[Federal Register Volume 79, Number 62 (Tuesday, April 1, 2014)]
[Rules and Regulations]
[Pages 18183-18190]
[FR Doc No: 2014-07127]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0191; FRL-9908-27-Region 6]

Approval and Promulgation of Implementation Plans; Texas;
Revisions to the Minor New Source Review (NSR) State Implementation
Plan (SIP); Types of Standard Permits, State Pollution Control Project
Standard Permit and Control Methods for the Permitting of Grandfathered
and Electing Electric Generating Facilities

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving several
revisions to the Texas State Implementation Plan (SIP) related to the
Texas Minor New Source Review (NSR) Standard Permits (SP) Program.
First, EPA is approving revisions submitted by the Texas Commission on
Environmental Quality (TCEQ, or Commission) on January 3, 2000, and
March 11, 2011, expanding the Texas SP Program to include the Rule
Standard Permit (Rule SP). The EPA is also approving a revision to the
Texas SIP submitted by the TCEQ on February 1, 2006, for a specific
Rule SP, the Rule Standard Permit for Pollution Control Projects (Rule
SP for PCP) as meeting the requirements for a Minor NSR SIP revision.
Finally, because EPA is approving the Rule SP for PCP, EPA is also
approving a severable portion of the January 3, 2000, submittal
concerning the Texas Senate Bill 7 (SB7) permitting program for
grandfathered and electing electric generating facilities (EGFs). All
of the Texas SB7 EGFs permitting program provisions have been approved
as part of the Texas NSR SIP except for this severable portion. This
severable portion allowing for the use of the Rule SP for PCP for
permitting of collateral emission increases is being approved as
meeting the requirements for a Minor NSR SIP revision. EPA is approving
these actions under section 110 of the Federal Clean Air Act (the Act
or CAA) through a direct final rulemaking.

DATES: This rule is effective on June 2, 2014 without further notice,
unless EPA receives relevant adverse comment by May 1, 2014. If EPA
receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2014-0191, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions.
     Email: Ms. Adina Wiley at<EMAIL_ADDRESS>Please also
send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Mail or delivery: Ms. Adina Wiley, Air Permits Section
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2014-0191. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or email, if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment along with any disk or CD-ROM
submitted. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters and any form of encryption and should be free of any
defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy

location (e.g., copyrighted material), and some may not be publicly
available at either location (e.g., CBI). To inspect the hard copy
materials, please schedule an appointment with the person listed in the
FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at
214-665-7253.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett (6PD-R), Air Permits
Section, telephone<PHONE_NUMBER>; email<EMAIL_ADDRESS>Ms.
Adina Wiley (6PD-R), Air Permits Section, telephone<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``our,''
and ``us'' refers to EPA.

Table of Contents

I. Overview of State Submittals
    A. 30 TAC Section 116.601(a)(1): Types of Standard Permits
    B. 30 TAC Section 116.617: State Pollution Control Project
Standard Permit
    C. 30 TAC Section 116.911(a)(2): Control Method for
Grandfathered and Electing Electric Generating Facilities
II. Evaluation of State Submittals
    A. 30 TAC Section 116.601(a)(1): Types of Standard Permits
    B. 30 TAC Section 116.617: State Pollution Control Project
Standard Permit
    C. 30 TAC Section 116.911(a)(2): Control Method for
Grandfathered and Electing Electric Generating Facilities
    D. CAA Section 110(l) Analysis
III. Final Action
IV. Statutory and Executive Order Reviews

I. Overview of State Submittals

    EPA is approving through direct final action revisions to the Texas
Minor NSR Program, related to the Texas SP Program, which were
submitted on January 3, 2000; February 1, 2006; and March 11, 2011, and
are summarized below. The effect of this direct final action will be to
approve into the Texas Minor NSR SIP the provisions for the adoption
and development of the Rule SP, the specific Rule SP for PCP, and a
provision allowing for the use of the Rule SP for PCP for grandfathered
and electing electric generating facilities. The approval of the
provisions for the adoption and development of Rule SP brings this
category of SP under the umbrella provisions of the Texas Minor NSR SIP
SP Program, ensuring that Rule SP meet all the requirements of the Act
for Minor NSR permits. As discussed more fully in Sections I.B and II.B
of this notice, we recognize that the TCEQ has recently promulgated a
Non-Rule SP for PCP to replace the Rule SP for PCP. Despite the
replacement of the Rule SP for PCP with the Non-Rule SP for PCP, the
TCEQ has not withdrawn the Rule SP for PCP from our consideration.
Therefore, we are acting on it today. Additionally, our action today is
responsive to the March 26, 2012, Fifth Circuit Court of Appeals
decision to vacate and remand our September 15, 2010 disapproval of the
Rule SP for PCP, as amended by the Court's order of February 21, 2014,
directing EPA to take final action on this submittal by May 19,
2014.1 2
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    \1\ Luminant Generation Co., LLC v. EPA, 675 F 3d 917 at 922
(5th Cir. 2012) (hereinafter Luminant).
    \2\ Order on Motion to Amend and Enforce Judgment, Luminant
Generation Co. v. EPA, No. 10-60891 (Fifth Cir. Feb. 21, 2014),
amending Luminant.
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A. 30 TAC Section 116.601(a)(1): Types of Standard Permits

    Under state law, the Texas Standard Permits (SP) Program at 30 TAC
Chapter 116, Subchapter F, is a component of the Texas Minor NSR
Program. A SP under the Texas Minor NSR Program is not a case-by-case
Minor NSR permit, but rather is a streamlined mechanism with all
permitting requirements for construction and operation of a certain
source category. Within the Texas SP Program, the TCEQ has the ability
to develop and implement two types of Standard Permits--Rule Standard
Permits (Rule SP) and Non-Rule Standard Permits (Non-Rule SP). These
two categories of SP are identified at 30 TAC Section 116.601(a). The
Non-Rule SP and the general provisions applicable to all SP are already
approved as part of the Texas Minor NSR SIP. We are approving into the
Texas Minor NSR SIP portions of two revisions to the Texas SIP
submitted on January 3, 2000, and March 11, 2011, pertaining to the
Rule SP. Specifically, we are approving 30 TAC Section 116.601(a)(1) as
initially adopted on December 16, 1999, and submitted as a revision to
the Texas SIP on January 3, 2000, which addresses the development of
Rule SP. Additionally, we are approving a non-substantive revision to
30 TAC Section 116.601(a)(1) adopted on February 9, 2011, and submitted
as a revision to the Texas SIP on March 11, 2011. EPA has taken no
action to date on the development of Rule SP at 30 TAC Section
116.601(a)(1).\3\ Therefore, our action approves the initial adoption
and submittal on January 3, 2000, and the revisions submitted on March
11, 2011, addressing the development and implementation of Rule SP.
Further, our action today approves the general provisions at 30 TAC
Sections 601, 604, 605, 606, 610, 611, 614 and 615 pertaining to all SP
as applicable to the Rule SP as well as the Non-Rule SP. With today's
action, the category of Rule SP will now become part of the Texas Minor
NSR SIP.
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    \3\ EPA approved the provision at 30 TAC Section 116.601(a)(2)
regarding the development of Non-Rule SP in a separate rulemaking.
See 68 FR 64543, November 14, 2003.
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B. 30 TAC Section 116.617: State Pollution Control Project Standard
Permit

    The Texas State Pollution Control Project Standard Permit (referred
to as the SP for PCP) before us for SIP action is a Rule SP that must
meet the requirements of 30 TAC Section 116.601(a)(1), which we are
also approving today as described above. The Rule SP for PCP at 30 TAC
Section 116.617 is a component of Texas's broader SP Program, which
originated in 1994.
    The Rule SP for PCP authorizes projects undertaken voluntarily, or
as required by any federal or state statute or rule, that reduce or
maintain currently authorized air emission rates for facilities
authorized by a NSR permit, Standard Permit, or Permits by Rule, and
that may have associated Minor NSR collateral emission increases in
other regulated pollutants.4 5 On April 22, 1994, Texas
adopted a regulation at 30 TAC Section 116.617 that was a Rule SP
applicable to pollution control projects for any regulated pollutant.
On January 27, 2006, Texas repealed the previously submitted Rule SP
for PCP and adopted a new Rule SP for PCP that is limited to Minor NSR
only. Texas adopted the new Rule SP for PCP to be consistent with
federal law after the D.C. Circuit limited the use of pollution control
projects to Minor NSR. New York v. EPA, 413 F.3d 3, 40-42 (D.C. Cir.
2005). On February 1, 2006, Texas submitted the newly adopted Rule SP
for PCP found at 30 TAC Section 116.617, among other provisions, to the
EPA for approval into the Texas SIP.\6\ On

September 23, 2009, EPA proposed to disapprove revisions to the Texas
SIP, including the Rule SP for PCP at 30 TAC Section 116.617, on the
basis that the Rule SP for PCP did not meet the requirements for a
Minor NSR SIP revision. 74 FR 48467, 48471. EPA finalized our
disapproval of the Rule SP for PCP on September 15, 2010. See 75 FR
56424.
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    \4\ See 30 TAC Section 116.617(a)(1) describing the scope and
applicability of the Rule SP for PCP as adopted on January 27, 2006
by the State of Texas and submitted as a revision to the Texas SIP
on February 1, 2006. See also the TCEQ Response to Comments provided
in the preamble to the rule adoption at 31 TexReg 529, January 27,
2006.
    \5\ See Luminant, 675 F.3d at 922 n. 3 (``although the projects
by definition reduce or maintain emissions of the primary pollutant,
they have the potential to cause incidental increases in the
emissions of other regulated pollutants.''
    \6\ The February 1, 2006, SIP submittal also included amendments
to 30 TAC Sections 116.610(a) and 116.610(b). EPA disapproved 30 TAC
Sections 116.610(a) and (b) in our September 15, 2010 disapproval of
the Rule SP for PCP. See 75 FR 56424. EPA consented to vacatur of
our disapproval of 30 TAC Sections 116.610(a) and (b), and on March
26, 2012, the Fifth Circuit Court of Appeals vacated our disapproval
of those two provisions, In response to the Court's vacatur and
remand, EPA separately finalized approval of 30 TAC Sections
116.610(a) and (b) on February 14, 2014. See 79 FR 8861.
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    Upon finalization of our disapproval, several parties (Luminant
Generation Company, L.L.C.; Oak Grove Management Company, L.L.C.; Big
Brown Power Company, L.L.C.; Luminant Mining Company, L.L.C.; Sandow
Power Company, L.L.C.; Texas Association of Business; Texas Association
of Manufacturers; Texas Oil & Gas Association; Chamber of Commerce of
the United States of America; and the State of Texas) appealed our
disapproval to the Fifth Circuit Court of Appeals.
    Prior to a ruling by the Fifth Circuit Court of Appeals, the TCEQ
conducted rulemaking to revise the Rule SP for PCP at 30 TAC Section
116.617 and issued pursuant to the Texas Minor NSR SIP, a new Non-Rule
SP for PCP to replace the Rule SP for PCP at 30 TAC Section 116.617. On
February 9, 2011, TCEQ adopted, without submitting for SIP approval,
revisions to the Rule SP for PCP at 30 TAC Section 116.617. Those new
non-SIP provisions are codified at 30 TAC Section 116.617(a)(4) and
(a)(5), and provide that ``no new or modified registrations will be
accepted and no existing registrations will be renewed'' under the Rule
SP for PCP ``on or after March 3, 2011.'' See 36 TexReg 1323, February
25, 2011. Additionally, the Non-Rule SP for PCP issued on February 9,
2011, that became part of the Texas Minor NSR SIP immediately upon its
effective date of March 3, 2011, requires at sections (1)(D)(i)-(iii)
that all Rule SP for PCP authorized as of March 3, 2011, must be
converted to a Non-Rule SP for PCP no later than the ten-year renewal
anniversary of the authorization.\7\ Therefore, from March 3, 2011,
forward, under the Texas SIP, no source can register for a new Rule SP
for PCP at 30 TAC Section 116.617, and registrants for the existing
Rule SP for PCP must use for revision and renewal purposes, the Non-
Rule SP for PCP which the TCEQ developed pursuant to the Texas SIP at
30 TAC Sections 116.601(a)(2) and 116.603. 36 TexReg 2305, February 25,
2011. Because a SP must be renewed every 10 years pursuant to the SIP-
approved provisions at 30 TAC Section 116.604, all PCPs currently
authorized under a Rule SP for PCP are required by the Texas Minor NSR
SIP to be renewed and comply with the Non-Rule SP for PCP no later than
March 3, 2021. Effectively, the SIP Non-Rule SP for PCP creates a
sunset date beyond which the Rule SP for PCP will be unavailable.
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    \7\ The State's summary document explains that ``This new non-
rule standard permit replaces the existing 30 TAC Sec.  116.617 for
authorization of new pollution control projects (PCP).'' Air Quality
Standard Permit For Pollution Control Projects Summary Document,
Section II--Explanation and Background of Air Quality Standard
Permit (March 10, 2011), available at http://www.tceq.state.tx.us/permitting/air/announcements/nsr-announce-3-10-11.html.
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    On March 26, 2012, the Fifth Circuit Court of Appeals granted the
petition for review, vacated our disapproval of the Rule SP for PCP,
and remanded the matter back to EPA for further review. Luminant, 675 F
3d 917. The ruling did not address the changes Texas had made to the
Rule SP for PCP but not submitted for SIP approval, including the date
limitations Texas added to the Rule SP for PCP. Nor did the decision
address the availability of the SIP-approved Non-Rule SP for PCP as a
replacement for the Rule SP for PCP and the mechanism to obtain federal
authorization for PCP in Texas.\8\ The effect of the ruling was to put
back in front of EPA for review and consideration as a revision to the
Texas SIP the Rule SP for PCP as submitted on February 1, 2006. The
Fifth Circuit issued an Order on February 21, 2014, instructing EPA to
issue a final rule regarding the Rule SP for PCP by May 19, 2014.
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    \8\ On remanding the case to EPA, the court noted as follows
``It is difficult to conceive, and the EPA has not suggested, how it
could disapprove the PCP Standard Permit under the appropriate
statutory factors . . . when pressed at oral argument, the EPA was
unable to identify any legal deficiencies with the PCP Standard
Permit other than its supposed failure to meet . . . requirements
that today we hold unlawful--despite the half decade the EPA has had
to evaluate it. Nevertheless, we defer to the Agency to evaluate
Texas's regulations in light of the proper CAA standards.'' Id. At
932 n. 12.
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    Our action today is confined to the approval of the Rule SP for PCP
submitted on February 1, 2006, at 30 TAC Section 116.617, combined with
the approval of the Rule SP as an available type of SP, as meeting the
Minor NSR SIP requirements consistent with the Fifth Circuit decision
regarding the Rule SP for PCP as a Minor NSR program.\9\ Today's action
reflects EPA's evaluation of the Texas regulations and its conclusion
that the Texas rules are consistent with the requirements of the CAA.
EPA's approval of the Rule SP for PCP into the Texas SIP will not
provide federal authorization for projects registered under the Rule SP
for PCP before it was SIP-approved. CAA Section 110(i); 40 CFR 51.105;
see also, Train v. Natural Res. Def. Council, Inc., 421 U.S. 60 (1975);
Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1034 (7th Cir. 1984);
United States v. Ford Motor Co., 814 F.2d 1099, 1102-03 (6th Cir.
1987); Sierra Club v. TVA, 430 F.3d 1337, 1347 (11th Cir. 2005).\10\
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    \9\ The Fifth Circuit has recognized that the Rule SP for PCP
``applies only to minor NSR.'' 675 F.3d at 922.
    \10\ We state this to clarify any potential confusion created by
statements made in the Fifth Circuit February 21, 2014 Order on
Motion to Amend and Enforce Judgment that seem to imply that
authorizations under the Rule SP for PCP obtained prior to EPA's SIP
approval ``may in fact be valid under the Clean Air Act'' upon
approval by EPA. Luminant et al., v. EPA, Order on Motion to Amend
and Enforce Judgement, Case No. 10-60891, at 9 (5th Cir. Feb. 21,
2014).
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C. 30 TAC Section 116.911(a)(2): Control Method for Grandfathered and
Electing Electric Generating Facilities

    We are approving a portion of revisions to the Texas SIP submitted
on January 3, 2000, regarding the application and permitting procedures
for grandfathered and electing electric generating facilities (EGFs).
Specifically, we are approving 30 TAC Section 116.911(a)(2)--Control
method. Background information about the permitting of grandfathered
and electing EGFs in Texas subject to Texas Senate Bill 7 (SB 7) is
available in EPA's partial approval and partial disapproval of the
Texas provisions for permitting grandfathered and electing EGFs on
January 11, 2011. See 76 FR 1525.
    As explained more fully in EPA's January 11, 2011 notice, EPA
partially approved and partially disapproved the Texas provisions for
permitting grandfathered and electing EGFs, referred to as the Texas SB
7 permitting program. 76 FR 1525. Specifically, EPA partially
disapproved the provisions for control methods for grandfathered
electric generating units at 30 TAC Section 116.911(a)(2) because they
provided that a source could obtain coverage under the Rule SP for PCP
at 30 TAC Section 116.617, which we had disapproved on September 15,
2010. Upon finalization of our partial approval and partial
disapproval, several parties (Luminant Generation Company, L.L.C.; Big
Brown Power Company, L.L.C.; and the State of Texas) filed a petition
for review of EPA action to the Fifth Circuit Court of Appeals. On
September 12, 2012, EPA requested the Fifth Circuit vacate our
disapproval and remand the provision back to EPA for further
proceedings. On October 4, 2012, the Fifth Circuit granted our request
by vacating our disapproval of

30 TAC Section 116.911(a)(2) and remanded the matter back to EPA.
    Our approval today of 30 TAC Section 116.601(a)(1), into the Texas
SIP, results in the application of the SIP's general provisions for SP
applying now to Rule SP as well as Non-Rule SP. Additionally, our
evaluation today is that the specific Rule SP for PCP at 30 TAC Section
116.617, as submitted on February 1, 2006, when combined with the
general provisions for SP, satisfies the requirements for Minor NSR and
our prior basis for disapproval of 30 TAC Section 116.911(a)(2) is no
longer supportable. Accordingly, today's direct final action approving
30 TAC Sections 116.601(a)(1) and 116.617 as part of the Texas Minor
NSR SIP also approves 30 TAC Section 116.911(a)(2) as part of the Texas
SB7 permitting program and the Minor NSR SIP consistent with the Fifth
Circuit remand and vacatur of the Rule SP for PCP.
    The following table identifies the sections addressed in today's
direct final action.\11\
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    \11\ Note that the TCEQ also submitted other, non-related
revisions to the Texas SIP in the rulemakings identified in the
Table. The accompanying Technical Support Document (TSD) for this
direct final action identifies each submitted provision and the date
of EPA's action on the provision. The TSD is available in the
rulemaking docket.

                     Table 1--Summary of the Individual Revisions to Each Section Evaluated
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                                                    Date submitted to
            Section                    Title               EPA          Adopted by state         Comments
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                                                   Chapter 116
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                                                  Subchapter F
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30 TAC Section 116.601.........  Types of Standard  January 3, 2000..  December 16, 1999  New provision at 30
                                  Permits.                                                 TAC Section
                                                                                116.601(a)(1)
                                                                                establishes the Rule
                                                                                SP as one of two
                                                                                types of SP available
                                                                                in the Texas Minor
                                                                                NSR Program.
                                                    March 11, 2011...  February 9, 2011.  Revisions to 30 TAC
                                                                                Section 116.601(a)(1)
                                                                                to remove cross-
                                                                                references from the
                                                                                definition of the
                                                                                Rule SP.
30 TAC Section 116.617.........  State Pollution    February 1, 2006.  January 11, 2006.  Repeal and replacement
                                  Control Project                                          of the Rule SP for
                                  Standard Permit.                                         PCP at 30 TAC Section
                                                                                116.617.
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                                                  Subchapter I
----------------------------------------------------------------------------------------------------------------
30 TAC Section 116.911(a)(2)...  Control method...  January 3, 2000..  December 16, 1999  Requires the use of
                                                                                the Rule SP for PCP
                                                                                at 30 TAC 116.617.
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II. Evaluation of State Submittals

A. 30 TAC Section 116.601(a)(1): Types of Standard Permits

    EPA approved Texas' regulations for Non-Rule SP in 30 TAC Chapter
116, Subchapter F on November 14, 2003 (68 FR 64543) as meeting the
federal requirements for Minor NSR.\12\ When the Texas Minor NSR SP
Program began in 1994, all SPs were developed using the State's
rulemaking process under the Texas Government Code, Chapter 2001,
Subchapter B. To streamline the process for development and issuance of
SPs within the Texas Minor NSR Program, Texas Senate Bill 766 of the
76th Legislature directed the Texas Natural Resource Conservation
Commission to develop an alternate process whereby the SPs could be
developed and implemented without going through the formal rule-making
process.\13\ On January 3, 2000, the TCEQ submitted a SIP revision that
created the two types of SP that exist today in the Texas Minor NSR
Program--the Rule SP and the Non-Rule SP. Specifically, this revision
to the Texas SIP included:
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    \12\ EPA did not approve the Rule SP at 30 TAC Section
116.601(a)(1) or the specific Rule SP for PCP at 30 TAC Section
116.617, the Rule SP for Oil and Gas Facilities at 30 TAC 116.620,
or the Rule SP for Municipal Solid Waste Landfills at 30 TAC Section
116.621 in the November 14, 2003 action. See 68 FR 64543, at 64547.
Since that time, EPA has approved the Rule SP for Oil and Gas
Facilities at 30 TAC Section 116.620 on February 14, 2014 at 79 FR
8861. The TCEQ repealed the Rule SP for Municipal Solid Waste
Landfills at 30 TAC Section 116.621 on March 1, 2006.
    \13\ The Texas Natural Resource Conservation Commission is the
predecessor agency to the TCEQ, hereafter referred to as the TCEQ.
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     New 30 TAC Section 116.601(a)(1) which identified those SP
that were adopted through rulemaking in accordance with Texas
Government Code, Chapter 2001, Subchapter B. (Rule Standard Permits or
Rule SP).
     New 30 TAC Section 116.601(a)(2) which identified those SP
that were issued after a public notice and comment period in accordance
with 30 TAC Section 116.603 (relating to the Public Participation in
Issuance of Standard Permits) (Non-Rule Standard Permits or Non-Rule
SP) rather than through rulemaking.\14\
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    \14\ On November 14, 2003, EPA fully approved the Non-Rule
Standard Permit provisions, including the identification of the Non-
Rule Standard Permits at 30 TAC Sections 116.601(a)(2). See 68 FR
64543. Thereafter, upon TCEQ issuance of a Non-Rule SP, the specific
Non-Rule SP automatically becomes part of the Texas Minor NSR SIP.
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    Since the initial adoption of 30 TAC Section 116.601(a)(1), the
TCEQ has adopted one revision to the identification of Rule SPs and
submitted this amendment to the Texas SIP on March 11, 2011. This non-
substantive revision removes unnecessary cross-references in the Rule
SP regulation in the Texas SP program for the Rule SP for PCP and the
Rule SP for Oil and Gas Facilities. This non-substantive revision also
removes the cross-reference to the repealed Rule SP for Municipal Solid
Waste Landfills. Our direct final approval addresses the initial
adoption of 30 TAC 116.601(a)(1), as revised through the March 11,
2011, SIP submittal.
    EPA finds that the 30 TAC Section 116.601(a)(1) as revised through
the March 11, 2011, SIP submittal is an integral part of the Texas
Minor NSR program and approves it as part of the Texas Minor NSR SIP.
This provision enables the Texas SIP to meet the requirements of 40 CFR
51.160 by clearly identifying the scope of the Texas SP Program and
identifying the

legally enforceable procedures the TCEQ will use in developing Rule
SPs. As previously noted, our approval also means that the general
provisions at 30 TAC Sections 601, 604, 605, 606, 610, 611, 614, and
615 approved into the Texas Minor NSR SIP in our November 14, 2003
action, now apply to the Rule SP in addition to Non-Rule SP.
Additionally, 30 TAC Section 116.601(a)(1) satisfies the Minor NSR
public notice requirements at 40 CFR 51.161 by specifying that a Rule
SP is developed in accordance with Texas Government Code, Chapter 2001,
Subchapter B. This is the rulemaking process that TCEQ uses in
developing any revision to the Texas SIP; under this Code, when
developing a Rule SP the TCEQ is required to publish notice of the
proposed Rule SP in the Texas Register. TCEQ is also required to
provide for 30 days notice on the proposed Rule SP.\15\
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    \15\ As discussed previously, a SP is not a case-by-case permit.
Therefore, the Rule SP goes through public comment during the
development process, but does not have separate notice and comment
requirements for each authorization of the Rule SP.
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B. 30 TAC Section 116.617: State Pollution Control Project Standard
Permit

    Federal regulations at 40 CFR 51.160 require a Minor NSR program to
include legally enforceable procedures that enable the permitting
authority to ensure that no construction of a facility or modification
will cause a violation of applicable portions of the control strategy
or interfere with attainment or maintenance of a NAAQS. The Rule SP for
PCP at 30 TAC Section 116.617 submitted on February 1, 2006, is a
component of the Texas Minor NSR program. 30 TAC Section 116.610(b)
limits the Texas SP Program to Minor NSR and provides that a SP cannot
be used to authorize a project that constitutes a new major stationary
source or major modification. Therefore, the Rule SP for PCP can be
used at minor sources, or at major sources taking a Minor NSR action.
But in all cases, the Rule SP for PCP will not authorize emission
increases that would have triggered Major NSR review under either the
SIP-approved Texas Prevention of Significant Deterioration or
Nonattainment NSR programs. As discussed above and in Section I.B. and
as recognized by the Fifth Circuit, Luminant, 675 F.3d at 922, the
applicability of the Rule SP for PCP is clearly limited to Minor NSR
and EPA finds that the provisions at 30 TAC Section 116.617, in
conjunction with the already-SIP approved general provisions for SP,
satisfy the federal requirements for a Minor NSR program.
    The Rule SP for PCP that we are acting on now is a Rule SP as
identified in 30 TAC Section 116.601(a)(1). The TCEQ used the public
notice procedures found in Texas Government Code, Chapter 2001,
Subchapter B to develop and accept comments on the program.
Consequently, the development of the Rule SP for PCP provided public
notice that satisfies the requirements for Minor NSR public notice at
40 CFR 51.161. Furthermore, because we are approving into the Texas
Minor NSR SIP, 30 TAC Section 116.601(a)(1), all of the SP general
requirements previously approved into the Texas SIP in 2003 as
applicable for the Non-Rule SP now apply to the Rule SP for PCP. The
registrant is required at 30 TAC Section 116.615(1) to protect public
health and welfare. Additionally, sources seeking authorization via the
Rule SP for PCP are required to submit a SP registration to TCEQ under
30 TAC Section 116.611, which must include information regarding the
proposed project to be authorized (e.g., emission estimates,
description of project and related process, description of equipment
being installed). 30 TAC Section 116.615 includes general conditions
that must be met by sources authorized by a Rule SP, including the Rule
SP for PCP; these general conditions specifically require that the
sources authorized under a SP comply with ``all rules, regulations, and
orders of the commission issued in conformity with the [Texas Clean Air
Act].'' See 30 TAC Section 116.615(10). In the case where more than one
state or federal rule, regulation, or permit condition is applicable,
the source must comply with the most stringent requirement or limit.
See 30 TAC Section 116.615(10). Therefore, the conditions of the Rule
SP for PCP in no way supersede or relax other applicable state or
federal requirements. In addition, 30 TAC Sections 116.610(a), 116.615,
and 116.617(b) require that sources authorized under the Rule SP for
PCP submit appropriate documentation to demonstrate compliance with
state and federal provisions, including New Source Performance
Standards and National Emission Standards for Hazardous Air Pollutants.
Regarding testing, recordkeeping, reporting and monitoring provisions,
30 TAC Section 116.615 requires recordkeeping and monitoring sufficient
to demonstrate compliance with the Rule SP for PCP and all other
requirements for SP. This means the sources authorized under a Rule SP
for PCP must maintain records/testing/monitoring/etc sufficient to
demonstrate status as Minor NSR and compliance with all federal and
state provisions, as discussed above. The Rule SP for PCP only
authorizes collateral emission increases of regulated pollutants from
permitted projects that otherwise ``reduce or maintain currently
authorized emission rates.'' Additionally, 30 TAC Section
116.617(a)(3)(B) provides that the Rule SP for PCP cannot be used to
authorize the installation of emission control equipment or the
implementation of a control technique that the TCEQ Executive Director
has determined has the potential to exceed a NAAQS until the potential
exceedances are addressed. Based on all of these provisions, EPA
concludes that the Rule SP for PCP contains legally enforceable
procedures to prevent interference with a NAAQS.
    As previously discussed, EPA disapproved the Rule SP for PCP on
September 15, 2010. Prior to the ruling by the Fifth Circuit Court of
Appeals, the TCEQ conducted rulemaking to revise the Rule SP for PCP at
30 TAC Section 116.617 and to also issue a new Non-Rule SP for PCP that
automatically became part of the Texas Minor NSR SIP upon its effective
date, to replace the Rule SP for PCP at 30 TAC Section 116.617.
Therefore, from March 3, 2011, forward, pursuant to the Texas SIP,
sources seeking authorization for a PCP must register under the Non-
Rule SP for PCP and all renewals and revisions to currently authorized
Rule SP for PCP must be done under the Non-Rule SP for PCP. The Non-
Rule SP for PCP became effective on March 3, 2011, and was developed by
TCEQ according to the requirements of 30 TAC Sections 116.601(a)(2) and
116.603. 36 TexReg 2305, February 25, 2011. Because the method for
issuing the Non-Rule SP for PCP was approved by EPA into the Texas SIP
in 2003, the Non-Rule SP for PCP issued by TCEQ is now part of the
Texas Minor NSR SIP.
    The TCEQ has not submitted the revisions to 30 TAC Section 116.617,
the Rule SP for PCP, adopted on February 9, 2011, as revisions to the
Texas SIP. Therefore, EPA is only approving as a revision to the Texas
Minor NSR SIP the Rule SP for PCP at 30 TAC Section 116.617 as
initially adopted and submitted February 1, 2006. The February 9, 2011,
revisions to 30 TAC Section 116.617(a)(4) and (a)(5) establishing date
and other limitations are not federally enforceable as SIP
requirements. However, as previously noted, the issuance of the Non-
Rule SP for PCP created the SIP-approved mechanism for obtaining
initial, revised and renewal authorizations for PCP.

C. 30 TAC Section 116.911(a)(2): Control Method for Grandfathered and
Electing Electric Generating Facilities

    EPA previously disapproved 30 TAC Section 116.911(a)(2) because it
allowed a source to obtain authorization through 30 TAC Section
116.617. However, we requested the Court to vacate that disapproval and
remand to EPA for further consideration based on the Fifth Circuit
ruling on EPA's disapproval of 30 TAC Section 116.617. As discussed
previously in Section II.B of this direct final action, EPA now
approves it as a SIP revision, based on today's finding that 30 TAC
Section 116.617 is an approvable component of the Texas Minor NSR
program. By extension, the provision in 30 TAC Section 116.911(a)(1)
allowing sources to obtain authorization through 30 TAC Section 116.617
is also an approvable provision of the Texas Minor NSR program, and
therefore approvable as submitted on January 3, 2000.

D. CAA Section 110(l) Analysis

    Under Section 110(l) of the CAA, the regulations submitted as a SIP
revision adopting and implementing the Texas SP Program, and
specifically the Rule SP for PCP, must meet the procedural requirements
of Section 110(l) by demonstrating that the State followed all
necessary procedural requirements such as providing reasonable notice
and public hearing of the SIP revision. Additionally, the SIP revision
must demonstrate that the adopted rules will not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA. We find that
the TCEQ satisfied all requirements pursuant to Section 110(l).
    The regulation of minor sources is a requirement of Section
110(a)(2)(C) of the CAA and EPA's regulations at 40 CFR 51.160-51.164.
As discussed in this direct final action and the accompanying TSD, EPA
finds that the revisions to the Texas SP Program establishing the type
of SP termed the Rule SP submitted on January 3, 2000 and revised on
March 11, 2011; the Rule SP for PCP submitted on February 1, 2006; and
the provision allowing for the use of the Rule SP for PCP as a control
method for Texas SB7 grandfathered and electing EGFs as submitted on
January 3, 2000; satisfy the requirements for Minor NSR. The Rule SP
for PCP when combined with the already SIP-approved general provisions
that apply to all SP, includes adequate provisions to provide legally
enforceable procedures to ensure protection of the control strategy and
any applicable NAAQS. The Texas Minor NSR SIP SP general provisions,
and specifically the Rule SP for PCP, also contain sufficient
safeguards to prevent circumvention of Major NSR permitting
requirements. The Rule SP for PCP only authorizes collateral emission
increases of regulated pollutants from permitted projects that would
otherwise ``reduce or maintain currently authorized emissions rates.''
Additionally, 30 TAC Section 116.617(a)(3)(B) provides that the Rule SP
for PCP cannot be used to authorize the installation of emission
control equipment or the implementation of a control technique that the
TCEQ Executive Director has determined has the potential to exceed a
NAAQS until the potential exceedances are addressed. In sum, we find
that the revisions to the Texas SIP adopting and implementing revisions
to the Texas Minor NSR Program for Standard Permits, specifically
provisions for the development of Rule SP and establishment and use of
the Rule SP for PCP, satisfy the requirements of Section 110(l) of the
Act.

III. Final Action

    EPA has made the determination that the revisions to the Texas SIP
submitted on January 3, 2000, February 1, 2006, and March 11, 2011,
which are part of this direct final rulemaking, are approvable because
they were adopted and submitted in accordance with the CAA and EPA
regulations regarding Minor NSR. Therefore, under section 110 of the
Act, and for the reasons stated above, EPA is taking direct final
action to approve the following revisions to the Texas SIP:
     The initial submittal of 30 TAC Section 116.601(a)(1) as a
revision to the Texas SIP on January 3, 2000, and the subsequent
amendments to 30 TAC Section 116.601(a)(1) submitted on March 11, 2011.
     The repeal and replacement of 30 TAC Section 116.617
submitted as a revision to the Texas SIP on February 1, 2006.
     The adoption of 30 TAC Section 116.911(a)(2) submitted as
a revision to the Texas SIP on January 3, 2000.
    EPA is publishing this rule without prior proposal because we view
this as a non-controversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on June 2, 2014
without further notice unless we receive adverse comment by May 1,
2014. If we receive adverse comments, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. In that case, we will address all public comments
on today's notice in a subsequent final rule based on the proposed
rule. We will not institute a second comment period on this action. Any
parties interested in commenting must do so now. Please note that if we
receive adverse comment on an amendment, paragraph, or section of this
rule and if that provision may be severed from the remainder of the
rule, we may adopt as final those provisions of the rule that are not
the subject of an adverse comment.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. 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 CAA;
and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 2, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: March 21, 2014.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS--Texas

0
2. In Sec.  52.2270 (c), the table titled ``EPA APPROVED REGULATIONS IN
THE TEXAS SIP'' is amended by:
0
a. Revising the entries for Sections 116.601 and 116.911.
0
b. Adding a new entry for Section 116.617 immediately after the entry
for Section 116.615.
    The amendments read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                        State approval/
          State citation              Title/subject        submittal     EPA approval date       Explanation
                                                             date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Subchapter F--Standard Permits
----------------------------------------------------------------------------------------------------------------
Section 116.601..................  Types of Standard          2/9/2011  4/1/2014 [Insert FR
                                    Permits.                             page number where
                                                                         document begins].

                                                  * * * * * * *
Section 116.617..................  State Pollution           1/11/2006  4/1/2014 [Insert FR
                                    Control Project                      page number where
                                    Standard Permit.                     document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                               Subchapter I--Electric Generating Facility Permits
----------------------------------------------------------------------------------------------------------------
Section 116.911..................  Electric Generating       5/22/2002  4/1/2014 [Insert FR  Section
                                    Facility Permit.                     page number where    116.911(a)(2) is
                                                                         document begins].    authorized for
                                                                                Minor NSR only.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-07127 Filed 3-31-14; 8:45 am]
BILLING CODE 6560-50-P