[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66626-66641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26314]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2013-0808; FRL-9912-51-OAR]
Approval and Promulgation of Air Quality Implementation Plans;
Texas; Prevention of Significant Deterioration; Greenhouse Gas
Tailoring Rule Revisions
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of two revisions to the Texas State Implementation Plan (SIP)
submitted by the Texas Commission on Environmental Quality (TCEQ) to
the EPA on October 5, 2010, and April 16, 2014. Together, these two SIP
submittals revise the Texas Prevention of Significant Deterioration
(PSD) Program to provide for the regulation of greenhouse gas (GHG)
emissions and clarify the applicability of Best Available Control
Technology (BACT) for all PSD permit applications. The EPA is approving
portions of the October 5, 2010, and April 16, 2014, SIP revisions to
the Texas SIP and New Source Review (NSR) permitting program as
consistent with federal requirements for PSD permitting of GHG
emissions. The EPA is taking no action on the portion of the October 5,
2010, SIP revision which pertains to the Texas Minor NSR program for
Qualified Facilities and portions of the April 16, 2014, submittal that
appear no longer appropriate for inclusion in the Texas SIP after the
recent United States Supreme Court decision discussing greenhouse gas
emissions. The EPA is approving this action under Section 110 and Part
C of the Clean Air Act (CAA). In a separate but simultaneous action
published elsewhere in this issue of the Federal Register, the EPA is
also rescinding the GHG PSD Federal Implementation Plan (FIP) for
Texas, with three limited circumstances for retained authority.
DATES: This final rule is effective on November 10, 2014.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2013-0808. 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 Planning Section (6PD-L), Environmental
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. Contact the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph below to make an appointment.
FOR FURTHER INFORMATION CONTACT: Adina Wiley, Air Permits Section (6PD-
[[Page 66627]]
R), telephone (214) 665-2115, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. Background
II. Recent UARG v. EPA U.S. Supreme Court Decision
A. Overview of the Decision and Implications for this Action
B. Demonstration that the Texas PSD Program is consistent with
the application of the CAA and UARG v. EPA
C. Provisions where the EPA is Taking No Action
D. Provisions where the EPA is Finalizing Action
III. Response to Comments
IV. Effective Date of Final Action
V. Final Action
VI. Statutory and Executive Order Reviews
I. Background
This final action approves portions of two revisions to the Texas
SIP submitted on October 5, 2010 and April 16, 2014. The April 16,
2014, submittal includes revisions to the Texas SIP to provide the
State of Texas with the authority to regulate GHG emissions, issue PSD
permits governing GHG emissions, establish emission thresholds for new
stationary sources and modifications to existing stationary sources
that are subject to Texas' PSD permitting requirements for their GHG
emissions based on their emissions of air pollutants other than GHGs
(also known as ``Step 1'' or ``anyway'' sources), and revises several
Minor NSR provisions to specify that Minor NSR permit mechanisms cannot
be used for authorizing GHG emissions. The October 5, 2010, submittal
revises the Texas SIP to clarify that all PSD permits must undergo BACT
review consistent with the requirements in the Federal and Texas PSD
programs.
The background for this final approval of the revisions to the
Texas SIP and the background for the separate, but simultaneous action
to rescind the Texas GHG PSD FIP, arediscussed in detail in our
February 18, 2014, proposal (79 FR 9123). In that document, we proposed
to approve portions of two revisions to the Texas SIP submitted by the
TCEQ on October 5, 2010, and December 2, 2013. The December 2, 2013,
submittal was a request for parallel processing of revisions proposed
by the TCEQ on October 23, 2013. Our February 18, 2014, proposed
approval and accompanying Technical Support Document provide the EPA's
evaluation of the October 5, 2010, and December 2, 2013, revisions to
the Texas SIP that would provide for the regulation of GHG emissions in
the Texas PSD program and clarify the applicability of BACT for all PSD
permit applications. We preliminarily determined that the revisions
were consistent with the CAA and the EPA's regulations and guidance for
the permitting of GHG emissions in the PSD program. As such, we
proposed approval of the SIP revisions and simultaneously proposed to
rescind the majority of the GHG PSD FIP for Texas.
Under the EPA's ``parallel processing'' procedure, the EPA proposes
a rulemaking action on a proposed SIP revision concurrently with the
State's public review process. If the State's proposed SIP revision is
not significantly or substantively changed, the EPA will finalize the
rulemaking on the SIP revision as proposed after responding to any
submitted comments. Final rulemaking action by the EPA will occur only
after the final SIP revision has been fully adopted by the TCEQ and
submitted formally to the EPA for approval as a revision to the Texas
SIP. See 40 CFR part 51, Appendix V.
The TCEQ completed their state rulemaking process and adopted
revisions on March 26, 2014. The TCEQ submitted these adopted changes
as a revision to the Texas SIP on April 16, 2014. The EPA has evaluated
the State's final SIP revision for any changes made from the time of
proposal. See ``Addendum to the TSD'' for EPA-R06-OAR-2013-0808,
available in the rulemaking docket. Our evaluation indicates that the
revisions made by the TCEQ at adoption are not material changes to the
regulations that we proposed to approve; and therefore, do not alter
our rationale presented in the February 18, 2014, proposed approval. As
such, the EPA is proceeding with our final approval of the majority of
the revisions to the Texas SIP, consistent with the parallel processing
provisions in 40 CFR Part 51, Appendix V. Additionally, the EPA is not
acting at this time on certain sections of the April 16, 2014,
submittal that appear no longer appropriate after the recent United
States Supreme Court decision, UARG v. EPA, as discussed in Section II
of this notice. We are taking a separate but simultaneous action
elsewhere in this issue of the Federal Register to rescind the Texas
GHG PSD FIP, with the exception of three limited circumstances for
retained federal permitting authority.
II. Recent UARG v. EPA U.S. Supreme Court Decision
A. Overview of the Decision and Implications for This Action
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of stationary source permitting requirements
to GHGs in Utility Air Regulatory Group (UARG) v. Environmental
Protection Agency (EPA), 134 S.Ct. 2427 (2014). The Supreme Court held
that the EPA may not treat GHGs as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit, but that the EPA could continue to require that PSD permits,
otherwise required based on a source's emissions of conventional
pollutants (``anyway'' sources), contain limitations on GHG emissions
based on the application of BACT.
The Supreme Court reversed in part and affirmed in part the
decision of the D.C. Circuit Court that upheld several EPA actions
addressing PSD permitting requirements for greenhouse gases including
the Tailoring Rule.\1\ Although the Supreme Court concluded that ``EPA
exceeded its statutory authority when it interpreted the Clean Air Act
to require PSD and Title V permitting for stationary sources based on
their greenhouse-gas emissions,'' 134 S.Ct. at 2449, it did not
specifically identify particular provisions of the EPA regulations it
was striking down. Thus, pending further action by the United States
Court of Appeals for the District of Columbia Circuit (the D.C.
Circuit) and EPA action to revise the regulations in accordance with a
more specific remedy ordered by the D.C. Circuit, the provisions of 40
CFR 51.166 that provide criteria for EPA approval of state PSD permit
programs remain in the Code of Federal Regulations. This includes
Section 51.166(b)(48)(v), which addresses state permitting of ``Step
2'' sources that emit greenhouse gases in excess of 100,000 tons per
year and no other pollutants over the major source thresholds. In light
of UARG, EPA is not requiring PSD permits, either directly or through
state implementation plans, for sources emitting greenhouse gases at
any level unless a source emits a regulated pollutant other than
greenhouse gases above the statutory major source thresholds. That
means that the EPA will not apply or enforce regulations that would
require states to include in their SIPs a requirement that
[[Page 66628]]
``Step 2'' sources obtain PSD permits. Thus, despite the fact that
section 51.166(b)(48)(v) remains in the Code of Federal Regulations at
this time, in light of the Supreme Court decision the EPA is not taking
action on the provisions of the Texas SIP that would require a
stationary source to obtain a PSD permit if GHGs are the only pollutant
(i) that the source emits or has the potential to emit above the major
sources thresholds, or (ii) for which there is a significant emissions
increase and a significant net emissions increase from a modification.
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\1\ See Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 June 3,
2010. See also our February 18, 2014, Proposal (79 FR 9123) for a
full background discussion.
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The Supreme Court also affirmed the lower court's decision that the
BACT requirement applies to GHG emissions from new and modified sources
that trigger PSD permitting obligations on the basis of their emissions
of air pollutants other than GHG (also known as ``Step 1'' or
``anyway'' sources). The Court concluded that ``EPA may continue to
treat greenhouse gases as a `pollutant subject to regulation under [the
Clean Air Act]' for purposes of requiring BACT for `anyway' sources.''
134 S.Ct. at 2449. Accordingly, the PSD BACT requirement continues to
apply to greenhouse gas emissions from any new or modified source that
is otherwise subject to PSD requirements as a result of its emissions
of another regulated pollutant (i.e. to an ``anyway'' source), and EPA
will continue to implement existing regulations that limit application
of the statutory BACT requirement to greenhouse gases where the
construction project to be completed would emit at or above a level of
75,000 tpy of CO2e as provided in 40 CFR 51.166(b)(48)(iv).
The EPA and D.C. Circuit have long recognized, and the D.C.
Circuit's decision affirmed by the Supreme Court further confirmed,
that PSD requirements apply to emissions of PSD pollutants ``by
automatic operation of'' the Clean Air Act. Coalition for Responsible
Regulation v. EPA, 684 F.3f 102, 115 (D.C. Cir. 2012). The Supreme
Court rejected ``a greenhouse-gas-inclusive interpretation of the PSD
and Title V triggers,'' because the CAA does not allow the Agency to
``treat greenhouse gases as a pollutant for purposes of defining a
`major emitting facility' (or a `modification' thereof) in the PSD
context.'' 134 S.Ct. at 2442, 2449. But the Court did not question the
longstanding interpretation of the EPA and the D.C. Circuit court that
the CAA PSD permitting requirements automatically apply to major source
emissions of pollutants that are ``subject to regulation'' under the
Act. 134 S.Ct. at 2442 n. 6. See also UARG, 134 S.Ct. at 2435 (``it is
unlawful to construct or modify a `major emitting facility' in `any
area to which [the PSD program] applies' without first obtaining a
permit.''). To the contrary, UARG affirmed the portion of the D.C.
Circuit's decision holding that the BACT requirement clearly applies to
greenhouse gas emissions from ``anyway'' sources and that such PSD
requirements apply to sources automatically by operation of the Clean
Air Act. Accordingly, the EPA does not interpret UARG to alter the
settled understanding that the BACT requirement automatically applies
to a pollutant (including greenhouse gases) once it becomes subject to
regulation under the Clean Air Act. Thus, consistent with the Supreme
Court's holding that EPA can ``continue to'' require compliance with
the BACT requirement in the Clean Air Act, 134 S.Ct. 2449, the EPA will
continue to apply the BACT requirement to greenhouse gases under
existing regulations applicable to EPA's review of state implementation
plans, including 40 CFR 51.166(j), 40 CFR 51.166(b)(12), 40 CFR
51.166(b)(49), and 40 CFR 51.166(b)(48)(i)-(iv).
The Supreme Court noted that the EPA could exercise its discretion
to limit application of BACT to sources with the potential to emit
greenhouse gases above a de minimis threshold, but that if EPA wished
to do so, it would need to justify such threshold for application of
BACT to GHGs on proper grounds. The Court observed that when EPA
established the existing 75,000 tpy threshold the Agency did not
characterize it as a de minimis level. 134 S.Ct. at 2449. Rather, that
threshold represents a level that EPA determined to be both
administratively feasible for permitting authorities to implement and
reasonable for sources to comply with. 75 FR 31514, 31560 (June 3,
2010). EPA is considering additional action to establish a de minimis
threshold for application of the BACT requirement to GHGs. Pending
additional action by EPA addressing the threshold for application of
the BACT requirement to greenhouse gases, the Agency will continue to
apply the existing regulations that require a state PSD program to
apply the PSD BACT requirement to GHG emissions from ``anyway'' sources
that emit or have the potential to emit 75,000 tons per year tpy or
more of GHG on a carbon dioxide (CO2e) basis. With respect
to modified ``anyway'' sources, the EPA is presently reading its
regulations to require that state PSD programs apply the PSD BACT
requirements to GHG if both of the following circumstances are present:
(1) The modification is otherwise subject to PSD for a pollutant other
than GHG; (2) the modification results in a GHG emissions increase and
a net GHG emissions increase equal to or greater than 75,000 tpy
CO2e and greater than zero on a mass basis.
Based on information submitted by TCEQ, the EPA concluded in its
Notice of Proposed Rulemaking that TCEQ had provided sufficient
assurance that it has the legal authority, personnel, and funding to
implement PSD permitting requirements for greenhouse gases. Following
the UARG decision, the State of Texas has argued in litigation before
the D.C. Circuit that GHGs are not presently subject to regulation
under the PSD program and that the EPA must conduct additional
rulemaking to establish a de minimis level before the BACT requirement
can be applied to greenhouse gas emissions in PSD permits required for
construction at anyway sources. As noted above, the EPA disagrees with
this position. Nevertheless, the TCEQ has communicated to the EPA that
it ``continues to pursue EPA approval of [its] SIP submittal . . . so
our agency has the full authority to implement the greenhouse gas
permitting program in Texas.'' \2\ The State has further stated that
``[r]egardless of litigation positions, we are currently advocating and
might pursue in the future, we think it is necessary for TCEQ to assume
this permitting role and issue PSD permits for greenhouse gas
emissions.'' Based on information supplied by TCEQ before the proposed
rule and this additional assurance, EPA concludes that Texas intends to
implement the PSD permitting requirements for greenhouse gases
consistent with EPA's understanding of those requirements, as
articulated above, and that TCEQ continues to have sufficient legal
authority to do so. Furthermore, TCEQ has confirmed that it will commit
the personnel and funding necessary to issue PSD permits addressing
greenhouse gases, notwithstanding the State's ongoing efforts to
persuade the court that such permits are not required under the Clean
Air Act until EPA conducts further rulemaking. EPA's rescission of the
majority of the FIP and its approval of the majority of the Texas GHG
SIP are predicated on the understanding that the State of Texas will
implement the PSD program requirements for greenhouse gases in
[[Page 66629]]
accordance with TCEQ's representations.
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\2\ On October 1, 2014, the TCEQ sent EPA Region 6 a
clarification letter in light of the UARG v. EPA decision. That
letter is also posted in the public docket to this rulemaking.
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In sum, therefore, the EPA is taking no action on the portion of
the Texas SIP submittal requiring sources to obtain PSD permits based
solely on their emissions of GHGs, but is otherwise finalizing its
approval of the Texas SIP submittals and its rescission of the FIP and
as discussed in the separate final FIP action published elsewhere in
this issue of the Federal Register.
B. Demonstration That the Texas PSD Program Is Consistent With the
Application of the CAA and UARG v. EPA
The following analysis explains how the Texas PSD program for GHGs
meets the requirements of the Clean Air Act and the EPA's regulations,
and fits within the parameters of the Supreme Court's decision. First,
the revised Texas PSD SIP recognizes GHGs and appropriately applies GHG
requirements to PSD through the new definitions of ``greenhouse gases''
in 30 TAC Sections 101.1 and 116.12 and the definitions adopted at 30
TAC Section 116.12 for ``carbon dioxide equivalent'' and ``federally
regulated air pollutant.'' The ``carbon dioxide equivalent'' definition
is necessary to calculate the amount of GHG emissions in PSD permit
applications and the revised definition of ``federally regulated new
source review pollutant'' explicitly identifies GHGs as regulated NSR
pollutants. In addition, this definition references thresholds outlined
in 30 TAC Section 116.164(a)(1) and (a)(2), which include the 75,000
tpy CO2e threshold for application of BACT to GHGs as
discussed above. Second, once a GHG source is determined to be
otherwise subject to PSD, the Texas PSD program elements at 30 TAC
Sections 116.160, 116.164(a)(1), 116.164(a)(2), and 116.169 apply in
the following way:
1. The applicability of the Texas PSD program is governed by 30 TAC
Section 116.160(a) and applies to each proposed new major source or
major modification in an attainment or unclassifiable area. To ensure
that the Texas PSD program approved into the SIP does not use GHG
emissions alone to determine whether a source is a major stationary
source or a major modification subject to PSD, the EPA is taking no
action at this time on the substantive revisions in 116.160(a)
pertaining to GHGs, or to the revisions to the definitions in 30 TAC
Section 116.12(19) and (20) that expanded ``major stationary source''
and ``major modification'' to apply to sources that emit only GHGs
above major source levels and modifications that increase only GHGs
above applicable levels. This ensures that the portion of the existing
Texas PSD program at 30 TAC Section 116.160(a) that is part of the
approved Texas SIP does not extend PSD applicability to sources not
already subject to PSD based on emissions of pollutants other than GHGs
and limits the scope of the approved SIP solely to ``anyway sources''
and modifications.
2. After it has been determined that an existing source proposing
to modify is a major source potentially subject to PSD requirements,
the next step in the Texas PSD program is to apply the netting test as
required under 30 TAC Section 116.160(b). Under the Texas regulations,
this netting test is to determine whether the modification requires a
PSD permit because it results in a net significant increase of
federally regulated new source review pollutants. The EPA is taking no
action at this time on the substantive revisions to the definition in
30 TAC Section 116.12(20) of ``major modification'' so that the PSD
requirements in the approved Texas SIP will only apply to a modified
source when there is a net significant increase of a regulated
pollutant other than GHGs.
3. Finally, if the emissions from construction of a new source or
net emission increase from a major modification are greater than the
levels at 52.21(b)(23) for a particular pollutant or the interim
thresholds for GHGs at 30 TAC Section 116.164(a)(1) and (a)(2), then
BACT is required to be applied to each such pollutant under 30 TAC
Section 116.160(c).\3\ This section incorporates Section 52.21(j) of
EPA's regulation, which requires BACT for each ``regulated NSR
pollutant'' that a new source emits or that a major modification
increases in a significant amount. The Texas regulations do not
incorporate the definition of ``regulated NSR pollutant'' in Section
52.21(b)(50) of EPA's regulations, but rather contain a Texas-specific
definition of ``federally-regulated NSR pollutant'' in Section
116.12(15), which covers greenhouse gases. Because the Texas
regulations approved into the SIP in this action explicitly identify
GHGs as a federally-regulated NSR pollutant above the interim
thresholds in 30 TAC Section 116.164(a)(1) and (a)(2), the 75,000 tpy
CO2e threshold will be used for GHGs rather than the default
of any amount greater than 0 tpy for a pollutant not listed at 40 CFR
52.21(b)(23). Therefore, with only the provisions approved in this
action identified above, the approved portions of the Texas PSD program
in the state's SIP will apply BACT for GHG emissions at the interim
thresholds to only ``anyway'' sources and modifications.
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\3\ Note the Texas PSD SIP incorporates the major modification
levels at 40 CFR 52.21(b)(23).
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The EPA concludes that the Texas SIP and PSD program regulate GHGs
through the PSD program as consistent with the June 23, 2014, UARG v.
EPA decision for ``anyway sources''.
C. Provisions Where the EPA Is Taking No Action
Because of the Supreme Court's ruling, the EPA is not taking final
action at this time on certain SIP provisions. We are not taking action
at this time on the provisions listed below as they are not necessary
to appropriately regulate ``anyway'' sources. We believe these
provisions are severable from other portions of the Texas SIP
submissions and we do not need to act on them now to finalize approval
of all other provisions of the submittal.
Revisions to 30 TAC Section 106.4(a)(1), (a)(3) and (a)(4)
adopted on March 26, 2014, and submitted on April 16, 2014;
Substantive revisions to the definition of ``major
stationary source'' at 30 TAC Section 116.12(19) adopted on March 26,
2014, and submitted on April 16, 2014; \4\
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\4\ Note that the EPA is approving the renumbering of the
Definitions in 30 TAC Section 116.12, which will include the
renumbering of the existing SIP-approved definition of ``major
stationary source'' from 30 TAC Section 116.12(17) to 30 TAC Section
116.12(19).
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Substantive revisions to the definition of ``major
modification'' at 30 TAC Section 116.12(20) adopted on March 26, 2014,
and submitted on April 16, 2014; \5\
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\5\ Note that the EPA is approving the renumbering of the
Definitions in 30 TAC Section 116.12, which will include the
renumbering of the existing SIP-approved definition of ``major
modification'' from 30 TAC Section 116.12(18) to 30 TAC Section
116.12(20). We are also approving other non-substantive revisions to
the name of the Figure within the definition, and to footnotes 1 and
5 of the Figure.
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Revisions to 30 TAC Section 116.111(a)(2)(I) adopted on
March 26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 116.160(a) and (b) adopted on
March 26, 2014, and submitted on April 16, 2014;
New 30 TAC Sections 116.164(a)(3), (a)(4), (a)(5), and (b)
adopted on March 26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Sections 116.610(b) adopted on March
26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Sections 116.611(b), 116.611(c)(3),
116.611(c)(3)(A), and 116.611(c)(3)(B) adopted on March 26, 2014, and
submitted on April 16, 2014; and
[[Page 66630]]
Revisions to 30 TAC Sections 122.122(e)(3), (e)(3)(A), and
(e)(3)(B) adopted on March 26, 2014, and submitted on April 16, 2014.
In a letter dated October 1, 2014, the TCEQ informed EPA of its
view that the provisions listed above ``are no longer appropriate or
necessary for the SIP'' after the Supreme Court decision in UARG v.
EPA. EPA concurs with this assessment by TCEQ and is not taking action
on the submitted revisions to these provisions in this rulemaking.
D. Provisions Where the EPA Is Finalizing Action
The remaining provisions in the Texas SIP submissions can operate
independently and do not depend on the provisions listed above to
provide authority for the TCEQ to issue PSD permits for ``anyway
sources'' that contain limitations on GHGs based on application of
BACT. The provisions we are approving in this action are listed below.
These provisions are sufficient by themselves to ensure the TCEQ will
have a GHG PSD program in place that is consistent with the Court's
ruling and the provisions of 40 CFR 51.166 that the EPA is continuing
to apply and enforce at this time.
Substantive and non-substantive revisions to 30 TAC
Section 116.111(a)(2)(i), (a)(2)(B), (a)(2)(C), (a)(2)(D), and
(a)(2)(F) adopted on September 15, 2010, and submitted on October 5,
2010;
Revisions to 30 TAC Sections 39.411(e)(11), (e)(15),
(e)(16), (f)(4), (f)(8), 39.412(a)-(d), 39.419(e)(1), and 39.420(e)(4)
adopted on March 26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 101.1 adopted on March 26,
2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 101.10 adopted on March 26,
2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 101.201 adopted on March 26,
2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 106.2 and 106.4(d) adopted on
March 26, 2014, submitted on April 16, 2014;
Revisions to 30 TAC Section 116.12 adopted on March 26,
2014, submitted on April 16, 2014, including the renumbering of SIP-
approved definitions for ``major stationary source'' and ``major
modification'' at non-substantive revisions within those definitions;
\6\
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\6\ As specified in Section II.C of this final rule, the EPA is
taking no action at this time on the substantive revisions to the
definitions of ``major stationary source'' and ``major
modification'' pertaining to non-anyway sources and modification.
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Revisions to 30 TAC Section 116.111(b)(1) adopted on March
26, 2014, submitted on April 16, 2014;
Revisions to 30 TAC Section 116.160(c) adopted on March
26, 2014, submitted on April 16, 2014;
New provisions at 30 TAC Section 116.164(a) introductory
paragraph, (a)(1), and (a)(2) adopted on March 26, 2014, submitted on
April 16, 2014;
New provisions at 30 TAC Section 116.169(a) adopted on
March 26, 2014, submitted on April 16, 2014;
Revisions to 30 TAC Section 116.610(a)(1) adopted on March
26, 2014, submitted on April 16, 2014;
Revisions to 30 TAC Section 116.611(c)(1) and (c)(2)
adopted on March 26, 2014, submitted on April 16, 2014; and
Revisions to 30 TAC Section 122.122(a), (e)(1), and (e)(2)
adopted on March 26, 2014, submitted on April 16, 2014.
The EPA anticipates that we will need to take additional action to
revise the federal PSD requirements for GHG PSD permitting in light of
the Supreme Court decision. The timing and content of such revisions
are expected to be informed by ongoing legal proceedings before the
D.C. Circuit. These revisions to federal requirements may necessitate
future revisions to the Texas SIP. The EPA will work with Texas, and
all other affected states, to address future changes in our federal
permitting requirements in an expeditious manner.
III. Response to Comments
We received comments from Air Alliance Houston, the Greater Houston
Partnership (GHP), the House Bill 788 Working Group (HB 788 Working
Group), Sierra Club, Texas Chemical Council (TCC), Texas Commission on
Environmental Quality (TCEQ), Texas Industry Project (TIP), the Texas
Oil and Gas Association (TXOGA), the Texas Pipeline Association (TPA),
and public citizens on our February 18, 2014, proposal. All comments
received on the February 18, 2014, proposed action are available in the
public docket to this rulemaking. Below is our summary of each comment
received relating to the SIP action and our response. The EPA notes
that the comments and our responses to comments relevant to the final
FIP rescission action are in the separate but simultaneous final
action. Comments and responses that relate to both final actions are
found in both documents.
Comment 1: The TCEQ, GHP, HB 788 Working Group, TCC, TIP, and TPA
submitted comments supportive of our proposed action and urge the EPA
to proceed with final approval and rescind the associated FIP.
Response 1: The EPA appreciates the support of the commenters. No
changes have been made to the final SIP approval rule as a result of
these comments.
Comment 2: The TCC encouraged the EPA to make the FIP rescission
effective immediately upon approval of the SIP. As support, the
commenters referenced the EPA's final approval action of the Wyoming
GHG PSD Program at 78 FR 69998, November 22, 2013.
Response 2: The EPA interprets the comment as a request that the
EPA make the final approval of the GHG PSD SIP and the rescission of
the GHG PSD FIP effective immediately upon publication in the Federal
Register pursuant to the Administrative Procedure Act (APA), Section
553(d). As explained more fully in Section IV of this document and in
Comment/Response 3, the EPA finds that this final SIP action and the
separate but simultaneous final FIP rescission action should be made
effective immediately upon publication in the Federal Register.
The EPA also wishes to clarify that the Wyoming action, cited in
the comment as precedent for an immediate effective action, does not
utilize Section 553(d) of the APA. The EPA's November 22, 2013, final
approval of the Wyoming GHG PSD Program and FIP rescission were both
effective 30 days after publication in the Federal Register.
Specifically, the Wyoming action was published on November 22, 2013,
and the SIP approval and FIP rescission were effective on December 23,
2013.
Comment 3: TXOGA requested that the final SIP approval and the FIP
rescission be effective on the date of Federal Register publication
rather than the date 30 days after publication. TIP commented that the
EPA should invoke the ``good cause'' exception in the APA to make the
final approval and FIP rescission immediately effective upon
publication. TIP suggested that using the ``good cause'' exception
would: (1) ``level the playing field'' between Texas GHG permitting and
GHG permitting in states with EPA-approved GHG permitting programs; (2)
provide economic benefits by allowing consolidation of air permitting
for Texas GHG sources at the TCEQ; (3) relieve a restriction imposed by
the FIP; and (4) is procedural in nature and does not change
substantive requirements for GHG PSD permitting.
Response 3: The EPA agrees that this is an appropriate circumstance
to make this rule effective immediately upon publication, pursuant to 5
U.S.C. Section 553(d) of the APA. As detailed
[[Page 66631]]
in Section III of this final SIP action and in Section III of the
separate but simultaneous final FIP action, we have determined that
both the final approval of the GHG PSD SIP and the separate but
simultaneous rescission of the GHG PSD FIP be effective immediately
upon publication in the Federal Register. An immediate effective date
is authorized under the APA, Section 553(d)(1), which provides that a
rulemaking action may become effective less than 30 days after
publication if the rule ``grants or recognizes an exemption or relieves
a restriction''; and Section 553(d)(3), which allows an effective date
less than 30 days after publication ``as otherwise provided by the
agency for good cause found and published with the rule.''
First, the immediate effective date helps to relieve the
restriction on the TCEQ's ability to issue single GHG PSD permits and
will eliminate the dual EPA/TCEQ PSD permit system, which in turn,
promotes a more efficient single permitting authority process. Second,
we have determined there is ``good cause'' to make this rule effective
immediately because it will allow Texas to begin processing complete
PSD GHG applications that meet the appropriate federal PSD requirements
immediately and it will allow the regulated community to receive PSD
permits containing GHG limits, issued by Texas, as soon as possible. An
immediate effective date provides Texas with undelayed authority to
regulate GHG emissions in PSD permits issued to ``anyway'' sources and
allows Texas to become the sole PSD permitting authority in the state,
except in three limited circumstances. In addition, an expedited
transition of the GHG PSD program from the EPA to Texas creates a more
efficient use of EPA and State resources, and creates certainty for the
regulated community and public. Additionally, the EPA and the TCEQ have
worked closely to ensure Texas has adequate authority and resources to
administer the GHG PSD permitting program without a 30-day delay, which
is normally the time required for affected parties to adjust their
behavior and prepare before the final rule takes effect. The EPA has
determined that moving as expeditiously as practicable to consolidate
GHG PSD permitting with the TCEQ PSD permitting program is supported
here as the State has the authority and resources to administer the GHG
PSD permitting program. The EPA finds that the above reasons support an
effective date prior to thirty days after the date of publication under
5 U.S.C. Section 553(d) for both this final SIP approval action and the
separate but simultaneous final FIP action. We have revised the
effective date of our final SIP action as a result of these comments.
Comment 4: The HB 788 Working Group commented that the EPA should
proceed with finalizing our proposed parallel processing even though
the TCEQ Commissioners are likely to revise the Texas GHG PSD rule
package in response to public comments received at the March 26, 2014,
agenda meeting. The HB 788 Working Group summarized the proposed
changes and characterized the changes as follows: (1) clarify the
distinction between the GHG PSD program and Texas minor NSR
requirements; (2) remove the exemption for CO2 from biogenic
sources from the new definition of CO2-equivalent emissions
(CO2e), consistent with the EPA's action in the proposed GHG
PSD SIP approval; (3) clarify GHG PSD applicability and ensure
consistency with federal requirements; (4) address recordkeeping
requirements for non-PSD changes in GHGs; and (5) establish a deadline
for GHG-only major sources to certify emissions of GHGs below major
source thresholds that is consistent with the federal Part 70 and Texas
Chapter 122 deadlines.
Response 4: The TCEQ submitted the final GHG PSD SIP submittal on
April 16, 2014. As discussed above in Section I of this rulemaking and
the Addendum to the TSD, the TCEQ Commissioners did not adopt material
changes as a result of public comment. The EPA has evaluated the
adopted changes and determined that each change is not significant or
substantive in nature. Because these were not material changes to the
regulations that the EPA proposed to approve, the EPA's notice of
proposed rulemaking provided sufficient notice to members of the public
of the substance of the TCEQ regulations that the EPA is approving into
the Texas SIP in this final rule. However, as discussed above in
Section II of this final action, some of the provisions that the EPA
proposed to approve are now no longer appropriate for inclusion in the
Texas SIP after the Supreme Court's ruling. Nevertheless, the EPA is
finalizing approval of the majority of the revisions to the Texas SIP
as proposed, including those provisions with revisions that are not
significant or substantive, adopted by the TCEQ on March 26, 2014, and
submitted on April 16, 2014. See Section II.C and II.D of this final
rulemaking for an explanation of which submitted provisions where we
are taking no action and which provisions are being finally approved.
Comment 5: The EPA should state for the record that GHG permits
issued by the EPA may be amended by the TCEQ once permitting authority
is delegated.
Response 5: As stated in our proposed approval, the TCEQ submitted
a letter on January 13, 2014, (available in the docket for this
rulemaking) that provided clarity and assurances that the TCEQ has the
general authority under the Texas Clean Air Act to administer the EPA-
issued GHG PSD permits, including revising or amending those permits in
the future. Specifically, the ``TCEQ will assume full PSD
responsibility for the administration and implementation of final GHG
PSD permits issued by the EPA upon notification from the EPA that all
administrative and judicial appeal processes have expired or have been
completed or concluded . . . assuming full PSD responsibility includes
the authority to . . . process and issue any and all subsequent PSD
permit actions relating to such permits (e.g., amendments).'' See 79 FR
9123, 9132. February 18, 2014.
We would also like to correct one statement from the commenter
concerning the EPA's delegation of permitting authority to the TCEQ.
The EPA's final action today approves under Section 110 of the CAA, the
Texas GHG PSD permit process as part of the Texas SIP. The EPA wishes
to clarify to the commenter that our final action is a SIP approval,
not a delegation of the EPA's authority. Once a SIP is approved, the
state permitting authority issues permits consistent with the SIP under
state law. CAA Section 110 does not involve a ``delegation'' of the EPA
authority under federal law to states. Rather, states exercise primary
authority as implemented through their EPA-approved SIPs, including
issuing state permits under state law under a PSD SIP. In general, when
the EPA approves a PSD SIP, the EPA makes a determination that a state-
issued preconstruction permit that complies with the state law in the
SIP will satisfy the federal PSD permitting requirements that are
applicable under the CAA and EPA regulations at the time of the SIP
approval. No changes have been made to the final SIP approval rule as a
result of this comment.
Comment 6: One commenter found it difficult to provide specific
comments due to the pending Supreme Court decision on GHG and asked
that the EPA discuss the impact, if any, of the pending Supreme Court
decision around GHG.
Response 6: Although not specifically referenced in the comment, we
believe the commenter's reference to ``pending
[[Page 66632]]
Supreme Court decision around GHG'' refers to the following case that
was before the Supreme Court of the United States: Case 121146; Utility
Air Regulatory Group v. The Environmental Protection Agency and
consolidated cases. The Supreme Court decided this case on June 23,
2014. See Section II of this final action for a detailed discussion. In
summary, the Supreme Court affirmed in part and reversed in part the
lower court's decision on the applicability of the PSD Program to GHGs,
rejecting the application of the PSD program to additional sources
based only on GHG emissions but affirming the applicability of BACT to
GHGs emitted by sources otherwise required to obtain PSD permits based
on emissions of other pollutants. Accordingly, the decision has
influenced our final action on the April 16, 2014, SIP submittal. The
EPA is proceeding with the finalization of the majority of the
revisions to the Texas SIP and the separate but simultaneous FIP
removal that we proposed to approve on February 18, 2014. However, in
order to proceed consistent with the Court's decision as detailed in
Section II and Comment/Response 4, the EPA is taking no action at this
time on the portions of the April 16, 2014, submittal that provided for
the permitting of ``Step 2,'' ``non-anyway'' sources.
Comment 7: The EPA should state for the record that the reasonable
possibility recordkeeping requirements pursuant to 40 CFR 52.21(r)(6)
do not apply to GHG emissions if the emissions increase is less than
75,000 tpy CO2e. The reasonable possibility requirements
under 40 CFR 52.21(r)(6) apply to a ``regulated NSR pollutant.'' The
definition of ``regulated NSR pollutant'' in 40 CFR 52.21(b)(50)
includes any pollutant that is ``subject to regulation.'' Pursuant to
40 CFR 52.21(b)(49), GHG is not subject to regulation and thus is not a
regulated NSR pollutant if the emissions increase is less than 75,000
tpy CO2e.
Response 7: After the Supreme Court decision, the EPA considers GHG
emissions to be subject to regulation only if the criteria at 40 CFR
52.21(b)(49)(i) through (iv) are satisfied. As discussed above, these
provisions remain in the Code of Federal Regulations at the present
time. The EPA may need to consider modifications to these regulations,
but under the existing provisions, the reasonable possibility
requirements at 40 CFR 52.21(r)(6) do not apply for GHG emissions below
the subject to regulation thresholds.
Comment 8: Air Alliance Houston commented that the EPA should not
approve the Texas rules without first requiring the TCEQ to explicitly
allow for public review and comment on all BACT analyses.
Response 8: As discussed in our February 18, 2014, proposed
approval, the proposed revisions to the Texas SIP and the existing
Texas SIP already require public review and comment on all BACT
analyses. Even though we are not finalizing approval of the submitted
revisions to 30 TAC Section 116.111(a)(2)(I) that were adopted on March
26, 2014, and submitted on April 16, 2014, the existing Texas SIP at 30
TAC Section 116.111(a)(2)(I) requires that any permit application for a
proposed facility in an attainment area comply with all applicable
requirements of PSD review. As discussed in our February 18, 2014,
proposed approval, one such applicable requirement for PSD permitting
is the SIP-approved requirement at 30 TAC Section 116.111(b)(2) which
requires that Chapter 39 public notice provisions are followed for PSD
permits declared administratively complete on or after September 1,
1999. As also discussed in our February 18, 2014, proposed approval,
the EPA, in a separate rulemaking action on January 6, 2014, previously
approved the public notice provisions in 30 TAC Chapter 39 as
consistent with all requirements for PSD public notice. See 79 FR 9123,
9129. As discussed more fully in Section II.B of this final SIP
approval action, the EPA has concluded that the Texas PSD program will
apply GHG BACT to all ``Step 1'' or ``anyway'' sources. Therefore, any
GHG PSD permit application will be subject to PSD public notice
requirements under the SIP-approved public notice provisions for PSD
permit applications at 30 TAC Chapter 39. Specifically, the SIP-
approved public notice provisions at 30 TAC Section 39.405(g) require
the applicant to make available for public review the permit
application, additional materials submitted in support of the
application, the air quality analysis, the preliminary determination
summary, and the draft permit. The BACT analysis for a given GHG PSD
permit application for an ``anyway'' source will therefore be included
in the materials available for public review and comment. Please note
that we are no longer taking action on provisions that deal with ``non-
anyway'' or ``Step 2'' sources, as discussed elsewhere in this notice.
Comment 9: Air Alliance Houston commented that the EPA should
require the TCEQ to assess add-on GHG pollution control equipment
consistent with the federal BACT program. Air Alliance Houston further
commented that the three-tiered Texas BACT process required by the
Texas Clean Air Act is not consistent with the top-down, five-step
federal BACT analysis. Public citizens also commented to request
clarification on how BACT is determined and questioned who is
responsible for determining whether controls such as carbon capture
would be feasible.
Response 9: The EPA's final action today approves revisions to 30
TAC Section 116.111(a)(2)(C) to clarify the application of BACT for all
permit applications in Texas, including GHG PSD permit applications.
This provision clarifies that the TCEQ use two types of BACT for permit
reviews--federal BACT pursuant to the requirements of Title I Part C
and Texas BACT under the Texas Clean Air Act (TCAA). The revision
clarifies federal BACT must be applied first to any facility subject to
PSD requirements. While this provision is germane to all Texas PSD
permits, this applies to PSD permits for anyway sources with GHG
emissions. These GHG PSD permits will be required to apply federal BACT
as well as TCAA BACT. Federal BACT requirements will govern the
permitting process if there is a difference in stringency between the
federal BACT requirements and the Texas BACT requirements. See the
discussion in our February 18, 2014, proposed approval at 79 FR 9123,
9128. Additionally, as discussed in past SIP approval actions on the
Texas PSD program, the EPA has determined that the Texas BACT process
is an appropriate alternative to the federal top-down process.\7\ This
action on the Texas GHG PSD SIP revision does not alter our
determination that the TCEQ will continue to implement the Texas PSD
program consistent with federal requirements. This approval of 30 TAC
Section 116.111(a)(2)(C) further supports our previous determinations
that the TCEQ shall apply Texas BACT and federal BACT to all PSD
permits, and if there is a conflict, the federal BACT requirements will
apply. As to the specific process for applying BACT review in a PSD
permit, under state law at 30 TAC Sections 116.111(a)(2)(C) and
116.160(c)(1)(A), the applicant must submit an application including
specific control technology.\8\ As the PSD
[[Page 66633]]
permitting authority, the TCEQ, under its PSD permit rules at 30 TAC
Sections 116.160 and 116.164(a) introductory paragraph, (a)(1) and (2)
only, shall review the application and specified control technology and
determine whether the technology is considered BACT. Under the Texas
SIP at 30 TAC Section 39.405(g)(3), the TCEQ's analysis of the proposed
BACT shall be included in the proposed state issued permit, which is
subject to public review and comment. Public citizens have an
opportunity to review the TCEQ's proposed BACT determination and
provide comments on the proposed permit during the specific comment
period under 30 TAC Section 55.152. Pursuant to the Texas SIP at 30 TAC
Section 55.156(b), the TCEQ must respond to all comments received on
proposed PSD permits.
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\7\ See the EPA's proposed approval of the Texas PSD program on
December 22, 1989 at 54 FR 52823, 52825. See also the EPA's final
approval of the Texas PSD program on June 24, 1992 at 57 FR 28093,
28096.
\8\ The revisions to 30 TAC Section 116.160(c) adopted on March
26, 2014, and submitted on April 16, 2014, refer to the requirements
for GHG PSD permitting in 30 TAC Section 116.164. As noted in
Section II.C of this final SIP approval, EPA is not taking action at
this time on portions of 30 TAC Section 116.164 that add thresholds
pertinent to whether a non-anyway source or modification requires a
PSD permit solely for GHG emissions. But, EPA is acting to approve
the portions of 30 TAC Sections 116.164 that apply a ``75,000 TPY
``major modification level'' to increases in GHGs at anyway sources
and modifications, so it remains appropriate for EPA to act to
approve the submitted revisions to 30 TAC Section 116.160(c) adding
the reference to the thresholds for GHGs in 30 TAC Section
116.164(a)(1) and (a)(2).
---------------------------------------------------------------------------
Comment 10: Public citizens submitted several comments regarding
the EPA's proposed approval of the GHG PSD SIP, the rescission of the
GHG PSD FIP, and the transition process to be used when transferring
permitting authority to the TCEQ. Specifically, the commenters are
concerned that the transition process is lacking the ``voice'' of the
people on whether the public feels it is the right of the applicant/
company to be able to choose the EPA or the TCEQ as the permitting
authority without the public's input on pending applications. The
commenters urged the EPA to retain the permitting authority in
sensitive nonattainment areas such as in Brazoria County, Texas.
Finally, the commenters submitted information regarding ozone monitor
siting and air quality in Clute, water quality impacts in the Galveston
Bay, and maps identifying locations of proposed GHG PSD permits.
Response 10: While the EPA appreciates the commenter's concerns
about the public having a voice in the selection of a permit authority,
we believe the appropriate regulatory and permit transition procedures
are in place to ensure any GHG PSD permit, whether issued by the EPA or
the TCEQ, complies with all federal PSD requirements. Further, the EPA
offered an opportunity for review and comment on our proposed
determination that the TCEQ has the requisite authority to address GHGs
in the PSD program in Texas upon approval of the SIP and rescission of
the FIP for GHGs. We received no comments on this specific issue. As
stated in the proposal, the EPA finds the TCEQ has the necessary legal
and regulatory provisions in place to successfully implement the
federal requirements for GHG PSD permitting. As such, we are finalizing
the approval of the Texas SIP provisions for GHG PSD permitting, with
the above noted exceptions where we are taking no action at this time
on certain revisions that appear to no longer be needed after the
Supreme Court's UARG v. EPA decision. In a separate but simultaneous
action published elsewhere in this issue of the Federal Register, we
are rescinding the majority of the Texas GHG PSD FIP. Upon the
effective date of both of these actions, the TCEQ will have the
authority to process applications and issue GHG PSD permits, except
where the EPA retained authority in three limited circumstances. As
stated in the EPA's February 18, 2014, proposal and transition document
referenced in that action, the EPA contacted each GHG PSD permit
applicant who had submitted an application to the EPA at the time of
our proposed approval. We provided these permit applicants the
opportunity to elect either the EPA or the TCEQ as the issuer of its
GHG permit by May 15, 2014. All permit applicants submitted a request
for permitting authority by the deadline of May 15, 2014. For the
permit applications that have been submitted since the EPA's proposed
approval, the EPA is retaining permitting authority and will continue
evaluating and processing these permit applications unless and until
the applicant submits a written request to transfer to the TCEQ, the
EPA issues a final permit, or a permit application is withdrawn from
the EPA. The EPA Region 6 GHG Web site has been updated to identify
which permit applications have been retained by the EPA for processing
and those which have been transferred to the TCEQ. We will continue to
update this Web site as applicants make their decisions regarding
permitting authority. Upon the effective date of our final SIP approval
and simultaneous FIP rescission, the EPA will no longer accept
applications for GHG PSD permits in Texas. From that point forward, the
TCEQ will be the only permitting authority for GHG PSD permits in
Texas, with the exception of the three limited circumstances where the
EPA retains authority over a permit application or an issued permit has
not gone through exhaustion of all administrative and judicial appeals,
as discussed in our final FIP rescission action. Both the EPA and the
TCEQ are required to issue GHG PSD permits that satisfy federal
requirements for PSD permitting. In the instances where a permit
applicant elected to transfer the permitting authority to the TCEQ and
the EPA has already public noticed a draft permit and received
comments, the EPA intends to contact each commenter to advise them to
resubmit comments to the TCEQ pursuant to 30 TAC Sections 39.412 and
55.152.
Second, as we are finalizing this SIP approval rulemaking today, we
find the TCEQ has adopted regulations sufficient to regulate emissions
of GHGs from ``anyway'' major emitting sources under the Texas PSD
program. As part of the Texas PSD program, a GHG PSD permit application
will be subject to the Texas SIP-approved public notice and comment
procedures that are consistent with the EPA's federal PSD public notice
requirements at 40 CFR 51.166(q). For new GHG PSD permit applications
processed by the TCEQ and those ``anyway'' applications transferred
from the EPA to the TCEQ for which the EPA has not proposed a draft
permit, the Texas SIP-approved public notice process will involve two
opportunities for public comment under 30 TAC Sections 39.418 and
39.419 for the Notice of Receipt of Application and Intent to Obtain
Permit (NORI) and the Notice of Application and Preliminary Decision
(NAPD). For the subset of permit applications that are transferred to
the TCEQ after the EPA has already proposed a draft permit, these
applications will either use the NORI and NAPD or will go through a
Combined Public Notice under 30 TAC Section 39.412. Opportunity for
public review and comment will be provided in all instances where the
TCEQ is the permitting authority for a GHG PSD permit application.
We would like to correct one statement from the commenter
concerning nonattainment permitting, which is that the EPA should
retain the GHG PSD FIP permitting authority in sensitive nonattainment
areas. There are no GHG nonattainment areas; the EPA was the permitting
authority only for GHG PSD permits. The TCEQ has been, and continues to
be, the permitting authority for Nonattainment New Source Review (NNSR)
permits in Texas. In Brazoria County, the EPA was the permitting
authority for the GHG PSD permits but the TCEQ was the permitting
authority for the NNSR
[[Page 66634]]
permitting program and all other non-GHG PSD pollutants.
After review and consideration of the additional materials
submitted by the citizens, the EPA has determined that the data
submitted regarding ozone monitors and air quality in Clute, water
quality in Galveston Bay, and maps identifying locations of the
proposed GHG PSD permit applications, are beyond the scope of our
review and are not relevant to our proposed approval of the Texas GHG
PSD SIP. No changes were made to the final SIP approval rule as a
result of these comments.
Comment 11: Air Alliance Houston commented that the EPA should
encourage the TCEQ to compile an annual GHG emissions inventory of
those sources required to submit emissions information under the EPA's
GHG Reporting Program.
Response 11: While we appreciate the commenter's suggestion, this
requirement is beyond the scope of this action. Our final action today
approves revisions to the Texas PSD SIP to provide the TCEQ the
authority to regulate GHG emissions from ``anyway'' sources under the
Texas PSD program consistent with the PSD requirements after the
Supreme Court's UARG v. EPA decision. The EPA's PSD program regulation
applicable to approval of a state program (40 CFR 51.166) does not
require a GHG emissions inventory. However, as the commenter noted, the
EPA has a separate requirement under the federal GHG Reporting Program
that requires certain sources to report annual GHG emissions to the EPA
for tracking in a national database. See the EPA regulations at 40 CFR
Part 98. We note that the data submitted to the GHG Reporting Program
is made available to the public at http://www.epa.gov/climatechange/ghgemissions and can be readily sorted by state. The implementation of
the GHG Reporting Program is outside the scope of the Texas SIP
revision that the EPA is approving in this action. No changes were made
to the final SIP approval rule as a result of these comments.
Comment 12: Several commenters submitted comments regarding the
EPA's document titled ``Transition Process for Transferring GHG PSD
Permitting Authority to TCEQ.'' These comments are summarized below:
A. Comments about notification to companies regarding the
Transition Process:
[cir] TCC suggests that the EPA clarify that letters sent to
applicants will not be mailed until the final rule has been published
in the Texas Register, on or about April 17, 2014.
[cir] TCC requests that the EPA post a message or announcement on
its Web site indicating that letters concerning the transition process
have been submitted to any of the GHG applicants.
B. Comments about the deadline for selecting a permitting authority
under the Transition Process:
[cir] TCC suggests the EPA not impose a firm 30-day decision
deadline because of concerns that permit applicants selecting the TCEQ
as the permitting authority may experience delay in processing of
applications if the FIP rescission is delayed.
[cir] TCC requests that the EPA clarify whether a permit applicant
will have the opportunity to request additional time beyond 30 days to
submit a response regarding permitting authority.
C. Comments about the Transition Process for Issued Permits: TCC,
TIP, and TXOGA requested that the EPA reconsider the transition
process, such that permit applications currently being reviewed in the
Environmental Appeals Board (EAB) could be transferred to the TCEQ.
Response 12: The EPA appreciates the comments on the Transition
Process we will be using to transfer GHG PSD permitting authority to
the TCEQ. After consideration of the comments and in light of the
recent UARG v. EPA decision, we have decided that it is necessary to
revise, in part, our Transition Process as well as revise, in part, the
EPA's proposed retained authority under the FIP. Below are our specific
responses to the comments raised regarding the Transition Process and a
discussion of how the EPA is revising our retained authority under the
separate but simultaneous FIP rescission.
Response 12A: For permit applicants with applications submitted at
the time of our February 18, 2014, proposal, we are making no changes
to the Transition Process. The EPA has provided adequate notice to
those initial permit applicants regarding the Transition Process. The
EPA mailed letters to each GHG permit applicant on file with the EPA on
March 27, 2014, requesting a response no later than May 15, 2014. Those
letters are available for public access in the docket for the SIP and
FIP rulemaking actions. By communicating with our initial permit
applicants immediately following the TCEQ Commissioners vote on March
26, 2014, to adopt the GHG PSD revisions, we provided our initial
permit applicants with a reasonable amount of time to weigh individual
business considerations and respond with a permitting authority
request. The letters were delivered to the applicants via U.S. Postal
delivery and email, ensuring multiple means of communication with each
applicant. Additionally, our Region 6 GHG Web site was updated to
indicate the availability for review and comment on the EPA's proposed
approval of the Texas GHG PSD SIP, rescission of the Texas GHG PSD FIP,
and Transition Process. No changes were made to the final SIP approval
rule as a result of these comments.
The EPA recognizes that since the time of our proposed rulemaking,
we have received additional permit applications and those permit
applicants were not afforded a similar opportunity to select a
permitting authority by the May 15, 2014, deadline specified in the
Transition Process. For these permit applications submitted after the
February 18, 2014, proposal, the EPA is retaining the permitting
authority until the EPA either issues a final permit and all subsequent
administrative and judicial appeals are exhausted, the applicant
submits a written request to be transferred to the TCEQ, or the
applicant withdraws the permit from the EPA.
Response 12B: The EPA does not believe it is necessary to extend
the deadline for requesting a transfer of permitting authority beyond
the May 15, 2014, deadline, as specified in our Transition Process for
the initial permit applications that were submitted at the time of our
February 18, 2014, proposed action. We received written permit
authority requests from all permit applicants in house at the time of
the proposed notice by the specified May 15, 2014, deadline.
However, in consideration of these comments and in light of the
UARG v. EPA decision, we have decided that for any permit applications
that were submitted after our proposed rulemaking, the EPA will retain
permitting authority and continue to process and evaluate any pending
permit application for an anyway source or modification unless or until
the applicant submits a written request to transfer the authority to
the TCEQ or withdraws the permit application from the EPA. The EPA will
continue to process and evaluate any pending permit application for an
anyway source or modification. There is no 30-day time period for a
decision imposed on the permit applicants. Rather, the applicant can
make an informed business decision through consultation with the EPA
and the TCEQ, up until the EPA has issued a final permit. The EPA's
retained authority under the FIP was revised as a result of these
comments.
Response 12C: At this time, we intend to transfer all initial
permit applications
[[Page 66635]]
and related materials to the TCEQ where a permit applicant requested
the transfer in writing by May 15, 2014, as specified in the Transition
Process. Additionally, as discussed above in Responses 12A and 12B, for
any permit application submitted after our February 18, 2014, proposed
rulemaking, the EPA will transfer the permit application and related
materials to the TCEQ where the permit applicant submits a written
request to transfer to the TCEQ. The EPA will confirm the transfer of
the permit application by providing a letter to the TCEQ and the permit
applicant wherein we transfer the permit application, related
materials, and state that we consider the request for transfer a
withdrawal of the application that removes the application from review
and further action by the EPA. As discussed in our February 18, 2014,
proposed rulemaking, the EPA's permitting authority ``will cease upon
an applicant's written request to the EPA withdrawing the pending
permit application before a final determination is made.'' See 79 FR
9123, 9133. A final determination on the permit is made when all
administrative and judicial appeals processes have been exhausted. The
EPA will retain permitting authority for ``anyway'' GHG PSD permits
that are issued or ``anyway'' permit applications denied by the EPA for
which either the time for filing an administrative appeal has not
expired or all administrative and judicial appeals processes have not
been completed. As stated in our Transition Process, a GHG PSD permit
applicant has the ability to withdraw the permit application before the
EPA and submit a new application to the TCEQ at any time until the
permit becomes final. Because a permit does not become final until
agency review procedures are exhausted, an applicant can withdraw an
application while a permit is under EAB review. No changes were made to
the final SIP approval rule as a result of these comments, but we have
modified the authority retained by EPA in the FIP for certain permit
applications for other reasons.
Comment 13: Sierra Club submitted several comments and supporting
exhibits requesting that the EPA not approve the GHG PSD SIP and
rescind the FIP until the TCEQ submits clarifications regarding access
to judicial review for GHG PSD permits. First, Sierra Club commented
that if the commission acts on a GHG permit, then the Texas regulations
appear to require a party to go through the contested case hearing
process in order to exhaust administrative remedies, which is necessary
to later seek judicial review. However, HB 788 removes the opportunity
for a contested case hearing for GHG permits. As a result, the TCEQ has
not adequately clarified the process to exhaust all administrative
remedies before seeking judicial review when the commission acts on a
GHG permit.
Response 13: Because judicial review of PSD permits is important
and necessary under the Act, we have reevaluated the Texas judicial
review process as it applies to GHG PSD permits issued by the TCEQ. 77
FR 65305, at 65307 (Oct. 26, 2012).\9\ The TCEQ provided a letter to
the EPA dated May 30, 2014,\10\ to clarify the judicial review process
and the associated administrative remedies with respect to the GHG PSD
permits issued by Texas. This letter explains the processes to exhaust
administrative remedies and confirms that Texas law provides an
opportunity for judicial review of all GHG PSD permits issued by the
TCEQ. Texas regulations do not require a party to go through the
contested case hearing process in order to exhaust administrative
remedies when the commission acts on a GHG permit. Section 50.119(b)
provides that ``[i]f the commission acts on an application, Sec.
80.272 [Motion for Rehearing] of this title applies.'' Further, Section
50.119(c)(3) provides that motions for rehearing may be filed on ``the
commission's decision on an application.'' Section 80.272 is a
procedural provision that sets out the process for filing a motion for
rehearing after the commission makes a decision on a permit. State law
allows the TCEQ to establish a motion for rehearing via regulation,
even when there is no statutory right to a contested case hearing.\11\
Section 50.119(c) does not require a contested case hearing for a
motion for rehearing to be available. We recognize that the judicial
review process under Texas law differs from the administrative and
judicial review processes available for PSD permit decisions under 40
CFR part 124 (opportunity to petition for administrative review by the
EPA's Environmental Appeals Board (EAB)) and Section 307(b) of the CAA
(opportunity to seek review before a federal Circuit Court of Appeals)
when the EPA or a delegated agency under 40 CFR 52.21 is the PSD permit
issuer. However, the CAA does not require that the process for judicial
review of the grant or denial of a PSD permit issued under a SIP
approved PSD program be identical to that provided when the EPA or a
delegated agency is the PSD permit issuer under 40 CFR 52.21. 77 FR
65305 at 65307 (Oct. 26, 2012). No revisions were made to the final SIP
approval rule as a result of this comment.
---------------------------------------------------------------------------
\9\ ``[W]e interpret the CAA to require an opportunity for
judicial review of a decision to grant or deny a PSD permit, whether
issued by EPA or by a State under a SIP-approved or delegated PSD
program. See 61 FR 1880, 1882 (Jan. 24, 1996) (The EPA's proposed
disapproval of Virginia's PSD program SIP revision due to State law
standing requirements that limited judicial review); 72 FR 72617,
72619 (December 21, 2007) (in approving South Dakota's PSD program,
the EPA stated: `We interpret the statute and regulations to require
at minimum an opportunity for state judicial review of PSD
permits').'' 77 FR 65307.
\10\ Clarification Letter from Mr. Richard A. Hyde, P.E.,
Executive Director, TCEQ to Mr. Ron Curry, Regional Administrator,
EPA Region 6 (May 30, 2014) [hereinafter ``Judicial Review
Clarification Letter'']. This letter is available in the docket for
this rulemaking.
\11\ Tex. Air Control Bd. v. Travis Cnty, 502 SW.2d 213, 215
(Tex. Civ. App.--Austin 1973, no writ); see also, Sproles Motor
Freight Line, Inc. v. Smith, 130 SW.2d 1087, 1088 (Tex. Civ. App.--
Austin 1939, writ ref d).
---------------------------------------------------------------------------
Comment 14: Sierra Club also commented that the availability of
judicial review for PSD permits is too limited because the TCEQ
restricts standing requirements to ``affected persons'', which the
commenter alleges is more restrictive than Article III standing under
the U.S. Constitution.\12\ Sierra Club is also concerned that Texas
will assert that no person has standing to challenge a GHG PSD permit
because the TCEQ does not believe that anyone is affected by GHG
emissions. Sierra Club asks the EPA to require the TCEQ to amend its
regulations to clarify that persons who participate in or comment on
the permitting process will have standing to seek review of a final
permit decision in court.
---------------------------------------------------------------------------
\12\ Sierra Club states that the requirement to demonstrate that
a member of the public is an ``affected person'' has been
prohibitively onerous in past the TCEQ proceedings under the
contested case hearing process. See e.g., Rawls v. Texas Comm'n on
Envtl. Quality, 11-05-00368CV, 2007 WL 1849096 (Tex. App. June 28,
2007); Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth.,
96 SW.3d 519, 527 (Tex. App. 2002); and Sierra Club and Public
Citizen v. TCEQ, District Court of Travis County, Texas, Case No. D-
1-GN-13-000678.
---------------------------------------------------------------------------
Response 14: The Texas permitting program adequately provides
access to judicial review as required under Title I of the CAA for PSD.
The EPA believes that Congress intended such opportunity for state
judicial review of PSD permit actions to be available to permit
applicants and at least those members of the public who participated in
the public comment process and can satisfy threshold standing
requirements under Article III of the Constitution. 61 FR at 1882. The
Texas permitting program enables any member of the public who
participated in the public comment process on a GHG PSD permit and who
meets the threshold standing
[[Page 66636]]
requirements of Article III of the Constitution to obtain judicial
review of the permit in the State's court system after exhausting the
administrative remedies, either through a Motion to Overturn or Motion
for Rehearing. 38 Tex. Reg. 7845, at 7854 (Nov. 8, 2013). The
definition of ``affected person'' that commenter refers to applies to
the contested case hearing process. See 30 TAC 53.3, Judicial Review
Clarification Letter, pages 1-2. As discussed above, the contested case
hearing process does not apply to Texas' GHG PSD permitting program.
Access to judicial review for GHG PSD permits issued by the TCEQ is
governed by THSC Sec. 382.032, and standing for judicial review of
such permits is commensurate with Article III of the Constitution. 38
Tex. Reg. at 7849.\13\ Therefore, Texas' program meets the minimum
requirements for judicial review required for PSD SIP programs. If the
EPA discovers evidence to support the assertion that the TCEQ's GHG
permitting program failed to provide adequate access to judicial review
as federally required under Title I of the CAA for PSD, then the EPA
could address this implementation failure on a permit specific basis or
by using another CAA remedy mechanism. No revisions were made to the
final SIP approval rule as a result of this comment.
---------------------------------------------------------------------------
\13\ THSC section 382.032(a) states that, ``[a] person affected
by a ruling, order, decision, or other act of the commission or of
the executive director, if an appeal to the commission is not
provided, may appeal the action by filing a petition in a district
court of Travis County.''
---------------------------------------------------------------------------
Comment 15: Finally, Sierra Club states that the TCEQ's SIP
submittal should clarify the path to seek judicial review to raise GHG
PSD claims for permits that address both GHG and non-GHG emissions.
Response 15: The TCEQ's Judicial Review Clarification Letter
explains the administrative and judicial review processes for
consolidated permit applications for GHG and non-GHG emissions. If the
TCEQ receives a request for a contested case hearing on a consolidated
application, the entire application will be forwarded to the
commissioners for consideration. If the commissioners grant a hearing
request, the application and draft permit will be referred to the State
Office of Administrative Hearings (SOAH) for a contested case hearing
on issues related to the non-GHG portion of the application and draft
permit. If SOAH holds an evidentiary hearing, SOAH will then send a
Proposal for Decision to the commission on the contested portion of the
application. At that point, the commissioners will consider and take
action on the entire consolidated application and draft permit,
including the GHG PSD portion and the non-GHG portion. All final
actions by the commissioners on a consolidated application are subject
to the motion for rehearing requirement. If a motion for rehearing is
filed and the commissioners deny the motion or if it is overruled by
operation of law, the final order may be appealed to a Travis County
District Court. Judicial Review Clarification Letter, pages 2-3. No
revisions were made to the final SIP approval rule as a result of this
comment.
IV. Effective Date of Final Action
The EPA has determined that this final SIP approval action and the
separate but simultaneous final FIP action are effective immediately
upon publication under the authority of 5 U.S.C. Section 553(d) of the
APA. The expedited effective date for this final SIP approval action
and the separate but simultaneous FIP action is authorized under both 5
U.S.C. Section 553(d)(1) and 553(d)(3) of the APA. Section 553(d)(1)
allows an effective date less than 30 days after publication if a
substantive rule relieves a ``restriction.'' Section 553(d)(3) allows
an effective date less than 30 days after publication ``as otherwise
provided by the agency for good cause found and published with the
rule.'' The EPA has determined that it is appropriate to make both
final actions effective upon publication because the final approval of
the majority of the Texas GHG PSD SIP and the separate but simultaneous
removal of the majority of the Texas GHG PSD FIP will both relieve a
permitting restriction and there is ``good cause'' to allow Texas to
begin processing PSD GHG permit applications that meet the appropriate
federal PSD requirements immediately. Final immediate action relieves a
restriction by promoting an efficient single permitting authority
process, supports an efficient use of EPA and State resources, and
creates certainty for the regulated community and public. It provides
Texas with undelayed authority to regulate major GHG emitting sources,
and the EPA and the TCEQ have worked closely to ensure the State has
adequate authority and resources to administer the GHG permitting
program without a 30-day delay, which is normally the time required for
affected parties to adjust their behavior and prepare before a final
rule takes effect. The EPA has determined that moving as expeditiously
as practicable to consolidate GHG PSD permitting with the TCEQ is
consistent with the State's authority and resources to administer the
GHG PSD permitting program. The EPA finds that the above reasons
support an effective date prior to thirty days after the date of
publication under 5 U.S.C. Section 553(d) for both this final SIP
approval action and the separate but simultaneous FIP action by
establishing good cause for making the rule immediately effective and
demonstrating that the rule relieves a restriction.
V. Final Action
The EPA finds that the October 5, 2010, revisions to the Texas SIP
that are part of this rulemaking are approvable because they are in
accordance with the CAA and the EPA regulations regarding SIP
development and NSR permitting. The EPA finds that the majority of the
April 16, 2014, revisions to the Texas SIP that are part of this
rulemaking are approvable because they are in accordance with the CAA
and the EPA regulations regarding SIP development and GHG regulations,
and consistent with the Supreme Court's UARG v. EPA ruling. The EPA
approves the following revisions to the Texas SIP under Section 110 and
Part C of the Act and will revise the table at 40 CFR 52.2270(c)
accordingly:
Revisions to 30 TAC Section 116.111 adopted on September
15, 2010, and submitted on October 5, 2010, to clarify the application
of BACT to all PSD permit applications in the Texas NSR program;
Revisions adopted on March 26, 2014, and submitted on
April 16, 2014, necessary to provide the TCEQ the authority to regulate
GHG emissions under the Texas PSD Program:
[cir] Revisions to Public Notice requirements at 30 TAC Sections
39.411(e)(11), (e)(15), (e)(16), (f)(4), (f)(8), 39.412(a)-(d),
39.419(e)(1), and 39.420(e)(4).
[cir] Revisions to the General Air Quality Definitions at 30 TAC
Sections 101.1.
[cir] Revisions to the Emission Inventory Requirements at 30 TAC
Section 101.10.
[cir] Revisions to Emissions Event Reporting and Recordkeeping
Requirements at 30 TAC Section 101.201.
[cir] Revisions to the Permits by Rule Minor NSR program at 30 TAC
Sections 106.2 and 106.4(d).
[cir] Revisions to the Definitions for Texas NSR Permitting at 30
TAC Section 116.12, including substantive revisions to the definition
of ``federally regulated new source review pollutant'', new definitions
of ``Carbon dioxide equivalent'' and ``Greenhouse gases'', and non-
substantive renumbering and updates to correct grammar and
[[Page 66637]]
formatting of existing SIP-approved definitions.
[cir] Revisions to Permit Application provisions for Texas NSR
Permitting at 30 TAC Section 116.111(b)(1).
[cir] Revisions to the Texas PSD Program at 30 TAC Section
116.160(c) that address permitting requirements for ``anyway'' sources.
[cir] New 30 TAC Section 116.164(a) introductory paragraph, (a)(1)
and (a)(2) for anyway GHG PSD requirements.
[cir] New 30 TAC Section 116.169(a) to establish the transition
process for GHG permitting.
[cir] Revisions to the Standard Permit Minor NSR program at 30 TAC
Sections 116.610(a)(1) and 116.611(c)(1) and (c)(2).
[cir] Revisions to the definition of Potential to Emit at 30 TAC
Section 122.122(a), (e)(1), and (e)(2).
The EPA is severing and taking no action at this time on the
remainder of the October 5, 2010, SIP submittal for the adoption and
implementation of the Texas Minor NSR Qualified Facilities Program. The
EPA is also taking no action at this time on the following portions of
the April 16, 2014, SIP submittal that address ``Step 2'' permitting
and were impacted by the Supreme Court's UARG v. EPA decision:
Revisions to 30 TAC Section 106.4(a)(1), (a)(3) and (a)(4)
adopted on March 26, 2014, and submitted on April 16, 2014;
Substantive revisions to the definition of ``major
stationary source'' pertaining to ``non-anyway'' sources and
modifications at 30 TAC Section 116.12(19) adopted on March 26, 2014,
and submitted on April 16, 2014;
Substantive revisions to the definition of ``major
modification'' pertaining to ``non-anyway'' sources and modifications
at 30 TAC Section 116.12(20) adopted on March 26, 2014, and submitted
on April 16, 2014;
Revisions to 30 TAC Section 116.111(a)(2)(I) adopted on
March 26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Section 116.160(a) and (b) adopted on
March 26, 2014, and submitted on April 16, 2014;
New 30 TAC Sections 116.164(a)(3), (a)(4), (a)(5), and (b)
adopted on March 26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Sections 116.610(b) adopted on March
26, 2014, and submitted on April 16, 2014;
Revisions to 30 TAC Sections 116.611(b), 116.611(c)(3),
116.611(c)(3)(A), and 116.611(c)(3)(B) adopted on March 26, 2014, and
submitted on April 16, 2014; and
Revisions to 30 TAC Sections 122.122(e)(3), (e)(3)(A), and
(e)(3)(B) adopted on March 26, 2014, and submitted on April 16, 2014.
The EPA is also approving the following three letters from the TCEQ
into the Texas SIP at 40 CFR 52.2270(e):
December 2, 2013, Letter from the TCEQ that clarifies the
TCEQ has the authority under the Texas Clean Air Act to apply the Texas
PSD program to all pollutants newly subject to regulation, including
non-NAAQS pollutants into the future;
January 13, 2014, Letter from the TCEQ that clarifies the
TCEQ has the general authority to administer EPA issued GHG PSD permits
and to process and issue any and all subsequent PSD actions relating to
EPA issued GHG PSD permits; and
May 30, 2014, Letter from the TCEQ that clarifies the
judicial review process for Texas PSD permits.
As a result of our final approval of the April 16, 2014, revisions
to the Texas SIP for GHG PSD permitting, the EPA is simultaneously
rescinding the majority of the GHG PSD FIP for Texas at 40 CFR
52.2305(a), (b), (c), and (d) as discussed in the separate but
simultaneous final action published elsewhere in this issue of the
Federal Register.
The EPA also finds under the authority of 5 U.S.C. Section 553(d)
of the APA, to make this final SIP approval action and the separate but
simultaneous final FIP action effective upon November 10, 2014. Upon
the effective date of this final SIP approval and the separate but
simultaneous FIP rescission, the TCEQ will immediately resume
responsibility for GHG PSD permitting, with the exception of the three
limited circumstances where the EPA is retaining GHG PSD permitting
authority under the FIP, as described in the separate but simultaneous
FIP action. As such, all new GHG PSD permit applications will be
submitted to and processed by the TCEQ.
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 808 allows the issuing agency to make any rule
effective ``at such time as the Federal agency promulgating the rule
determines'' if the agency makes a ``good cause'' finding that notice
and public procedure is impracticable,
[[Page 66638]]
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5. U.S.C. 808(2). As stated
previously, the EPA has made such a ``good cause'' finding, including
the reasons therefore, and established an effective date of November
10, 2014. The EPA submitted a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective November 10, 2014.
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 9, 2015. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposed 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) of the CAA.)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: October 22, 2014.
Ron Curry,
Regional Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR Part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. In Sec. 52.2270:
0
a. The table in paragraph (c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended by revising the entries for Sections 39.411,
39.419, 39.420, 101.1, 101.10, 101.201, 106.2, 106.4, 116.12, 116.111,
116.160, 116.610, 116.611, 122.122 and adding new entries in sequential
order for Sections 39.412, 116.164, and 116.169; and
0
b. The table in paragraph (e) entitled ``EPA Approved Nonregulatory
Provisions and Quasi-Regulatory Measures in the Texas SIP'' is amended
by adding entries at the end of the table for clarification letters
dated December 2, 2013, January 13, 2014, and May 30, 2014.
The revisions and additions read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
State approval/
State citation Title/Subject submittal date EPA Approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 39--Public Notice
----------------------------------------------------------------------------------------------------------------
Subchapter H--Applicability and General Provisions
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 39.411................. Text of Public 3/26/2014 11/10/2014 [Insert SIP includes
Notice. FR page number 39.411(a),
where document 39.411(e)(1)-(4)(A)(i
begins]. ) and (iii), (4)(B),
(e)(5)(A), (e)(5)(B),
(e)(6)-(10),
(e)(11)(A)(i),
(e)(11)(A)(iii),
(e)(11)(A)(iv),
(e)(11)(B)-(F),
(e)(13), (e)(15),
(e)(16), (f)(1)-(8),
(g), and (h).
Section 39.412................. Combined Notice for 3/26/2014 11/10/2014 [Insert ......................
Certain Greenhouse FR page number
Gases Permit where document
Applications. begins].
* * * * * * *
Section 39.419................. Notice of 3/26/2014 11/10/2014 [Insert SIP includes 39.419(e)
Application and FR page number (e)(1) and (e)(2).
Preliminary where document
Determination. begins].
Section 39.420................. Transmittal of the 3/26/2014 11/10/2014 [Insert SIP includes
Executive FR page number 39.420(c)(1)(A)-(D)(i
Director's where document )(I) and (D)(i)(II),
Response to begins]. (D)(ii), (c)(2), and
Comments and (d)-(e).
Decisions.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 101--General Air Quality Rules
----------------------------------------------------------------------------------------------------------------
Subchapter A--General Rules
----------------------------------------------------------------------------------------------------------------
Section 101.1.................. Definitions........ 3/26/2014 11/10/2014 [Insert ......................
FR page number
where document
begins].
[[Page 66639]]
* * * * * * *
Section 101.10................. Emissions Inventory 3/26/2014 11/10/2014 [Insert ......................
Requirements. FR page number
where document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter F--Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities
----------------------------------------------------------------------------------------------------------------
Division 1--Emissions Events
----------------------------------------------------------------------------------------------------------------
Section 101.201................ Emissions Event 3/26/2014 11/10/2014 [Insert 101.201(h) is not in
Reporting and FR page number the SIP.
Recordkeeping where document
Requirements. begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 106--Permits by Rule
----------------------------------------------------------------------------------------------------------------
Subchapter A--General Requirements
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 106.2.................. Applicability...... 3/26/2014 11/10/2014 [Insert ......................
FR page number
where document
begins].
Section 106.4.................. Requirements for 3/26/2014 11/10/2014 [Insert The SIP approved
Permitting by Rule. FR page number provisions at 30 TAC
where document Section 106.4(a)(1),
begins]. (a)(3), and (a)(4)
are those adopted by
the State as of 4/20/
2011.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
Subchapter A--Definitions
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.12................. Nonattainment and 3/26/2014 11/10/2014 [Insert The SIP does NOT
Prevention of FR page number include the
Significant where document substantive revisions
Deterioration begins]. to the definitions of
Review Definitions. ``major stationary
source'' at 30 TAC
Section 116.12(19) or
``major
modification'' at 30
TAC Section
116.12(20) pertaining
to ``Step 2'' or
``non-anyway'' GHG
sources.
The SIP includes the
TCEQ's letter dated 5/
3/2012, which
explains and
clarifies the TCEQ's
interpretation of the
definition of ``plant-
wide applicability
limit'' in 30 TAC
Section 116.12(24).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter B--New Source Review Permits
----------------------------------------------------------------------------------------------------------------
Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.111................ General Application 3/26/2014 11/10/2014 [Insert 30 TAC Section
FR page number 116.111(a)(2)(I) is
where document SIP-approved as
begins]. adopted by the State
as of 8/21/2002.
The SIP does NOT
include 30 TAC
Section
116.111(a)(2)(K).
[[Page 66640]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Division 6--Prevention of Significant Deterioration Review
----------------------------------------------------------------------------------------------------------------
Section 116.160................ Prevention of 3/26/2014 11/10/2014 [Insert The PSD SIP includes
Significant FR page number 30 TAC Section
Deterioration where document 116.160(a) and (b) as
Requirements. begins]. adopted by the State
as of 6/2/2010.
The PSD SIP includes a
letter from the TCEQ
dated December 2,
2013, committing that
Texas will follow a
SIP amendment process
to apply its PSD SIP
to additional
pollutants that are
regulated in the
future, including non-
NAAQS pollutants.
The PSD SIP includes a
letter from the TCEQ
dated May 30, 2014,
clarifying the
judicial review
process for the Texas
PSD permit program.
* * * * * * *
Section 116.164................ Prevention of 3/26/2014 11/10/2014 [Insert The PSD SIP does NOT
Significant FR page number include 30 TAC
Deterioration where document Sections
Applicability for begins]. 116.164(a)(3),
Greenhouse Gases (a)(4), (a)(5), and
Sources. (b).
Section 116.169................ Greenhouse Gases 3/26/2014 11/10/2014 [Insert The PSD SIP does NOT
Program FR page number include 30 TAC
Transitions. where document Section 116.169(b).
begins]. The PSD SIP includes a
letter from the TCEQ
dated January 13,
2014, regarding the
TCEQ's authority to
administer EPA-issued
GHG PSD permits.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter F--Standard Permits
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 116.610................ Applicability...... 3/26/2014 11/10/2014 [Insert 30 TAC Section
FR page number 116.610(b) is SIP-
where document approved as adopted
begins]. by the State as of 11/
20/2002.
The SIP does NOT
include 30 TAC
Section 116.610(d).
Section 116.611................ Registration to Use 3/26/2014 11/10/2014 [Insert 30 TAC Section
a Standard Permit. FR page number 116.611(b) is SIP-
where document approved as adopted
begins]. by the State as of 11/
20/2002.
The SIP does NOT
include 30 TAC
Section
116.611(c)(3),
(c)(3)(A), and
(c)(3)(B).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 122--Federal Operating Permits
----------------------------------------------------------------------------------------------------------------
Subchapter B--Permit Requirements
----------------------------------------------------------------------------------------------------------------
Division 2--Applicability
----------------------------------------------------------------------------------------------------------------
Section 122.122................ Potential to Emit.. 3/26/2014 11/10/2014........ The SIP does NOT
[Insert FR page include 30 TAC
number where Section
document begins]. 122.122(e)(3),
(e)(3)(A), or
(e)(3)(B).
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
[[Page 66641]]
EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable geographic State submittal/ EPA approval
Name of SIP provisions or nonattainment area effective date date Comments
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* * * * * * *
Commitment Letter from the Statewide............ December 2, 2013 11/10/2014 Clarifies that the
TCEQ regarding regulation of [Insert FR page TCEQ has the
PSD pollutants into the number where authority under the
future. document Texas Clean Air Act
begins]. to apply the Texas
PSD program to all
pollutants newly
subject to
regulation,
including non-NAAQS
pollutants into the
future.
Clarification Letter from the Statewide............ January 13, 2014 11/10/2014 Clarifies that the
TCEQ regarding authority to [Insert FR page TCEQ has the general
administer EPA issued GHG PSD number where authority to
permits. document administer EPA
begins]. issued GHG PSD
permits. Also
clarifies that the
TCEQ has authority
to process and issue
any and all
subsequent PSD
actions relating to
EPA issued GHG PSD
permits.
Clarification Letter from the Statewide............ May 30, 2014.... 11/10/2014 Clarifies the
TCEQ regarding Judicial [Insert FR page judicial review
Review for PSD Permits. number where process for Texas
document PSD permits.
begins].
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0
3. Section 52.2303 is amended by adding paragraph (a)(1)(xi) to read as
follows.
Sec. 52.2303 Significant deterioration of air quality.
(a) * * *
(1) * * *
(xi) November 10, 2014 (as revised by the Texas Commission on
Environmental Quality on March 24, 2014, and submitted on April 16,
2014, and further clarified in letters dated December 2, 2013, January
13, 2014, and May 30, 2014) to address PSD permitting requirements of
GHG emissions for major sources and modifications required to obtain
PSD permits because of emissions of pollutants other than GHGs
promulgated by EPA on June 3, 2010.
* * * * *
[FR Doc. 2014-26314 Filed 11-7-14; 8:45 am]
BILLING CODE 6560-50-P