)(3) of the Act states that EPA may partially approve 
and partially disapprove a SIP submittal if it finds that only a 
portion of the submittal meets the requirements of the Act. We believe 
that the Texas SIP meets a majority of the requirements of section 
110(a)(2) of the Act and that specific portions of three elements of 
section 110(a)(2) are not met.\29\ Because the portions proposed for 
disapproval are independent from those proposed for approval, we 
believe that the Texas Infrastructure SIP can be partially approved and 
partially disapproved.
---------------------------------------------------------------------------

    \29\ The three elements refer to the infrastructure and 
interstate transport SIP elements discussed in section II above.
---------------------------------------------------------------------------

C. What are the implications of a partial approval, partial 
disapproval?

    Enforcement of a state regulation (or rule) before and after it is 
incorporated into the federally approved SIP is primarily a state 
responsibility. However, after the rule is federally approved, we are 
authorized to take enforcement action against violators. Citizens are 
also offered legal recourse to address violations as described in 
section 304 of the Act. If a state rule is disapproved, it is not 
incorporated into the federally approved SIP, and is not enforceable by 
EPA or by citizens under section 304. Disapproval of any of the Texas 
infrastructure SIP elements would not trigger sanctions under section 
179 of the Act, because the submittals are not required by part D of 
Title I of the Act and are not required by a call for a SIP revision 
under section 110(k)(5) of the Act. However, as noted earlier, EPA 
published a finding on March 27, 2008 (73 FR 16205) regarding whether 
or not states had made the section 110(a)(2) submissions for ozone and 
found that Texas had failed to make a complete submission. This finding 
started a 24-month deadline for promulgation by EPA of a FIP. This FIP 
obligation will be met for the 110(a)(2) elements that EPA has proposed 
approval, if, after considering public comment, EPA finalizes the 
approval. For the proposed disapproved infrastructure elements (the 
portions of section 110(a)(2)(C), section 110(a)(2)(D)(ii), and section 
110(a)(2)(J) described in section III of this action), EPA remains 
obligated to implement a FIP if disapproval is finalized. EPA's 
disapproval here, however, does not engender an additional statutory 
obligation, because EPA has already promulgated a FIP for the Texas PSD 
program to address permitting GHGs at or above the Tailoring Rule 
thresholds (76 FR 25178). As noted earlier, we will take action on the 
remaining three prongs of section 110(a)(2)(D)(i), which addresses 
interstate transport, in a separate rulemaking.

D. SIP Revisions to 30 TAC 101.1

    As described elsewhere in this rulemaking, EPA is acting on 
revisions to 30 TAC 116.12 submitted on March 11, 2011. One of the 
revisions upon which we are taking action, i.e., Table I under the 
definition for Major modification at 30 TAC 116.12(18)(A), makes a 
reference to 30 TAC 101.1(70).\30\ Since the cross-referenced 
paragraphs must correlate, we had to broaden our review to include 
revisions to several paragraphs in 30 TAC 101.1. Thus, EPA is proposing 
to approve the following portions of the March 11, 2011 SIP revisions: 
(1) The non-

[[Page 58756]]

substantive revisions to the definition of Nonattainment area at 30 TAC 
101.1(70) to reflect the current status of ozone nonattainment areas in 
Texas as identified in 40 CFR part 81 and make the definition 
consistent with changes proposed for 30 TAC 116.12(18)(A); (2) the non-
substantive revisions to the definition of Reportable quantity at 30 
TAC 101.1(88) to make the definition consistent with changes proposed 
for 30 TAC 101.1(70); and (3) the non-substantive revisions to the 
definition of Maintenance area at 30 TAC 101.1(54) to reflect the 
current status of maintenance areas in Texas as identified in 40 CFR 
81. We are also proposing to approve non-substantive revisions to 30 
TAC 101.1(115) submitted on May 26, 2011, which make the definition of 
Volatile organic compound consistent with the EPA's definition for 
VOCs, as amended January 21, 2009 (74 FR 3437) \31\ and codified at 40 
CFR 51.100(s)(1).
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    \30\ Footnote 1 in Table I under 30 TAC 116.12(18) reads: Texas 
nonattainment area designations as defined in 30 TAC 101.1(70) of 
this title.
    \31\ The state's rule at 30 TAC 101.1(115) cites 74 FR 3441. EPA 
identifies a Federal Register action by the first page of the 
rulemaking, thus our reference to 74 FR 3437.
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III. How has Texas addressed the elements of Section 110(a)(2)?

    The Texas submittals address the elements of Section 110(a)(2) as 
described below. We provide a more detailed review and analysis of the 
Texas infrastructure and transport SIP elements in the TSD.
    Enforceable emission limits and other control measures, pursuant to 
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures 
and other elements in the SIP be enforceable. This provision does not 
require the submittal of regulations or emission limits developed 
specifically for attaining the 1997 8-hour ozone and 1997 and 2006 
PM2.5 standards. Those regulations are due later as part of 
attainment demonstrations. Additionally, as explained earlier (see 
footnote 1), EPA does not consider SIP requirements triggered by the 
nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1). Nevertheless, 
Texas has included some SIP provisions originally submitted in response 
to part D in its submission documenting its compliance with the 
infrastructure requirements of section 110(a)(1) and (2). Texas has 
continually updated the elements of its SIP revisions submitted in 
response to the infrastructure requirements of section 110(a)(2) and 
the nonattainment requirements of part D. For the purposes of this 
action, EPA is reviewing any rules originally submitted in response to 
part D solely for the purposes of determining whether they support a 
finding that the state has met the basic infrastructure requirements 
under section 110(a)(2).
    The Texas Clean Air Act (TCAA), which named the Texas Air Control 
Board (TACB) as the state's air pollution control agency, provided 
enforcement authority to the TACB. In its approval of the Texas 1972 
SIP, EPA approved the State's Section V of the SIP Narrative as showing 
that the Board had the legal authority to implement and enforce the SIP 
(37 FR 10842, 10895, May 31, 1972). Later, in 1981 EPA approved a 
replacement of Section V into the SIP as support showing the Board 
continued to have the legal authority to implement and enforce the 
SIP.\32\ The State has continued to submit updates in its SIP 
Narratives concerning its legal authorities.\33\ Pursuant to Acts 1989, 
71st Legislature, chapter 678, Section 1, effective September 1, 1989, 
the TCAA was codified as Chapter 382 of the Texas Health and Safety 
Code (THSC). The TACB was abolished in 1993 and its powers, duties, 
responsibilities and functions were transferred to the Texas Natural 
Resource Conservation Commission, which was renamed in 2001, to the 
Texas Commission on Environmental Quality (TCEQ). The Texas Water Code 
(TWC) under Section 5.013 provides the TCEQ with authority over the 
responsibilities assigned by the THSC (which may be cited as the TCAA). 
The THSC under Section 382.017 authorizes the TCEQ to adopt rules for 
the control of air pollution.
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    \32\ See 46 FR 61124, published December 15, 1981.
    \33\ For examples, see the Houston Attainment Plan (71 FR 52670, 
September 6, 2006), the Dallas/Fort Worth Attainment Plan (74 FR 
1903, January 14, 2009), and the Beaumont/Port Arthur Redesignation 
(75 FR 64675, October 20, 2010).
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    The TCEQ has promulgated rules to limit and control emissions of 
among other things, PM, sulfur compounds (including sulfur dioxide or 
SO2), nitrogen compounds (including NOX), and 
VOCs.\34\ These rules include emission limits, control measures, 
programs for banking and trading of emissions, emission reduction 
incentive programs, permits, fees, and compliance schedules and are 
found within 30 TAC, chapters 101, 106, and 111-118.
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    \34\ NOX and VOCs are precursors to ozone. PM can be 
emitted directly and secondarily formed; the latter is the result of 
NOX and SO2 precursors combining with ammonia 
to form ammonium nitrate and ammonium sulfate.
---------------------------------------------------------------------------

    EPA promulgated a partial approval and partial disapproval of the 
Texas provisions regarding excess emissions occurring during startup, 
shutdown, and malfunction (SSM) of operations at a facility on November 
10, 2010 (75 FR 68989).\35\ In this action, EPA is not proposing to 
approve or disapprove any existing state provisions with regard to 
excess emissions during SSM of operations at a facility. EPA believes 
that a number of states may have SSM SIP provisions which are contrary 
to the Act and inconsistent with existing EPA guidance,\36\ and the 
Agency plans to address such state regulations in the future. In the 
meantime, EPA encourages any state having a deficient SSM provision to 
take steps to correct it as soon as possible. Similarly, this proposed 
action does not include a review of and also does not propose to take 
any action to approve or disapprove any existing SIP rules with regard 
to director's discretion or variance provisions. EPA believes that a 
number of SIPs have such provisions which are contrary to the Act and 
not consistent with existing EPA guidance (52 FR 45044, November 24, 
1987) \37\ and the Agency plans to take action in the future to address 
such SIP regulations. In the meantime, EPA encourages any state having 
a director's discretion or variance provision in its SIP which is 
contrary to the Act and inconsistent with EPA guidance to take steps to 
correct the deficiency as soon as possible.
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    \35\ EPA approved the provisions that clarify existing reporting 
requirements; clarify that the rule does not allow exemptions from 
compliance with Federal requirements, including any requirements in 
the federally-approved SIP; provide for an affirmative defense from 
unplanned startup, shutdown, or maintenance (i.e., malfunctions), 
consistent with the CAA as interpreted by EPA; and provide for a 
corrective action plan and written notification concerning excessive 
emission events. EPA disapproved the provisions that provide for an 
affirmative defense against civil penalties for excess emissions 
during planned maintenance, startup, or shutdown activities and 
related provisions that contain non-severable cross-references to 
the affirmative defense provision. For more information, see 75 FR 
68989.
    \36\ ``State Implementation Plans (SIPs): Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown,'' 
Memorandum from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance, and Robert Perciasepe, 
Assistant Administrator for Air and Radiation, dated September 20, 
1999.
    \37\ The section addressing exemptions and variances is found on 
p. 45109 of the 1987 rulemaking.
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    A detailed list of the applicable rules at 30 TAC, listed above, is 
provided in the TSD. The Texas SIP contains enforceable emission limits 
and other control measures, which are in the federally enforceable SIP. 
EPA is proposing to determine that the Texas SIP meets the requirements 
of section 110(a)(2)(A) of the Act with respect to

[[Page 58757]]

the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    Ambient air quality monitoring/data analysis system, pursuant to 
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include 
provisions for establishment and operation of ambient air quality 
monitors, collecting and analyzing ambient air quality data, and making 
these data available to EPA upon request. The TCEQ operates and 
maintains a state-wide network of air quality monitors; data are 
collected, results are quality assured and the data are submitted to 
EPA's Air Quality System \38\ on a regular basis. The Texas Statewide 
Air Quality Surveillance Network was approved by EPA (37 FR 10842, 
10895) and revised on March 7, 1978 (43 FR 9275). Texas's air quality 
surveillance network consists of stations that measure ambient 
concentrations of the criteria pollutants, including ozone \39\ and 
PM2.5. EPA also approved Texas's enhanced ambient air 
quality monitoring network of Photochemical Assessment Monitoring 
Stations (PAMS) on October 4, 1994 (59 FR 50502).\40\ The TCEQ Web site 
provides the ozone and PM2.5 monitor locations and current 
and historical data, including ozone design values for current \41\ and 
past trienniums. On June 30, 2010, TCEQ submitted its 2010 Annual Air 
Monitoring Network Plan (AAMNP) that addresses each of the criteria 
pollutants, including 8-hour ozone and PM2.5 and thus allows 
the state to measure its air quality for compliance with the 1997 ozone 
and 1997 and 2006 PM2.5 NAAQS; EPA approved the AAMNP on 
December 23, 2010.\42\
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    \38\ The Air Quality System (AQS) is EPA's repository of ambient 
air quality data. AQS stores data from over 10,000 monitors, 5,000 
of which are currently active. State, Local and Tribal agencies 
collect the data and submit it to AQS on a periodic basis.
    \39\ With the exception of maintenance and malfunctions, the 
ozone monitors are constantly running and recording one-hour ozone 
averages. Texas submits the hourly data into AQS, where the 8-hour 
averages are computed. Texas also computes the 8-hour averages and 
posts the data at http://www.tceq.state.tx.us/cgi-bin/compliance/monops/8hr_monthly.pl.
    \40\ The PAMS network undergoes review and approval by EPA 
whenever there are significant changes to the network. A copy of the 
most recent approval, dated October 30, 2009, is in the docket for 
this rulemaking.
    \41\ The current design values reflect the 2008-2010 ozone 
season data.
    \42\ A copy of our approval letter is in the docket for this 
rulemaking. At the time of this writing, the review of the 2011 
AAMNP has not been completed.
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    In summary, Texas meets the requirements to establish, operate, and 
maintain an ambient air monitoring network, collect and analyze the 
monitoring data, and make the data available to EPA upon request. EPA 
is proposing to find that the current Texas SIP meets the requirements 
of section 110(a)(2)(B) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the 
modification and construction of stationary sources * * * including a 
permit program, pursuant to section 110(a)(2)(C): The THSC and the TWC, 
as stated previously, provide the state with enforcement authority for 
rules adopted under the TCAA. The rules in 30 TAC 101 provide for 
enforcement of emissions inventories. The rules in 30 TAC 106, 112, 115 
and 117 provide for allowable emission rates, and control, monitoring 
and testing requirements; they clarify the boundaries beyond which 
regulated entities in Texas can expect enforcement action.
    To meet the requirement for having a program for the regulation of 
the modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that NAAQS are 
achieved, including a permit program as required by Parts C and D, 
generally, the State is required to have SIP-approved PSD, 
Nonattainment, and Minor NSR permitting programs adequate to implement 
the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS. As 
discussed previously, we are not evaluating nonattainment-related 
provisions, such as the nonattainment NSR program required by part D in 
110(a)(2)(C) and measures for attainment required by section 
110(a)(2)(I), as part of the infrastructure SIPs for these three NAAQS 
because these submittals are required beyond the date (3 years from 
NAAQS promulgation) that section 110 infrastructure submittals are 
required.
    PSD programs apply in areas that are meeting the NAAQS or are 
unclassifiable, referred to as areas in attainment. PSD applies to new 
major sources and major modifications at existing sources. The Texas 
PSD SIP (found at 30 TAC 116, Division 6) was initially approved on 
June 24, 1992 (57 FR 28093). Subsequent revisions to the Texas PSD 
program were approved into the SIP on September 9, 1994 (59 FR 46556); 
August 19, 1997 (62 FR 44083); September 18, 2002 (67 FR 58697); July 
22, 2004 (69 FR 43752); March 20, 2009 (74 FR 11851); and September 15, 
2010 (75 FR 55978). As noted earlier in this proposal, part D of the 
Act addresses nonattainment area provisions, which are not governed by 
the three-year submission deadline for section 110(a)(2) and thus will 
not be addressed in this action.\43\
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    \43\ See footnote 1.
---------------------------------------------------------------------------

    EPA's PSD permitting regulations are found at 40 CFR 51.166 and 40 
CFR 52.21. PSD requirements for SIPs are found in 40 CFR 51.166 and 40 
CFR Part 51 Appendix W. Similar PSD requirements for SIPs incorporating 
EPA's regulations by reference are found in 40 CFR 52.21. To meet the 
requirements of 110(a)(2)(C) for the 1997 ozone standard, EPA believes 
the State must have updated its PSD rules to treat NOX as a 
precursor for ozone (70 FR 71612, November 29, 2005). On March 11, 
2011, Texas submitted the provisions for NOX as a precursor 
consistent with EPA's November 29, 2005, Phase 2 rule for the 1997 8-
hour ozone NAAQS (70 FR 71612) as part of its revisions to address NSR 
Reform. EPA proposes to approve the following portions of the March 11, 
2011 SIP revisions to 30 TAC 116.12: (1) The non-substantive revision 
to the title of 30 TAC 116.12, changing the title from Nonattainment 
Review Definitions to Nonattainment and Prevention of Significant 
Deterioration Review Definitions; (2) the non-substantive and 
administrative revisions to the introductory paragraph at 30 TAC 
116.12; (3) the substantive revisions that add Federally Regulated NSR 
pollutant as a new definition \44\ at 30 TAC 116.12(14); (4) the non-
substantive changes to rename and renumber the definition of Major 
facility/stationary source at 30 TAC 116.12(10) to Major stationary 
source at 30 TAC 116.12(17) and provide minor editorial revisions; (5) 
the substantive changes to the definition of Major stationary source at 
30 TAC 116.12(17) to make the definition consistent with 40 CFR 
51.166(b)(1); (6) the non-substantive changes to renumber the 
definition of Major modification at 30 TAC 116.12(11) to 30 TAC 
116.12(18) and provide minor editorial revisions to Table I (Major 
Source/Major Modification Emission Thresholds), including non-
substantive edits to footnotes 1-3 in Table I; (7) the substantive 
changes to the definition of Major modification at 30 TAC 116.12(18) to 
make the definition consistent with 40 CFR 51.166(b)(1) and (2); and 
(8) the substantive changes that remove footnotes 6 and 7 from Table I 
under 30 TAC 116.12(18)(A) to make the Table consistent with the South 
Coast decision (South Coast Air Quality Management District, et al., v. 
EPA, 472

[[Page 58758]]

F.3d 882 (DC Cir. 2006)).\45\ As noted earlier, 30 TAC 116.12 
previously addressed Nonattainment Review Definitions and identified 
NOX as a precursor, but only applied to nonattainment NSR. 
By revising the title of this subchapter to include Nonattainment and 
Prevention of Significant Deterioration Review Definitions, the 
submitted revisions provide that NOX is an ozone precursor 
for PSD and thus address that aspect of the requirements at 
110(a)(2)(C) for the 1997 ozone standard.
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    \44\ Texas did not address GHGs under the definition for 
Federally Regulated NSR pollutant. See discussion in section I.C.4 
of this action.
    \45\ See the TSD for more detail or the action at 75 FR 56424 
for a full explanation.
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    The March 11, 2011 revisions to the definitions in the Texas rules 
for ``major modification'' and ``major stationary source'' meet the 
Federal definition in 40 CFR 51.166(b)(1) to identify a major source of 
NOX as a major source for ozone. The March 11, 2011 
revisions to the Texas rules also meet the Federal definition in 40 CFR 
51.166(b)(49) for inclusion of NOX as an ozone precursor. 
The March 11, 2011 revisions to the emission rate for ozone in 30 TAC 
116.12(18) under Table I for Major Source/Major Modification Emission 
Thresholds, under the column for Significant Level in the Texas rules 
meet the Federal requirements in 40 CFR 51.166(b)(23)(i), which 
establishes these emission thresholds as 40 tpy. Because of their 
consistency with 40 CFR part 51, which provides the requirements for an 
approvable PSD program, EPA believes these revisions are consistent 
with 110(l) and the revisions would not interfere with any applicable 
CAA requirement concerning attainment of any applicable standard. 
Therefore, EPA is proposing to approve these revisions as meeting the 
requirements of section 110 of the Act and 40 CFR 51.166 for 
establishing NOX emissions as a precursor for ozone.
    The revisions to 30 TAC 116.12 and EPA's evaluation of these 
revisions are discussed in greater detail in the TSD. The provisions 
that address NOX as a precursor are severable from the March 
11, 2011 submittal and EPA is proposing to approve these provisions in 
today's action.
    Permits that are major for Ozone: EPA's PSD regulations require an 
ambient impact analysis for ozone for proposed major stationary sources 
and major modifications to obtain a PSD permit (40 CFR 51.166(k), (l) 
and (m) and 40 CFR 52.21(k), (l) and (m)). The Texas rules at 30 TAC 
116.160-.163 meet these requirements for PSD and were approved into the 
SIP on June 24, 1992 (57 FR 28093), as revised September 9, 1994 (59 FR 
46556), September 27, 1995 (60 FR 49781), August 19, 1997 (62 FR 
44083), July 22, 2004 (69 FR 43752); March 20, 2009 (74 FR 11851); and 
September 15, 2010 (75 FR 55978). The Texas PSD SIP meets these 
requirements by incorporating by reference 40 CFR 52.21(k) and (m) and 
including the following rule at 116.160(d) that EPA found meets 40 CFR 
51.166(l): ``All estimates of ambient concentrations required under 
this subsection shall be based on the applicable air quality models and 
modeling procedures specified in the EPA Guideline on Air Quality 
Models, as amended, or models and modeling procedures currently 
approved by the EPA for use in the state program, and other specific 
provisions made in the prevention of significant deterioration state 
implementation plan. If the air quality impact model approved by the 
EPA or specified in the guideline is inappropriate, the model may be 
modified or another model substituted on a case-by-case basis, or a 
generic basis for the state program, where appropriate. Such a change 
shall be subject to notice and opportunity for public hearing and 
written approval of the administrator of the EPA.'' The Texas rule does 
not name 40 CFR part 51, Appendix W, as 40 CFR 51.166(l) does, but 
Appendix W codifies the Guideline on Air Quality Models, which is named 
in the Texas rule, and Section 1.0.a of Appendix W states, in part: 
``The Guideline recommends air quality modeling techniques that should 
be applied to [SIP] revisions for existing sources and to [NSR], 
including [PSD]. Applicable only to criteria air pollutants, it is 
intended for use by EPA Regional Offices in judging the adequacy of 
modeling analyses performed by EPA, state and local agencies and by 
industry. [* * *] The Guideline is not intended to be a compendium of 
modeling techniques. Rather, it should serve as a common measure of 
acceptable technical analysis when supported by sound scientific 
judgment.''
    Appendix W Section 5.2.1 includes the Guideline recommendations for 
models to be utilized in assessing ambient air quality impacts for 
ozone. Specifically, Section 5.2.1.c: ``Estimating the Impact of 
Individual Sources. Choice of methods used to assess the impact of an 
individual source depends on the nature of the source and its 
emissions. Thus, model users \46\ should consult with the Regional 
Office to determine the most suitable approach on a case-by-case basis 
(subsection 3.2.2).'' Due to the complexity of modeling ozone and the 
dependency on the regional characteristics of atmospheric conditions, 
EPA believes this is an appropriate approach rather than specifying one 
particular preferred model nationwide, which may not be appropriate in 
all circumstances. Instead, the choice of method ``depends on the 
nature of the source and its emissions.'' (Appendix W Section 5.2.1.c.) 
Therefore, EPA continues to believe it is appropriate for permitting 
authorities to consult and work with EPA Regional Offices as described 
in Appendix W, including sections 3.0.b and c, 3.2.2 and 3.3, to 
determine the appropriate approach to assess ozone impacts for each PSD 
required evaluation. Although EPA has not selected one particular 
preferred model in Appendix A of Appendix W (Summaries of Preferred Air 
Quality Models) for conducting ozone impact analyses for individual 
sources, state and local permitting authorities must comply with the 
appropriate PSD FIP or SIP requirements with respect to ozone.\47\ We 
note in other recent EPA actions, some have raised concerns that the 
lack of a preferred model for ozone has resulted in the belief that no 
modeling is required or use of inappropriate models is allowed.\48\ 
This underscores the need for consultation with the EPA Regional 
office. EPA agrees that states should not be using inappropriate 
analytical tools in this context. The use of ``Scheffe Tables'' and 
other particular screening techniques, which involve ratios of 
NOX to VOC that do not consider the impact of biogenic 
emissions, or that use other outdated or irrelevant modeling, is 
inappropriate to evaluate a single source's ozone impacts on an air 
quality control region. More scientifically appropriate screening and 
refined tools are available and should be considered for use. 
Therefore, EPA continues to believe states should consult and work with 
EPA Regional Offices as described in Appendix W on a case-by-case basis

[[Page 58759]]

to determine the appropriate method for estimating the impacts of these 
ozone precursors from individual sources.
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    \46\ EPA notes ``model users'', as referenced in Appendix W 
Section 5.2.1.c, include state and local permitting authorities, and 
permitting applicants and their representatives.
    \47\ EPA has received a national administrative petition 
entitled, ``Sierra Club's Petition for Rulemaking to Designate Air 
Quality Models to use for PSD Permit Applications with Regard to 
Ozone and PM2.5 (July 28, 2010).'' The petition is in the 
docket for this rulemaking.
    \48\ See the November 26, 2010 final action at 75 FR 72695, 
pages 72697-72699, ``Approval and Promulgation of Implementation 
Plans; Oklahoma; State Implementation Plan Revisions for Interstate 
Transport of Pollution, Prevention of Significant Deterioration, 
Nonattainment New Source Review, Source Registration and Emissions 
Reporting and Rules of Practice and Procedure.''
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    For ozone, a proposed emission source's impacts are dependent upon 
local meteorology and pollution levels in the surrounding atmosphere. 
Ozone is formed from chemical reactions in the atmosphere. The impact 
of a new or modified source can have on ozone levels is dependent, in 
part, upon the existing atmospheric pollutant loading already in the 
region with which emissions from the new or modified source can react. 
In addition, meteorological parameters such as wind speed, temperature, 
wind direction, solar radiation influx, and atmospheric stability are 
also important factors. The more sophisticated analyses consider 
meteorology and interactions with emissions from surrounding sources. 
EPA has not identified an established modeling system that would fit 
all situations and take into account all of the additional local 
information about sources and meteorological conditions.
    The Texas SIP satisfies the Federal PSD SIP modeling requirements 
for sources that are major for ozone because the state rules approved 
by EPA into the SIP include the Federal requirements. EPA has 
previously commented to TCEQ on PSD permits regarding concerns with 
technical inadequacies in ozone impact analyses and/or a lack of 
consultation with the Regional Office on the development of an adequate 
ozone modeling protocol for single source ozone impacts.\49\ EPA may 
address implementation of the SIP through separate action and is not 
precluded by approval of the infrastructure SIP. EPA reaffirms that the 
assessment of ozone impacts should be done in consultation with the EPA 
Regional Office.
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    \49\ See letter from Carl E. Edlund to Richard Hyde, dated 
February 10, 2010 and letter from Lawrence E. Starfield to Mark 
Vickery, dated January 24, 2011, in the docket for this rulemaking.
---------------------------------------------------------------------------

    PM2.5 permitting: To implement section 110(a)(2)(C) for the 1997 
PM2.5 standard, states must provide revisions to implement 
the PM2.5 standard due May 16, 2011 under 73 FR 28321.\50\ 
On April 20, 2011, the TCEQ adopted revisions to the Texas SIP to amend 
their PSD and nonattainment NSR programs to implement the 
PM2.5 NAAQS. These revisions became effective and 
enforceable by the state on May 12, 2011. The state submitted these 
changes to EPA as a SIP revision on May 19, 2011. EPA will act on this 
submission in a separate rulemaking.
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    \50\ The Federal Register action at 73 FR 28321 was published 
May 16, 2008.
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    Minor Source Permitting: Section 110(a)(2)(C) creates ``a general 
duty on States to include a program in their SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved'' (70 FR 71612, 71677). EPA provides 
states with a ``broad degree of discretion'' in implementing their 
minor NSR programs (71 FR 48696, 48700, August 21, 2006). The 
``considerably less detailed'' regulations for minor NSR are provided 
in 40 CFR 51.160 through 51.164. EPA has determined that the Texas 
minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act 
regulates emissions of ozone and its precursors and PM. The Texas minor 
source permitting requirements are contained at 30 TAC 116 (Subchapter 
B, Division 1). In its initial SIP approved by EPA on May 31, 1972 (37 
FR 10842, 10895), Texas provided for review of new sources and 
modification of existing sources and for preventing construction or 
modification if it would result in violations of applicable portions of 
a control strategy or interfere with attainment or maintenance of the 
NAAQS, without distinguishing between minor and major sources. Upon 
EPA's conditional approval of the Texas nonattainment NSR (NNSR) 
requirements for major sources and major modifications in nonattainment 
areas, March 25, 1980 (45 FR 19231), the Texas SIP continued to address 
minor sources and minor modifications. There have been numerous 
revisions approved for the Texas Minor NSR SIP since 1980. Among many 
others, they include August 13, 1982 (47 FR 35193); September 18, 2002 
(67 FR 58697); November 14, 2003 (68 FR 64543); August 28, 2007 (72 FR 
49198); March 8, 2010 (75 FR 10416); and April 2, 2010 (75 FR 16671).
    In this action, EPA is proposing to approve the Texas 
infrastructure SIP for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS with respect to the general requirement of 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the state's existing minor NSR program in this action; we 
are not evaluating this program for consistency with EPA's regulations 
governing minor NSR herein. EPA believes that a number of states may 
have minor NSR provisions that are contrary to the existing EPA 
regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    In this action, EPA is not proposing to approve or disapprove any 
state rules with regard to NSR Reform requirements. As noted earlier, 
on March 11, 2011, the TCEQ submitted revisions to their NSR program to 
meet the requirements of the NSR Reform. We are acting on a limited 
portion of that submittal, as described earlier in this discussion of 
110(a)(2)(C) and interstate transport \51\ and in Section I.C.3 of this 
action. EPA will act on the remainder of the March 11, 2011 SIP 
submittals through separate rulemakings.
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    \51\ See also the discussion on interstate transport under 
section 110(a)(2)(D)(i) in this rulemaking.
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    As noted in Section I.C.4 of this proposal, Texas currently does 
not have adequate legal authority to implement the PSD permitting 
program with respect to GHG emissions at or above the emissions 
thresholds established in the Tailoring Rule, or at other appropriate 
levels, and thus the Texas SIP does not satisfy this portion of section 
110(a)(2)(C). We are proposing to disapprove the Texas SIP for failing 
to meet the infrastructure requirements for the 1997 ozone and the 1997 
and 2006 PM2.5 NAAQS with respect to the GHG requirement of 
section 110(a)(2)(C). EPA is proposing to find that the Texas SIP meets 
the PSD requirement of section 110(a)(2)(C) with respect to the 1997 8-
hour ozone and 1997 and 2006 PM2.5 NAAQS, with the exception 
of section 110(a)(2)(C) as it relates to the GHG component of the PSD 
program. EPA is proposing to find that the Texas SIP does not meet the 
PSD requirement of section 110(a)(2)(C) as it relates to the GHG 
component of the PSD program with respect to the 1997 8-hour ozone and 
1997 and 2006 PM2.5 NAAQS. However, EPA's disapproval here 
does not engender an additional statutory obligation, because EPA has 
already promulgated a FIP for the Texas PSD program to address 
permitting GHGs at or above the Tailoring Rule thresholds (76 FR 
25178).
    Interstate transport, pursuant to section 110(a)(2)(D): Section 
110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). 
Section 110(a)(2)(D)(i) requires SIPs to

[[Page 58760]]

include provisions prohibiting any source or other type of emissions 
activity in one state from contributing significantly to nonattainment, 
interfering with maintenance of the NAAQS in another state, or from 
interfering with measures required to prevent significant deterioration 
of air quality or to protect visibility in another state. Section 
110(a)(2)(D)(ii) requires SIPs to include provisions insuring 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement.
    PSD and interstate transport, pursuant to section 110(a)(2)(D)(i):
    As previously described, one of the four elements or prongs in 
section 110(a)(2)(D)(i) requires a SIP to contain adequate provisions 
prohibiting emissions that interfere with any other state's required 
measures to prevent significant deterioration of its air quality. This 
is the only element of 110(a)(2)(D)(i) on which EPA is proposing 
approval in this action. EPA's 2006 Guidance made recommendations for 
SIP submissions to meet this requirement with respect to both the 1997 
8-hour ozone NAAQS and the 1997 PM2.5 NAAQS.
    The 2006 Guidance states that the PSD permitting program is the 
primary measure that each state must include to prevent significant 
deterioration of air quality in accordance with section 
110(a)(2)(D)(i)(II). EPA believes that Texas's May 1, 2008 submission 
is consistent with the 2006 Guidance, when considered in conjunction 
with the State's PSD program and other PSD program revisions that EPA 
is proposing to approve in this action. The submittal states that all 
major sources in Texas are subject to PSD and nonattainment NSR 
permitting programs. As discussed previously in this rulemaking with 
regards to section 110(a)(2)(C) and in the TSD, the State's PSD program 
is in the SIP (57 FR 28093, 62 FR 44083, 67 FR 58697, 69 FR 43752, 74 
FR 11851 and 75 FR 55978). Please see the TSD and our discussion of 
section 110(a)(2)(C) in this rulemaking for additional information.
    Consistent with EPA's November 29, 2005, Phase 2 rule for the 1997 
8-hour ozone NAAQS (70 FR 71612), the State submitted SIP revisions to 
modify its PSD provisions to address NOX as an ozone 
precursor. These revisions have been discussed previously. EPA believes 
that the PSD revision for the 1997 8-hour ozone NAAQS that makes NOx a 
precursor for ozone for PSD purposes, taken together with the PSD SIP 
and the interstate transport SIP, satisfies the requirements of the 
third element of section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
NAAQS, i.e., there will be no interference with any other state's 
required PSD measures.
    As discussed previously in our analysis of section 110(a)(2)(C) for 
this rulemaking, EPA's PSD regulations also require an ambient impact 
analysis for ozone for proposed major stationary sources and major 
modifications to obtain a PSD permit (40 CFR 51.166(k), (l) and (m) and 
40 CFR 52.21(k), (l) and (m)). Our affirmation that the Texas SIP 
addresses the Federal PSD modeling requirements is discussed in more 
detail under section 110(a)(2)(C) for this rulemaking.
    For the 1997 PM2.5 NAAQS, Texas stated in its section 
110(a)(2)(D)(i) submission that its NSR program is being implemented in 
accordance with EPA's interim guidance regarding the use of 
PM10 as a surrogate for PM2.5. Furthermore, as 
indicated earlier, on April 20, 2011 the TCEQ adopted revisions to the 
Texas SIP to amend their PSD and nonattainment NSR programs to 
implement the 1997 PM2.5 NAAQS. These revisions became 
effective and enforceable by the state on May 12, 2011 and the state 
submitted these revisions to EPA on May 19, 2011 for approval as a SIP 
revision. They effectively supersede the interim guidance allowing the 
use of PM10 as a surrogate for PM2.5. Instead, as 
announced in EPA's May 16, 2008 rulemaking, the 1997 PM10 
Surrogate Policy may not be used for any state PSD permits after the 3 
years allowed for SIP development (ending May 16, 2011).\52\ With the 
end of the 1997 PM10 Surrogate Policy in SIP-approved states 
on May 16, 2011, and the repeal of the grandfather provision in this 
final action, the 1997 PM10 Surrogate Policy may only be 
relied on as specified in the May 18, 2011 rulemaking (see 76 FR 28646) 
for any pending or future applications.
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    \52\ See 73 FR 28321.
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    EPA is proposing to find that the Texas SIP meets the PSD 
requirement of section 110(a)(2)(D)(i) with respect to the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS, with the exception of 
section 110(a)(2)(D)(i) as it relates to the GHG component of the PSD 
program. EPA is proposing to find that the Texas SIP does not meet the 
PSD requirement of section 110(a)(2)(D)(i) as it relates to the GHG 
component of the PSD program with respect to the 1997 8-hour ozone and 
1997 and 2006 PM2.5 NAAQS. We will act on the remaining 
three prongs regarding interstate transport, per section 
110(a)(2)(D)(i) of the Act in a separate rulemaking.
    EPA is not proposing to approve the PSD program in full because 
Texas does not have adequate legal authority to implement the PSD 
permitting program with respect to GHG emissions pursuant to section 
110(a)(2)(D)(i). EPA's disapproval here does not engender an additional 
statutory obligation, because EPA has already promulgated a FIP for the 
Texas PSD program related to permitting GHGs at or above the Tailoring 
Rule thresholds (76 FR 25178).
    As aforementioned, EPA is not proposing action on the remaining 
three prongs of section 110(a)(2)(D) here (see footnote 19). We note 
however, that EPA approved into the Texas SIP the Clean Air Interstate 
Rule (CAIR) NOx Annual Trading Program on July 30, 2007 (72 FR 41453). 
The intended effect of this SIP action implementing the CAIR is to 
reduce NOx emissions from within Texas that contribute to nonattainment 
of the 1997 PM2.5 NAAQS in downwind states. In addition, 
Texas submitted revisions to its CAIR SIP on March 4, 2010 to address 
Phase II of the CAIR (which addresses 2015 and thereafter). The CAIR 
was overturned by the court. Therefore, the first two prongs of Section 
110(a)(2)(D)(i)(I)--which limit emissions that contribute significantly 
to nonattainment and interfere with maintenance of the NAAQS in other 
states--will be evaluated in light of the EPA's Cross-State Air 
Pollution Rule, which found that Texas (and 26 other states in the 
eastern half of the United States) must significantly improve air 
quality by reducing power plant emissions that cross state lines and 
contribute to ground-level ozone and fine particle pollution in other 
states.\53\ The protection of visibility requirement of 
110(a)(2)(D)(i)(II) will be evaluated when EPA completes its review of 
the Texas interstate transport SIP submitted on May 1, 2008 and the 
Texas regional haze SIP revision submitted on March 19, 2009.
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    \53\ See 76 FR 48208.
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    Interstate and international pollution abatement, pursuant to 
section 110(a)(2)(D)(ii):
    Section 110(a)(2)(D)(ii) of the Act requires compliance with 
sections 115 and 126 of the Act, relating to interstate and 
international pollution abatement. Section 115 addresses endangerment 
of public health or welfare in foreign countries from pollution emitted 
in the United States. Pursuant to section 115(a), the Administrator has 
not been made aware of submissions indicating reports, surveys, or 
studies from any duly constituted international agency regarding air 
pollution emitted in Texas which may reasonably be anticipated to

[[Page 58761]]

endanger public welfare or health in Mexico. Furthermore under section 
115(a), the Administrator has not been requested by the Secretary of 
State to issue formal notification to Texas that emissions originating 
in the State are endangering public health or welfare in Mexico.
    Section 126(a) of the Act requires new or modified sources to 
notify neighboring states of potential impacts from such sources. The 
Texas SIP requires that each major proposed new or modified source 
provide such notification (see 67 FR 58697). The State also has no 
pending obligations under section 126 of the Act. For additional 
detail, please refer to the TSD. However, as previously discussed in 
this rulemaking, Texas does not have adequate legal authority to 
implement the PSD program with respect to GHG emissions. Therefore, EPA 
is not proposing to approve Texas's interstate pollution abatement 
provisions in full because Texas cannot require each major proposed or 
modified new source to notify neighboring states of potential impacts 
from GHGs emitted by such sources.
    EPA is proposing to find that the Texas SIP meets the interstate 
and international pollution abatement requirements of section 
110(a)(2)(D)(ii) with respect to the 1997 8-hour ozone and 1997 and 
2006 PM2.5 NAAQS, with the exception of section 
110(a)(2)(D)(ii) as it relates to the GHG notification component of the 
interstate pollution abatement requirement.
    EPA is proposing to find that the Texas SIP does not meet the 
interstate and international pollution abatement requirements of 
section 110(a)(2)(D)(ii) with respect to the 1997 ozone and 1997 and 
2006 PM2.5 NAAQS, as it relates to the GHG notification 
component of the interstate pollution abatement requirement. EPA's 
disapproval here does not engender an additional statutory obligation, 
because EPA has already promulgated a FIP for the Texas PSD program 
related to permitting GHGs at or above the Tailoring Rule thresholds 
(76 FR 25178).
    Adequate resources and authority, pursuant to section 110(a)(2)(E): 
Texas statutes contain basic structural provisions that provide TCEQ 
with generic authority for enforcement of the SIP. The TWC at Section 
5.012 declares that ``[t]he commission is the agency of the state given 
primary responsibility for implementing the constitution and laws of 
this state relating to the conservation of natural resources and the 
protection of the environment.'' In addition, the TCEQ has general 
jurisdiction over the responsibilities assigned under the TCAA (see 
THSC at section 382). The general powers and duties of the TCEQ, 
pursuant to the TCAA (382.011) include administering the TCAA, 
controlling the quality of the state's air, and accomplishing the 
purposes of the TCAA ``through the control of air contaminants by all 
practical and economically feasible methods.'' In Section 382.011, the 
THSC also states that the TCEQ ``has the powers necessary or convenient 
to carry out its responsibilities.'' Enforcement authority is provided 
under the TWC, Chapter 7 (section 7.002).
    We propose to find that the generic authority concerning 
enforcement evinced by these state statutory provisions cumulatively 
are sufficient to assure enforcement of the NAAQS in Texas, in 
accordance with the requirements of section 110(a)(2)(E). While EPA 
proposes to find that these provisions confirm that the TCEQ has 
adequate authority pursuant to 110(a)(2)(E), EPA is aware of Texas 
legislation that may have altered the ambit of the state's enforcement 
authority with respect to the federally approved Texas Title V program. 
Senate Bill 12, codified at TWC Section 7.00251, by its own statutory 
terms alters TCEQ's enforcement authority for ``violations based on 
information [TCEQ] receives as required by Title V of the Clean Air 
Act'' upon first infraction. Senate Bill 12 alters TCEQ's enforcement 
authority with respect to self-certified violations documented in a 
Title V deviation report. EPA believes it is important to note that 
Senate Bill 12 does not affect, restrict, or alter the authority 
ascribed to EPA, citizens, or parties other than TCEQ to enforce the 
provisions of the SIP with respect to violations of the requirements of 
the SIP, nor does it preclude TCEQ from seeking injunctive relief for 
the violations or penalties for a repeat infraction. In conjunction 
with Texas's generic statutory enforcement authority provisions cited 
previously, EPA concludes that this legislation does not impede EPA's 
approval of Texas's infrastructure SIP for the 1997 8-hour ozone NAAQS 
and the 1997 and 2006 PM2.5 NAAQS under the requirements of 
CAA 110(a)(2).
    However, EPA's proposed approval of the Texas infrastructure SIP 
submission as meeting the requirements of 110(a)(2)(E) does not include 
evaluation of adequate enforcement authority under the Title V program, 
as Title V is subject to statutory and regulatory mechanisms outside 
those provided within the scope of section 110(a). EPA is currently, 
under Title V statutory and other regulatory mechanisms, evaluating 
Senate Bill 12 for potential impacts on Texas's enforcement authority 
to collect penalties with respect to the types of violations covered by 
this legislation. EPA believes Senate Bill 12 may affect TCEQ's 
enforcement authority under its federally approved Title V program to 
collect penalties with respect to a subset of self-reported violations 
upon the first infraction. Section 502 of Title V under the CAA 
requires that a permitting authority have adequate authority in part, 
to recover civil penalties in a maximum amount of not less than $10,000 
per day for each violation. This Federal statutory requirement is 
codified in regulations governing the Title V program. 40 CFR 70.11 
requires that an agency administering a Title V program shall have 
enforcement authority, in part, to recover civil penalties for the 
violation of any applicable requirement. 40 CFR 70.4(i) establishes 
procedures to address a state's Title V revisions, and authorizes EPA 
to request, and the state must provide, a supplemental Attorney 
General's statement, program description, or other such documents or 
other information as the EPA determines are necessary when the agency 
has reason to believe the circumstances with respect to a state's 
approved Title V program have changed. In conformity with the statutory 
and regulatory process for review of a state's Title V program, EPA has 
initiated this process by a formal letter to TCEQ requesting a 
supplemental Attorney General's statement and information EPA believes 
necessary to evaluate the impact of Senate Bill 12 on Texas's Title V 
program. A copy of this letter is included in the docket for this 
rulemaking.\54\
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    \54\ See letter from Lawrence E. Starfield to Mark R. Vickery, 
dated May 19, 2011, in the docket for this rulemaking.
---------------------------------------------------------------------------

    Because EPA considers evaluation of a state's Title V program 
outside the statutory and regulatory parameters of section 110(a), our 
evaluation of Texas's enforcement authority and consequent approval 
under 110(a)(2)(E) for infrastructure SIP purposes also does not 
preclude EPA's future actions with respect to Texas's enforcement 
authority pursuant to the Title V program. The scope of this action is 
limited to determining whether the existing Texas SIP meets certain 
infrastructure and interstate transport requirements of CAA 110(a)(2) 
with respect to the 1997 8-hour ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS.
    With regard to whether the State has adequate resources to carry 
out its

[[Page 58762]]

duties as required by 110(E), the commission may apply for, solicit, 
contract for, receive, or accept money from any source to carry out its 
duties under this chapter (TCAA, section 382.0335). This section also 
requires the TCEQ to establish fees not less than 50 percent of the 
TCEQ's actual annual expenditures to review and act on permits or 
special permits; amend and review permits, inspect permitted, exempted, 
and specially permitted facilities; and enforce the rules and orders of 
certain adopted permits, special permits, and exemptions issued. 
Furthermore under section 382.0622 of the TCAA, the TCEQ may request 
appropriations of sufficient money to contract for services of local 
units of government meeting certain eligibility criteria to ensure that 
the combination of Federal and state funds annually available for an 
air pollution program is equal to or greater than the program costs for 
the operation of an air quality program by the local unit of 
government. The Texas SIP provides for the collection of fees at 30 TAC 
106.50 (Registration Fees) and 30 TAC 116 (Determination of Fees, 
Payment of Fees, PSD Permit Fees, Renewal Application Fees, Standard 
Permit Fees, and Permit Fees). Most of these provisions have been in 
the Texas SIP for many decades and revisions to them were approved on 
March 20, 2009 (74 FR 11851) and the Permit Fees at 30 TAC 116.926 were 
approved on January 11, 2011 (76 FR 1525). The state also has the 
authority to collect fees for vehicle inspection and maintenance (I/M) 
programs in several nonattainment areas and in the Austin area under 
THSC sections 382.202 and 382.302. These rules are approved in the 
Texas SIP and are found at 30 TAC 114.53 (71 FR 52670) and 114.87 (70 
FR 45542). See the TSD for more detail.
    There are Federal sources of funding for the implementation of the 
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS through, for 
example, the CAA sections 103 and 105 grant funds. The TCEQ receives 
Federal funds on an annual basis, under section 105 of the Act, to 
support its air quality programs. Fees collected for motor vehicle 
inspections, the Title V and non-Title V permit programs, and other 
inspections, emissions and renewal fees required of other air pollution 
sources also provide necessary funds to help implement the State's air 
programs. More specific information on permitting fees is provided in 
the discussion for 110(a)(2)(L) below and in the TSD.
    Texas has routinely submitted SIP revisions with assurances that 
TCEQ has adequate personnel, funding, and authority under state law to 
implement the SIP. The State has provided these assurances in SIP 
submittals approved by EPA.\55\
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    \55\ The DFW Reasonable Further Progress SIP to address the 1997 
ozone moderate nonattainment area was approved on October 7, 2008 
(73 FR 58475). See also the approved SIPs for the three Early Action 
Compact (EAC) areas on August 19, 2005, (70 FR 48640 and 70 FR 
48642) and August 22, 2005 (70 FR 48877).
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    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128. Section 128 requires: (1) That the majority of members of 
the state body which approves permits or enforcement orders do not 
derive any significant portion of their income from entities subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such body be adequately disclosed. In 1981, 
the EPA approved into the SIP the Standards of Conduct of State 
Officers and Employees (Texas Revised Civil Statute Annotated, Article 
6252-9b) (46 FR 61124). The TWC addresses these requirements in the 
Standards of conduct of state officers and employees. See TWC Title 2, 
Subtitle A, Chapter 5, Subchapter C, Sec.  5.053: Eligibility for 
Membership; Sec.  5.054: Removal of Commission Members; Sec.  5.059: 
Conflict of Interest; Sec.  5.060: Lobbyist Prohibition; and Subchapter 
D (General Powers and Duties of the Commission), Sec.  5.111: Standards 
of Conduct.
    EPA is proposing to find that the Texas SIP meets the requirements 
of section 110(a)(2)(E) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section 
110(a)(2)(F): 30 TAC chapters 101, 106, 111, 112, and 115-117 require 
that stationary sources monitor for compliance, provide recordkeeping 
and reporting, and provide for enforcement for ozone, PM2.5, 
and precursors to these pollutants (NOX, SO2 and 
VOCs). These source monitoring requirements also generate data for 
these pollutants.
    Under the Texas SIP rules, the TCEQ is required to analyze the 
emissions data from point, area, mobile, and biogenic (natural) 
sources. The TCEQ uses this data to track progress towards maintaining 
the NAAQS, develop control and maintenance strategies, identify sources 
and general emission levels, and determine compliance with Texas and 
EPA requirements. Emissions data are available electronically: http://www.tceq.texas.gov/nav/main/air_main.html#report. Texas's point source 
emission inventory (EI) is available at http://www.tceq.texas.gov/airquality/point-source/psei/psei.html. These rules are in the 
federally approved SIP. A list of the chapters and Federal Register 
citations is provided in the TSD.
    EPA is proposing to find that the Texas SIP meets the requirements 
of section 110(a)(2)(F) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section 
110(a)(2)(G) requires states to provide for authority to address 
activities causing imminent and substantial endangerment to public 
health, including contingency plans to implement the emergency episode 
provisions in their SIPs. The TCAA and TWC provide the TCEQ with 
authority to address such activities \56\ and the TCEQ has contingency 
plans to implement emergency episode provisions in the SIP. The Texas 
Air Pollution Emergency Episode Contingency Plan was initially approved 
into the SIP on October 7, 1982 (47 FR 44260). Subsequent revisions 
were approved on September 6, 1990 (55 FR 36632) and July 26, 2000 (65 
FR 45915). The episode criteria and contingency measures are found in 
30 TAC 118. The rules at 30 TAC 118 (Renamed ``Control of Air Pollution 
Episodes'') provide for air pollution emergency episodes and preplanned 
abatement strategies. The criteria for ozone are based on a 1-hour 
average ozone level. These episode criteria and contingency measures 
are adequate to address ozone emergency episodes and are in the 
federally approved SIP.
---------------------------------------------------------------------------

    \56\ See TCAA at 382.026 and TWC Chapter 5, Subchapter L 
(5.514).
---------------------------------------------------------------------------

    The 2009 Infrastructure SIP Guidance for PM2.5 
recommends that a state with at least one monitored 24-hour 
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006 
establish an emergency episode plan and contingency measures to be 
implemented should such level be exceeded again. The 2006-2010 ambient 
air quality monitoring data \57\ for Texas do not exceed 140.4 
[micro]g/m\3\. The PM2.5 levels have consistently remained 
below this level (140.4 [micro]g/m\3\), and furthermore, the state has 
appropriate general emergency powers to address PM2.5 
related episodes to protect the environment and public health. Given 
the state's monitored PM2.5 levels, EPA is proposing that 
Texas is not required to submit an emergency episode plan and 
contingency measures at this time, for the 1997 and 2006 
PM2.5 standards.

[[Page 58763]]

Additional detail is provided in the TSD.
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    \57\ The ozone and PM data are available through AQS and the 
State Web site (http://www.tceq.texas.gov/agency/air_main.html). 
The AQS data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to find that the Texas SIP meets the requirements 
of section 110(a)(2)(G) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The TCAA 
directs the TCEQ to prepare and develop the SIP and provides TCEQ with 
the power to amend any rule or regulation it makes (TCAA Section 
382.0173). In addition, the TCAA in Section 382.036 provides that 
``[t]he board shall: [* * *] advise, consult and cooperate with [* * *] 
the federal government, [* * *] in regard to matters of common interest 
in air control.'' Thus, Texas has the authority to revise its SIP from 
time to time as may be necessary to take into account revisions of 
primary or secondary NAAQS, or the availability of improved or more 
expeditious methods of attaining such standards. Furthermore, Texas 
also has the authority under these TCAA provisions to revise its SIP in 
the event the EPA pursuant to the Act finds the SIP to be substantially 
inadequate to attain the NAAQS.
    EPA is proposing to find that the Texas SIP meets the requirements 
of section 110(a)(2)(H) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Consultation with government officials, pursuant to section 
110(a)(2)(J): \58\ The TCAA provides under Section 382.017 that ``[t]he 
commission shall hold a public hearing before adopting a rule 
consistent with the policy and purposes of this chapter.'' In addition, 
the TCAA provides under Section 382.036 that ``[t]he commission shall: 
[* * *] advise, consult, and cooperate with other state agencies, 
political subdivisions of the state, industries, other states, the 
Federal government, and interested persons or groups concerning matters 
of common interest in air quality control.'' The TCAA under Section 
382.035 also authorizes the TCEQ to adopt by rule any Memorandum of 
Understanding (MOU) between the TCEQ and any other state Agency. 
Accordingly, the TCEQ has provisions to establish a Memorandum of 
Agreement (MOA) with one or more agencies in order to clarify areas of 
responsibility. Several of these MOAs are in the federally approved 
SIP.\59\
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    \58\ Section 110(a)(2)(J) is divided into three segments: 
Consultation with government officials; public notification; and PSD 
and visibility protection.
    \59\ For example, see the Memorandum of Understanding (MOU) with 
the Texas Department of Transportation, 70 FR 73380 (December 12, 
2005).
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    EPA is proposing to find that the Texas SIP meets the requirements 
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS.
    Public notification if NAAQS are exceeded, pursuant to section 
110(a)(2)(J): Public notification begins with the air quality 
forecasts, which advise the public of conditions capable of exceeding 
the 8-hour ozone \60\ and PM2.5 NAAQS. The air quality 
forecasts can be found on the TCEQ Web site: for 8-hour ozone, the 
forecast includes 9 regions \61\ in the State; for PM2.5, 
the forecast includes 14 regions \62\ in the State. Ozone forecasts are 
made daily during the ozone season for each of the nine forecast 
areas.\63\ The ozone forecasts are made, in most cases, a day in 
advance by 2 p.m. local time and are valid for the next day. The only 
exception is for the Houston area, where the forecast can be updated as 
late as 9 a.m. local time on the same day that the forecast is in 
effect. When the forecast indicates that ozone levels will be above the 
8-hour ozone standard, the State notifies the National Weather Service, 
who then broadcasts the information across its weather wire. In 
addition, four areas receive ``ozone warnings'' when monitors measure 
levels above the 8-hour ozone standard.\64\ Ozone warnings for these 
areas are generated automatically, approximately 20 minutes after the 
hour when high ozone is measured for that particular area. The ozone 
forecasts and warnings are available through e-mail notification.\65\
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    \60\ The TCEQ forecasts for 8-hour ozone are based on the 2008 
ozone standard, which is 75 ppb.
    \61\ The 9 forecast areas for 8-hour ozone are Austin, Beaumont-
Port Arthur, Corpus Christi, Dallas-Fort Worth, El Paso, Houston, 
San Antonio, Tyler-Longview, and Victoria. See http://www.tceq.texas.gov/cgi-bin/compliance/monops/ozone_actionday.pl.
    \62\ The 14 forecast areas for PM2.5 are Austin, 
Beaumont-Port Arthur, Brownsville-McAllen, Corpus Christi, Dallas-
Fort Worth, El Paso, Houston, Laredo, Lubbock, Midland-Odessa, San 
Antonio, Tyler-Longview, Victoria, and Waco-Killeen. See http://www.tceq.texas.gov/airquality/monops/forecast_today.html.
    \63\ Ozone is a gas composed of three oxygen atoms. Ground level 
ozone is generally not emitted directly from a vehicle's exhaust or 
an industrial smokestack, but is created by a chemical reaction 
between NOX and VOCs in the presence of sunlight and high 
ambient temperatures. Thus, ozone is known primarily as a summertime 
air pollutant. For South Texas, the ozone season runs from January 1 
through December 31. For North Texas, the ozone season runs from 
March 1 through October 31 (see 40 CFR 58, Appendix D, Table D-3). 
The Texas air quality control regions are defined at 62 FR 30270 
(June 3, 1997).
    \64\ The ozone warning areas: Austin, Dallas-Fort Worth, 
Houston-Galveston-Brazoria, and San Antonio.
    \65\ See http://www.tceq.texas.gov/airquality/monops/ozone_email.html.
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    EPA is proposing to find that the Texas SIP meets the requirements 
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS.
    PSD and visibility protection, pursuant to section 110(a)(2)(J): 
This portion of section 110(a)(2)(J) in part requires that a state's 
SIP meet the applicable requirements of section 110(a)(2)(C) as 
relating to PSD programs. As discussed previously in this rulemaking 
with regards to section 110(a)(2)(C) and in the TSD, the State's PSD 
program is in the SIP (57 FR 28093, 62 FR 44083, 67 FR 58697, 69 FR 
43752, 74 FR 11851 and 75 FR 55978). In addition to the approved 
program and to meet the requirements of 110(a)(2)(C) and 
110(a)(2)(D)(i) for the 1997 ozone standard, EPA believes the State 
must have updated its PSD rules to treat NOX as a precursor 
for ozone. Thus, we are proposing to approve portions of SIP revisions 
(submitted March 11, 2011) to implement NOX as a precursor 
to ozone. These revisions are proposed for the definitions at 30 TAC 
116 and 30 TAC 101, as discussed previously in this rulemaking with 
regards to section 110(a)(2)(C) and 110(a)(2)(D)(i). To implement 
section 110(a)(2)(C) for the 1997 PM2.5 standard, states 
must provide revisions due May 16, 2011 under EPA's Implementation of 
the New Source Review (NSR) Program for Particulate Matter Less Than 
2.5 Micrometers (73 FR 28321). On April 20, 2011, the TCEQ adopted 
revisions to the Texas SIP to amend their PSD and nonattainment NSR 
programs to implement the PM2.5 NAAQS. These revisions 
became effective and enforceable by the state on May 12, 2011. The 
state submitted these changes to EPA as a SIP revision on May 19, 2011. 
EPA will act on this submission in a separate rulemaking.
    EPA is not proposing to approve the PSD program in full pursuant to 
section 110(a)(2)(J) because, as stated previously in our discussion of 
the PSD program under section 110(a)(2)(C), Texas does not have 
adequate legal authority to implement the PSD permitting program with 
respect to GHG emissions. The PSD program related to permitting GHGs at 
or above the Tailoring Rule thresholds for the State is currently under 
a FIP. More detail is provided in the discussion for section 
110(a)(2)(C) in this rulemaking and in the TSD. EPA is proposing to 
find that the Texas SIP does not meet the portion of section

[[Page 58764]]

110(a)(2)(J) that relates to permitting GHGs with respect to the 1997 
8-hour ozone and PM2.5 NAAQS. However, EPA's disapproval 
here does not engender any additional statutory obligation, because EPA 
has already promulgated a FIP for the Texas PSD program related to 
permitting GHGs at or above the Tailoring Rule thresholds (76 FR 
25178).
    EPA approved the Texas SIP Revision for Visibility Protection and 
long-term strategy for visibility into the Texas SIP on February 23, 
1989 (57 FR 28093). The State's most recent SIP revision of their 
Regional Haze program was submitted to EPA on March 19, 2009, and we 
will take action on it in a separate rulemaking. With regard to the 
applicable requirements for visibility protection, EPA recognizes that 
States are subject to visibility and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there is no new visibility obligation ``triggered'' under 
section 110(a)(2)(J) when a new NAAQS becomes effective. This would be 
the case even in the event a secondary PM2.5 NAAQS for 
visibility is established, because this NAAQS would not affect 
visibility requirements under part C. EPA is therefore proposing to 
find that the Texas SIP meets this portion of section 110(a)(2)(J) with 
respect to the 1997 8-hour ozone and 1997 and 2006 PM2.5 
NAAQS.
    EPA is proposing to find that the Texas SIP meets the requirements 
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS with the exception of 
section 110(a)(2)(J) as it relates to the GHG component of the PSD 
program. EPA is proposing to find that the Texas SIP does not meet the 
requirements of section 110(a)(2)(J) as it relates to the GHG component 
of the PSD program with respect to the 1997 8-hour ozone and 1997 and 
2006 PM2.5 NAAQS.
    Air quality modeling and submission of data, pursuant to section 
110(a)(2)(K): The TCAA prescribes at Section 382.012 that the TCEQ 
``shall prepare and develop a general, comprehensive plan for the 
proper control of the state's air.'' Texas has extensive modeling in 
numerous submitted SIP revisions. As examples, Texas submitted modeling 
in SIP revisions for the Austin and Northeast Texas Early Action 
Compact (EAC) Areas to demonstrate attainment of the 1997 8-hour ozone 
standard. The modeling in these SIP revisions was approved by EPA and 
adopted into the SIP.\66\
---------------------------------------------------------------------------

    \66\ The Austin and Northeast Texas areas were designated as 
attainment and participated in the EAC program. EPA approved the 
modeling for these areas on August 19, 2005 at 70 FR 48640 and 70 FR 
48642, respectively.
---------------------------------------------------------------------------

    This section of the Act also requires that a SIP provide for the 
submission of data related to such air quality modeling to the EPA upon 
request. As indicated above, section 382.036 of the TCAA requires the 
TCEQ to cooperate with the Federal government, allowing it to make this 
submission to the EPA.
    EPA is proposing to find that the Texas SIP meets the requirements 
of section 110(a)(2)(K) with respect to the 1997 8-hour ozone and 1997 
and 2006 PM2.5 NAAQS.
    Permitting fees, pursuant to section 110(a)(2)(L): The TCAA under 
section 382.062 provides authority for the TCEQ to charge and collect 
fees for Title V and non-Title V permit applications, revisions, 
renewals and inspections. The non-Title V rules that address permit 
fees found at 30 TAC 106 and 116 are in the federally approved SIP.\67\ 
A detailed list of the applicable chapters listed herein is provided in 
the TSD. EPA is proposing to find that the Texas SIP meets the 
requirements of section 110(a)(2)(L) with respect to the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \67\ See 62 FR 44083, 67 FR 58697, 74 FR 11851 and 76 FR 1525 
(January 11, 2011).
---------------------------------------------------------------------------

    Consultation/participation by affected local entities, pursuant to 
section 110(a)(2)(M): As indicated above, the TCAA directs the TCEQ to 
hold a public hearing before adopting a rule. In addition, the TCAA 
provides that the TCEQ shall ``advise, consult and cooperate with [* * 
*] political subdivisions of the state, industries, [* * *] and 
interested persons or groups concerning matters of common interest in 
air control.'' The TCEQ has a MOA with each of five local entities: the 
cities of Dallas and Fort Worth, the Houston and DFW airports, and the 
North Central Texas Council of Governments.\68\ These agreements are in 
the federally approved SIP. EPA is proposing to find that the Texas SIP 
meets the requirements of section 110(a)(2)(M) with respect to the 1997 
ozone and PM2.5 NAAQS with respect to the 1997 8-hour ozone 
and 1997 and 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \68\ See MOA with the Houston Airport System, 66 FR 57222 
(November 14, 2001); MOAs with the cities of Dallas and Fort Worth 
and the DFW International Airport Board, 67 FR 19516 (April 22, 
2002); and MOA with the NCTCOG, 70 FR 20816 (April 22, 2005).
---------------------------------------------------------------------------

IV. Proposed Action

    We are proposing to partially approve and partially disapprove the 
submittals provided by the State of Texas to demonstrate that the Texas 
SIP meets the requirements of Section 110(a)(1) and (2) of the Act for 
the 1997 ozone and 1997 and 2006 PM2.5 NAAQS.
    We are proposing to find that the current Texas SIP meets the 
infrastructure elements for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS listed below:
    Emission limits and other control measures (110(a)(2)(A) of the 
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the 
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act), except for the portion that addresses GHGs;
    Interstate transport, pursuant to section (110(a)(2)(D)(ii) of the 
Act), except for the portion that addresses GHGs;
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration (110(a)(2)(J) of the Act), 
except for the portion that addresses GHGs;
    Visibility protection (110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M) 
of the Act).
    We are proposing to find that the current Texas SIP does not meet 
the infrastructure elements for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS listed below:
    Program for enforcement of control measures (110(a)(2)(C) of the 
Act), only as it relates to GHGs;
    Interstate transport, pursuant to section 110(a)(2)(D)(ii) of the 
Act, only as it relates to GHGs; and
    Prevention of significant deterioration (110(a)(2)(J) of the Act), 
only as it relates to GHGs.
    We are also proposing to approve the Texas Interstate Transport SIP 
provisions that address the requirement of section 110(a)(2)(D)(i)(II) 
that emissions from sources in Texas do not interfere with measures 
required in the

[[Page 58765]]

SIP of any other state under part C of the CAA to prevent significant 
deterioration of air quality, except as they relate to GHGs for the 
1997 ozone and 1997 and 2006 PM2.5 NAAQS.
    We are proposing to disapprove the portion of the Texas Interstate 
Transport SIP provisions that address the requirement of section 
110(a)(2)(D)(i)(II), as it relates to GHGs, that emissions from sources 
in Texas do not interfere with measures required in the SIP of any 
other state under part C of the CAA to prevent significant 
deterioration of air quality, for the 1997 ozone and 1997 and 2006 
PM2.5 NAAQS. We will act on the remaining three SIP elements 
regarding interstate transport, per section 110(a)(2)(D)(i) of the Act 
in separate rulemakings.
    We are also proposing to approve the following revisions to 30 TAC 
101.1 and 30 TAC 116.12, submitted by TCEQ on March 8, 2011, as part of 
the Texas NSR SIP:
    1. The substantive revisions to the definition of Maintenance area 
at 30 TAC 101.1(54).
    2. The substantive revisions to the definition of Nonattainment 
area at 30 TAC 101.1(70).
    3. The substantive revisions to the definition of Reportable 
quantity at 30 TAC 101.1(88).
    4. The non-substantive revisions to the definition of Volatile 
organic compound at 30 TAC 101.1(115).
    5. The non-substantive revision to the title of 30 TAC 116.12 from 
Nonattainment Review Definitions to Nonattainment and Prevention of 
Significant Deterioration Review Definitions.
    6. The non-substantive revisions to the introductory paragraph at 
30 TAC 116.12.
    7. The substantive revisions that add Federally Regulated NSR 
pollutant to the definitions at 30 TAC 116.12(14).
    8. The non-substantive changes to rename and renumber the 
definition of Major facility/stationary source at 30 TAC 116.12(10) to 
Major stationary source at 30 TAC 116.12(17) and the substantive 
changes making the definition consistent with 40 CFR 51.166(b)(1).
    9. The non-substantive changes to renumber the definition of Major 
modification at 30 TAC 116.12(11) as 30 TAC 116.12(18) and provide 
editorial revisions, and the substantive changes making the definition 
consistent with 40 CFR 51.165(a)(1) and 40 CFR 51.166(b)(1) and (2), 
and which address the grounds for the September 15, 2010 disapproval of 
this definition.

EPA is proposing these actions in accordance with section 110 and part 
C of the Act and EPA's regulations and consistent with EPA guidance.

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, EPA's role is to act on state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This proposed 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 proposed SIP disapproval under section 110 
and subchapter I, part D of the CAA 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).

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.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the CAA will not in-and-of itself create any new requirements but 
simply disapproves certain State requirements for inclusion into the 
SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the CAA prescribes that various consequences (e.g., higher offset 
requirements) may or will flow from this disapproval does not mean that 
EPA either can or must conduct a regulatory flexibility analysis for 
this action. Therefore, this action will not have a significant 
economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

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 proposed 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 action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of

[[Page 58766]]

power and responsibilities among the various levels of government.''
    This proposed 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 CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the action EPA is proposing neither imposes substantial direct 
compliance costs on tribal governments, nor preempts tribal law. 
Therefore, the requirements of section 5(b) and 5(c) of the Executive 
Order do not apply to this rule. Consistent with EPA policy, EPA 
nonetheless is offering consultation to Tribes regarding this 
rulemaking action. EPA will respond to relevant comments in the final 
rulemaking 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 
proposed 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 proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA 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 proposed action 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 OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this proposed action is not subject to 
requirements of Section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the CAA.

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 proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the CAA. Accordingly, this action merely proposes to disapprove 
certain State requirements for inclusion into the SIP under section 110 
and subchapter I, part D of the CAA and will not in-and-of itself 
create any new requirements. Accordingly, it does not provide EPA with 
the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under Executive Order 
12898.

K. Statutory Authority

    The statutory authority for this action is provided by section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxides, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: September 14, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-24384 Filed 9-21-11; 8:45 am]
BILLING CODE 6560-50-P


