
[Federal Register Volume 76, Number 142 (Monday, July 25, 2011)]
[Rules and Regulations]
[Pages 44271-44276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18578]



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ENVIRONMENTAL PROTECTION AGENCY



40 CFR Part 52



[EPA-R06-OAR-2011-0426; FRL-9442-7]




Approval and Promulgation of Implementation Plans; Texas; 

Revisions to Permits by Rule and Regulations for Control of Air 

Pollution by Permits for New Construction or Modification



AGENCY: Environmental Protection Agency (EPA).



ACTION: Direct final rule.



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SUMMARY: EPA is taking a direct final action to approve portions of 

three revisions to the Texas State Implementation Plan (SIP) submitted 

by the State of Texas on August 31, 1993, July 22, 1998, and October 5, 

2010. These revisions amend existing sections and create new sections 

in Title 30 of the Texas Administrative Code (TAC), Chapter 116--

Control of Air Pollution by Permits for New Construction or 

Modification. The August 31, 1993, revision creates two new sections at 

116.174 and 116.175 for the use of emission reductions as offsets in 

new source review permitting. The July 22, 1998, revision creates new 

section 116.116(f) allowing for the use of Discrete Emission Reduction 

Credits (DERC) to exceed emission limits in permits (permit allowables) 

and amends section 116.174 to update internal citations to other Texas 

regulations. The October 5, 2010, revision amends section 116.116(f) to 

update internal citations to other Texas regulations. EPA has 

determined that these SIP revisions comply with the Clean Air Act and 

EPA regulations and are consistent with EPA policies. This action is 

being taken under section 110 and parts C and D of the Federal Clean 

Air Act (the Act or CAA).



DATES: This direct final rule is effective on September 23, 2011 

without further notice, unless EPA receives relevant adverse comment by 

August 24, 2011. If EPA receives such comment, EPA will publish a 

timely withdrawal in the Federal Register informing the public that 

this rule will not take effect.



ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-

OAR-2011-0426, by one of the following methods:

    (1) http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.

    (2) E-mail: Ms. Erica Le Doux at ledoux.erica@epa.gov.

    (3) Fax: Ms. Erica Le Doux, Air Permits Section (6PD-R), at fax 

number 214-665-6762.

    (4) Mail: Ms. Erica Le Doux, Air Permits Section (6PD-R), 

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202-2733.

    (5) Hand or Courier Delivery: Ms. Erica Le Doux, Air Permits 

Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 

between the hours of 8:30 AM and 4:30 PM 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-

2011-0426. 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 the 

disclosure of which is restricted by statute. Do not submit information 

through http://www.regulations.gov or e-mail, if you believe that it is 

CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 

means that EPA will not know your identity or contact information



[[Page 44272]]



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 along with any disk or CD-ROM 

submitted. 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 and any form of encryption and should 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 

the disclosure of which 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 

Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 

available by appointment for public inspection in the Region 6 FOIA 

Review Room between the hours of 8:30 AM and 4:30 PM weekdays except 

for legal holidays. Contact the person listed in the FOR FURTHER 

INFORMATION CONTACT paragraph below to make an appointment. If 

possible, please make the appointment at least two working days in 

advance of your visit. A 15 cent per page fee will be charged for 

making photocopies of documents. On the day of the visit, please check 

in at the EPA Region 6 reception area on the seventh floor at 1445 Ross 

Avenue, Suite 700, Dallas, Texas.

    The State submittal related to this SIP revision, and which is part 

of the EPA docket, 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: If you have questions concerning 

today's direct final action, please contact Ms. Erica Le Doux (6PD-R), 

Air Permits Section, Environmental Protection Agency, Region 6, 1445 

Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone 

(214) 665-7265; fax number (214) 665-6762; e-mail address 

ledoux.erica@epa.gov.



SUPPLEMENTARY INFORMATION: Throughout this document wherever, any 

reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.



Table of Contents



I. What action is EPA taking?

II. What did Texas submit?

III. What is EPA's evaluation of these SIP revisions?

IV. Final Action

V. Statutory and Executive Order Reviews



I. What action is EPA taking?



    We are taking direct final action to approve severable portions of 

three revisions to the Texas SIP submitted on August 31, 1993, July 22, 

1998, and October 5, 2010. The August 31, 1993, SIP submittal creates 

two new sections, 116.174 and 116.175, establishing the requirements 

for use and recordkeeping of emission reductions in New Source Review 

(NSR) permitting. The July 22, 1998 SIP submittal creates a new section 

at 116.116(f) that allows the use of Discrete Emission Reduction 

Credits (DERCs) to be used to exceed permit allowables and amends 

existing section 116.174 to correctly cross-reference other Texas 

permitting regulations. The October 5, 2010, SIP submittal amends 

section 116.116(f) to correctly cross-reference the SIP-approved DERC 

rules at Title 30 of the Texas Administrative Code (30 TAC) Chapter 

101, Subchapter H, Division 4. We are approving new sections 116.174 

and 116.175 submitted on August 31, 1993. We are approving new section 

116.116(f) and amendments to section 116.174 submitted on July 22, 

1998. Finally, we are approving the amendment to section 116.116(f) 

submitted on October 5, 2010.

    We are publishing this rule without prior proposal because we view 

this as a noncontroversial amendment and anticipate no relevant adverse 

comments. As explained in our technical support document (TSD), we are 

finding this action noncontroversial because the three rules that are 

the subject of our approval serve to cross-reference current SIP-

approved sections. However, in the proposed rules section of this 

Federal Register publication, we are publishing a separate document 

that will serve as the proposal to approve the SIP revision if relevant 

adverse comments are received. This rule will be effective on September 

23, 2011 without further notice unless we receive relevant adverse 

comment by August 24, 2011. If we receive relevant adverse comments, we 

will publish a timely withdrawal in the Federal Register informing the 

public that the rule will not take effect. We will address all public 

comments in a subsequent final rule based on the proposed rule. We will 

not institute a second comment period on this action. Any parties 

interested in commenting must do so now. Please note that if we receive 

adverse comment on an amendment, paragraph, or section of this rule and 

if that provision may be severed from the remainder of the rule, we may 

adopt as final those provisions of the rule that are not the subject of 

an adverse comment.



II. What did Texas submit?



    We are approving severable provisions of three SIP revisions that 

the Texas Commission on Environmental Quality (TCEQ) adopted on August 

16, 1993; June 17, 1998; and September 15, 2010 and submitted to EPA on 

August 31, 1993; July 22, 1998; and October 5, 2010, respectively. 

Copies of the revised rules as well as the Technical Support Document 

(TSD) can be obtained from the Docket, as discussed in the ``Docket'' 

section above. A discussion of the specific Texas rule changes that we 

are approving is included in the TSD and summarized below. The TSD also 

contains a discussion as to why EPA is not taking action on certain 

provisions of each Texas SIP submittal and documents why these 

provisions are severable from the provisions that we are approving.

     We are taking no action in this direct final rule upon 

revisions to 30 TAC Section 116.410 for emergency orders, submitted on 

August 31, 1993, because this provision is severable from the emission 

reduction provisions and subsequent emergency order provisions are 

still pending EPA review. EPA will address this rule in a separate 

action. EPA is currently under a Settlement Agreement to take action on 

the emergency order provisions on or before December 31, 2012.

     We are also taking no action in this direct final rule 

upon revisions to 30 TAC Section 116.620 for Installation and/or 

Modification of Oil and Gas Facilities submitted on July 22, 1998. The 

provisions are severable from the emission reduction provisions that 

are the subject of today's action. EPA will address this rule in a 

separate action. Additionally, EPA is currently under a Consent Decree 

to take action on the Installation and/or Modification of Oil



[[Page 44273]]



and Gas Facilities provisions on or before October 31, 2011.

     We are taking no action upon revisions to 30 TAC Section 

116.311(a) pertaining to qualified facilities for permit renewals 

submitted on July 22, 1998, because the qualified facility program 

provisions are severable from the emission reduction provisions for 

permitting and will be addressed by EPA at a later date in a separate 

action.

     We are taking no action upon revisions to 30 TAC Section 

116.312 submitted on July 22, 1998, which relates to public 

participation for permit renewals. These public participation 

provisions are severable from the emission reduction provisions for 

permitting and will be addressed by EPA at a later date in a separate 

action.

     We are taking no action upon the remainder of the 

revisions to 30 TAC Chapter 116 submitted on October 5, 2010. The 

remainder of this SIP submittal package concerns the qualified 

facilities program, which is severable from the emission reductions 

provisions for permitting and will be addressed by EPA at a later date 

in a separate action.



A. August 31, 1993 Submittal



1. Section 116.174--Determination by Executive Director To Authorize 

Reductions

    The TCEQ adopted section 116.174 on August 16, 1993, to provide the 

criteria by which the TCEQ Executive Director (ED) will determine 

whether emission reductions can be used for purposes of NSR permitting. 

Section 116.174 requires that the ED approve reductions for use 

pursuant with requirements set forth in SIP-approved section 116.170. 

Additionally, any emission reductions approved for use as offsets by 

the ED must be made as enforceable permit conditions.

2. Section 116.175--Recordkeeping

    The TCEQ adopted new section 116.175 on August 16, 1993, to 

establish that the recordkeeping burden for the generation and use of 

emission reductions in NSR permitting is on the applicant. The TCEQ 

will only maintain records associated with the permit application and 

files. The permit applicant is responsible for making all records 

related to the emission reductions available upon request by the ED.



B. July 22, 1998 Submittal



1. Section 116.116(f)--Use of Credits

    The TCEQ adopted new section 116.116(f) on June 17, 1998, to 

provide that DERCs generated under the TCEQ's banking and trading 

provisions at 30 TAC Section 101.29 can be used to exceed permit 

allowables, if all applicable requirements of section 101.29 are 

satisfied. Since the adoption of section 116.116(f), the TCEQ has 

recodified the SIP-approved DERC provisions from 30 TAC Section 101.29 

to 30 TAC Section 101.376. The use of DERCs cannot be used to authorize 

any physical changes to a facility.

    EPA reviewed and conditionally approved the DERC program on 

September 6, 2006 (see 71 FR 52703). This conditional approval was 

converted to a full approval on May 18, 2010 (see 75 FR 27644). The 

full approval action resulted after we found TCEQ to have satisfied all 

elements that were outlined in a commitment letter submitted by TCEQ, 

dated September 8, 2005. This commitment letter can be found in the 

docket for our approval of the DERC program at EPA-R06-OAR-2005-TX-

0029. The DERC rules establish a type of Economic Incentive Program 

(EIP), in particular an open market emission trading (OMT) program as 

described in EPA's EIP Guidance document, ``Improving Air Quality with 

Economic Incentive Programs'' (EPA-452/R-01-001, January 2001). In an 

OMT program, a source generates short-term emission credits (called 

discrete emission reduction credits, or DERCs, in the Texas program) by 

reducing its emissions. The source can then use these DERCs at a later 

time, or trade them to another source to use at a later time. The 

trading program assumes that many sources will participate and 

continuously generate new DERCs to balance with other sources using 

previously generated discrete credits. DERCs are quantified, banked and 

traded in terms of mass (tons) and may be generated and used statewide. 

Reductions of all criteria pollutants, with the exception of lead, may 

be certified as DERCs.

2. Section 116.174--Determination by Executive Director To Authorize 

Reductions

    The TCEQ adopted amendments to section 116.174 on June 17, 1998, to 

remove outdated references to the Texas Air Control Board, and to 

update references to other sections of the Texas NSR permitting 

regulations where emission reductions can be used in permits.



C. October 5, 2010 Submittal



Section 116.116(f)--Use of Credits

    The TCEQ adopted amendments to section 116.116(f) on September 15, 

2010, to change references to outdated section 101.29 to the current 

SIP-approved section 101.376.



III. What is EPA's evaluation of these SIP revisions?



A. August 31, 1993 Submittal



1. Section 116.174--Determination by Executive Director To Authorize 

Reductions

    The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993) 

of new section 116.174 is approvable. New section 116.174 requires that 

the ED approve the use of emission reductions pursuant to the 

requirements in section 116.170. We approved section 116.170 on March 

20, 2009, as consistent with the requirements of section 173 of the CAA 

and 40 CFR Part 51, Subpart I (see 74 FR 11851).

2. Section 116.175--Recordkeeping

    The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993) 

of new section 116.175 is approvable. New section 116.175 was adopted 

to place the recordkeeping burden on the use of emission reductions in 

NSR permitting in accordance with section 116.170 on the permit 

applicant rather than the TCEQ. The TCEQ will maintain records 

contained in the permit application and permit files, but all other 

information necessary to verify the emission reductions used in the 

permit are the responsibility of the permit holder and must be made 

available at the request of the TCEQ ED. Placing the burden of proof on 

the permit holder is consistent with the requirements in NSR and 

Prevention of Significant Deterioration (PSD) permitting at 40 CFR Part 

51, Subpart I, that the permit holder maintain all necessary records to 

substantiate emission reductions and verify emission limitations. 

Further, the SIP-approved Emissions Banking and Trading Provisions at 

30 TAC Chapter 101, Subchapter H, Divisions 1 and 4 for the Emission 

Reduction Credit and Discrete Emission Reduction Credit programs, makes 

clear that the generator and user of the emission reductions--not the 

TCEQ--is responsible for maintaining all necessary records to 

substantiate the reduction (see 30 TAC Sections 101.302(g) and 

101.372(h)).



B. July 22, 1998 Submittal



1. Section 116.116(f)--Use of Credits

    The July 22, 1998 submittal (adopted by TCEQ on June 17, 1998), 

which created new section 116.116(f) is approvable. New section 

116.116(f) is necessary to adequately implement the Chapter 116 

permitting program for new construction and modification. The new



[[Page 44274]]



section 116.116(f) provides that DERCs can be used as offsets in NSR 

permitting, consistent with the TCEQ's banking and trading provisions 

at former 30 TAC Section 101.29. EPA approved the use of DERCs in NSR 

permitting as consistent with the requirements of section 173 of the 

CAA on September 6, 2006 (see 71 FR 52703). Since the adoption of 

section 116.116(f), the TCEQ has recodified the SIP-approved DERC 

provisions from 30 TAC Section 101.29 to 30 TAC Section 101.376. EPA is 

approving the July 22, 1998 adoption of section 116.116(f) and a 

subsequent revision that updates the cross-reference.

2. Section 116.174--Determination by Executive Director To Authorize 

Reductions

    The July 22, 1998 submittal which amends section 116.174 is 

approvable. The amendments remove outdated references to the Texas Air 

Control Board and update internal cross references to other sections 

(in Chapter 116) where emission reductions can be used in NSR 

permitting. The TCEQ has a responsibility under the CAA to routinely 

update the permitting regulations to include accurate information.



C. October 5, 2010 Submittal



Section 116.116(f)--Use of Credits

    The October 5, 2010 submittal (adopted by the TCEQ on September 15, 

2010) of the amendments to section 116.116(f) are approvable. These 

amendments update the outdated references to obsolete section 101.29 

with the current citation to section 101.376, and are necessary to 

adequately implement the Chapter 116 permitting program for new 

construction and modifications. EPA approved the use of DERCs as NSR 

offsets consistent with section 173 of the CAA on September 6, 2006 

(see 71 FR 52703).



D. Does approval of Texas's rule revisions interfere with attainment, 

reasonable further progress, or any other applicable requirement of the 

act?



    Section 110(l) of the Clean Air Act states:



    Each revision to an implementation plan submitted by a State 

under this Act shall be adopted by such State after reasonable 

notice and public hearing. The Administrator shall not approve a 

revision of a plan if the revision would interfere with any 

applicable requirement concerning attainment and reasonable further 

progress (as defined in section 171), or any other applicable 

requirement of this Act.



Thus, under section 110(l), sections 116.116(f), 116.174, and 116.175 

must not interfere with attainment, reasonable further progress, or any 

other applicable requirement of the Act. The three sections are 

necessary components of the Texas NSR permitting program. Without these 

provisions, permit applicants will not have the necessary flexibility 

provided to them in the Texas SIP and the CAA.

    Section 116.116(f) will not interfere with attainment, reasonable 

further progress, or any other applicable requirement of the Act. 

Section 116.116(f) refers to a SIP-approved usage of DERCs to exceed 

permit allowables. This use of DERCs to exceed permit allowables was 

previously conditionally approved into the SIP on September 6, 2006, 

and fully approved by EPA on May 18, 2010, to be consistent with 

section 110(l) of the CAA, see 70 FR 58165 and 75 FR 27644, 

respectively. In our proposed approval notice of the DERC program we 

stated that:



    We have also considered whether the potential use of DECs \1\ to 

exceed allowable emission levels under 30 TAC Sec.  101.376(b)(1) is 

contrary to section 110(l) in that it could allow sources to exceed 

limits in their CAA Title V permits, which are ``applicable 

requirements'' under the Act. We conclude that this aspect of the 

rule does not violate section 110(l), for the following reasons. 

First, EPA has addressed the interface of Title V permits and 

trading programs in the EIP guidance, which provides:

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    \1\ In the OMT program, a source generates emission credits by 

reducing its emissions during a discrete period of time. These 

credits, called discrete emission credits or DECs in the Texas 

program, are quantified in units of mass. DEC is a generic term that 

encompasses reductions from stationary sources (discrete emission 

reduction credits, or DERCs), and reductions from mobile sources 

(mobile discrete emission reduction credits, or MDERCs). This 

footnote is to provide an explanation of the term DEC and is not a 

part of the above quote from a previous notice.

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    If a facility that has a title V operating permit wishes to 

participate in your approved EIP, you must modify the facility's 

operating permit to include the detailed compliance provisions 

necessary to assure compliance with the EIP. Thus, the permit 

becomes a valuable tool to ensure the source meets the requirements 

of the EIP.

    Once the permit includes terms and conditions necessary to 

implement the EIP (as described below), the source may typically 

make individual trades under the EIP without the need for future 

formal permit revisions. This is true because most trading activity 

under such a permit would already be addressed and allowed by the 

specific terms and conditions of the permit and such trading would 

not normally conflict with the permit. This is the principle 

expressed by section 70.6(a)(8) of the CFR, which states that permit 

revisions are not required for trading program changes that are 

``provided for'' in the permit.

    (EIP Guidance, Appendix 16.8.) Texas has modified its Title V 

permit template so as to address the permissible use of DECs to meet 

Title V permit requirements. As further explained in this TSD, we 

find that the Texas permit language satisfies the concerns 

identified in Appendix 16.8.

    In reaching this conclusion, we also considered that a Title V 

permit is not itself a source of substantive limits. Rather, it 

incorporates applicable requirements under other permits and 

programs. In Texas, as elsewhere, many of the allowable emission 

levels in Title V permits are determined through New Source 

Performance Standards (NSPS), Best Available Control Technology 

(BACT), Lowest Achievable Emission Rate (LAER), or National Emission 

Standards for Hazardous Air Pollutants (NESHAPs). Under the Texas 

rules, DECs may not be used for compliance with any of these 

programs. The rule does allow DECs to be used for compliance with 

Reasonably Available Control Technology (RACT) standards, in 

accordance with EPA's guidance. Specifically, the guidance provides 

that ``[i]f your EIP allows sources to avoid direct application of 

RACT technology, your EIP must ensure that the level of emission 

reductions resulting from implementation of the EIP will be equal to 

those reductions expected from the direct application of RACT.'' 

(EIP Guidance, Appendix 16.7) The Texas program ensures consistency 

with that element of the EIP Guidance through the requirement that a 

user of DECs must retire 10 percent more credits than are needed. 

Accordingly, any use of DECs for RACT compliance will have been 

preceded by a ten percent greater reduction.

    The above discussion concerns criteria pollutants for which an 

area is classified as nonattainment. As for pollutants for which an 

area is in attainment, EPA believes that the DERC rule is consistent 

with section 110(l). Discrete credit use in attainment areas could 

potentially result in temporary local increases in such attainment 

pollutants, but only in the sense of authorizing limited exceedances 

of state-only permit requirements. That is, in attainment areas in 

Texas, the federally enforceable permit limits are all based on 

programs, such as BACT and NSPS, for which DEC use is not authorized 

under the Texas rule. DEC use for attainment pollutants can 

therefore only affect non-SIP requirements. Irrespective of the DERC 

rule, such non-SIP requirements are subject to change without 

undergoing a 110(l) analysis. Accordingly, the DERC SIP revision is 

not itself causing any increases in attainment pollutants that might 

be contrary to section 110(l).



[See 70 FR 58165-58166, October 5, 2005]

    Section 116.174 will not interfere with attainment, reasonable 

further progress, or any other applicable requirement of the Act. 

Section 116.174 states that the TCEQ ED will approve the use of 

emission reductions for NSR permitting consistent with the requirements 

of section 116.170. EPA



[[Page 44275]]



approved section 116.170 into the SIP and found that it is consistent 

with section 110(l) of the CAA on March 20, 2009 (74 FR 11851).

    Section 116.175 will not interfere with attainment, reasonable 

further progress, or any other applicable requirement of the Act. 

Section 116.175 states that the recordkeeping burden for emission 

reduction usage will be on the permit holder, but all other information 

necessary to verify the emission reductions used in the permit are the 

responsibility of the permit holder and must be made available at the 

request of the TCEQ ED. These recordkeeping requirements will not 

violate section 110(l).



IV. Final Action



    EPA is taking direct final action to approve revisions to the Texas 

SIP submitted on August 31, 1993, July 22, 1998, and October 5, 2010. 

Specifically, EPA is approving new sections 116.174 and 116.175, 

submitted on August 31, 1993, establishing the approval criteria and 

recordkeeping requirements for emission reductions used in NSR 

permitting. We are also approving new section 116.116(f) that provides 

for the use of DERCs in NSR permitting and amendments to section 

116.174 submitted on July 22, 1998. We are also approving amendments to 

section 116.116(f), submitted on October 5, 2010 to correctly update 

internal citations to the TCEQ DERC program.

    As explained previously, EPA is not acting on other severable 

portions of the August 31, 1993; July 22, 1998; and October 5, 2010 SIP 

submittals. Specifically, EPA is not taking action on the revisions to 

section 116.410 submitted on August 31, 1993. EPA is not taking action 

on the revisions to sections 116.311(a), 116.312, or 116.610 submitted 

on July 22, 1998. Additionally, EPA is not taking action on the 

remainder of the October 5, 2010, submittal. These revisions remain 

under review by EPA and will be addressed in separate actions.



V. Statutory and Executive Order Reviews



    Under the Clean Air Act, 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 approve state 

choices, provided that they meet the criteria of the Clean Air Act. 

Accordingly, this action merely approves state law as meeting Federal 

requirements and does not impose additional requirements beyond those 

imposed by state law. For that reason, this action:

     Is not a ``significant regulatory action'' subject to 

review by the Office of Management and Budget under Executive Order 

12866 (58 FR 51735, October 4, 1993);

     Does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

     Is certified as not having a significant economic impact 

on a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.);

     Does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 104-4);

     Does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999);

     Is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 (62 FR 

19885, April 23, 1997);

     Is not a significant regulatory action subject to 

Executive Order 13211 (66 FR 28355, May 22, 2001);

     Is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 

note) because application of those requirements would be inconsistent 

with the Clean Air Act; and

     Does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or environmental 

effects, using practicable and legally permissible methods, under 

Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as 

specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 

because the SIP is not approved to apply in Indian country located in 

the state, and EPA notes that it will not impose substantial direct 

costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act of 

1996, generally provides that before a rule may take effect, the agency 

promulgating the rule must submit a rule report, which includes a copy 

of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing this 

action and other required information to the U.S. Senate, the U.S. 

House of Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. A 

major rule cannot take effect until 60 days after it is published in 

the Federal Register. This action is not a ``major rule'' as defined by 

5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for 

judicial review of this action must be filed in the United States Court 

of Appeals for the appropriate circuit by September 23, 2011. Filing a 

petition for reconsideration by the Administrator of this final rule 

does not affect the finality of this action for the purposes of 

judicial review nor does it extend the time within which a petition for 

judicial review may be filed, and shall not postpone the effectiveness 

of such rule or action. This action may not be challenged later in 

proceedings to enforce its requirements. (See section 307(b)(2).)



List of Subjects in 40 CFR Part 52



    Environmental protection, Air pollution control, Carbon monoxide, 

Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 

dioxide, Ozone, Particulate matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile organic compounds.



    Dated: July 12, 2011.

Al Armendariz,

Regional Administrator, EPA Region 6.



    40 CFR part 52 is amended as follows:



PART 52--[AMENDED]



0

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



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



Subpart SS--Texas



0

2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in 

the Texas SIP'' is amended as follows:

0

a. By revising the entry for Section 116.116;

0

b. By adding new entries for Sections 116.174 and 116.175.

    The additions and revisions read as follows:





Sec.  52.2270  Identification of plan.



* * * * *

    (c) * * *



[[Page 44276]]







                                    EPA-Approved Regulations in the Texas SIP

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

                                                       State approval/

         State citation              Title/Subject        Submittal      EPA approval date       Explanation

                                                            date

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

 

                                                  * * * * * * *

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

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

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

 

                                                  * * * * * * *

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

                                     Subchapter B--New Source Review Permits

                                         Division 1--Permit Application

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

 

                                                  * * * * * * *

Section 116.116................  Changes to                 9/15/2010  7/25/2011, [Insert    The SIP does not

                                  Facilities.                           FR page number        include paragraphs

                                                                        where document        (b)(3) and (b)(4)

                                                                        begins].              and subsection

                                                                                              (e).

 

                                                  * * * * * * *

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

                                    Division 7--Emission Reductions: Offsets

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

 

                                                  * * * * * * *

Section 116.174................  Determination by           6/17/1998  7/25/2011, [Insert    ...................

                                  Executive Director                    FR page number

                                  to Authorize                          where document

                                  Reductions.                           begins].

Section 116.175................  Recordkeeping.......       8/16/1993  7/25/2011, [Insert    ...................

                                                                        FR page number

                                                                        where document

                                                                        begins].

 

                                                  * * * * * * *

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



[FR Doc. 2011-18578 Filed 7-22-11; 8:45 am]

BILLING CODE 6560-50-P




