[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 67600-67604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28256]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52
[EPA-R06-OAR-2011-0426; FRL-9485-3]
Approval and Promulgation of Implementation Plans; Texas;
Regulations for Control of Air Pollution by Permits for New
Construction or Modification
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving 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 for the use of emission reductions as
offsets in new source review permitting. The July 22, 1998, revision
allows for the use of Discrete Emission Reduction Credits (DERC) to
exceed emission limits in permits (permit allowables) and updates
internal citations to other Texas regulations. The October 5, 2010,
revision updates 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
[[Page 67601]]
policies. This action is being taken under authority of the Federal
Clean Air Act (the Act or CAA).
DATES: This final rule is effective on December 2, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2011-0426. 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 or Mr. Bill Deese at (214) 665-7253
to make an appointment. If possible, please make the appointment at
least two working days in advance of your visit. There will be a 15
cent per page fee for making photocopies of documents. On the day of
the visit, please check in at the EPA Region 6 reception area at 1445
Ross Avenue, Suite 700, Dallas, Texas.
The State submittal 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 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; email address
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever, any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What final action is EPA taking?
II. What is the background for this action?
III. What are EPA's responses to comments received on the proposed
action?
IV. Statutory and Executive Order Reviews
I. What final action is EPA taking?
We are fully approving 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 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 fully 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 fully approving the amendment to section
116.116(f) submitted on October 5, 2010.
EPA acted on the above SIP revisions through a direct final
rulemaking and accompanying proposed rule action on July 25, 2011 at 76
FR 44271 and 76 FR 44293, respectively. In our direct final action we
stated that we would withdraw our direct final approval if we received
relevant adverse comments before August 24, 2011. Because EPA received
one adverse comment, we withdrew our direct final action on September
15, 2011 at 76 FR 56982. As we discussed in our direct final and
proposed rulemaking actions, in this notice we are proceeding with a
final action and responding to the comment. The revisions submitted by
Texas amend existing sections and create new sections in 30 TAC Chapter
116--Control of Air Pollution by Permits for New Construction or
Modification and they comply with the CAA and EPA regulations, are
consistent with EPA policies, and will improve air quality. This final
approval is being taken under section 110 and parts C and D of the CAA.
Finally, EPA is revising the title used in the direct final action
to remove a reference to Permits by Rule. Because this action does not
change any provision of Texas' Permits by Rule program, we are removing
the reference to Permits by Rule to clarify that such rules are not
part of this action.
II. What is the background for this action?
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.
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 101.29 can be used to exceed permit allowables, if
all applicable requirements of section 101.29 are
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satisfied. Since the adoption of section 116.116(f), the TCEQ has
recodified the SIP-approved DERC provisions from 30 TAC 101.29 to 30
TAC 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 at 71 FR 52703. This conditional approval was
converted to a full approval on May 18, 2010 at 75 FR 27644. The full
approval action resulted after we found that TCEQ 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.
In our July 25, 2011, direct final action, we presented our
evaluation of these revisions to amend existing sections and create new
sections in 30 TAC Chapter 116--Control of Air Pollution by Permits for
New Construction or Modification. Generally, SIP rules must be
enforceable and must not relax existing requirements. See CAA sections
110(a), 110(l), and 193. EPA's review of the August 31, 1993; July 22,
1998; and October 5, 2010; SIP revisions finds that all three
submittals are consistent with the requirements at 40 CFR part 51 and
are considered complete SIP submittals in accordance with 40 CFR part
51, appendix V. This detailed analysis is available in the TSD for this
rulemaking.
III. What are EPA's responses to comments received on the proposed
action?
EPA received one adverse comment on our proposed action, available
in the docket. As discussed previously, because we received an adverse
comment within the comment period, EPA withdrew our direct final
rulemaking on September 15, 2011, 76 FR 56982. We are proceeding with a
final action in this notice.
A summary of the comment EPA received is as follows: The
implementation of this rule would shutdown the Luminant Big Brown Mine
and Power Plant in Freestone County, Texas. The effects would be
disastrous to the community of Fairfield, Texas, where the commenter
lives and works. The closure of this facility would cause an economic
decline because the plant is the main economic driving force for this
community; as a result, people will leave the area to find work. People
vacating the area would cause a decline in the housing and retail
market, both of which, the commenter and his wife are active
participants. The commenter wants the government to reconsider the
rule.
The commenter did not provide any basis for why this action will
cause the shutdown of the mentioned power plants and consequently cause
the economic decline of the surrounding communities, nor did he call
attention to any specific parts of the rule that would cause this to
happen. While EPA is just now approving these rules as revisions to the
Texas SIP, Texas has been implementing these rules since they became
effective in 1993 and 1998. If these rules had the potential to result
in the plant closures and the local community's economic decline
outlined in the comments, this potential would have existed since the
1993 and 1998 revisions associated with these rules. However, the
commenter did not identify any past plant closures and economic decline
as a result of these rules. Accordingly, these SIP revisions and
amendments should be approved.
The Clean Air Act was enacted by Congress. 42 U.S.C.A. 7401. Under
the Act, EPA is authorized to set clean air standards. 42 U.S.C.A.
7409. States are authorized to choose control strategies to meet these
standards. 42 U.S.C.A. 7410(a). EPA can approve the strategies into
state implementation plans, as long as the strategies are consistent
with the Act. 42 U.S.C.A. 7410(l). As we stated in our proposal, and in
section II of this notice, EPA finds the submitted SIP revisions to 30
TAC Chapter 116 as identified earlier herein are consistent with the
Act. EPA is making no changes to our proposed action as a result of
this comment.
IV. 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);
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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 January 3, 2012. 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: October 21, 2011.
Al Armendariz,
Regional Administrator, 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 Sec. 116.116;
0
b. By adding new entries for Sec. Sec. 116.174 and 116.175.
The additions and revisions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Texas SIP
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State
approval/
State citation Title/subject submittal EPA approval date Explanation
date
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Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
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Subchapter B--New Source Review Permits
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Division 1--Permit Application
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Section 116.116................ Changes to 9/15/2010 11/2/2011 [Insert FR The SIP does not
Facilities. page number where include paragraph
document begins]. (b)(3) and (b)(4),
and subsection (e).
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Division 7--Emission Reductions: Offsets *
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Section 116.174................ Determination by 6/17/1998 11/2/2011 [Insert FR ......................
Executive page number where
Director to document begins].
Authorize
Reductions.
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Section 116.175................ Recordkeeping..... 8/16/1993 11/2/2011 [Insert FR ......................
page number where
document begins].
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[FR Doc. 2011-28256 Filed 11-1-11; 8:45 am]
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