
[Federal Register Volume 79, Number 134 (Monday, July 14, 2014)]
[Rules and Regulations]
[Pages 40666-40673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16328]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0542; FRL-9913-48-Region-6]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to the New Source Review State Implementation Plan; Flexible 
Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is conditionally 
approving revisions to the Texas New Source Review (NSR) State 
Implementation Plan (SIP) to establish the Texas Minor NSR Flexible 
Permits Program, submitted by the Texas Commission on Environmental 
Quality (TCEQ). The conditional approval is predicated on a commitment 
from TCEQ in a letter dated December 9, 2013, to adopt certain minor 
clarifications to the Flexible Permit Program by November 30, 2014. The 
EPA is finalizing this action under section 110 of the Clean Air Act 
(CAA).

DATES: This final rule is effective August 13, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2013-0542. 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., Confidential 
Business Information or other information the disclosure of which is 
restricted by the 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 1200, 
Dallas, Texas 75202-2733. While all documents in the docket are listed 
in the index, some information may be publicly available only at the 
hard copy location (e.g., copyrighted material), and some may not be 
publicly available at either location (e.g., CBI). To inspect the hard 
copy materials, please schedule an appointment with the person listed 
in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill 
Deese at 214-665-7253.

FOR FURTHER INFORMATION CONTACT: Ms. Stephanie Kordzi, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7520; 
email address kordzi.stephanie@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background for This Final Action
II. Response to Comments
III. When is this action effective?
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background for This Final Action

    On September 23, 2009, the EPA proposed to disapprove revisions to 
the SIP submitted by the State of Texas that established the Flexible 
Permit Program. 74 FR 48480. On July 15, 2010, the EPA took final 
action by disapproving Texas' Flexible Permit Program. 75 FR 41312.
    For a detailed discussion of our rationale for the disapproval see 
75 FR 41312 (July 15, 2010). Upon finalization of the rule several 
parties appealed the decision to the Fifth Circuit Court of Appeals. In 
July and August of 2010 the State of Texas, Texas Oil & Gas Association 
(TXOGA), Texas Association of Manufacturers, and Business Coalition for 
Clean Air (BCCA) Appeal Group all filed petitions with the Fifth 
Circuit Court of Appeals seeking to overturn the EPA's disapproval of 
the Flexible Permit Program. During the same time period, the 
Environmental Defense Fund (EDF) and Environmental Integrity Project 
(EIP) moved for leave to intervene in support of the EPA's disapproval. 
Their request to intervene was granted by the Court. While the 
challenge was pending, the state adopted a modified flexible permits 
regulation, but did not submit it to the EPA.
    On August 13, 2012, the Fifth Circuit Court of Appeals granted the 
petitioner's review, vacated our disapproval of the Texas Flexible 
Permit Program and remanded the matter back to the EPA for further 
review. After the Court remanded the Flexible Permit Rule to the EPA, 
the State, in a letter dated September 12, 2012, requested that we take 
action on the original Flexible Permit Program submittal package in 
accordance with the ruling of the Fifth Circuit Court of Appeals. 
Following discussions with the EPA, on September 24, 2013, Texas 
formally adopted and approved this SIP revision which is comprised of 
the original submittal that the EPA took its disapproval action on as 
well as rule additions agreed upon between the TCEQ and the EPA that 
the EPA finds are essential to the program's approvability.
    On October 21, 2013, Texas formally submitted to the EPA this final 
revision to the SIP. The TCEQ also identified in the Flexible Permits 
Program SIP submittal cover letter, several sections of previous SIP 
submittals that are withdrawn from the EPA's consideration as revisions 
to the Texas SIP. Accordingly, the EPA recognizes the following 
sections as withdrawn by the State and no longer before us for review 
or action:
     30 TAC Section 116.711(3) (last sentence only) and (11), 
as amended August 21, 2002, and all earlier versions withdrawn October 
21, 2013.
     Adopted revisions submitted October 21, 2013. 30 TAC 
Section 116.715(a), only with regard to the text ``or Subchapter C of 
this chapter (relating to Hazardous Air Pollutants: Regulations 
Governing Constructed or Reconstructed Major Sources (FCAA Section 
112(g), 40 CFR Part 63))'', as amended August 21, 2002, and all earlier 
versions withdrawn on October 21, 2013.

[[Page 40667]]

     30 TAC Section 116.715(c)(6) as amended August 20, 2003, 
and all earlier versions withdrawn October 21, 2013. 30 TAC Section 
116.716(a) and (d), as adopted November 16, 1994, withdrawn October 21, 
2013.
     30 TAC Section 116.730 adopted November 16, 1994, and 
repealed and readopted June 17, 1998.
     30 TAC Section 116.740(b), adopted June 17, 1998, and 
amended September 2, 1999, withdrawn October 21, 2013. 30 TAC Section 
116.803, adopted August 21, 2002, withdrawn October 21, 2013.
    The EPA is today conditionally approving the October 21, 2013, 
submittal. The October 21, 2013, submittal, including the Texas Order 
of the Commission adopting the SIP revision dated September 26, 2013, 
and the accompanying cover letter (available in the docket for this 
rulemaking), essentially resubmits all relevant portions of the prior 
Flexible Permits submittals and therefore constitutes the entire 
Flexible Permit Program. The EPA issued a notice proposing conditional 
approval. 79 FR 8368 (Feb. 12, 2014).

II. Response to Comments

    The EPA originally proposed a comment period of 30 days but 
extended the comment period an additional 21 days after receiving a 
request from EIP on February 28, 2014. This extension provided a total 
of 51 days for comment, through April 4, 2014. We received comments 
from 5 organizations as follows: the TCEQ, the TXOGA, the Texas 
Industry Project (TIP), the BCCA and the EIP on behalf of the Public 
Citizen's Texas Office, Air Alliance Houston, Environment Texas, Texas 
Campaign for the Environment, and the Sierra Club. All comment letters 
can be found in their entirety in the docket for this rulemaking. The 
following section summarizes the comments received and provides 
responses to each. Note that comments are grouped together into 
categories to assist the reader.

General Comments in Support of the Proposed Approval

    Comment 1: TXOGA stated that their members support the EPA's 
February 12, 2014, proposed conditional approval of the Texas Flexible 
Permit Rules as revisions to the Texas SIP. The BCCA and the TIP also 
expressed support of the EPA's proposed conditional approval of the 
Flexible Permit Program. TXOGA stated they believe the rule will help 
provide certainty in the air permitting process for Texas industry and 
continued compliance with the Federal CAA.
    Response 1: The EPA appreciates the support for our proposed 
conditional approval. No changes were made to the final rule as a 
result of this comment.
    Comment 2: The TCEQ supports the EPA's February 12, 2014, proposed 
conditional approval of the Texas Flexible Permit Rules as revisions to 
the Texas SIP. The TCEQ informed the EPA that on February 12, 2014, 
rule amendments were proposed to ensure that the text and organization 
of the Flexible Permit Program rules include only what is in the 2013 
submittal, as well as some updated non-substantive rule text adopted in 
2010. These non-substantive amendments were adopted to clarify the 
Flexible Permit Program and do not materially alter the Flexible Permit 
Program. Based on the issues litigated after the EPA's disapproval of 
the Flexible Permit Program rules on July 15, 2010, some of the rule 
amendments adopted on December 14, 2010, are not necessary for the EPA 
approval of the Flexible Permit Program and thus are currently proposed 
for repeal. The TCEQ's rulemaking is expected to fulfill the terms of 
the conditional approval and allow the EPA to adopt the Flexible Permit 
Program rules in full as a SIP revision, which will resolve the 
outstanding issues with regard to this Minor NSR program. Specifically, 
the amendments proposed by the TCEQ on February 12, 2014, regarding the 
following rules: 30 TAC Sections 116.13, 116.710, 116.711, 116.715, 
116.716, 116.717, 116.718, 116.721, and 116.765. Of these, 30 TAC 
Sections 116.13; 116.710; 116.711(1), (2)(A), (B) and (C)(i) and (ii), 
(D)-(J), and (L)-(N); 116.715(a)-(e) and (f)(1) and (2)(B); 116.716; 
116.717; 116.718; 116.721; and 116.765, will be submitted to the EPA as 
revisions to the Texas SIP. In addition to the re-submittal of rules 
adopted in 1994-2003 for the Flexible Permit Program, the 2013 SIP 
submittal included certain rule changes adopted by the commission in 
2010 that help clarify the rules. These 2010 amendments included 
changes in rule format as well as some revised and additional text. The 
TCEQ does not consider these changes as material alterations to the 
program, nor was the text specifically related to the primary issues in 
the litigation regarding the EPA's disapproval of the Flexible Permit 
Program in 2010.
    Response 2: The EPA agrees with the TCEQ's assessment of the scope 
of this approval action. The EPA appreciates the support for our 
proposed conditional approval. No changes were made to the final rule 
as a result of this comment.

Comments Regarding the Effective Date of the Regulation

    Comment 3: The BCCA and the TIP request that the regulation become 
effective on the day of the Federal Register publication. In addition, 
TXOGA requested that the EPA finalize the conditional approval as soon 
as possible so the program will be a federally approved part of the 
Texas SIP and make the approval effective on the day of publication. 
These requests are based on the exceptions to the requirement for a 30 
day delay in the effective date provided for in the Administrative 
Procedure Act (APA). The commenters state that ``EPA may properly find 
good cause because an immediately effective conditional approval would 
provide economic benefits by giving certainty to the flexible permits 
issued by TCEQ pursuant to the program.'' This group of commenters 
further states ``Texas first submitted the program to EPA in 1994 and 
issued approximately 140 flexible permits under the terms of the 
program. Thus, an immediately effective conditional approval of the 
Flexible Permit Program will have the effect of granting or recognizing 
an exemption or relieving a restriction imposed by the existing 
program.''
    Response 3: The EPA has reviewed the request to make the rule 
immediately effective. The APA requires a 30 day delayed effective date 
unless the rule qualifies for a statutory exception. We do not agree 
that this rule qualifies for such an exception and therefore the rule 
will become effective 30 days after publication.
    The commenters argue that approval of the rule will make the 
program a federally approved part of the SIP, providing certainty and 
economic benefits to the regulated community. To the extent that this 
is true, it is true of all SIP approvals, and provides no unique basis 
for making this SIP approval immediately effective. The commenters also 
appear to be suggesting that approval of this rule will make all 
previously-issued Texas flexible permits federally approved. Thus, the 
commenters point to the 140 permits that have already been ``issued by 
TCEQ pursuant to the program,'' \1\ and assert that today's approval 
``will have the effect of granting or recognizing an exemption or 
relieving a restriction imposed by the existing program.'' In

[[Page 40668]]

sum, the commenters appear to be implying that this approval will 
transform state-only flexible permits issued since 1994 into federally 
approved permits upon the effective date of this rule. This is not the 
case and the EPA strongly rejects any suggestion to the contrary,
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    \1\ While EPA does not dispute that Texas has issued 140 
flexible permits during the life of the program, many of those 
permits have been ``de-flexed'' and no longer are within the scope 
of that program. EPA understands that approximately 25 state-only 
flexible permits have not been de-flexed and remain part of the 
state program.
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    The state established and submitted for EPA approval a Flexible 
Permit Program in 1994. As described in detail below, the Flexible 
Permit Program we are conditionally approving today consists of 18 
revisions to the Texas Administrative Code presented to the EPA in 7 
submittals between 1994 and 2013 and contains new provisions that were 
never in any earlier version of the Flexible Permit Program submitted 
to the EPA. Those provisions could not have been used as a legal basis 
for establishing terms and conditions of state-only permits issued in 
the 1990s. Because those permits were not issued under the regulations 
that we are approving today, there can be no assurance that the state-
only permits fully comply with all elements of the Flexible Permits 
Program we are approving today. Accordingly, today's action cannot make 
those state-only permits federally approved unless and until a permit 
is reissued under the authority of the program being approved today 
with terms and conditions defined by that program.
    In sum, therefore, the EPA finds no basis for making the rule 
effective immediately, and no changes were made to the final rule as a 
result of this comment.

Remaining Comments

    Comment 4: The BCCA and the TIP request that the EPA confirm that a 
final conditional approval means that the rule is federally approved 
and that the enforceability is not deferred until the State's 
satisfaction of the commitment.
    Response 4: The EPA agrees and confirms that the final conditional 
approval means that the rule is federally approved on the effective 
date of this Federal Register notice. A discussion in 71 FR 52703 at 
52704, September 6, 2006, outlines the protocol regarding 
implementation of a conditional approval. In general, a conditional 
approval remains in effect (and therefore enforceable) until the EPA 
takes its final action that the rule is ultimately approvable or is not 
approvable dependent upon whether the State has met its commitments.
    Comments 5-9 Summary: The EIP made several comments that 
effectively argue in various ways that the Flexible Permit Program can 
be used to authorize major source construction or modification that 
should be subject to Prevention of Significant Deterioration (PSD) or 
Non-attainment New Source Review (NNSR). The EPA summarizes and 
responds individually and in detail, but also wishes to introduce that 
discussion by explaining the basis for its overarching conclusion that 
the Flexible Permit Program cannot be used to authorize major source 
construction or modification. The EPA rejects any suggestion that the 
Flexible Permit Program will allow circumvention of Major NSR 
requirements. The EPA wants to be clear on this point both to the 
public and future permittees. This is a Minor NSR program. The Fifth 
Circuit Court of Appeals reviewed the Flexible Permit Program, and 
concluded that it could not be used to authorize construction or 
modification that should be subject to the requirements of the major 
source NNSR or PSD programs: ``The Flexible Permit Program does not 
allow Major NSR evasion because it affirmatively requires compliance 
with Major NSR.'' Texas v. EPA, 690 F.3d 670, 678 (Fifth Cir. 2012). 
The TCEQ clearly states this in their guidance and the EPA today is 
approving the Flexible Permit Program only as a Minor NSR program. 
Permittees who use this Minor NSR program to circumvent Major NSR are 
violating the approved Texas SIP. We believe that the revised Flexible 
Permit Program we are conditionally approving today meets the 
requirement of the CAA, our Minor NSR rules and the Fifth Circuit's 
interpretation of both. If the permit program is used in ways to 
circumvent Major NSR, those actions would be violations. While it does 
not impact program approval, it is related to enforcement and 
implementation.
    As explained in our proposed conditional approval at 79 FR 8368, 
8380, February 12, 2014, the Texas rules as submitted October 21, 2013, 
and found in 30 TAC Sections 116.711(H) & (I) require that all flexible 
permit applications contain information demonstrating that each 
facility complies with PSD and NNSR requirements.
    Comment 5: The EIP commented that Flexible Permit changes may be 
made without evaluating Major NSR applicability.
    Response 5: The EPA disagrees with the commenter's assertion 
regarding a permittee's responsibilities to make changes in accordance 
with Major NSR permitting requirements. As noted, the Texas rules as 
submitted October 21, 2013, and found in 30 TAC Sections 116.711(H) & 
(I) \2\ require that all flexible permit applications contain 
information for each facility \3\ demonstrating compliance with 
Prevention of Significant Deterioration (PSD) and non-attainment new 
source review (NNSR) requirements. Further, the facilities (units) 
covered under a flexible permit cap are created in accordance with 30 
TAC Section 116.716(c), which requires compliance with all PSD and NNSR 
requirements for applicable facilities (units) subject to major BACT 
and LAER requirements up to the permit limit on potential to emit. 
Those individual facilities that are not subject to major BACT or LAER 
as defined in 30 TAC Section 116.10 are calculated based on expected 
maximum capacity (i.e., potential to emit). The calculated emission 
levels for all facilities (units) are then summed, and capped and the 
total is analyzed to ensure compliance with NAAQS requirements. If 
changes are made to the stationary source that vary from the permit 
application representations, the applicant is required to amend or 
alter the flexible permit in accordance with procedures set out in 30 
TAC Section 116.721, which are analogous to already SIP approved rules 
regarding changes found in Subchapter B, 30 TAC Section 116.116. 
However, emission ``flexibility'' between ``facilities'' (units) is 
allowed under the cap as long as operations are consistent with permit 
application representations and individual, applicable BACT and LAER 
requirements for each individual affected major PSD and LAER facility 
(unit) are met. No changes have been made to the final rule as a result 
of this comment.
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    \2\ The TCEQ notified the EPA in its comment letter of April 1, 
2014, that this requirement will be renumbered in the updated rule 
as 30 TAC Sections 116.711(2)(H) & (I) in response to their 
commitment letter of December 9, 2013.
    \3\ The EPA notes TCEQ's definition of ``facility'' as an 
individual ``unit'' see 30 TAC Section 116.10(4) definition of 
facility.
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    Comment 6: The EIP commented that flexible permits improperly tie 
Major NSR applicability requirements to increases in allowable 
emissions.
    Response 6: The EPA disagrees with the commenter's assertion that 
Major NSR applicability is determined based on allowable emission 
increases. All sources must submit a permit application for an 
amendment or alteration when changes are made at the source that vary 
from existing application representations. Changes meeting the criteria 
resulting in the need for PSD and NNSR review require each facility 
(unit) to comply with all applicable requirements as stated in 
accordance with 30 TAC Sections 116.711(H) & (I). The TCEQ PSD 
regulations are already SIP approved

[[Page 40669]]

and require a stationary source to analyze emission increases based on 
actual emissions as stated in PSD requirements found in 30 TAC Section 
116.160(c). The TCEQ defines project netting in 30 TAC Section 
116.12(28) as ``The sum of the following: the project emissions 
increase, minus any source-wide creditable emission decreases proposed 
at the source between the date of application for the modification and 
the date the resultant modification begins emitting. Baseline actual 
emissions shall be used to determine emissions increases and decreases. 
Increases and decreases must meet the creditability criteria listed 
under the definition of net emissions increase in this section.'' No 
changes have been made to the final rule as a result of this comment.
    Comment 7: The EIP commented that flexible permit caps exceed 
baseline actual emissions.
    Response 7: The EPA agrees that flexible permit caps, when 
established, can exceed baseline actual emissions for the facilities 
(units) the cap will cover. The rules at 30 TAC Section 116.716(c) 
define how a flexible permit cap is established. There are no federal 
guidelines that prohibit developing a flexible permit cap for a Minor 
NSR permit action using ``potential to emit'' emission thresholds 
provided the emission values, as represented in the permit application 
and used in establishing a cap limit, are fully evaluated for potential 
NAAQS violations and NSR permitting requirements in the initial permit 
action. A Minor NSR flexible permit cap is not a Plantwide 
Applicability Limit (PAL). PALs covering all facilities (units) at a 
stationary source, both major and minor, are to be based on each 
individual baseline actual emission for each individual facility 
(unit).
    A grouping of facilities (units) for which flexibility is desired 
is determined by the permit applicant. Provided there are no deviations 
from the application representations and the emission increases do not 
exceed significant threshold categories for Major PSD and NNSR 
requirements, the permittee is afforded some flexibility in how 
compliance with the flexible permit cap emission limitations are met. 
In any case, any facility (unit) also subject to individual BACT 
emission limitations must always demonstrate compliance with that 
emission limitation as well. (See Response No. 6 above for a discussion 
of how emission caps must be established.)
    Regarding the eight permit examples provided by EIP in Attachment 
A, all sources cited must submit permit applications for amendments or 
alterations in accordance with 30 TAC Section 116.721 if, and when 
changes are made at the source that vary from existing application 
representations. Those modification requirements are analogous to 
already SIP-approved rules found in 30 TAC Section 116.116. No changes 
have been made to the final rule as a result of this comment.
    Comment 8: The EIP commented that the TCEQ has issued flexible 
permits that are virtually unlimited in scope.
    Response 8: The EPA agrees that some of the State-only flexible 
permits initially issued under the state Flexible Permit Program that 
was not SIP-approved may not have met Clean Air Act requirements. See 
EPA's Fair Notice Letter dated September 25, 2007, to flexible permit 
holders in Texas and signed by John Blevins, Director, Compliance 
Assurance and Enforcement Division, EPA Region 6. However, the revised 
rules upon which this final conditional approval action is being taken 
do limit the scope of how stationary sources will be permitted to use 
flexible permit caps. These rules will ensure practicable 
enforceability of Clean Air Act requirements. The rules contain 
specialized monitoring, recordkeeping, and reporting elements. 
Specifically 30 TAC Section 116.715(c)(5)(A) requires each flexible 
permit to specify requirements for monitoring or demonstrating 
compliance with emission caps and individual emission limits in the 
flexible permit. Further, amended rule 30 TAC Section 116.715(c)(5)(B) 
requires each flexible permit to specify emission calculation methods 
for calculating annual and short term emissions for each pollutant. In 
addition, 30 TAC Section 116.715(d)(1) specifies that a flexible permit 
include specific monitoring, recordkeeping, and reporting conditions in 
flexible permits as appropriate for the type of facilities and 
emissions authorized under a cap. Compliance with the cap will be based 
on a 12 month rolling average to ensure continuous compliance. No 
changes have been made to the rule as a result of this comment.
    Comment 9: The EIP commented that Texas' flexible permit rules 
indicate that flexible permits may be used to eliminate major NSR 
permit requirements.
    Response 9: The EPA disagrees with the commenter's assertion. As 
explained previously, this is a Minor NSR program. The rules contain a 
provision found in 30 TAC Section 116.711(2)(M)(vii) which specifies 
that a flexible permit application must identify any terms, conditions, 
and representations in any Subchapter B (i.e., Major NSR) permit which 
will be superseded by or incorporated under a flexible permit and an 
analysis of how the conditions and control requirements of a subchapter 
B permit will be carried forward in the proposed flexible permit. 
Further 30 TAC Sections 116.716(c), 116.716(d), and 116.716(e) specify 
how to calculate an emission cap and how to handle individual emission 
limitations. In addition, these rules identify the facilities (units) 
subject to an emission cap, and outline that the permit shall clearly 
identify the facilities (units) subject to the emission cap so that 
those facilities (units) subject to Major PSD and NNSR requirements 
ensure compliance with major source BACT and LAER. No changes have been 
made to the rule as a result of this comment.
    Comment 10: The EIP commented that flexible permit BACT 
requirements are not sufficiently stringent.
    Response 10: The EPA disagrees regarding the stringency of the 
flexible permit control technology requirements. The Flexible Permit 
Program has been determined to be a Minor NSR program and the Clean Air 
Act does not require that minor sources employ any particular control 
technology. Activities made under a Flexible Permit must meet the 
emission control requirements for a Minor NSR program as found in 30 
TAC Section 116.711(2)(C). However, for any facility (unit) that is 
subject to Major NSR permitting requirements, i.e., PSD, the rules 
contain safeguards as discussed above in Responses 5 and 9 to ensure 
Major NSR source BACT and LAER requirements are followed. No changes 
have been made to the rule as a result of this comment.
    Comment 11: The EIP commented that flexible permit limits are not 
enforceable as a practical matter.
    Response 11: The EPA disagrees with the commenter's assertion 
regarding enforceability of permit conditions. Information provided in 
Response 8 describes the requirements that flexible permits contain 
sufficient monitoring, recordkeeping, and reporting to demonstrate 
compliance. In addition, revised 30 TAC 116.715(c)(5) also states that 
each flexible permit specify requirements for monitoring or 
demonstrating compliance with emission caps and individual emission 
limits in the flexible permit and that each flexible permit shall 
specify methods for calculating annual and short term emissions for 
each pollutant for a given type of facility (unit). No changes have 
been made to the rule as a result of this comment.


[[Page 40670]]


    Note: EIP raised a number of issues that are not directly 
relevant to this rulemaking. These issues cover use of Confidential 
Business Information, AP-42 emission factors, specific emission 
calculations and credible evidence rules. This rule does not 
directly address these subjects and they are outside the scope of 
this rulemaking.

    Comment 12: The TCEQ commented that the EPA's discussion at Section 
II (last paragraph, 79, Federal Register 8373-8374) references 30 TAC 
Section 116.717 regarding adjustment of an emission cap but should most 
likely reference 30 TAC Section 116.715(c)(9).
    Response 12: The EPA agrees with the TCEQ's comment that the 
incorrect citation was referenced in the February 12, 2014, Federal 
Register proposal. The correct citation is 30 TAC Section 
116.715(c)(9).

III. When is this action effective?

    The EPA has determined that today's final conditional approval of 
the Texas Flexible Permit Program is subject to the requirement to 
delay a rule's effective date until 30 days after publication in 5 
U.S.C. 553(d) of the APA; therefore, the rule will become effective 30 
days after publication.

IV. Final Action

     After careful consideration of the comments received and 
the responses to each comment provided above, and section 110 of the 
Act, the EPA is finalizing our conditional approval of the following 
revisions to the Texas SIP. In this final conditional approval we are 
revising the table at 40 CFR 52.2270(c) to reflect the approval of the 
following regulations into the Texas SIP: Revisions to 30 TAC Sections 
39.402(a)(4) and (a)(5)--Applicability to applications for new and 
amended Flexible Permits--submitted July 2, 2010.
     Revisions to 30 TAC Section 116.10--General Definitions--
submitted March 13, 1996; Repealed, adopted and submitted July 22, 
1998; Redesignated and submitted October 4, 2002; Amended 
116.10(9)(E)--submitted October 5, 2010.
     Revisions to 30 TAC Section 116.13--Flexible Permit 
Definitions--submitted November 29, 1994; Repealed, adopted and 
submitted July 22, 1998; Adopted revisions submitted October 21, 2013.
     Revisions to 30 TAC Section 116.110--Applicability--
submitted November 29, 1994; Section 116.110(a)(3) Repealed, adopted 
and submitted July 22, 1998.
     Revisions to 30 TAC Section 116.710--Applicability--
submitted November 29, 1994; Revised and submitted July 22, 1998; 
Revised and submitted September 11, 2000.
     Revisions to 30 TAC Section 116.711--Flexible Permit 
Application--submitted November 29, 1994; revised and submitted July 
22, 1998; Added, redesignated and submitted April 12, 2001; Designated, 
added, revised and submitted September 4, 2002; and Adopted revisions 
submitted October 21, 2013.
     Revisions to 30 TAC Section 116.714--Application Review 
Schedule--submitted November 29, 1994; Revised and submitted July 22, 
1998.
     Revisions to 30 TAC Section 116.715-General and Special 
Conditions--submitted November 29, 1994; Revised and submitted July 22, 
1998; Revised and submitted September 11, 2000; Revised and submitted 
April 12, 2001; Revised and submitted September 4, 2002; Revised and 
submitted September 25, 2003.
     Revisions to 30 TAC Section 116.716--Emission Caps and 
Individual Emission Limitations--submitted November 29, 1994; and 
Adopted revisions submitted October 21, 2013.
     Revisions to 30 TAC Section 116.717--Implementation 
Schedule for Additional Controls--submitted November 29, 1994.
     Revisions to 30 TAC Section 116.718--Significant Emission 
Increase--submitted November 29, 1994.
     Revisions to 30 TAC Section 116.720--Limitation on 
Physical and Operational Changes--submitted November 29, 1994.
     Revisions to 30 TAC Section 116.721--Amendments and 
Alterations--submitted November 29, 1994; Revised and submitted July 
22, 1998; Revised and submitted September 11, 2000.
     Revisions to 30 TAC Section 116.722--Distance 
Limitations--submitted November 29, 1994; Revised and submitted 
September 11, 2000.
     30 TAC Section 116.730--Compliance History--submitted 
November 29, 1994; Withdrawn October 21, 2013.
     Revisions to 30 TAC Section 116.740(a)--Public Notice and 
Comment--submitted November 29, 1994; Designated, added and submitted 
July 22, 1998; Revised and submitted October 25, 1999; and Adopted 
revisions submitted October 21, 2013.
     Revisions to 30 TAC Section 116.750--Flexible Permit Fee--
submitted November 29, 1994; Revised and submitted July 22, 1998; 
Revised and submitted September 11, 2000; Revised and submitted October 
4, 2002; and Adopted revisions submitted October 21, 2013.
     Revisions to 30 TAC Section 116.760 Flexible Permit 
Renewal--submitted November 29, 1994.
     Revisions to 30 TAC Section 116.765--Compliance Schedule--
submitted October 21, 2013.
    The EPA is also approving the December 9, 2013, Interpretative 
Letter into the Texas SIP and will revise the table at 40 CFR 
52.2270(e) to reflect this approval.
    The EPA is conditionally approving the Flexible Permit Program into 
the Texas SIP. This is predicated on a commitment, as outlined in the 
December 9, 2013 Commitment Letter from the State, to adopt certain 
minor clarifications to the Flexible Permit Program by November 30, 
2014, well within the one-year time limit in the statute. By taking our 
final action today, the Flexible Permit Program for the first time 
becomes an approved and thus a federally approved enforceable 
requirement in the Texas State Implementation Plan.
    Upon receipt of the revised Flexible Permits Program as a revision 
to the Texas SIP, the EPA will evaluate it pursuant to our 
responsibilities under CAA section 110(k). If the EPA determines that 
the revised rule satisfies the December 9, 2013, Commitment Letter and 
was submitted in a timely manner, the EPA will provide notice in the 
Federal Register proposing to convert the conditional approval into a 
full approval in the Texas SIP. However, if the State fails to submit a 
SIP satisfying the commitments by the identified deadline, or if the 
EPA determines that the submitted SIP revision does not address the 
commitments, then the conditional approval will become a disapproval 
and the EPA will send a letter notifying the State that the SIP is 
disapproved. Because the Flexible Permit Program is discretionary and 
was not submitted to address a mandatory requirement of the Act, 
disapproval of the program will not trigger sanctions under Section 
179(b) or start a Federal Implementation Plan clock.
    As a result of our final conditional approval, and the associated 
revisions to 40 CFR 52.2270(c) and (e), EPA is also revising 40 CFR 
52.2273 to remove paragraphs (c)(1)-(c)(3).

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 CAA and applicable 
Federal regulations. See, 42 U.S.C. 7410(k); 40 CFR 52.02(a).

[[Page 40671]]

Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely conditionally 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 CAA; and
     Does not provide the 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 the 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. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 12, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposed 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) CAA.)

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: June 26, 2014.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS--Texas

0
2. In Sec.  52.2270:
0
a. In paragraph (c), the table titled ``EPA Approved Regulations in the 
Texas SIP'' is amended by revising the entries for Sections 39.402, 
116.10, 116.110; adding an entry for Section 116.13 after the entry for 
Section 116.12; and adding a centered heading for ``Subchapter G: 
Flexible Permits'' after Section 116.620 followed by entries for 
Sections 116.710, 116,711, 116.714, 116.715, 116.716, 116.717, 116.718, 
116.720, 116.721, 116.722, 116.740, 116.750, 116.760 and 116.765.
0
b. The second table paragraph (e) titled ``EPA Approved Nonregulatory 
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended 
by adding an entry at the end of the table for a clarification letter 
dated December 9, 2013.
    The revisions and additions read as follows:


Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
                                                          approval/
          State citation               Title/Subject      submittal     EPA Approval date        Explanation
                                                             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 39.402...................  Applicability to Air     6/2/2010  7/14/2014 [Insert FR  SIP includes
                                    Quality Permits and                page number where     39.402(a)(1)-(a)(6)
                                    Permit Amendments.                 document begins].     .
 

[[Page 40672]]

 
                                                  * * * * * * *
Section 116.10...................  Definitions.........    9/15/2010  7/14/2014 [Insert FR  SIP includes 30 TAC
                                                                       page number where     Sections 116.10
                                                                       document begins].     (4), (5), (6), (7),
                                                                                             (8). (9), (10),
                                                                                             (11)(C), (11)(D),
                                                                                             (12)-(15) and (17)
                                                                                             as revised by the
                                                                                             TCEQ on 8/21/2002.
                                                                                             The SIP also
                                                                                             includes 30 TAC
                                                                                             Section
                                                                                             116.10(9)(E), the
                                                                                             definition of
                                                                                             ``modification of
                                                                                             existing facility''
                                                                                             as it pertains to
                                                                                             flexible permits as
                                                                                             adopted on 9/15/
                                                                                             2010.
 
                                                  * * * * * * *
Section 116.13...................  Flexible Permit         9/24/2013  7/14/2014 [Insert FR  ....................
                                    Definitions.                       page number where
                                                                       document begins].
 
                                                  * * * * * * *
Section 116.110..................  Applicability.......     8/9/2000  7/14/2014 [Insert FR  SIP includes 30 TAC
                                                                       page number where     Sections
                                                                       document begins].     116.110(a)(1),
                                                                                             (a)(2), (a)(4),
                                                                                             (b), (e), (f), and
                                                                                             (g) as revised on 8/
                                                                                             9/2000. SIP
                                                                                             includes 30 TAC
                                                                                             Section
                                                                                             116.110(a)(3)
                                                                                             adopted on 6/17/
                                                                                             1998.
                                                                                            SIP does NOT include
                                                                                             30 TAC Sections
                                                                                             116.110(a)(5) or
                                                                                             (d).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Subchapter G: Flexible Permits
----------------------------------------------------------------------------------------------------------------
Section 116.710..................  Applicability.......     8/9/2000  7/14/2014 [Insert FR  ....................
                                                                       page number where
                                                                       document begins].
Section 116.711..................  Flexible Permit         9/24/2013  7/14/2014 [Insert FR  ....................
                                    Application.                       page number where
                                                                       document begins].
Section 116.714..................  Application Review      6/17/1998  7/14/2014 [Insert FR  ....................
                                    Schedule.                          page number where
                                                                       document begins].
Section 116.715..................  General and Special     9/24/2013  7/14/2014 [Insert FR  ....................
                                    Conditions.                        page number where
                                                                       document begins].
Section 116.716..................  Emission Caps and       9/24/2013  7/14/2014 [Insert FR  ....................
                                    Individual Emission                page number where
                                    Limitations.                       document begins].
Section 116.717..................  Implementation         11/16/1994  7/14/2014 [Insert FR  ....................
                                    Schedule for                       page number where
                                    Additional Controls.               document begins].
Section 116.718..................  Significant Emission   11/16/1994  7/14/2014 [Insert FR  ....................
                                    Increase.                          page number where
                                                                       document begins].
Section 116.720..................  Limitation on          11/16/1994  7/14/2014 [Insert FR  ....................
                                    Physical and                       page number where
                                    Operational Changes.               document begins].
Section 116.721..................  Amendments and           8/9/2000  7/14/2014 [Insert FR  ....................
                                    Alterations.                       page number where
                                                                       document begins].
Section 116.722..................  Distance Limitations     8/9/2000  7/14/2014 [Insert FR  ....................
                                                                       page number where
                                                                       document begins].
Section 116.740..................  Public Notice and       9/24/2013  7/14/2014 [Insert FR  SIP includes 30 TAC
                                    Comment.                           page number where     Section 116.740(a).
                                                                       document begins].

[[Page 40673]]

 
Section 116.750..................  Flexible Permit Fee.    9/24/2013  7/14/2014 [Insert FR  ....................
                                                                       page number where
                                                                       document begins].
Section 116.760..................  Flexible Permit        11/16/1994  ....................  ....................
                                    Renewal.
Section 116.765..................  Compliance Schedule.    9/24/2013  7/14/2014 [Insert FR  SIP includes 30 TAC
                                                                       page number where     Section 116.765(b)
                                                                       document begins].     and (c).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    (e) * * *

              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or     State submittal/
     Name of SIP provisions        nonattainment      Effective date   EPA Approval date         Comments
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Flexible Permits Interpretative  Statewide........  December 9, 2013.  7/14/2014........  Clarifies how the TCEQ
 Letter from the TCEQ.                                                 [Insert FR page     implements the rules
                                                                        number where       regarding (1)
                                                                        document begins].  Director discretion;
                                                                                           (2) BACT; (3) changes
                                                                                           made by Standard
                                                                                           Permits or Permits by
                                                                                           Rule; (4) compliance
                                                                                           with permit and
                                                                                           permit application;
                                                                                           and (5) start-up and
                                                                                           shutdown emissions to
                                                                                           ensure compliance
                                                                                           with CAA
                                                                                           requirements.
----------------------------------------------------------------------------------------------------------------

Sec.  52.2273  [Amended]

0
3. Section 52.2273 is amended by removing and reserving paragraph (c).

[FR Doc. 2014-16328 Filed 7-11-14; 8:45 am]
BILLING CODE 6560-50-P


