[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Rules and Regulations]
[Pages 71260-71267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29641]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-TX-0025; FRL-9489-8]
Approval and Promulgation of Implementation Plans; Texas;
Revisions to the New Source Review (NSR) State Implementation Plan
(SIP); General Definitions; Definition of Modification of Existing
Facility
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving, as proposed July 18, 2011, several revisions
to the State Implementation Plan (SIP) for the State of Texas that
relate to severable portions of the definition of ``modification of
existing facility'' in the general definitions for the Texas NSR
Program. EPA finds that these changes to the Texas SIP comply with the
Federal Clean Air Act (the Act or CAA) and EPA regulations, and are
consistent with EPA policies. EPA is also disapproving a severable
portion of the definition that was proposed for disapproval on
September 23, 2009. EPA is taking these actions under section 110 of
the Act.
DATES: This final rule is effective December 19, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2005-TX-0025. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air Permits Section (6PD-R), Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act 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
[[Page 71261]]
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 is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Texas Commission on Environmental Quality (TCEQ), 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) 665-6762; email address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document wherever any
reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. The State's Submittals
II. What action is EPA taking?
III. EPA's Evaluation of the Severable Portions of the Definition of
``Modification of Existing Facility''
A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the
Definition of ``Modification of Existing Facility''
1. What is the background of the introductory paragraph of 30
TAC 116.10(11)?
2. What is EPA's evaluation of the submitted revisions to the
introductory paragraph of 30 TAC 116.10(11)?
B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance
and Replacement of Equipment
1. What is the background of 30 TAC 116.10(11)(C)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.11(C)?
C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase
in Annual Hours of Operation
1. What is the background of 30 TAC 116.10(11)(D)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(D)?
D. Disapproval of 30 TAC 116.10(11)(G)--Exclusion of Changes at
Certain Natural Gas Processing, Treating, or Compression Facilities
1. What is the background of 30 TAC 116.10(11)(G)?
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(G)?
3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
E. Response to Other Comments on the July 18, 2011, Proposal
IV. Final Action
V. Statutory and Executive Order Reviews
I. The State's Submittals
On March 13, 1996; July 22, 1998; and September 4, 2002; the State
of Texas submitted revisions to the Texas State Implementation Plan
(SIP) concerning the definition of ``modification of existing
facility'' for minor source permitting under Title 30 of the Texas
Administrative Code (30 TAC), Chapter 116--Control of Air Pollution by
Permits for New Construction or Modification, Subchapter A--
Definitions. The definition of ``modification of existing facility''
for minor NSR permitting is located at 30 TAC 116.10(11) in the
September 4, 2002, submittal. The March 13, 1996, revisions to this
definition were repealed and readopted, and new versions were submitted
to EPA on July 22, 1998. This definition was later recodified from 30
TAC 116.10(9) to 116.10(11) in a SIP submittal dated September 4, 2002.
Section 30 TAC 116.10--General Definitions--is currently approved
as adopted by Texas on August 21, 2002, and as approved April 14, 2010
(75 FR 19468). As approved, the current SIP does not include all the
definitions under Section 116.10, including the definition of
``modification of existing facility'' found in Section 116.10(11). On
July 18, 2011 (76 FR 42078), EPA proposed to approve severable portions
of this definition first adopted by Texas on February 14, 1996
(submitted March 13, 1996). The next submittal reflects the Texas
repeal and readoption of this definition as Section 116.10(9) on June
17, 1998 (submitted July 22, 1998). The regulatory history of the March
13, 1996 submittal was used to evaluate the later submittals. On July
18, 2011 (76 FR 42078), we proposed to approve severable portions of
the definition ``modification of existing facility'' as submitted on
July 22, 1998, and the redesignation of this definition to Section
116.10(11) adopted August 21, 2002 (submitted September 4, 2002). We
also proposed to approve Subparagraphs (C) and (D) of this definition
as submitted July 22, 1998, and September 4, 2002. In response to this
proposal, we received comments from the Texas Industry Project (TIP)
and the BCCA Appeal Group (BCCAAG).
On September 23, 2009 (74 FR 48450), EPA proposed to disapprove
severable portions of the definition of ``modification of existing
facility'' under Subparagraph (G). In response to this proposal, we
received comments from the University of Texas at Austin, Environmental
Clinic (UT Environmental Clinic).\1\ Today, we finalize our disapproval
of Subparagraph (G) as not meeting the requirements of the CAA.
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\1\ The UT Environmental Clinic forwarded its comments on behalf
of: Environmental Integrity Project: Environmental Defense Fund;
Galveston-Houston Association for Smog Prevention; Public Citizen;
Citizens for Environmental Justice; Sierra Club Lone Star Chapter;
Community-In-Power and Development Association; KIDS for Clean Air;
Clean Air Institute of Texas; Sustainable Energy and Economic
Development Coalition; Robertson County: Our Land, Our Lives; Texas
Protecting Our Land, Water, and Environment; Citizens for a Clean
Environment; Multi-County Coalition; and Citizens Opposing Power
Plants for Clean Air.
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EPA is taking these actions under section 110 of the Act.
Finally, please note that Texas submitted further revisions to 30
TAC 116.10 on October 5, 2010. This includes the removal of two
definitions, the renumbering of other definitions, and revisions to
certain definitions. In this October 2010 submittal, TCEQ renumbered
the definition of ``modification of existing facility'' to Section
116.10(9) and relettered Subparagraphs (C) and (D) to Subparagraphs (B)
and (C), respectively, with no other changes. We are not acting on the
October 5, 2010, SIP submittal here. We will address the October 2010
SIP revisions in a separate action.
Additional information related to these SIP submittals is contained
in the Technical Support Documents (TSD) for the September 23, 2009,\2\
and July 18, 2011,\3\ proposals, which are in the docket for this
action.
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\2\ The TSD for the September 23, 2009, proposal is in the
docket as document EPA-R06-OAR-2005-TX-0025-0007. You can access
this TSD on line at: http://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-2005-TX-0025-0007.
\3\ The TSD for the July 18, 2011, proposal is in the docket as
document EPA-R06-OAR-2005-TX-0025-0378. You can access this TSD on
line at: http://www.regulations.gov/#!documentDetail;D=EPA-R06-OAR-
2005-TX-0025-0378.
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The table below summarizes the changes that were submitted and are
affected by this action. A summary of EPA's evaluation of each section
and the basis for this proposal is discussed in section III of this
preamble. The TSD includes a detailed evaluation of the referenced SIP
submittals.
[[Page 71262]]
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Date
Section Title Date adopted by Description of change Date of EPA proposed Final EPA action
submitted TCEQ action
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30 TAC 116.10(11)................. Definition of 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
modification of 7/22/1998 6/17/1998 Repeal and readoption approval.
existing facility-- as Section 116.10(9).
Introductory
paragraph.
9/4/2002 8/21/2002 Recodification to
Section 116.10(11).
30 TAC 116.10(11)(C).............. Exclusion of 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
maintenance and 7/22/1998 6/17/1998 Repeal and readoption approval.
replacement of as Section
equipment. 116.10(9)(C).
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(C).
30 TAC 116.10(11)(D).............. Exclusion of increase 3/13/1996 2/14/1996 Initial adoption..... 7/18/2011--proposed Approval.
in annual hours of 7/22/1998 6/17/1998 Repeal and readoption approval.
operation. as Section
116.10(9)(D).
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(D).
30 TAC 116.10(11)(G).............. Exclusion of certain 3/13/1996 2/14/1996 Initial adoption..... 9/23/2009--proposed Disapproval.
changes natural gas 7/22/1998 6/17/1998 Repeal and readoption disapproval.
processing, as Section
treating, or 116.10(9)(G).
compression
facilities.
9/4/2002 8/21/2002 Recodification to
Section
116.10(11)(G).
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In a separate proposal published on September 23, 2009, 74 FR
48450, EPA proposed to disapprove severable provisions in Subparagraphs
(A), (B), and (G) of the definition of ``modification of existing
facility'' at 30 TAC 116.10(11). In light of revisions that were
submitted on October 5, 2010, revising the language of Subparagraph (A)
and eliminating Subparagraph (B), EPA will withdraw its proposed
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph
(A) as it appears in the October 5, 2010, submittal will be evaluated
and will be addressed in a separate future action. Based upon our
proposed disapproval of 30 TAC 116.10(11)(G) and our evaluation of the
comments received on that proposal, EPA is taking final action to
disapprove 30 TAC 116.10(11)(G) submitted March 13, 1996; July 22,
1998; and September 4, 2002.
II. What action is EPA taking?
We have evaluated severable portions of the SIP submissions of 30
TAC 116.10(11), which include the introductory paragraph of the
definition of ``modification of existing facility,'' and Subparagraphs
(C) and (D) of that definition for consistency with the CAA, and NSR
regulations for new and modified sources in 40 CFR part 51. We have
also reviewed the rules for enforceability and legal sufficiency.
This action addresses severable portions of the definition of
modification of existing facility under 30 TAC 116.10(11), including
the introductory paragraph and Subparagraphs (C) and (D) of the
definition submitted March 13, 1996; July 22, 1998; and September 4,
2002. A technical analysis of the submittals for this definition has
found that these changes meet the CAA and 40 CFR part 51. EPA received
two comments in support of this proposal and did not receive any
adverse comments. Therefore, EPA approves as proposed the severable
portions of the definition of ``modification of existing facility''
under 30 TAC 116.10(11), including the introductory paragraph of
Section 116.10(11) and Subparagraphs (C) and (D) of this definition,
submitted on March 13, 1996; July 22, 1998; and September 4, 2002. As
discussed earlier, in a separate SIP submittal dated October 5, 2010,
30 TAC 116.10(11) Subparagraphs (C) and (D) were renamed as 30 TAC
116.10(9) and Subparagraphs (B) and (C), respectively. EPA is not
acting on the changes submitted October 2010, and will address these
revisions in a separate action.
In a separate proposal published on September 23, 2009 (74 FR
48450), EPA proposed to disapprove 30 TAC 116.10(11)(G). Based upon our
proposed disapproval of this rule and our evaluation of the comments
received on our proposed disapproval of Subsection (G), EPA is taking
final action to disapprove 30 TAC 116.10(11)(G) submitted March 13,
1996; July 22, 1998; and September 4, 2002.
On September 23, 2009, 74 FR 48450, EPA also proposed to disapprove
severable provisions in Subparagraphs (A) and (B) of the definition of
``modification of existing facility.'' In light of revisions that were
submitted on October 5, 2010, revising the language of Subparagraph (A)
and eliminating Subparagraph (B), EPA will withdraw its proposed
actions on Subparagraphs (A) and (B) in a separate action. Subparagraph
(A) as it appears in the October 5, 2010, submittal will be evaluated
and will be addressed in a separate future action.
III. EPA's Evaluation of Severable Portions of the Definition of
``Modification of Existing Facility''
A. Approval of 30 TAC 116.10(11)--Introductory Paragraph of the
Definition of ``Modification of Existing Facility''
1. What is the background of the introductory paragraph of 30 TAC
116.10(11)--introductory paragraph?
The TCEQ initially submitted the introductory paragraph of the
general definition of ``modification of existing facility'' on March
13, 1996. On July 22, 1998, TCEQ repealed and resubmitted this
definition as readopted at 30 TAC 116.10(9). On September 4, 2002, TCEQ
submitted revisions that redesignated this definition to 30 TAC
116.10(11). The submitted regulatory definition of the introductory
paragraph that we are addressing here provides that a modification of
an existing facility is ``any physical change in, or change in
[[Page 71263]]
the method of operation of, a facility in a manner that increases the
amount of air contaminants emitted by the facility into the atmosphere
or which results in the emission of any air contaminant not previously
emitted.''
2. What is EPA's evaluation of the submitted revisions to the
introductory paragraph of 30 TAC 116.10(11)?
EPA approved the definition of ``facility'' in Subchapter A:
Definitions on September 6, 2006 (71 FR 52698) as part of the Texas
SIP. ``Facility'' is defined 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. A mine, quarry, well test, or road is not a
facility.'' See approved SIP at 30 TAC 116.10(6). The submitted
regulatory definition for ``modification of existing facility'' also is
in Subchapter A, Section 116.10. Therefore, ``existing facility'' is
limited by the terms of the SIP definition of ``facility.'' In our
evaluation of this introductory paragraph in the submitted regulatory
definition of modification of existing facility, we compared it to how
``modification'' is defined in the CAA and in our regulations.
The CAA defines modification in Section 111(a)(4) as ``any physical
change in, or change in the method of operation of, a stationary source
which increases the amount of any air pollutant emitted by such source
or which results in the emission of any pollutant not previously
emitted.'' In 40 CFR 52.01(d), the phrases ``modification'' and
``modified source'' are defined as any physical change in, or change in
the method of operation of, a stationary source which increases the
emission rate of any air pollutant for which a national standard has
been promulgated under part 50 of this chapter or which results in the
emission of any such pollutant not previously emitted.
The introductory paragraph of 30 TAC 116.10(11) is substantially
the same as the definitions in section 111(a)(4) of the Act and 40 CFR
52.01(d).
The existence of a different definition for ``major modification,''
in Section 116.12--Nonattainment and Prevention of Significant Review
Definitions--that is applicable for Major NSR \4\ serves to distinguish
the provisions in the introductory paragraph of section 116.10(11) from
the Major NSR Program and limit its application to Minor NSR.
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\4\ Section 116.12 as currently approved in the Texas SIP
applies only to the Major NSR Program for Nonattainment Review. SIP
revisions submitted February 1, 2006, and March 11, 2011, revised
the definition to apply to both Nonattainment Review and Prevention
of Significant Deterioration. EPA is currently reviewing these
revisions and plans to act upon them shortly. The definitions in
Section 116.12 are effective as State rules and the TCEQ implements
them as part of its Major NSR Program.
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In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11) is consistent with the CAA and EPA regulations and that SIP
approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are approving the introductory paragraph of 30 TAC
116.10(11), as submitted March 13, 1996; July 22, 1998; and September
4, 2002.
B. Approval of 30 TAC 116.10(11)(C)--Exclusion for Maintenance and
Replacement of Equipment
1. What is the background of 30 TAC 116.10(11)(C)?
On March 13, 1996, this provision was submitted as Subparagraph (C)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(C). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(C). As
submitted, Subparagraph (C) provides that maintenance or replacement of
equipment components that do not increase or tend to increase the
amount or change the characteristics of the air contaminants emitted
into the atmosphere is not a modification to an existing facility.
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(C)?
The submitted Subparagraph (C) mirrors the definition in the Texas
Clean Air Act (TCCA). Under Subparagraph (C), any maintenance and
repair of equipment components that increases emissions, or tends to
increase emissions, will be considered a modification consistent with
the introductory paragraph of 30 TAC 116.10(11). Accordingly, the
limitation in Subparagraph (C) protects against increases in emissions
and thereby does not interfere with attainment or reasonable further
progress. The definition of ``major modification'' in Section 116.12
has a different exclusion for routine maintenance, repair, and
replacement. The existence of a different exclusion in the Section
116.12 that is applicable for Major NSR serves to distinguish the
provisions in paragraph (C) from the Major NSR Program and limit its
application to Minor NSR.
In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11)(C) is consistent with the CAA and EPA regulations and that
SIP approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are finalizing our approval of 30 TAC 116.10(11)(C), as
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
C. Approval of 30 TAC 116.10(11)(D)--Exclusion for an Increase in
Annual Hours of Operation
1. What is the background of 30 TAC 116.10(11)(D)?
On March 13, 1996, this provision was submitted as Subparagraph (D)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(D). As
submitted, Subparagraph (D) provides that an increase in the annual
hours of operation is not a modification to an existing facility,
unless the existing facility has received a preconstruction permit or
has been exempted, under TCAA, Sec. 382.057, from preconstruction
permit requirements.
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(D)?
The submitted Subparagraph (D) mirrors the definition in the Texas
Clean Air Act (TCCA). Subparagraph (D) is similar to 40 CFR
52.01(d)(2)(ii), which provides that an increase in the hours of
operation shall not be considered a change in the method of operation.
The operative language in the submitted Subparagraph (D) is
substantially the same as 40 CFR 52.01(d)(2)(ii). Furthermore,
Subparagraph (D) includes additional language that clarifies that an
increase in hours of operation may be a modification for existing minor
facilities having preconstruction permits or exemptions, under TCAA
Sec. 382.057 \5\ for preconstruction permit requirements. This
language limits the reach of the
[[Page 71264]]
exclusion in scenarios where an existing facility is subject to
limitations on hours of operation under the terms of a preconstruction
permit or an exemption. This is consistent with Federal requirements in
40 CFR 52.01(d)(2)(ii). Subparagraph (D) meets the Federal requirements
as described above. Again, the definition of ``major modification'' in
Section 116.12 has a different exclusion for an increase in the annual
hours of operation. The existence of a different exclusion in the
Section 116.12 that is applicable for Major NSR serves to distinguish
the provisions in paragraph (D) from the Major NSR Program and limit
its application to Minor NSR.
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\5\ The term ``exemptions'' is a misnomer. Exemptions in Texas
now are called Permits by Rule. An ``exemption'' since 1972 in Texas
and in the Texas SIP, is an authorization to construct and/or modify
if certain conditions are met.
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In response to our proposed approval, we received comments from TIP
and BCCAAG. The commenters agree that the regulatory language in 30 TAC
116.10(11)(D) is consistent with the CAA and EPA regulations and that
SIP approval is warranted.
Based upon the proposal and consideration of the comments we
received, we are finalizing our approval of 30 TAC 116.10(11)(D), as
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
D. Disapproval of 30 TAC 116.10(11)(G)--Exclusions for Changes at
Certain Natural Gas Processing, Treating, or Compression Facilities
1. What is the background of 30 TAC 116.10(11)(G)?
On March 13, 1996, this provision was submitted as Subparagraph (G)
under the definition of ``modification of existing facility.'' In the
July 22, 1998, submittal, the provision was repealed and resubmitted as
30 TAC 116.10(9)(D). On September 4, 2002, TCEQ submitted revisions
that redesignated this definition to 30 TAC 116.10(11)(D). On September
23, 2009, EPA proposed to disapprove the submitted revisions relating
to 30 TAC 116.10(11)(G).
2. What is EPA's evaluation of the submitted revisions to 30 TAC
116.10(11)(G)?
The submittals provide that changes at certain natural gas
processing, treating, or compression facilities are not modifications
if the change does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities. The
``annual emissions rate'' is the same as the ``volume emitted at
maximum design capacity;'' therefore, this would provide an exemption
for those sources from permit review for any emission increases at
these facilities. The requirements of 40 CFR 51.160(e) allow a State to
identify facilities which will be subject to review under its minor NSR
program and require its minor NSR SIP to discuss the basis for
determining which facilities will be subject to review. The submittals,
however, do not contain an applicability statement or regulatory
provision limiting this type of change to minor NSR. There is no
explanation of the reason for exempting this type of change from the
permitting SIP requirements. Without the submittal by the State of an
analysis describing how this exemption does not negate the major NSR
SIP requirements and meets the minor NSR SIP requirements in 40 CFR
51.160 and the Act's antibacksliding requirements in section 110(l),
EPA proposed to disapprove this submitted definition.
In response to our proposed disapproval, we received comments from
the UT Environmental Clinic (Clinic) and TCEQ. The Clinic supported the
disapproval of this exemption from the definition of modification of
existing facility because the exemption could apply to major
modifications and because TCEQ did not demonstrate that the exemption
will not interfere with attainment or cause a violation of a control
strategy. EPA acknowledges that these comments support its basis for
proposing disapproval of this exemption because it could allow major
modifications without undergoing review that satisfies the applicable
permitting requirements for Major NSR under 40 CFR 51.165 and/or
51.166, as applicable. The exemption may also allow a source to
increase emissions without a demonstration that such change will not
interfere with attainment or maintenance of a National Ambient Air
Quality Standard (NAAQS) or cause a violation of a control strategy.
The TCEQ commented that it will consider EPA's comments regarding its
proposed disapproval of 30 TAC 116.10(11)(G), but provided no
information which demonstrates that this provision meets the
requirements for SIP approval.\6\
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\6\ On October 5, 2010, TCEQ submitted a revision that
renumbered 30 TAC 116.10(11)(G) to 30 TAC 116.10(9)(F), but made no
changes to the substance of this provision.
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3. What are the grounds for disapproval of 30 TAC 116.10(11)(G)?
Based upon the September 23, 2009, proposal and the consideration
of comments provided, EPA is disapproving the exemption in 30 TAC
116.10(11)(G) on the following grounds:
This definition exempts changes at certain natural gas
processing, treating, or compression facilities as non-modifications if
the change does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities from
the definition of modification of existing facility. However, TCEQ did
not provide any discussion of the basis for this exemption as required
by 40 CFR 51.160(e).
The submitted definition includes no applicability
statement or regulatory provision limiting this type of change to minor
NSR.
The submitted rule includes no demonstration that the
exempted change at a natural gas processing, treating, or compression
facility does not result in an annual emissions rate of any air
contaminant in excess of the volume for grandfathered facilities, and
does not interfere with attainment or maintenance of a NAAQS or cause a
violation of a control strategy as required under 40 CFR 51.161(a).
Based upon the September 23, 2009, proposal, and consideration of
the comments received, we are finalizing our disapproval of 30 TAC
116.10(11)(G) as submitted March 11, 1996; July 22, 1998; and September
4, 2002.
E. Response to Other Comments on the July 18, 2011, Proposal
TIP and BCCAAG commented that EPA should take into account the
dramatic improvements in Texas's air quality in acting on the
definition of ``modification of existing facility'' and other SIP
revisions. The commenters assert that Texas's integrated air permitting
program, including the definition which EPA now proposes to approve,
has played a key role in Texas's air quality success. TIP and BCCAAG
urge EPA to approve the entire ``modification of existing facility'' as
part of this integrated program. The commenters cite to substantial
reductions in several air pollutants and reductions in ambient
concentrations in monitored levels of ozone, nitrogen dioxide, sulfur
dioxide, and carbon monoxide from 1990 to 2009.
Our actions on the severable parts of the definition of
``modification of existing facility'' are based upon whether the
definition meets the applicable requirements of the CAA, as discussed
herein. EPA is required to review a SIP revision submission for
compliance with the CAA and EPA regulations. CAA 110(k)(3). See also
BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003), Natural
Resource Defense Council v. Browner, 57 F.3d 1122, 1123 (DC Cir. 1995).
[[Page 71265]]
The submitted data, even if accepted, does not show that gains are
attributable to the definition of ``modification of existing
facility,'' and the commenter's claim regarding the data does not take
account of SIP-approved control strategies (both State and Federal
programs) and other Federal and State programs. The approvals of
revisions which we finalize today are based on our review of the Texas
submittals following the analysis furnished in the proposal in
accordance with the CAA.
IV. Final Action
Today, EPA is approving the following revisions to the Texas SIP to
include severable provisions of the definition of ``modification of
existing facility'' under 30 TAC 116.10(11), submitted March 13, 1996;
July 22, 1998; and September 4, 2002. This includes the following:
30 TAC 116.10(11)--the introductory paragraph of the
definition of ``modification of existing facility;''
30 TAC 116.10(11)(C)--Exclusion for maintenance and
replacement of equipment; and
30 TAC 116.10(11)(D)--Exclusion for an increase in annual
hours of operation.
Today, EPA is also disapproving the severable portion of definition
of ``modification of existing facility'' under 30 TAC 116.10(11)(G),
submitted March 13, 1996; July 22, 1998; and September 4, 2002.
Final action on these revisions on or before October 31, 2011, will
meet EPA's obligation on the NSR Rules Revisions; 112(g) Revisions
component of the May 21, 2009, Settlement Agreement between EPA and the
Business Coalition for Clean Air Appeal Group, Texas Association of
Business, and Texas Oil and Gas Association.
EPA is not taking further action on the following severable
provisions of 30 TAC 116.10(11):
30 TAC 116.10(11)(E). EPA disapproved Subparagraph (E) in
a separate action on April 14, 2010, 75 FR 19468. EPA will address any
subsequent submittals containing Subparagraph (E) as newly revised in a
separate action.
30 TAC 116.10(11)(F). EPA disapproved Subparagraph (F) in
a separate action on July 15, 2010, 75 FR 41312. EPA will address any
subsequent submittals containing Subparagraph (F) as newly revised in a
separate action.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory 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 Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
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 SIP approval and 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 approves and
disapproves certain State severable requirements for inclusion into the
SIP. Burden is defined at 5 CFR 1320.3(b). Because this final action
does not impose an information collection burden, the Paperwork
Reduction Act does not apply.
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. This rule will not have a significant
impact on a substantial number of small entities because SIP approvals
and disapprovals under section 110 of the Clean Air Act do not create
any new requirements but simply approve or disapprove requirements that
the States are already imposing.
Furthermore, as explained in this action, a severable portion of
the submissions does not meet the requirements of the Act and EPA
cannot approve the severable portion of the submissions. The final
disapproval will not affect any existing State requirements applicable
to small entities in the State of Texas. Federal disapproval of a
severable portion of a State submittal does not affect its State
enforceability. After considering the economic impacts of today's
rulemaking on small entities, and because the Federal SIP disapproval
does not create any new requirements or impact a substantial number of
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
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 approval and 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 Federal action
determines that pre-existing requirements under State or local law
should not be approved as part of the Federally-approved SIP. It
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of
[[Page 71266]]
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 approves and
disapproves severable portions of 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 by
Executive Order 13175 (65 FR 67249, November 9, 2000) because the rule
neither imposes substantial direct compliance costs on tribal
governments, nor preempts tribal law. Therefore, the requirements of
sections 5(b) and 5(c) of the Executive Order do 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 SIP approval and 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 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 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 the Office of Management and Budget,
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. Today's action does not require
the public to perform activities conducive to the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this 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 disapproves certain State
requirements for inclusion into the SIP under section 110 and
subchapter I 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.
K. Congressional Review Act
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
rule 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).
L. Petitions for Judicial Review
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 17, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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, Incorporation by
reference, Intergovernmental relations.
Dated: October 31, 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. 7402 et seq.
Subpart SS--Texas
0
2. The table in Sec. 52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 116, Subchapter A, by revising
the entry for Section 116.10 to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
[[Page 71267]]
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State- approval/
State citation Title/subject submittal date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 116--Control of Air Pollution by Permits for New Construction or Modification
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
Section 116.10.................. General Definitions 8/21/2002 November 17, 2011, The SIP does not
[Insert FR page include
number where paragraphs (1),
document begins]. (2), (3), (7)(F),
(11)(A), (11)(B),
(11)(E), (11)(F),
(11)(G), and
(16).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.2273 is revised by adding a new paragraph (g) to read as
follows:
Sec. 52.2273 Approval status.
* * * * *
(g) EPA has disapproved the Texas SIP revision submittals under 30
TAC Chapter 116--Control of Air Pollution by Permits for New
Construction or Modification--Subchapter A--Definitions--Section
116.10(11)(G), adopted February 14, 1996, and submitted March 13, 1996;
repealed and re-adopted June 17, 1998, and submitted July 22, 1998; and
adopted August 21, 2002, and submitted September 4, 2002.
[FR Doc. 2011-29641 Filed 11-16-11; 8:45 am]
BILLING CODE 6560-50-P