[Federal Register Volume 74, Number 183 (Wednesday, September 23, 2009)]
[Proposed Rules]
[Pages 48467-48478]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22806]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0133; FRL-8958-7]


Approval and Promulgation of Implementation Plans; Texas; 
Revisions to the New Source Review (NSR) State Implementation Plan 
(SIP); Prevention of Significant Deterioration (PSD), Nonattainment NSR 
(NNSR) for the 1997 8-Hour Ozone Standard, NSR Reform, and a Standard 
Permit

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing disapproval of submittals from the State of 
Texas, through the Texas Commission on Environmental Quality (TCEQ), to 
revise the Texas Major and Minor NSR SIP. We are proposing to 
disapprove the submittals because they do not meet the 2002 revised 
Major NSR SIP requirements. We are proposing to disapprove the 
submittals as not meeting the Major Nonattainment NSR SIP requirements 
for implementation of the 1997 8-hour ozone national ambient air 
quality standard (NAAQS) and the 1-hour ozone NAAQS. Additionally, EPA 
is proposing to disapprove the submittals to revise the Texas Major PSD 
NSR SIP. Finally, EPA proposes disapproval of the submitted Standard 
Permit (SP) for Pollution Control Projects (PCP) because it does not 
meet the requirements for a minor NSR SIP revision.
    EPA is taking comments on this proposal and intends to take final 
action. EPA is proposing these actions under section 110, part C, and 
part D,

[[Page 48468]]

of the Federal Clean Air Act (the Act or CAA).

DATES: Any comments must arrive by November 23, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2006-0133, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr. Stanley M. Spruiell at 
spruiell.stanley@epa.gov.
     Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), 
at fax number 214-665-7263.
     Mail: Stanley M. Spruiell, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
     Hand or Courier Delivery: Stanley M. Spruiell, 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 am and 4 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-
2006-0133. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
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 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 am and 4:30 pm weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a 15 cent per page fee for making photocopies of 
documents. On the day of the visit, please check in at the EPA Region 6 
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittals are also available for public inspection at 
the State Air Agency during official business hours by appointment: 
Texas Commission on Environmental Quality, Office of Air Quality, 12124 
Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
fax number 214-665-7263; e-mail address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION: 
    Throughout this document, the following terms have the meanings 
described below:
     ``We,'' ``us,'' and ``our'' refer to EPA.
     ``Act'' and ``CAA'' means Clean Air Act.
     ``40 CFR'' means Title 40 of the Code of Federal 
Regulations-- Protection of the Environment.
     ``SIP'' means State Implementation Plan as established 
under section 110 of the Act.
     ``NSR'' means new source review, a phrase intended to 
encompass the statutory and regulatory programs that regulate the 
construction and modification of stationary sources as provided under 
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160 
through 51.166.
     ``Minor NSR'' means NSR established under section 110 of 
the Act and 40 CFR 51.160.
     ``NNSR'' means nonattainment NSR established under Title 
I, section 110 and part D of the Act and 40 CFR 51.165.
     ``PSD'' means prevention of significant deterioration of 
air quality established under Title I, section 110 and part C of the 
Act and 40 CFR 51.166.
     ``Major NSR'' means any new or modified source that is 
subject to NNSR and/or PSD.
     ``TSD'' means the Technical Support Document for this 
action.
     ``NAAQS'' means national ambient air quality standards 
promulgated under section 109 of that Act and 40 CFR part 50.
     ``PAL'' means ``plantwide applicability limitation.''
     ``PCP'' means ``pollution control project.''
     ``TCEQ'' means ``Texas Commission on Environmental 
Quality.''

Table of Contents

I. What Action is EPA Proposing?
II. What are the Other Relevant Proposed Actions on the Texas 
Permitting SIP Revision Submittals?
III. What has the State Submitted?
IV. Do the Submitted SIP Revisions Meet the Major PSD NSR SIP 
Requirements?
    A. What are the Requirements for EPA's Review of a Submitted 
Major NSR SIP Revision?
    B. Do the Submitted SIP Revisions Meet the Act and the PSD SIP 
requirements?
V. Do the Submitted SIP Revisions Meet the Major Nonattainment NSR 
SIP Requirements for the 1-Hour and the 1997 8-Hour Ozone NAAQS?
    A. What are the Anti-Backsliding Major Nonattainment NSR SIP 
Requirements for the 1-hour Ozone NAAQS?
    B. What are the Major Nonattainment NSR SIP Requirements for of 
the 1997 8-hour Ozone NAAQS?
VI. Do the Submitted SIP Revisions Meet the Major NSR SIP 
Requirements?
    A. Do the SIP Revision Submittals Meet the Major NSR SIP 
Requirements with a PALs Provision?
    B. Do the Submitted SIP Revisions Meet the Non-PAL Aspects of 
the Major NSR SIP Requirements?
VII. Does the Submitted PCP Standard Permit Meet the Minor NSR SIP 
Requirements?
VIII. What is Our Evaluation of Other SIP Revision Submittals?
IX. Proposed Action
X. Statutory and Executive Order Reviews

[[Page 48469]]

I. What Action is EPA Proposing?

    We are proposing to disapprove the SIP revisions submitted by Texas 
on June 10, 2005, and February 1, 2006, as not meeting the 1997 8-hour 
ozone major nonattainment NSR SIP requirements, and as not meeting the 
Act and Major Nonattainment NSR SIP requirements for the 1-hour ozone 
NAAQS. We are proposing to disapprove the SIP revision submitted by 
Texas on February 1, 2006, as not meeting the Major NSR Reform SIP 
requirements for PAL provisions and the Major NSR Reform SIP 
requirements without the PAL provisions. We are proposing to disapprove 
the February 1, 2006, SIP revision submittal as not meeting the Act and 
the Major NSR PSD SIP requirements. Finally, we are proposing to 
disapprove the Standard Permit (SP) for PCP submitted February 1, 2006, 
as not meeting the Minor NSR SIP requirements. It is EPA's position 
that each of these six identified portions in the SIP revision 
submittals, 8-hour ozone, 1-hour ozone, PALs, non PALs, PSD, and PCP 
Standard Permit is severable from each other.
    We are taking no action on the portions of the June 10, 2005, 
submittal concerning 30 TAC 101.1 Definitions, section 112(g) of the 
Act, and Emergency Orders.
    We have evaluated the SIP submissions for whether they meet the Act 
and 40 CFR Part 51, and are consistent with EPA's interpretation of the 
relevant provisions. Based upon our evaluation, EPA has concluded that 
each of the six portions of the SIP revision submittals does not meet 
the requirements of the Act and 40 CFR part 51. Therefore, each portion 
of the State submittals is not approvable. As authorized in sections 
110(k)(3) and 301(a) of the Act, where portions of the State submittal 
are severable, EPA may approve the portions of the submittal that meet 
the requirements of the Act, take no action on certain portions of the 
submittal,\1\ and disapprove the portions of the submittal that do not 
meet the requirements of the Act. When the deficient provisions are not 
severable from the all of the submitted provisions, EPA must propose 
disapproval of the submittals, consistent with section 301(a) and 
110(k)(3) of the Act. Each of the six portions of the State submittals 
is severable from each other. Therefore, EPA is proposing to disapprove 
each of the following severable provisions of the submittals: (1) The 
submitted 1997 8-hour ozone NAAQS Major Nonattainment NSR SIP revision, 
(2) the submitted 1-hour ozone NAAQS Major NNSR SIP revision, (3) the 
submitted Major NSR reform SIP revision with PAL provisions, (4) the 
submitted Major NSR reform SIP revision with no PAL provisions, (5) the 
submitted Major NSR PSD SIP revision, and (6) the submitted Minor NSR 
Standard Permit for PCP SIP revision.
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    \1\ In this action, we are taking no action on certain 
provisions that are either outside the scope of the SIP or which 
revise an earlier submittal of a base regulation that is currently 
undergoing review for appropriate action.
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    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a mandatory requirement of the Act starts a sanctions 
clock and a Federal Implementation Plan (FIP) clock. The provisions in 
these submittals were not submitted to meet a mandatory requirement of 
the Act. Therefore, if EPA takes final action to disapprove any 
provision of the submittals, no sanctions and FIP clocks will be 
triggered.

II. What are the Other Relevant Proposed Actions on the Texas 
Permitting SIP Revision Submittals?

    This proposed action should be read in conjunction with two other 
proposed actions appearing elsewhere in today's Federal Register, (1) 
proposed action on the Texas NSR SIP, the Flexible Permits Program, and 
(2) proposed action on the Texas NSR SIP, the Qualified Facilities 
Program and the General Definitions.\2\ Also, on November 26, 2008, EPA 
proposed limited approval/limited disapproval of the Texas submittals 
relating to public participation for air permits of new and modified 
facilities (73 FR 72001). EPA believes these actions should be read in 
conjunction with each other because the permits issued under these 
State programs are the vehicles for regulating a significant universe 
of the air emissions from sources in Texas and thus directly impact the 
ability of the State to achieve and maintain attainment of the NAAQS 
and protect the health of the communities where these sources are 
located. The basis for proposing these actions is outlined in each 
notice and accompanying technical support document (TSD). Those 
interested in any one of these actions are encouraged to review and 
comment on the other proposed actions as well.
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    \2\ In that proposed action, the submitted definition of BACT is 
not severable from the proposed action on the PSD SIP revision 
submittals. EPA may choose to take final action on the definition of 
BACT in the NSR SIP final action rather than in the Qualified 
Facilities and the General Definitions final actions. EPA is 
obligated to take final action on the submitted definitions in the 
General Definitions for those identified as part of the Texas 
Qualified Facilities State Program, the Texas Flexible Permits State 
Program, Public Participation, Permit Renewals (there will be a 
proposed action published at a later date), and this BACT definition 
as part of the NSR SIP.
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    EPA intends to take final action on the State's Public 
Participation SIP revision submittals in November 2009. EPA intends to 
take final action on the submitted Texas Qualified Facilities State 
Program by March 31, 2010, the submitted Texas Flexible Permits State 
Program by June 30, 2010, and the NSR SIP on August 31, 2010. These 
dates are expected to be mandated under a Consent Decree (see, Notice 
of Proposed Consent Decree and Proposed Settlement Agreement, 74 FR 
38015, July 30, 2009).

III. What has the State Submitted?

    This notice provides a summary of our evaluation of Texas' June 10, 
2005, and February 1, 2006, SIP revision submittals. We provide our 
reasoning in general terms in this preamble, but provide a more 
detailed analysis in the TSD that has been prepared for this proposed 
rulemaking. Because we are proposing to disapprove the submittals based 
on the inconsistencies discussed herein, we have not attempted to 
review and discuss all of the issues that would need to be addressed 
for approval of these submittals as Major NSR SIP revisions.
    On June 10, 2005, Texas submitted revisions to Title 30 of the 
Texas Administrative Code (30 TAC) Chapter 116--Control of Air 
Pollution by Permits for New Construction or Modification, revising 30 
TAC 116.12--Nonattainment Definitions \3\--and 30 TAC 116.150--New 
Major Source or Major Modification in Ozone Nonattainment Areas, to 
meet the Major Nonattainment NSR requirements for Phase I of the 1997 
8-hour NAAQS for ozone as promulgated April 30, 2004 (69 FR 23951). The 
June 10, 2005, submittal also includes revisions to the definitions in 
30 TAC 101.1--Definitions.
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    \3\ In the Texas SIP and in the June 10, 2005, SIP submittal, 
the title of 30 TAC 116.12 is ``Nonattainment Review Definitions.'' 
In the February 1, 2006, SIP submittal, 30 TAC 116.12 was renamed 
``Nonattainment and Prevention of Significant Deterioration Review 
Definitions.''
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    On February 1, 2006, Texas submitted revisions to 30 TAC Chapter 
116--Control of Air Pollution by Permits for New Construction or 
Modification, to implement the Major NSR Reform SIP requirements with 
the PAL provisions and without the PAL provisions. The submittal also 
included revisions for the Texas PSD SIP and a new Minor NSR Standard 
Permit for Pollution Control Projects. This submittal includes the 
following changes:

[[Page 48470]]

     Revisions to the following sections: 30 TAC 116.12--
Nonattainment and Prevention of Significant Deterioration Review 
Definitions, 30 TAC 116.150--New Major Source or Major Modification in 
Ozone Nonattainment Areas, 30 TAC 116.151--New Major Source or Major 
Modification in Nonattainment Areas Other Than Ozone, 30 TAC 116.160--
Prevention of Significant Deterioration Requirements, and 30 TAC 
116.610(a), (b), and (d) --Applicability;
     Addition of the following new sections: 30 TAC 116.121--
Actual to Projected Actual Test for Emissions Increases, 30 TAC 
116.180--Applicability, 30 TAC 116.182--Plant-Wide Applicability Limit 
Application, 30 TAC 116.184--Application Review Schedule, 30 TAC 
116.186--General and Special Conditions, 30 TAC 116.188--Plantwide 
Applicability Limit, 30 TAC 116.190--Federal Nonattainment and 
Prevention of Significant Deterioration Review, 30 TAC 116.192--Permit 
Amendments and Alterations, 30 TAC 116.194--Public Notice and Comment, 
30 TAC 116.196--Renewal of Plant-Wide Applicability Limit Permit, and 
30 TAC 116.198--Expiration or Voidance.
     Removal of 30 TAC 116.617--Standard Permit for Pollution 
Control Projects and replacement with new 30 TAC 116.617--State 
Pollution Control Project Standard Permit.
    The table below summarizes the changes that are in the two SIP 
revisions submitted June 10, 2005, and February 1, 2006. A summary of 
EPA's evaluation of each section and the basis for this proposal is 
discussed in sections IV, V, VI, and VII of this preamble. The TSD 
includes a detailed evaluation of the submittals.

                      Table--Summary of Each SIP Submittal That is Affected by This Action
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                                                           Submittal       Description of
             Section                      Title              dates             change          Proposed action
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              Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
                                            Subchapter A--Definitions
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30 TAC 116.12....................  Nonattainment             6/10/2005  Changed several      Disapproval.
                                    Review Definitions.                  definitions to
                                                                         implement Federal
                                                                         phase I rule
                                                                         implementing 8-
                                                                         hour ozone
                                                                         standard.
                                   Nonattainment              2/1/2006  Renamed section and  Disapproval.
                                    Review and                           added and revised
                                    Prevention of                        definitions to
                                    Significant                          implement Federal
                                    Deterioration                        NSR Reform
                                    Definitions.                         regulations.
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                                     Subchapter B--New Source Review Permits
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
30 TAC 116.121...................  Actual to Projected        2/1/2006  New Section........  Disapproval.
                                    Actual Test for
                                    Emissions Increase.
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                                        Division 5--Nonattainment Review
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30 TAC 116.150...................  New Major Source or       6/10/2005  Revised section to   Disapproval.
                                    Major Modification                   implement Federal
                                    in Ozone                             phase I rule
                                    Nonattainment Area.                  implementing 8-
                                                                         hour ozone
                                                                         standard.
                                                              2/1/2006  Revised section to   Disapproval.
                                                                         implement Federal
                                                                         NSR Reform
                                                                         regulations.
30 TAC 116.151...................  New Major Source or        2/1/2006  Revised section to   Disapproval.
                                    Major Modification                   implement Federal
                                    in Nonattainment                     NSR Reform
                                    Areas Other Than                     regulations.
                                    Ozone.
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                           Division 6--Prevention of Significant Deterioration Review
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30 TAC 116.160...................  Prevention of              2/1/2006  Revised section to   Disapproval.
                                    Significant                          implement Federal
                                    Deterioration                        NSR Reform
                                    Requirements.                        regulations.
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                                  Subchapter C--Plant-Wide Applicability Limits
                                   Division 1--Plant-Wide Applicability Limits
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30 TAC 116.180...................  Applicability......        2/1/2006  New Section........  Disapproval.
30 TAC 116.182...................  Plant-Wide                 2/1/2006  New Section........  Disapproval.
                                    Applicability
                                    Limit Permit
                                    Application.
30 TAC 116.184...................  Application Review         2/1/2006  New Section........  Disapproval.
                                    Schedule.
30 TAC 116.186...................  General and Special        2/1/2006  New Section........  Disapproval.
                                    Conditions.
30 TAC 116.188...................  Plant-Wide                 2/1/2006  New Section........  Disapproval.
                                    Applicability
                                    Limit.
30 TAC 116.190...................  Federal                    2/1/2006  New Section........  Disapproval.
                                    Nonattainment and
                                    Prevention of
                                    Significant
                                    Deterioration
                                    Review.
30 TAC 116.192...................  Amendments and             2/1/2006  New Section........  Disapproval.
                                    Alterations.
30 TAC 116.194...................  Public Notice and          2/1/2006  New Section........  Disapproval.
                                    Comment.

[[Page 48471]]

 
30 TAC 116.196...................  Renewal of a Plant-        2/1/2006  New Section........  Disapproval.
                                    Wide Applicability
                                    Limit Permit.
30 TAC 116.198...................  Expiration and             2/1/2006  New Section........  Disapproval.
                                    Voidance.
----------------------------------------------------------------------------------------------------------------
 Subchapter E--Hazardous Air Pollutants: Regulations Governing Constructed and Reconstructed Sources (FCAA, Sec.
                                           112(g), 40 CFR Part 63) \a\
----------------------------------------------------------------------------------------------------------------
30 TAC 116.400...................  Applicability......        2/1/2006  Recodification from  No action.
                                                                         section 116.180.
30 TAC 116.402...................  Exclusions.........        2/1/2006  Recodification from  No action.
                                                                         section 116.181.
30 TAC 116.404...................  Application........        2/1/2006  Recodification from  No action.
                                                                         section 116.182.
30 TAC 116.406...................  Public Notice              2/1/2006  Recodification from  No action.
                                    Requirements.                        section 116.183.
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                                         Subchapter F--Standard Permits
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30 TAC 116.610...................  Applicability......        2/1/2006  Revised paragraphs   Disapproval, No
                                                                         (a), (a)(1)          action on
                                                                         through (a)(5),      paragraph (d).
                                                                         (b), and (d).\b\
30 TAC 116.617...................  State Pollution            2/1/2006  Replaced former 30   Disapproval.
                                    Control Project                      TAC 116.617--
                                    Standard Permit.                     Standard Permit
                                                                         for Pollution
                                                                         Control
                                                                         Projects.\c\
----------------------------------------------------------------------------------------------------------------
                                       Subchapter K--Emergency Orders \d\
----------------------------------------------------------------------------------------------------------------
30 TAC 116.1200..................  Applicability......  ..............  Recodification from  No action.
                                                                         30 TAC 116.410.
----------------------------------------------------------------------------------------------------------------
\a\ Recodification of former Subchapter C. These provisions are not SIP-approved.
\b\ 30 TAC 116.610(d) is not SIP-approved.
\c\ 30 TAC 116.617 is not SIP-approved.
\d\ Recodification of former Subchapter E. These provisions are not SIP-approved.

IV. Do the Submitted SIP Revisions Meet the Major NSR PSD SIP 
Requirements?

A. What are the Requirements for EPA's Review of a Submitted Major NSR 
SIP Revision?

    Before EPA's 1980 revised major NSR SIP regulations, 45 FR 52676 
(August 7, 1980), States were required to adopt and submit a major NSR 
SIP revision where the State's provisions and definitions were 
identical to or individually more stringent than the Federal rules. 
Under EPA's 1980 revised major NSR SIP regulations, States could submit 
provisions in a major NSR SIP revision different from those in EPA's 
major NSR rules, as long as the State provision was equivalent to a 
rule identified by EPA as appropriate for a ``different but 
equivalent'' State rule. If a State chose to submit definitions that 
were not verbatim, the State was required to demonstrate any different 
definition has the effect of being as least as stringent. (Emphasis 
added.) See 45 FR 52676, at 52687. The demonstration requirement was 
explicitly expanded to include not just different definitions but also 
different programs in the EPA's revised major NSR regulations, as 
promulgated on December 31, 2002 (67 FR 80186) and reconsidered with 
minor changes on November 7, 2003 (68 FR 63021). Therefore, to be 
approved as meeting the 2002 revised major NSR SIP requirements, a 
State submitting a customized major NSR SIP revision must demonstrate 
why its program and definitions are in fact at least as stringent as 
the major NSR revised base program. (Emphasis added). See 67 FR 80186, 
at 80241.
    Moreover, because there is an existing Texas Major NSR SIP, the 
submitted Program must meet the anti-backsliding provisions of the Act 
in section 193 and meet the requirements in section 110(l) which 
provides that EPA may not approve a SIP revision if it will interfere 
with any applicable requirement concerning attainment and reasonable 
further progress or any other applicable requirement of the Act. 
Furthermore, any submitted SIP revision must meet the applicable SIP 
regulatory requirements and the requirements for SIP elements in 
section 110 of the Act, and be consistent with applicable statutory and 
regulatory requirements. These can include, among other things, 
enforceability, compliance assurance, replicability of an element in 
the program, accountability, test methods, and whether the submitted 
rules are vague. There are four fundamental principles for the 
relationship between the SIP and any implementing instruments, e.g., 
Major NSR permits. These four principles as applied to the review of a 
major or minor NSR SIP revision include: (1) The baseline emissions 
from a permitted source be quantifiable; (2) the NSR program be 
enforceable by specifying clear, unambiguous, and measurable 
requirements, including a legal means for ensuring the sources are in 
compliance with the NSR program, and providing means to determine 
compliance; (3) the NSR program's measures be replicable by including 
sufficiently specific and objective provisions so that two independent 
entities applying the permit program's procedures would obtain the same 
result; and (4) the major NSR permit program be accountable, including 
means to track emissions at sources resulting from the issuance of 
permits and permit amendments. See EPA's April 16, 1992, ``General 
Preamble for

[[Page 48472]]

the Implementation of Title I of the Clean Air Act Amendments of 1990'' 
(57 FR 13498) (General Preamble). A discussion illustrating the 
principles and elements of SIPs that apply to sources in implementing a 
SIP's control strategies begins on page 13567 of the General Preamble.

B. Do the Submitted SIP Revisions Meet the Act and the PSD SIP 
requirements?

    Texas submitted a revision to 30 TAC 116.160(a) and a new section 
116.160(c)(1) and (2) on February 1, 2006, as a SIP revision to the 
Texas PSD SIP. This SIP revision submittal removed from the State rules 
the incorporation by reference of the Federal PSD definition of ``best 
available control technology (BACT)'' as defined in 40 CFR 
51.166(b)(12) \4\. The currently approved PSD SIP requires that a State 
include the Federal definition of BACT. See 30 TAC 116.160(a).
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    \4\ The January 1972 Texas NSR rules, as revised in July 1972, 
require a proposed new facility or modification to utilize the best 
available control technology, with consideration to the technical 
practicability and economic reasonableness of reducing or 
eliminating the emissions resulting from the facility. The Federal 
definition for PSD BACT is part of the Texas SIP as codified in the 
SIP at 30 TAC 116.160(a). (This current SIP rule citation was 
adopted by the State on October 10, 2001, and EPA approved this 
recodified SIP rule citation on July 22, 2004 (69 FR 43752).) EPA 
approved the Texas PSD program SIP revision submittals, including 
the State's incorporation by reference of the Federal definition of 
BACT, in 1992. See proposal and final approval of the Texas PSD SIP 
at 54 FR 52823 (December 22, 1989) and 57 FR 28093 (June 24, 1992). 
EPA specifically found that the SIP BACT requirement (now codified 
in the Texas SIP at 30 TAC 116.111(a)(2)(C)) did not meet the 
Federal PSD BACT definition. To meet the PSD SIP Federal 
requirements, Texas chose to incorporate by reference, the Federal 
PSD BACT definition, and submit it for approval by EPA as part of 
the Texas PSD SIP. Upon EPA's approval of the Texas PSD SIP 
submittals, both EPA and Texas interpreted the SIP BACT provision 
now codified in the SIP at 30 TAC 116.111(a)(2)(C) as being a minor 
NSR SIP requirement for minor NSR permits.
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    The 2006 submittal also removed from the State rules, the PSD SIP 
requirement at 40 CFR 52.21(r)(4) that the State previously had 
incorporated by reference. The currently approved PSD SIP mandates this 
requirement. See 30 TAC 116.160(a). This provision specifies that if a 
project becomes a major stationary source or major modification solely 
because of a relaxation of an enforceable limitation on the source or 
modification's capacity to emit a pollutant, then the source or 
modification is subject to PSD applies as if construction had not yet 
commenced. The State's action in eliminating that requirement means the 
State's rules will not regulate these types of major stationary sources 
or modifications as stringently as the Federal program.
    Section 165 of the Act provides that ``No major emitting facility * 
* * may be constructed [or modified] in any area to which this part 
applies unless-- (1) a permit has been issued for such proposed 
facility in accordance with this part setting forth emission 
limitations for such facility which conform to the requirements of this 
part'' * * * (4) the proposed facility is subject to the best available 
control technology for each pollutant subject to regulation under this 
chapter * * *.'' Id. 7475(a). Accordingly, under the plain language of 
Section 165 a facility may not be constructed unless it will comply 
with BACT limits, which conform to the requirements of the Act. As BACT 
is a defined term in the Act, see CAA 169(3), we interpret this to mean 
that a facility may not be constructed unless the permit it has been 
issued conforms to the Act's definition of BACT.
    The removal of these two provisions is not approvable as a SIP 
revision. The BACT requirement is a basic tenet of a permitting 
program. Our conclusion that the BACT and emission limitation 
requirements are a statutory minimum flows from the Act itself. See CAA 
section 165. These two provisions are required for a SIP revision to 
meet the PSD SIP requirements.
    Not only is BACT a defined statutory and regulatory term, but it 
also constitutes a central requirement of the Act. Accordingly, a 
state's submission of a revision that would remove the requirement that 
all new major stationary sources or major modifications meet, at a 
minimum, BACT as defined by the Act creates a situation where the 
submitted SIP revision would be a relaxation of the requirements of the 
previous SIP.
    Our evaluation considers whether a submitted SIP revision that 
removes a statutory requirement can still meet the Act. It is EPA's 
position that the removal of a statutory requirement from a State's 
program cannot be approved as a SIP revision because the removal does 
not meet the requirements of the Act. Additionally, as a SIP 
relaxation, we would look to the requirements of section 110(l). 
Section 110(l) of the Act prohibits EPA from approving any revision of 
a SIP if the revision would interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the Act. The State did not provide any 
demonstration showing how the submitted SIP revision would not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
Act.
    As the mechanism in Texas for ensuring that permits contain such a 
requirement, the State PSD SIP must both require BACT and apply the 
federal definition of BACT (or one that is more stringent) to be 
approved pursuant to part C and Section 110(l) of the Act.
    Since Texas' approach fails to ensure that all of the statutory 
relevant criteria contained in the statutory BACT definition are 
contained in the Texas SIP revision submittal, and the State failed to 
submit a demonstration showing how the relaxation would not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress, or any other CAA requirement, we are proposing to 
disapprove this removal pursuant to part C and Section 110(l) of the 
Act, as well as failing to meet the Major NSR SIP requirements.

V. Do the Submitted SIP Revisions Meet the Major Non-attainment NSR 
Requirements for the 1-Hour and the 1997 8-Hour Ozone NAAQS?

A. What are the Anti-Backsliding Major Nonattainment NSR SIP 
Requirements for the 1-hour Ozone NAAQS?

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based upon 
8-hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of NAAQS was changed 
from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38865).\5\ On 
April 30, 2004 (69 FR 23951), we published a final rule that addressed 
key elements related to implementation of the 1997 8-hour ozone NAAQS 
including, but not limited to: revocation of the 1-hour NAAQS and how 
anti-backsliding principles will ensure continued progress toward 
attainment of the 1997 8-hour ozone NAAQS. We codified the anti-
backsliding provisions governing the transition from the revoked 1-hour 
ozone NAAQS to the 1997 8-hour ozone NAAQS in 40 CFR 51.905(a). The 1-
hour ozone major nonattainment NSR SIP requirements indicated that 
certain 1-hour ozone standard requirements were not part of the list of 
anti-backsliding requirements provided in 40 CFR 51.905(f).
---------------------------------------------------------------------------

    \5\ On March 12, 2008, EPA significantly strengthened the 1997 
8-hour ozone standard, to a level of 0.075 ppm. EPA is developing 
rules needed for implementing the 2008 revised 8-hour ozone standard 
and has received the States' submittals identifying areas with their 
boundaries they identify to be designated nonattainment. EPA is 
reviewing the States' submitted data.
---------------------------------------------------------------------------

    On December 22, 2006, the DC Circuit vacated the Phase 1 
Implementation Rule in its entirety. South Coast Air

[[Page 48473]]

Quality Management District, et al., v. EPA, 472 F.3d 882 (DC Cir. 
2006), reh'g denied 489 F.3d 1245 (2007) (clarifying that the vacatur 
was limited to the issues on which the court granted the petitions for 
review). The EPA requested rehearing and clarification of the ruling 
and on June 8, 2007, the Court clarified that it was vacating the rule 
only to the extent that it had upheld petitioners' challenges. Thus, 
the provisions in 40 CFR 51.905(e) that waived obligations under the 
revoked 1-hour standard for NSR were vacated. The effect of this 
portion of the court's ruling is to restore major nonattainment NSR 
applicability thresholds and emission offsets pursuant to 
classifications previously in effect for areas designated nonattainment 
for the 1-hour ozone NAAQS.
    On June 10, 2005 and February 1, 2006, Texas submitted SIP 
revisions to 30 TAC 116.12 and 30 TAC 116.150 which relate to the 
transition from the major nonattainment NSR requirements applicable for 
the 1-hour ozone NAAQS to implementation of the major nonattainment NSR 
requirements applicable to the 1997 8-hour ozone NAAQS. Texas' 
revisions at 30 TAC 116.12(18) (Footnote 6 under Table I under the 
definition of ``major modification'') and 30 TAC 116.150(d) 
introductory paragraph, effective as state law on June 15, 2005, 
provide that for ``the Houston-Galveston-Brazoria, Dallas-Fort Worth, 
and Beaumont-Port Arthur eight hour ozone nonattainment areas, if the 
United States Environmental Protection Agency promulgates rules 
requiring new source review permit applications in these areas to be 
evaluated for nonattainment new source review according to the area's 
one-hour standard classification,'' then ``each application will be 
evaluated according to that area's one-hour standard classification'' 
and ``* * * the de minimis threshold test (netting) is required for all 
modifications to existing major sources of VOC or NOx in 
that area * * *.'' The footnote 6 and the introductory paragraph add a 
new requirement for an affirmative regulatory action by the EPA on the 
reinstatement of the 1-hour ozone NAAQS major nonattainment NSR 
requirements before the major nonattainment NSR requirements under the 
1-hour standard will be implemented in the Texas 1-hour ozone 
nonattainment areas.
    The currently approved Texas major nonattainment NSR SIP does not 
require such an affirmative regulatory action by the EPA before the 1-
hour ozone major nonattainment NSR requirements come into effect in the 
Texas 1-hour ozone nonattainment areas. Our evaluation of a SIP 
revision generally considers whether a revision would be at least as 
stringent as the provision in the existing applicable implementation 
plan that it would supersede. If we cannot conclude that a SIP revision 
is at least as stringent as the corresponding provision in the existing 
SIP, we may approve the revision only if the revision would not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
Act. The Texas revision would relax the requirements of the approved 
SIP.
    Texas submitted no section 110(l) analysis demonstrating that this 
relaxation would not interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the Act. Therefore, we are proposing to 
disapprove the revisions as not meeting section 110(l) of the Act for 
the Major NNSR SIP requirements for the 1-hour ozone NAAQS.

B. What Are the Major Nonattainment NSR SIP Requirements for the 1997 
8-hour Ozone NAAQS?

    The Act and EPA's NSR SIP rules require that an applicability 
determination regarding whether Major NSR applies for a pollutant 
should be based upon the attainment or nonattainment designation of the 
area in which the source is located on the date of issuance of the 
Major NSR permit. See the following: sections 172(c)(5) and 173 of the 
Act; 40 CFR 51.165(a)(2)(i); and ``New Source Review (NSR) Program 
Transitional Guidance,'' issued March 11, 1991, by John S. Seitz, 
Director, Office of Air Quality Planning and Standard. An applicability 
determination for a Major NSR permit based upon the date of 
administrative completeness, rather than date of issuance, would allow 
more sources to avoid the Major NSR requirements where there is a 
nonattainment designation between the date of administrative 
completeness and the date of issuance, and thus this submitted revision 
will reduce the number of sources subject to Major NSR requirements.
    Revised 30 TAC 116.150(a), as submitted June 10, 2005 and February 
1, 2006, now reads as follows under state law:

    (a) This section applies to all new source review authorizations 
for new construction or modification of facilities as follows:
    (1) For all applications for facilities that will be located in 
any area designated as nonattainment for ozone under 42 United 
States Code (U.S.C.), Sec. Sec.  7407 et seq. on the effective date 
of this section, the issuance date of the authorization; and
    (2) For all applications for facilities that will be located in 
counties for which nonattainment designation for ozone under 42 
U.S.C. 7407 et seq. becomes effective after the effective date of 
this section, the date the application is administratively 
complete.\6\
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    \6\ It is our understanding of State law, that a ``facility'' 
can be an ``emissions unit,'' i.e., any part of a stationary source 
that emits or may have the potential to emit any air contaminant. A 
``facility'' also can be a piece of equipment, which is smaller than 
an ``emissions unit.'' A ``facility'' can be a ``major stationary 
source'' as defined by Federal law. A ``facility'' under State law 
can be more than one ``major stationary source.'' It can include 
every emissions point on a company site, without limiting these 
emissions points to only those belonging to the same industrial 
grouping (SIP code). To comment on our understanding of the State 
definition of facility, see our proposed action regarding 
Modification of Existing Qualified Facilities Program and General 
Definitions, published elsewhere in today's Federal Register.

    The submitted rule raises two concerns. First, the revised language 
in 30 TAC 116.150(a) is not clear as to when and where the 
applicability date will be set by the date the application is 
administratively complete and when and where the applicability date 
will be set by the issuance date of the authorization. The rule, 
adopted and submitted in 2005, applies the date of administrative 
completeness of a permit application, not the date of permit issuance, 
where setting the date for determination of NSR applicability after 
June 15, 2004 (the effective date of ozone nonattainment designations). 
The submitted 2006 rule adds the date of permit issuance. 
Unfortunately, the submitted 2006 rule by introducing a bifurcated 
structure creates vagueness rather than clarity. The effective date of 
this new bifurcated structure is February 1, 2006. It is unclear 
whether this means under subsection (1) that the permit issuance date 
is used in existing nonattainment areas designated nonattainment for 
ozone before and up through February 1, 2006. Thus, the proposed 
revision lacks clarity on its face and is therefore not enforceable.
    Second, to the extent that the date of application completeness is 
used in certain instances to establish the applicability date, such use 
is contrary to the Act and EPA's interpretation thereof, as discussed 
above.
    The State did not provide any information, which demonstrates that 
this revision is at least as stringent as the requirements of the Act 
and applicable Federal rules.
    Thus, based upon the above and in the absence of any explanation by 
the State, EPA is proposing to disapprove the SIP revision submittals 
for not

[[Page 48474]]

meeting the Major NNSR SIP requirements for the 1997 8-hour ozone 
standard.

VI. Do the Submitted SIP Revisions Meet the Major NSR SIP Requirements?

A. Do the SIP Revision Submittals Meet the Major NSR SIP Requirements 
With a PALs Provision?

    We are proposing to disapprove the following non-severable 
revisions that address the revised Major NSR SIP requirements with a 
PALs provision: 30 TAC Chapter 116 submitted February 1, 2006: 30 TAC 
116.12--Definitions; 30 TAC 116.180--Applicability; 30 TAC 116.182--
Plant-Wide Applicability Limit Permit Application; 30 TAC 116.184--
Application Review Schedule; 30 TAC 116.186--General and Special 
Conditions; 30 TAC 116.188--Plant-Wide Applicability Limit; 30 TAC 
116.190--Federal Nonattainment and Prevention of Significant 
Deterioration Review; 30 TAC 116.192--Amendments and Alterations; 30 
TAC 116.194--Public Notice and Comment; 30 TAC 116.196--Renewal of a 
Plant-Wide Applicability Limit Permit; 30 TAC 116.198--Expiration or 
Voidance.
    Below is a summary of our evaluation. Please see the TSD for 
additional information.
    The submittal lacks a provision which limits applicability of a PAL 
only to an existing major stationary source, and which precludes 
applicability of a PAL to a new major stationary source, as required 
under 40 CFR 51.165(f)(1)(i) and 40 CFR 51.166(w)(1)(i), which limits 
applicability of a PAL to an existing major stationary source. In the 
absence of such limitation, this submission would allow a PAL to be 
authorized for the construction of a new major stationary source. In 
EPA's November 2002 TSD for the revised Major NSR Regulations, we 
respond on pages I-7-27 and 28 that actual PALs are available only for 
existing major stationary sources, because actual PALs are based on a 
source's actual emissions. Without at least 2 years of operating 
history, a source has not established actual emissions upon which to 
base an actual PAL. However, for individual emissions units with less 
than two years of operation, allowable emissions would be considered as 
actual emissions. Therefore, an actual PAL can be obtained only for an 
existing major stationary source even if not all emissions units have 
at least 2 years of emissions data. Moreover, the development of an 
alternative to provide new major stationary sources with the option of 
obtaining a PAL based on allowable emissions was foreclosed by the 
Court in New York v. EPA, 413 F.3d 3 at 38-40 (DC Cir. 2005) (``New 
York I'') (holding that the Act since 1977 requires a comparison of 
existing actual emissions before the change and projected actual (or 
potential emissions) after the change in question is required).
    The absence of the applicability limitation creates a provision 
less stringent than the Act as interpreted by the Court and the revised 
Major NSR SIP PAL requirements. Therefore, we are proposing to 
disapprove this submittal as not meeting the revised Major NSR SIP 
requirements.
    The submittal has no provisions that relate to PAL re-openings, as 
required by 40 CFR 51.165(f)(8)(ii), (ii)(A) through (C), and 
51.166(w)(8)(ii) and (ii)(a). Nor is there a mandate that failure to 
use a monitoring system that meets the requirements of this section 
renders the PAL invalid, as required by 40 CFR 51.165(f)(12)(i)(D) and 
51.166(w)(12)(i)(d). The absence of these provisions renders the 
accountability of this Program inadequate and less stringent than the 
Federal requirements of Major NSR. Therefore, EPA is proposing to 
disapprove the submittal as not meeting the revised Major NSR SIP 
requirements.
    The Texas submittal at 30 TAC 116.186 provides for an emissions cap 
that may not account for all of the emissions of a pollutant at the 
major stationary source. Texas requires the owner or operator to submit 
a list of all facilities to be included in the PAL see 30 TAC 
116.182(1), such that not all of the facilities at the entire major 
stationary source may be specifically required to be included in the 
PAL. However, the Federal rules require the owner or operator to submit 
a list of all emissions units at the source see 40 CFR 51.166(f)(3)(i) 
and 40 CFR 51.166(w)(3)(i). The corresponding Federal rules provide 
that a PAL applies to all of the emission units at the entire major 
stationary source. Inclusion of all the emissions units subject to the 
enforceable PAL limit is an essential feature of the Plantwide 
Applicability Limit. The Texas submittal is unclear as to whether the 
PAL would apply to all of the emission units at the entire major 
stationary source and therefore appears to be less stringent than the 
Federal rules. In the absence of any demonstration from the State, EPA 
is proposing to disapprove 30 TAC 116.186 and 30 TAC 116.182(1) as not 
meeting the revised Major NSR SIP requirements.
    Submitted 30 TAC 116.194 requires that an applicant for a PAL 
permit must provide for public notice on the draft PAL permit in 
accordance with 30 TAC Chapter 39--Public Notice--for all initial 
applications, amendments, and renewals or a PAL Permit.\7\ See 73 FR 
72001 (November 26, 2008) for more information on Texas' public 
participation rules and their relationship to PALs. The November 2008 
proposal addressed the public participation provisions in 30 TAC 
Chapter 39, but did not specifically propose action on 30 TAC 116.194. 
Today, we propose to address 30 TAC 116.194. Because this section 
relates to the public participation requirements of the PAL program, 
this section is not severable from the PAL program. Because we are 
proposing to disapprove the PAL program, we propose to likewise 
disapprove 30 TAC 116.194.
---------------------------------------------------------------------------

    \7\ ``The submittals do not meet the following public 
participation provisions for PALs: (1) For PALs for existing major 
stationary sources, there is no provision that PALs be established, 
renewed, or increased through a procedure that is consistent with 40 
CFR 51.160 and 51.161, including the requirement that the reviewing 
authority provide the public with notice of the proposed approval of 
a PAL permit and at least a 30-day period for submittal of public 
comment, consistent with the Federal PAL rules at 40 CFR 
51.165(f)(5) and (11) and 51.166(w)(5) and (11). (2) For PALs for 
existing major stationary sources, there is no requirement that the 
State address all material comments before taking final action on 
the permit, consistent with 40 CFR 51.165(f)(5) and 51.166(w)(5). 
(3) The applicability provision in section 39.403 does not include 
PALs, despite the cross-reference to Chapter 39 in Section 
116.194.''
---------------------------------------------------------------------------

    The Federal definition of the ``baseline actual emissions'' 
provides that these emissions must be calculated in terms of ``the 
average rate, in tons per year at which the unit actually emitted the 
pollutant during any consecutive 24-month period.'' See 40 CFR 
51.165(a)(1)(xxxv)(A), (B), (D) and (E) and 51.166(b)(47)(i), (ii), 
(iv), and (v). Emphasis added. The submitted definition of the term 
``baseline actual emissions'' found at 30 TAC 116.12(3)(A), (B), (D), 
and (E) differs from the Federal definition by providing that the 
baseline shall be calculated as ``the rate, in tons per year at which 
the unit actually emitted the pollutant during any consecutive 24-month 
period.'' The submitted definition omits reference to the ``average 
rate.'' The definition differs from the Federal SIP definition but the 
State failed to provide a demonstration showing how the different 
definition is at least as stringent as the Federal definition. 
Therefore, EPA proposes to disapprove the different definition of 
``baseline actual emissions'' found at 30 TAC 116.12(3) as not meeting 
the revised Major NSR SIP requirements. On the same grounds for lacking 
a demonstration, EPA proposes to

[[Page 48475]]

disapprove 30 TAC 116.182(2) that refers to calculations of the 
baseline actual emissions for a PAL, as not meeting the revised Major 
NSR SIP requirements.
    The State also failed to include the following specific monitoring 
definitions: ``Continuous emissions monitoring system (CEMS)'' as 
defined in 40 CFR 51.165(a)(1)(xxxi) and 51.166(b)(43); ``Continuous 
emissions rate monitoring system (CERMS)'' as defined in 40 CFR 
51.165(a)(1)(xxxiv) and 51.166(b)(46); ``Continuous parameter 
monitoring system (CPMS)'' as defined in 40 CFR 51.165(a)(1)(xxxiii) 
and 51.166(b)(45); and ``Predictive emissions monitoring system 
(PEMS)'' as defined in 40 CFR 51.165(a)(1)(xxxii) and 51.166(b)(44). 
All of these definitions concerning the monitoring systems in the 
revised Major NSR SIP requirements are essential for the enforceability 
of and providing the means for determining compliance with a PALs 
program. Therefore, we are proposing to disapprove the State's lack of 
these four monitoring definitions as not meeting the revised Major NSR 
SIP requirements.
    Additionally, where, as here, a State has made a SIP revision that 
does not contain definitions that are required in the revised Major NSR 
SIP program, EPA may approve such a revision only if the State 
specifically demonstrates that, despite the absence of the required 
definitions, the submitted revision is more stringent, or at least as 
stringent, in all respects as the Federal program. See 40 CFR 
51.165(a)(1) (non-attainment SIP approval criteria); 51.166 (b) (PSD 
SIP definition approval criteria). Texas did not provide such a 
demonstration. Therefore, EPA proposes to disapprove the lack of these 
definitions as not meeting the revised Major NSR SIP requirements.
    None of the provisions and definitions in the February 1, 2006, SIP 
revision submittal pertaining to the revised Major NSR SIP requirements 
for PALs is severable from each other. Therefore, we are proposing to 
disapprove the portion of the February 1, 2006, SIP revision submittal 
pertaining to the revised Major NSR PALs SIP requirements as not 
meeting the Act and the revised Major NSR SIP regulations.

B. Do the Submitted SIP Revisions Meet the Non-PAL Aspects of the Major 
NSR SIP Requirements?

    The submitted NNSR non-PAL rules do not explicitly limit the 
definition of ``facility'' \8\ to an ``emissions unit'' as do the 
submitted PSD non-PAL rules. It is our understanding of State law that 
a ``facility'' can be an ``emissions unit,'' i.e., any part of a 
stationary source that emits or may have the potential to emit any air 
contaminant, as the State explicitly provides in the revised PSD rule 
at 30 TAC 116.160(c)(3). A ``facility'' also can be a piece of 
equipment, which is smaller than an ``emissions unit.'' A ``facility'' 
can include more than one ``major stationary source.'' It can include 
every emissions point on a company site, without limiting these 
emissions points to only those belonging to the same industrial 
grouping (SIP code). In our proposed action on the Texas Qualified 
Facilities State Program, EPA specifically solicits comment on the 
definition for ``facility'' under State law. We encourage anyone 
interested in this issue to review and comment on the other proposed 
action on the submitted Qualified Facilities State Program, as well.
---------------------------------------------------------------------------

    \8\ ``Facility'' is defined in the SIP approved 30 TAC 116.10(6) 
as ``a discrete or identifiable structure, device, item, equipment, 
or enclosure that constitutes or contains a stationary source, 
including appurtenances other than emission control equipment.''
---------------------------------------------------------------------------

    Regardless, the State clearly thought the prudent legal course was 
to limit ``facility'' explicitly to ``emissions unit'' in its PSD SIP 
non-PALs revision. TCEQ did not submit a demonstration showing how the 
lack of this explicit limitation in the NNSR SIP non-PALs revision is 
at least as stringent as the revised Major NSR SIP requirements. 
Therefore, EPA is proposing to disapprove the submitted definition and 
its use as not meeting the revised Major NNSR non-PALs SIP 
requirements.
    Under the Major NSR SIP requirements, for any physical or 
operational change at a major stationary source, a source must include 
emissions resulting from startups, shutdowns, and malfunctions in its 
determination of the baseline actual emissions (see 40 CFR 
51.165(a)(1)(xxxv)(A)(1) and (B)(1) and 40 CFR 51.166(b)(47)(i)(a) and 
(ii)(a)) and the projected actual emissions (see 40 CFR 
51.165(a)(1)(xxviii)(B) and 40 CFR 51.166(b)(40)(ii)(b)). The 
definition of the term ``baseline actual emissions,'' as submitted in 
30 TAC 116.12(3)(E), does not require the inclusion of emissions 
resulting from startups, shutdowns, and malfunctions.\9\ Our 
understanding of State law is that the use of the term ``may'' 
``creates discretionary authority or grants permission or a power. See 
Section 311.016 of the Texas Code Construction Act. Similarly, the 
submitted definition of ``projected actual emissions'' at 30 TAC 
116.12(29) does not require that emissions resulting from startups, 
shutdowns, and malfunctions be included. The submitted definitions 
differ from the Federal SIP definitions and the State has not provided 
information demonstrating that these definitions are at least as 
stringent as the Federal SIP definitions. Therefore, based upon the 
lack of a demonstration from the State, EPA proposes to disapprove the 
definitions of ``baseline actual emissions'' at 30 TAC 116.12(3) and 
``projected actual emissions'' at 30 TAC 116.12(29) as not meeting the 
revised Major NSR SIP requirements.
---------------------------------------------------------------------------

    \9\ The submitted definition of ``baseline actual emissions,'' 
is as follows: Until March 1, 2016, emissions previously 
demonstrated as emissions events or historically exempted under 
Chapter 101 of this title * * * may be included to the extent they 
have been authorized, or are being authorized, in a permit action 
under Chapter 116. 30 TAC 116.12(3)(E) (emphasis added).
---------------------------------------------------------------------------

    The Federal definition of the ``baseline actual emissions'' 
provides that these emissions must be calculated in terms of ``the 
average rate, in tons per year at which the unit actually emitted the 
pollutant during any consecutive 24-month period.'' The submitted 
definition of the term ``baseline actual emissions'' found at 30 TAC 
116.12 (3)(A), (B), (D), and (E) differs from the Federal definition by 
providing that the baseline shall be calculated as ``the rate, in tons 
per year at which the unit actually emitted the pollutant during any 
consecutive 24-month period.''
    Texas has not provided any demonstration showing how this different 
definition is at least as stringent as the Federal SIP definition. 
Therefore, EPA proposes to disapprove the submitted definition of 
``baseline actual emissions'' found at 30 TAC 116.12(3) as not meeting 
the revised major NSR SIP requirements.
    None of the provisions and definitions in the February 1, 2006, SIP 
revision submittal pertaining to the revised Major NSR SIP requirements 
for non-PALs is severable from each other. Therefore, we are proposing 
to disapprove the portion of the February 1, 2006, SIP revision 
submittal pertaining to the revised Major NSR non-PALs SIP requirements 
as not meeting the Act and the revised Major NSR SIP regulations.

VII. Does the Submitted PCP Standard Permit Meet the Minor NSR SIP 
Requirements?

    EPA approved Texas' general regulations for Standard Permits in 30 
TAC Subchapter F of 30 TAC Chapter 116 on November 14, 2003 (68 FR 
64548) as meeting the minor NSR SIP requirements. The November 14, 2003

[[Page 48476]]

action describes how these rules meet EPA's requirements for new minor 
sources and minor modifications. A Standard Permit provides a 
streamlined mechanism with all permitting requirements for construction 
and operation of certain sources in categories that contain numerous 
similar sources. It is not a case-by-case minor NSR SIP permit. 
Therefore, each minor NSR SIP Standard Permit must contain all terms 
and conditions on the face of it (combined with the SIP general 
requirements) and it cannot be used to address site-specific 
determinations. This particular type of minor NSR permit is required to 
be applicable to narrowly defined categories of emission sources \10\ 
rather than a category of emission types. A Standard Permit is a minor 
NSR permit limited to a particular narrowly defined source category for 
which the permit is designed to cover and cannot be used to make site-
specific determinations that are outside the scope of this type of 
permit.\11\
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    \10\ Examples of narrowly defined categories of emission sources 
include oil and gas facilities, asphalt concrete plants, and 
concrete batch plants.
    \11\ See Guidance on Enforceability Requirements for Limiting 
Potential to Emit through SIP and section 112 rules and General 
permits, Memorandum from Kathie A Stein, Office of Enforcement and 
Compliance Assurance, January 25, 1995, Options for Limiting the 
Potential to Emit (PTE) of a Stationary Source under Section 112 and 
Title V of the Clean Air Act, Memorandum from John S. Seitz, Office 
of Air Quality Planning and Standards (OAQPS), January 25, 1995, 
Approaches to Creating Federally-Enforceable Emissions Limits, 
Memorandum from John S. Seitz, OAQPS, November 3, 1993, Potential to 
Emit (PTE) Guidance for Specific Source Categories, Memorandum from 
John S. Seitz, OAQPS and Eric Schaeffer, OECA, April 14, 1998, EPA 
Region 7 Permit by Rule Guidance for Minor Source Preconstruction 
Permits. See also, rulemakings related to general permits: 61 FR 
53633, final approval of Tennessee SIP Revision, October 15, 1996; 
62 FR 2587, final approval of Florida SIP revision, January 17, 
1997; 71 FR 5979, final approval of Wisconsin SIP revision, February 
6, 2006; 71 FR 14439, proposed conditional approval of Missouri SIP 
revision, March 22, 2006. EPA guidance documents set out specific 
guidelines: (1) General permits apply to a specific and narrow 
category of sources, (2) For sources electing coverage under general 
permits where coverage is not mandatory, provide notice or reporting 
to the permitting authority, reporting or notice to permitting 
authority, (3) General permits provide specific and technically 
accurate (verifiable) limits that restrict potential to emit, (4) 
General permits contain specific compliance requirements, (5) Limits 
in general permits are established based on practicably enforceable 
averaging times, and (6) Violations of the permit are considered 
violations of state and federal requirements and may result in the 
source being subject to major source requirements.
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    EPA did not approve the Standard Permit for PCPs (30 TAC 116.617) 
in the November 14, 2003 action as part of the Texas minor NSR SIP. See 
68 FR 64547. On February 1, 2006, Texas submitted a repeal of the 
previously submitted PCP Standard Permit and submitted the adoption of 
a new PCP Standard Permit at 30 TAC 116.617--State Pollution Control 
Project Standard Permit.\12\ One of the main reasons Texas adopted a 
new PCP Standard Permit was to meet the new Federal requirements to 
explicitly limit this PCP Standard Permit only to Minor NSR. In State 
of New York, et al. v. EPA, 413 F.3d 3 (DC Cir. June 24, 2005), the 
Court vacated the federal pollution control project provisions for NNSR 
and PSD. The new PCP Standard Permit explicitly prohibits the use of 
the PCP Standard Permit for new major sources and major modifications. 
Still the new PCP Standard Permit is a generic permit that applies to 
numerous types of pollution control projects, which can be used at any 
source that wants to use a PCP. The definition in this Standard Permit 
for what is a PCP is overly broad. For example, it does not delineate 
what type of pollution control equipment is authorized.
---------------------------------------------------------------------------

    \12\ The 2006 submittal also included a revision to 30 TAC 
116.610(d), that is a rule in Subchapter F, Standard Permits, to 
change an internal cross reference from Subchapter C to Subchapter 
E, consistent with the re-designation of this Subchapter by TCEQ. 
See section IX for further information on this portion of the 2006 
submittal.
---------------------------------------------------------------------------

    The PCP Standard Permit, as adopted and submitted by Texas to EPA 
for approval into the Texas Minor NSR SIP, is not limited in its 
applicability to a single category of industrial sources, but to a 
broad class of pollution control techniques at all source categories. 
An individual Standard Permit must be limited to a single source 
category, which consists of numerous similar sources that can meet 
standardized permit conditions. In addition to EPA's concerns that this 
submitted PCP Standard Permit is not limited in its applicability, 
another major concern is that this Standard Permit is designed for 
case-by-case additional authorization, source-specific review, and 
source-specific technical determinations. For case-by-case additional 
authorization, source-specific review, and source specific technical 
determinations, under the minor NSR SIP rules, if these types of 
determinations are necessary, the State must use its minor NSR SIP 
case-by-case permit process under 30 TAC 116.110(a)(1).
    There are no replicable conditions in the PCP Standard Permit that 
specify how the Director's discretion is to be implemented for the 
individual determinations. Of particular concern is the provision that 
allows for the exercise of the Executive Director's discretion in 
making case-specific determinations in individual cases in lieu of 
generic enforceable requirements. Because EPA approval will not be 
required in each individual case, specific replicable criteria must be 
set forth in the Standard Permit establishing equivalent emissions 
rates and ambient impact. Similarly, the PCP Standard Permit is not the 
appropriate vehicle in the case-by-case establishing of recordkeeping, 
monitoring, and recordkeeping requirements because it requires the 
Executive Director to make case-by-case determinations and to establish 
case specific terms and conditions for the construction or modification 
of each individual PCP that are outside the terms and conditions in the 
PCP Standard Permit.
    Because the PCP Standard Permit, in 30 TAC 116.617, does not meet 
the SIP requirements for Minor NSR, EPA proposes to disapprove the PCP 
Standard Permit, as submitted February 1, 2006.

VIII. What Is Our Evaluation of Other SIP Revision Submittals?

    We are proposing to take no action upon the June 10, 2005 SIP 
revision submittal addressing definitions at 30 TAC Chapter 101, 
Subchapter A, section 101.1, because previous revisions to that section 
are still pending review by EPA. We will take appropriate action on the 
submittals concerning 30 TAC 101.1 in a separate action. As noted 
previously, these definitions are severable from the other portions of 
the two SIP revision submittals.
    Second, Texas originally submitted a new Subchapter C--Hazardous 
Air Pollutants: Regulations Governing Constructed and Reconstructed 
Sources (FCAA, Sec.  112(g), 40 CFR Part 63) on July 22, 1998. EPA has 
not taken action upon the 1998 submittal. In the February 1, 2006, SIP 
revision submittal, this Subchapter C is recodified to Subchapter E and 
sections are renumbered. This 2006 submittal also includes an amendment 
to 30 TAC 116.610(d) to change the cross-reference from Subchapter C to 
Subchapter E. These SIP revision submittals apply to the review and 
permitting of constructed and reconstructed major sources of hazardous 
air pollutants (HAP) under section 112 of the Act and 40 CFR part 63, 
subpart B. The process for these provisions is carried out separately 
from the SIP activities. SIPs cover criteria pollutants and their 
precursors, as regulated by NAAQS. Section 112(g) of the Act regulates 
HAPs, this program is not under the auspices of a section 110 SIP, and 
this program should not be approved into the SIP. These portions of the 
1998 and

[[Page 48477]]

2006 submittals are severable. For these reasons we propose to take no 
action on this portion relating to section 112(g) of the Act.
    Third, the February 1, 2006, SIP revision submittal includes a new 
30 TAC Chapter 116, Subchapter K (as recodified from Subchapter E), 
that relates to the issuance of Emergency Orders, and is severable from 
all the other portions of the 2006 submittal. EPA is currently 
reviewing the SIP revision submittals that relate to Emergency Orders, 
including this submittal and will take appropriate action on the 
Emergency Order requirements in a separate action, according to the 
Consent Decree schedule.

IX. Proposed Action

    Under section 110(k)(3) of the Act and for the reasons stated 
above, EPA is proposing disapproval of revisions to the Texas Major NSR 
SIP that relate to implementation of Major NSR in areas designated 
nonattainment for the 1997 8-hour ozone NAAQS, implementation of Major 
NSR in areas designated nonattainment for the 1-hour ozone NAAQS, and 
implementation of Major NSR SIP requirements in all of Texas. We are 
proposing to disapprove the SIP revision submittals for the Texas Major 
NSR SIP. Finally, we are proposing to disapprove the submittals for a 
Minor Standard Permit for PCP. EPA is also proposing to take no action 
on certain severable revisions submitted June 10, 2005, and February 1, 
2006.
    Specifically, we are proposing:
     Disapproval of revisions to 30 TAC 30 TAC 116.12 and 
116.150 as submitted June 10, 2005;
     Disapproval of revisions 30 TAC 116.12, 116.150, 116.151, 
116.160; and disapproval of new sections at 30 TAC 116.121, 116.180, 
116.182, 116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196, 
116.198, and 116.617, as submitted February 1, 2006.
    We are also proposing to take no action on the provisions 
identified below:
     The revisions to 30 TAC 101.1--Definitions, submitted June 
10, 2005;
     The recodification of the existing Subchapter C under 30 
TAC Chapter 116 to a new Subchapter E under 30 TAC Chapter 116; and
     The recodification of the existing Subchapter E under 30 
TAC Chapter 116 to a new Subchapter K under 30 TAC Chapter 116.
    We will accept comments on this proposal for the next 60 days. 
After review of public comments, we will take final action on the SIP 
revisions that are identified herein.
    EPA intends to take final action on the State's Public 
Participation SIP revision submittal in November 2009. EPA intends to 
take final action on the submitted Texas Qualified Facilities State 
Program by March 31, 2010, the submitted Texas Flexible Permits State 
Program by June 30, 2010, and the NSR SIP by August 31, 2010. These 
dates are expected to be mandated under a Consent Decree (see Notice of 
Proposed Consent Decree and Proposed Settlement Agreement, 74 FR 38015, 
July 30, 2009). Sources are reminded that they remain subject to the 
requirements of the federally approved Texas Major NSR SIP and subject 
to potential enforcement for violations of the SIP (See EPA's Revised 
Guidance on Enforcement During Pending SIP Revisions, dated March 1, 
1991).

X. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in and of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have

[[Page 48478]]

federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

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

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

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

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

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen oxides, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides, Volatile organic compounds.

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

    Dated: September 8, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E9-22806 Filed 9-22-09; 8:45 am]
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