[Federal Register Volume 76, Number 184 (Thursday, September 22, 2011)]
[Proposed Rules]
[Pages 58748-58766]
[FR Doc No: 2011-24384]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0638; FRL-9470-4]

Approval and Promulgation of Implementation Plans; Texas;
Infrastructure and Interstate Transport Requirements for the 1997 Ozone
and the 1997 and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to partially approve and partially disapprove
submittals from the state of Texas pursuant to the Clean Air Act (CAA
or Act) that address the infrastructure elements specified in the CAA
section 110(a)(2), necessary to implement, maintain, and enforce the
1997 8-hour ozone and 1997 and 2006 fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS or
standards). We are proposing to find that the current Texas State
Implementation Plan (SIP) meets the infrastructure requirements for the
1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS at
110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of
(C), (D)(ii) and (J). We are proposing to find that the current Texas
SIP does not meet the infrastructure requirements for the 1997 8-hour
ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2)
for portions of (C), (D)(ii) and (J) because Texas has stated it cannot
issue permits for and does not intend to regulate greenhouse gas (GHG)
emissions. (See letter from Bryan W. Shaw and Greg Abbott to Lisa
Jackson and Al Armendariz, dated August 2, 2010, in the docket for this
rulemaking). EPA is also proposing to partially approve and partially
disapprove SIP revisions submitted by the state of Texas for the
purpose of addressing the ``good neighbor'' provisions of CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 and 2006
PM2.5 NAAQS. These SIP revisions address the requirement
that the Texas SIP have adequate provisions to prohibit air emissions
from adversely affecting another state's air quality through interstate
transport. In this action, EPA is proposing to partially approve and
partially disapprove the provisions of these SIP submissions that
emissions from sources in Texas do not interfere with measures required
in the SIP of any other state under part C of the CAA to prevent
significant deterioration of air quality, with regard to the 1997 8-
hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. The
partial disapproval is again because Texas cannot issue permits for
emissions of GHG. For purposes of the 1997 8-hour ozone NAAQS, EPA is
also proposing to approve SIP revisions that modify the Texas SIP for
Prevention of Significant Deterioration (PSD) to include nitrogen
oxides (NOx) as an ozone precursor. This action is being
taken under section 110 and part C of the Act.

DATES: Comments must be received on or before October 24, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0638, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://www.epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia)
and select ``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at<EMAIL_ADDRESS>Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number<PHONE_NUMBER>.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0638. 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 whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a fee of 15 cents per page for making photocopies
of documents. On the day of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The Texas submittal, which is part of the EPA record, is also
available for public inspection at the State Air Agency listed below
during official business hours by appointment: Texas Commission on
Environmental Quality, Office of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202-2733; telephone<PHONE_NUMBER>; fax
number<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    2. Section 110(a)(1) and (2) Interstate Transport SIP Elements
    3. Revisions to the Texas PSD SIP
    4. Greenhouse Gas (GHG) Component of PSD Programs
    5. PM2.5 SIP Revisions
    D. What elements are required under section 110(a)(2)?
II. What action is EPA proposing?
    A. Section 110(a)(1) and (2)
    B. Why is EPA proposing a partial approval, partial disapproval?
    C. What are the implications of a partial approval, partial
disapproval?
    D. SIP Revisions to 30 TAC 101.1
III. How has Texas addressed the elements of section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What are the National Ambient Air Quality Standards?

    Section 109 of the Act requires EPA to establish NAAQS for
pollutants that ``may reasonably be anticipated to endanger public
health and welfare,'' and to develop a primary and secondary standard
for each NAAQS. The primary standard is designed to protect human
health with an adequate margin of safety, and the secondary standard is
designed to protect public welfare and the environment. EPA has set
NAAQS for six common air pollutants, referred to as criteria
pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, particulate
matter, and sulfur dioxide. These standards present state and local
governments with the minimum air quality levels they must meet to
comply with the Act. Also, these standards provide information to
residents of the United States about the air quality in their
communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
section 110 and other provisions of the Act. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emissions inventories, monitoring
networks, and modeling demonstrations. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the federally enforceable SIP. Another important
aspect of the SIP is to ensure that emissions from within the state do
not have certain prohibited impacts upon the ambient air in other
states through interstate transport of pollutants. This SIP requirement
is specified in section 110(a)(2)(D) of the CAA. Pursuant to that
provision, each state's SIP must contain provisions adequate to
prevent, among other things, emissions that interfere with measures
required to be included in the SIP of any other state to prevent
significant deterioration of air quality in any other state. Such EPA-
approved SIPs protect air quality primarily by addressing air pollution
at its point of origin.

C. What is the background for this rulemaking?

    Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs that provide for the implementation, maintenance, and
enforcement of a new or revised NAAQS within three years following the
promulgation of the NAAQS, or within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the specific infrastructure elements
that must be incorporated into the SIPs, including for example,
requirements for air pollution control measures, and monitoring that
are designed to assure attainment and maintenance of the NAAQS. Table
1, listing all 14 infrastructure elements, is included in Section D of
this proposed rulemaking.\1\ EPA refers to the requirements of section
110(a)(2)(A)-(C), (D)(ii), (E)-(H), and (J)-(M) as the
``infrastructure'' SIPs. Additionally, EPA refers to the requirements
of section 110(a)(2)(D)(i) as the ``interstate transport'' SIPs. EPA
provided separate guidance to states on each type of SIP,
infrastructure and interstate transport, and these actions are on
separate tracks and timelines.
---------------------------------------------------------------------------

    \1\ Two elements identified in section 110(a)(2) are not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the nonattainment area
plan requirements are due pursuant to section 172 of the CAA. These
elements are: (1) Submissions required by section 110(a)(2)(C) to
the extent that subsection refers to a permit program as required in
part D Title I of the CAA and (2) submissions required by section
110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements.
---------------------------------------------------------------------------

1. Section 110(a)(1) and (2) Infrastructure SIP Eelements
    On July 18, 1997, we published new and revised NAAQS for ozone (62
FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of
0.08 parts per million (ppm) to replace the 1-hour standard of 0.12
ppm. For PM we set a new annual and a new 24-hour NAAQS for particles
with an aerodynamic diameter less than or equal to a nominal 2.5
micrometers (denoted PM2.5). The annual PM2.5
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. On October 17,
2006, we published revised standards for PM (71 FR 61144). For
PM2.5 the annual standard of 15 [mu]g/m\3\ was retained and
the 24-hour standard was revised to 35 [mu]g/m\3\. For PM10
the annual standard was revoked and the 24-hour standard (150 [mu]g/
m\3\) was retained. For more information on these standards please see
the 1997 and 2006 Federal Register notices (62 FR 38856, 62 FR 38652,
and 71 FR 61144).
    Thus states were required to submit such SIPs for the 1997 8-hour
ozone and PM2.5 NAAQS to EPA no later than June 2000.\2\
However, intervening litigation over the 1997 8-hour ozone and
PM2.5 NAAQS created uncertainty about how to proceed and
many states did not provide the required ``infrastructure'' SIP
submission for these newly promulgated NAAQS.
---------------------------------------------------------------------------

    \2\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). On September 16, 2009, the EPA Administrator
announced that EPA would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA
proposed to set different primary and secondary ozone standards than
those set in 2008 to provide requisite protection of public health
and welfare, respectively (75 FR 2938). The final reconsidered ozone
NAAQS have yet to be promulgated. This rulemaking does not address
the 2008 ozone standard.
---------------------------------------------------------------------------

    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS. EPA entered into a consent decree with
Earthjustice which required EPA, among other things, to complete a
Federal Register notice announcing EPA's determinations pursuant to
section 110(k)(1)(B) of the Act as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an

extension of the date to complete this Federal Register notice until
March 17, 2008, based upon agreement to make the findings with respect
to submissions made by January 7, 2008. In accordance with the consent
decree, EPA made completeness findings for each state based upon what
the Agency had received from each state as of January 7, 2008. With
regard to the 1997 PM2.5 NAAQS, EPA entered into a consent
decree with Earthjustice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) of the Act as to whether each state
had made complete submissions to meet the requirements of section
110(a)(2) for the 1997 PM2.5 NAAQS by October 5, 2008.
    On March 27, 2008, and October 22, 2008, we published findings
concerning whether states had made the 110(a)(2) submissions for the
1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 62902).
In the March 27, 2008 action, we found that Texas had not made the
necessary submission for ozone. This finding established a 24-month
deadline for the promulgation by EPA of a Federal Implementation Plan
(FIP) addressing these specific SIP elements for ozone, in accordance
with section 110(c)(1) of the Act. On April 4, 2008 the Texas
Commission on Environmental Quality (TCEQ) submitted a letter stating
that Texas has addressed any potential infrastructure issues associated
with the 1997 ozone and PM2.5 NAAQS and fulfilled its
infrastructure SIP obligations. An enclosure to the letter provided
information on Texas SIP provisions supporting the 110(a)(2) elements
for the 1997 ozone and PM2.5 standards. Thus, in the October
22, 2008 action, we found that Texas had made a complete submission
that provides for the basic program elements specified in section
110(a)(2) of the Act necessary to implement the 1997 PM2.5
NAAQS.
    On October 2, 2007, we issued ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division (AQPD),
Office of Air Quality Planning and Standards (OAQPS).\3\ On September
25, 2009, we issued ``Guidance on SIP Elements Required Under Sections
110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards (NAAQS),'' Memorandum also from
William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos
addresses the SIP elements found in 110(a)(2). In each of these
guidance memos, the guidance states that to the extent that existing
SIPs already meet the requirements, states need only certify that fact
to us.
---------------------------------------------------------------------------

    \3\ This and any other guidance documents referenced in this
action are in the docket for this rulemaking.
---------------------------------------------------------------------------

    On November 23, 2009, the TCEQ submitted a letter to fulfill its
infrastructure SIP obligations for the 2006 PM2.5 NAAQS. An
enclosure to the letter provided information on Texas SIP provisions
supporting the 110(a)(2) elements for the 2006 PM2.5
standards. The submittal became complete by operation of law.
    Additional information: EPA is currently acting upon SIPs that
address the infrastructure requirements of CAA section 110(a)(1) and
(2) for ozone and PM2.5 NAAQS for various states across the
country. Commenters on EPA's recent proposals for some states raised
concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on those infrastructure SIP
submissions.\4\ Those commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) Existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for Prevention of
Significant Deterioration programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth. It is important to emphasize that EPA is taking the same
position with respect to these four substantive issues in this action
on the infrastructure SIP submittals for the 1997 8-hour ozone NAAQS
and the 1997 and 2006 PM2.5 NAAQS submissions from Texas.
---------------------------------------------------------------------------

    \4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
---------------------------------------------------------------------------

    EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
these infrastructure SIP submittals for Texas.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the

potential for certain types of deficiencies in existing SIPs, and to
prevent any misunderstanding that it was reapproving any such existing
provisions. EPA's intention was to convey its position that the statute
does not require that infrastructure SIPs address these specific
substantive issues in existing SIPs and that these issues may be dealt
with separately, outside the context of acting on the infrastructure
SIP submission of a state. To be clear, EPA did not mean to imply that
it was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
---------------------------------------------------------------------------

    \5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
---------------------------------------------------------------------------

    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\8\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, EPA notes that not every element of section 110(a)(2) would be
relevant, or as relevant, or relevant in the same way, for each new or
revised NAAQS and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be very
different than what might be necessary for a different pollutant. Thus,
the content of an infrastructure SIP submission to meet this element
from a state might be very different for an entirely new NAAQS, versus
a minor revision to an existing NAAQS.\9\
---------------------------------------------------------------------------

    \7\ See, e.g., Id., 70 FR 25162, at 63--65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section

110(a)(1) and (2), EPA believes that it is appropriate for EPA to
interpret that language in the context of acting on the infrastructure
SIPs for a given NAAQS. Because of the inherent ambiguity of the list
of requirements in section 110(a)(2), EPA has adopted an approach in
which it reviews infrastructure SIPs against this list of elements ``as
applicable.'' In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the purpose
of the submission or the NAAQS in question, would meet each of the
requirements, or meet each of them in the same way. EPA elected to use
guidance to make recommendations for infrastructure SIPs for these
ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS. \10\ Within this guidance
document, EPA described the duty of states to make these submissions to
meet what the Agency characterized as the ``infrastructure'' elements
for SIPs, which it further described as the ``basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance of the standards.'' \11\ As further
identification of these basic structural SIP requirements, ``attachment
A'' to the guidance document included a short description of the
various elements of section 110(a)(2) and additional information about
the types of issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \12\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \13\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
---------------------------------------------------------------------------

    \10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \11\ Id., at page 2.
    \12\ Id., at attachment A, page 1.
    \13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\14\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS.
---------------------------------------------------------------------------

    \14\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T. Harnett, Director, Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
states might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A), and
the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA
did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in existing SIP provisions in the context of the
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance
merely indicated its belief that the states should make submissions in
which they established that they have the basic SIP structure necessary
to implement, maintain, and enforce the NAAQS. EPA believes that states
can establish that they have the basic SIP structure, notwithstanding
that there may be potential deficiencies within the existing SIP. Thus,
EPA's proposals for other states mentioned these issues not because the
Agency considers them issues that must be addressed in the context of
an infrastructure SIP as required by section 110(a)(1) and (2), but
rather because EPA wanted to be clear that it considers these potential
existing SIP problems as separate from the pending infrastructure SIP
actions. The same holds true for this action on the infrastructure SIP
submittals for Texas.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or

maintain the NAAQS, to mitigate interstate transport, or otherwise to
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct
errors in past actions, such as past approvals of SIP submissions.\16\
Significantly, EPA's determination that an action on the infrastructure
SIP submittal is not the appropriate time and place to address all
potential existing SIP problems does not preclude the Agency's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action at a later time. For example, although it may not be
appropriate to require a state to eliminate all existing inappropriate
director's discretion provisions in the course of acting on the
infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among
the statutory bases that the Agency cites in the course of addressing
the issue in a subsequent action.\17\
---------------------------------------------------------------------------

    \15\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \17\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

2. 110(a)(2)(D)(i) Interstate Transport SIP Elements
    Section 110(a)(2)(D)(i) pertains to interstate transport of certain
emissions. On August 15, 2006, EPA issued its ``Guidance for State
Implementation Plan (SIP) Submission to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2006
Guidance). EPA developed the 2006 Guidance to make recommendations to
states for making submissions to meet the requirements of section
110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997
PM2.5 standards. As identified in the 2006 Guidance, the
``good neighbor'' provisions in section 110(a)(2)(D)(i) require each
state to submit a SIP that prohibits emissions that adversely affect
another state in the ways contemplated in the statute. Section
110(a)(2)(D)(i) contains four distinct requirements related to the
impacts of interstate transport. The SIP must prevent sources in the
state from emitting pollutants in amounts which will: (1) Contribute
significantly to nonattainment of the NAAQS in other states; (2)
interfere with maintenance of the NAAQS in other states; (3) interfere
with provisions to prevent significant deterioration of air quality in
other states; and (4) interfere with efforts to protect visibility in
other states.
    On May 1, 2008, we received a SIP revision from the State of Texas
intended to address the requirements of section 110(a)(2)(D)(i) for
both the 1997 8-hour ozone and 1997 PM2.5 standards. On
November 23, 2009 we received a SIP revision \18\ from the State
intended to address the requirements of section 110(a)(2)(D)(i) for the
2006 PM2.5 NAAQS. In this rulemaking, we are addressing only
the requirement that pertains to preventing sources in Texas from
emitting pollutants that will interfere with measures required to
prevent significant deterioration of air quality in other states.\19\
In its submission, Texas indicated that its current New Source Review
(NSR) SIP is adequate to prevent such interference.
---------------------------------------------------------------------------

    \18\ This is the same submittal that addresses the 110(a)(2)
infrastructure SIP elements for the 2006 PM2.5 NAAQS.
    \19\ EPA published a finding on April 25, 2005 (70 FR 21147)
that all states had failed to submit SIPs addressing interstate
transport for the 1997 ozone and PM2.5 standards, as
required by section 110(a)(2)(D)(i). EPA proposed a FIP on August 2,
2010 (75 FR 45210) to limit emissions of ozone precursors and PM
that contribute significantly to nonattainment of the 1997 ozone and
1997 and 2006 PM NAAQS in other states and interfere with
maintenance of these three NAAQS in other states. EPA finalized the
FIP on July 6, 2011; known as the Cross-State Air Pollution Rule, it
requires that Texas (and 26 other states in the eastern half of the
United States) must significantly improve air quality by reducing
power plant emissions that cross state lines and contribute to
ground-level ozone and fine particle pollution in other states. See
76 FR 48208 (published August 8, 2011) and http://www.epa.gov/crossstaterule.
---------------------------------------------------------------------------

3. Revisions to the Texas PSD SIP
    To meet the infrastructure requirements of section 110(a)(2)(C) of
the Act for the 1997 ozone standard, the EPA believes the State must
have updated its rules for PSD to treat NOX as a precursor
to ozone (70 FR 71612, November 29, 2005). PSD rules to treat
NOX as a precursor to ozone are also required to meet the
third interstate transport prong, interference with provisions to
prevent significant deterioration of air quality in other states.
    On March 11, 2011, the TCEQ submitted two revisions to its NSR
program to meet the requirements of the ``NSR Reform'' published on
December 31, 2002 (67 FR 80186), the 1997 8-hour ozone NAAQS, and the
revocation of the 1-hour ozone NAAQS. On May 26, 2011, the TCEQ
submitted a correction to the March 2011 revisions. The March 11, and
May 26, 2011 submissions include, but are not limited to, revisions
that provide for NOX to be treated as a precursor to ozone
formation in the state's preconstruction permitting program for PSD,
found in Title 30 of the Texas Administrative Code, Chapter 116,
Section 12 (denoted 30 TAC 116.12).\20\ We are proposing action on a
limited number of revisions to the PSD program that implement the
provisions for NOX as a precursor. At this time, EPA is not
taking action on other portions of the NSR SIP revisions submitted by
Texas together with the PSD revision. EPA intends to act on the other
revisions submitted together with the PSD program revisions at a later
time.
---------------------------------------------------------------------------

    \20\ The Texas Administrative Code (TAC) is a compilation of all
state agency rules in Texas. Each title represents a subject
category and related agencies are assigned to the appropriate title;
Title 30 is environmental quality and contains the TCEQ rules.
---------------------------------------------------------------------------

4. Greenhouse Gas (GHG) Component of PSD Programs
    EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part are distinct from
one another, impact today's proposed action on the Texas SIP. Four of
these actions include, as they are commonly called, the ``Endangerment
Finding'' and ``Cause or Contribute Finding,'' which EPA issued in a
single final action,\21\ the ``Johnson Memo Reconsideration,'' \22\ the
``Light-Duty Vehicle Rule,'' \23\ and the ``Tailoring Rule.'' \24\
Taken together and in conjunction with the CAA, these actions
established regulatory requirements for GHGs emitted from new motor
vehicles and new motor vehicle engines; determined that such
regulations, when they took effect on

January 2, 2011, subjected GHGs emitted from stationary sources to
permitting requirements for PSD; and limited the applicability of PSD
requirements to GHG sources on a phased-in basis. EPA took this last
action in the Tailoring Rule, which, more specifically, established
appropriate GHG emission thresholds for determining the applicability
of PSD requirements to GHG-emitting sources.
---------------------------------------------------------------------------

    \21\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \22\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
    \23\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \24\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
---------------------------------------------------------------------------

    However, the approved Texas SIP contained errors that resulted in
its failure to address, or provide adequate legal authority for, the
implementation of a GHG PSD program in Texas. On this basis, on
December 30, 2010, EPA corrected its previous full approval of Texas's
PSD program to be a partial approval and partial disapproval (75 FR
82430). Further, as required following the partial disapproval, EPA in
this same action promulgated a FIP to establish a PSD permitting
program in Texas for GHG-emitting sources (75 FR 82430). EPA took these
actions through interim final rulemaking, effective upon publication,
to ensure the availability of a permitting authority--EPA--in Texas for
GHG-emitting sources when they became subject to PSD on January 2,
2011. The interim FIP allowed those sources to proceed with plans to
construct or expand. The interim rule expired on April 30, 2011 and is
replaced by the final rule (76 FR 25178, May 3, 2011).
    As we discuss further in this proposal and in the TSD, Texas
currently does not have adequate legal authority to address the new GHG
PSD permitting requirements at or above the levels of emissions set in
the Tailoring Rule, or at other appropriate levels, and thus, the Texas
SIP does not satisfy portions of elements within the infrastructure and
transport requirements. EPA's disapproval here does not engender an
additional statutory obligation, because EPA has already promulgated a
FIP for the Texas PSD program to address permitting GHGs at or above
the Tailoring Rule thresholds (76 FR 25178).
5. PM2.5 SIP Revisions
    To implement section 110(a)(2)(C) for the 1997 PM2.5
standard, states must provide revisions to implement the
PM2.5 standard due May 16, 2011 under 73 FR 28321.\25\ On
April 20, 2011, the TCEQ adopted revisions to the Texas SIP to amend
their PSD and nonattainment NSR programs to implement the
PM2.5 NAAQS. These revisions became effective and
enforceable by the state on May 12, 2011. The state submitted these
changes to EPA as a SIP revision on May 19, 2011. EPA will act on this
submission in a separate rulemaking.
---------------------------------------------------------------------------

    \25\ The Federal Register action at 73 FR 28321 was published
May 16, 2008.
---------------------------------------------------------------------------

D. What elements are required under Section 110(a)(2)?

    Pursuant to the October 2, 2007, EPA guidance for addressing the
SIP infrastructure elements required under section 110(a)(2) for the
1997 ozone and 1997 and 2006 PM2.5 NAAQS, there are 14
essential components that must be in the SIP. These are listed in Table
1 below.

          Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
         Clean Air Act citation                 Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)...................  Enforceable emission limits and
                                          other control measures.
Section 110(a)(2)(B)...................  Ambient air quality monitoring/
                                          data system.
Section 110(a)(2)(C)...................  Program for enforcement of
                                          control measures.
Section 110(a)(2)(D)...................  International and interstate
                                          transport.
Section 110(a)(2)(E)...................  Adequate resources.
Section 110(a)(2)(F)...................  Stationary source monitoring
                                          system.
Section 110(a)(2)(G)...................  Emergency power.
Section 110(a)(2)(H)...................  Future SIP revisions.
Section 110(a)(2)(J) \26\..............  Consultation with government
                                          officials.
Section 110(a)(2)(J)...................  Public notification.
Section 110(a)(2)(J)...................  Prevention of significant
                                          deterioration (PSD) and
                                          visibility protection.
Section 110(a)(2)(K)...................  Air quality modeling/submission
                                          of such data.
Section 110(a)(2)(L)...................  Permitting fees.
Section 110(a)(2)(M)...................  Consultation/participation by
                                          affected local entities.
------------------------------------------------------------------------

II. What action is EPA proposing?
---------------------------------------------------------------------------

    \26\ Section 110(a)(2)(I) is omitted from the list. Section
110(a)(2)(I) pertains to the nonattainment planning requirements of
part D, Title I of the Act. This section is not governed by the 3-
year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not
due within 3 years after promulgation of a new or revised NAAQS, but
are due at the time the nonattainment area plan requirements are due
pursuant to section 172. Thus this action does not cover section
110(a)(2)(I).
---------------------------------------------------------------------------

A. Section 110(a)(1) and (2)

    The EPA is proposing to partially approve and partially disapprove
the Texas SIP submittals that identify where and how the 14 basic
infrastructure elements are in the EPA-approved SIP specified in
section 110(a)(2) of the Act. The Texas infrastructure SIP submittals
do not include revisions to the SIP, but document how the current Texas
SIP already includes the required infrastructure elements. In today's
action, we are proposing to determine and approve that the following
section 110(a)(2) elements are contained in the current Texas SIP and
provide the infrastructure for implementing the 1997 ozone and 1997 and
2006 PM2.5 standards: Emission limits and other control
measures (section 110(a)(2)(A)); ambient air quality monitoring/data
system (section 110(a)(2)(B)); the program for enforcement of control
measures, except for the portion that addresses GHGs (section
110(a)(2)(C)); international and interstate pollution abatement, except
for the portion that addresses GHGs (section 110(a)(2)(D)(ii));
adequate resources (section 110(a)(2)(E)); stationary source monitoring
system (section 110(a)(2)(F)); emergency power (section 110(a)(2)(G));
future SIP revisions (section 110(a)(2)(H)); consultation with
government officials (section 110(a)(2)(J)); public notification
(section 110(a)(2)(J)); PSD and visibility protection, except for the
PSD portion that addresses GHGs (section 110(a)(2)(J)); air quality
modeling/data (section 110(a)(2)(K)); permitting fees (section
110(a)(2)(L)); and consultation/participation by affected local
entities (section 110(a)(2)(M)). In addition, we are proposing to
determine that portions of three section 110(a)(2) elements are

not contained in the current Texas SIP and thus do not provide the
infrastructure for implementing the 1997 ozone and 1997 and 2006
PM2.5 standards. We are proposing to disapprove the GHG
portion of the element addressing the program for enforcement of
control measures (section 110(a)(2)(C)); the GHG portion of the element
addressing international and interstate pollution abatement (section
110(a)(2)(D)(ii)); and the GHG portion of the element addressing PSD
(section 110(a)(2)(J)).
    We are also proposing to approve portions of the May 1, 2008 (the
Texas Interstate Transport SIP) and the November 23, 2009 submissions
from Texas, demonstrating that Texas has adequately addressed one of
the four required elements (or prongs) of the CAA section
110(a)(2)(D)(i), the element that requires that the SIP prohibit air
emissions from sources within a state from interfering with measures
required to prevent significant deterioration of air quality in any
other state.\27\ We are proposing to determine that emissions from
sources in Texas do not interfere with measures to prevent significant
deterioration of air quality in any other state for the 1997 8-hour
ozone NAAQS or the 1997 and 2006 PM2.5 NAAQS (CAA section
110(a)(2)(D)(i)(II)), except for the portion that addresses GHGs. We
are proposing to disapprove the portion of the Texas Interstate
Transport SIP element that prohibits GHG emissions from sources within
Texas from interfering with measures required to prevent significant
deterioration of air quality in any other state (section
110(a)(2)(D)(i)). As noted previously in this action, we are not
addressing the three remaining prongs of section 110(a)(2)(D)(i) for
the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS, that
pertain to prohibiting air emissions within Texas from: (1)
Significantly contributing to nonattainment in any other state, (2)
interfering with maintenance of the relevant NAAQS in any other state
and (3) interfering with measures required to protect visibility in any
other state. We will take action on the three remaining prongs of
section 110(a)(2)(D)(i) for these three NAAQS, which addresses
interstate transport, in separate rulemakings (see footnote 19).
---------------------------------------------------------------------------

    \27\ As noted in Section I.C.2 of this action, the May 1, 2008
submittal addresses the 1997 ozone and PM2.5 standards;
it does not address the 2006 PM2.5 standard. The November
23, 2009 submittal addresses the 110(a)(2) infrastructure and
interstate transport elements for the 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    In conjunction with our proposed finding that the Texas SIP meets
the section 110(a)(1) and (2) infrastructure and interstate transport
SIP elements listed above for the three NAAQS, we are also proposing to
approve severable \28\ portions of the SIP revisions submitted by the
TCEQ to EPA on March 11, 2011 and a correction submitted on May 26,
2011. These portions contain rule revisions by TCEQ to: (1) Add PSD to
the title of the section, such that the section will address
Nonattainment and PSD Review Definitions; (2) add the definition of
Federally Regulated NSR Pollutant, which identifies volatile organic
compounds (VOCs) and NOX as precursors in all attainment and
unclassifiable areas; and (3) revise the section title, so the
definitions for Major stationary source, Major modification, and the
table identifying the Significant Level for emission thresholds for
major sources and major modifications will apply under PSD. These
revisions addressing PSD also specify that a major source that is major
for VOCs or NOX shall be considered major for ozone and
provide that the significant emission threshold for ozone (identified
as VOC, NOX) is 40 tons per year (tpy). The actions proposed
herein are described in greater detail in Section III of this
rulemaking and in the TSD. In this proposal, EPA is not taking action
on other submitted NSR revisions; EPA intends to act on the other NSR
SIP revisions at a later date.
---------------------------------------------------------------------------

    \28\ By severable, we mean that the portions of the SIP revision
that address NOX as a precursor can be implemented
independently of the remaining portions of the submittal, without
affecting the stringency of the submitted rules. In addition, the
remaining portions of the submittal are not necessary for approval
of the provisions addressing NOX as a precursor.
---------------------------------------------------------------------------

B. Why is EPA proposing a partial approval, partial disapproval?

    Section 110(k)(3) of the Act states that EPA may partially approve
and partially disapprove a SIP submittal if it finds that only a
portion of the submittal meets the requirements of the Act. We believe
that the Texas SIP meets a majority of the requirements of section
110(a)(2) of the Act and that specific portions of three elements of
section 110(a)(2) are not met.\29\ Because the portions proposed for
disapproval are independent from those proposed for approval, we
believe that the Texas Infrastructure SIP can be partially approved and
partially disapproved.
---------------------------------------------------------------------------

    \29\ The three elements refer to the infrastructure and
interstate transport SIP elements discussed in section II above.
---------------------------------------------------------------------------

C. What are the implications of a partial approval, partial
disapproval?

    Enforcement of a state regulation (or rule) before and after it is
incorporated into the federally approved SIP is primarily a state
responsibility. However, after the rule is federally approved, we are
authorized to take enforcement action against violators. Citizens are
also offered legal recourse to address violations as described in
section 304 of the Act. If a state rule is disapproved, it is not
incorporated into the federally approved SIP, and is not enforceable by
EPA or by citizens under section 304. Disapproval of any of the Texas
infrastructure SIP elements would not trigger sanctions under section
179 of the Act, because the submittals are not required by part D of
Title I of the Act and are not required by a call for a SIP revision
under section 110(k)(5) of the Act. However, as noted earlier, EPA
published a finding on March 27, 2008 (73 FR 16205) regarding whether
or not states had made the section 110(a)(2) submissions for ozone and
found that Texas had failed to make a complete submission. This finding
started a 24-month deadline for promulgation by EPA of a FIP. This FIP
obligation will be met for the 110(a)(2) elements that EPA has proposed
approval, if, after considering public comment, EPA finalizes the
approval. For the proposed disapproved infrastructure elements (the
portions of section 110(a)(2)(C), section 110(a)(2)(D)(ii), and section
110(a)(2)(J) described in section III of this action), EPA remains
obligated to implement a FIP if disapproval is finalized. EPA's
disapproval here, however, does not engender an additional statutory
obligation, because EPA has already promulgated a FIP for the Texas PSD
program to address permitting GHGs at or above the Tailoring Rule
thresholds (76 FR 25178). As noted earlier, we will take action on the
remaining three prongs of section 110(a)(2)(D)(i), which addresses
interstate transport, in a separate rulemaking.

D. SIP Revisions to 30 TAC 101.1

    As described elsewhere in this rulemaking, EPA is acting on
revisions to 30 TAC 116.12 submitted on March 11, 2011. One of the
revisions upon which we are taking action, i.e., Table I under the
definition for Major modification at 30 TAC 116.12(18)(A), makes a
reference to 30 TAC 101.1(70).\30\ Since the cross-referenced
paragraphs must correlate, we had to broaden our review to include
revisions to several paragraphs in 30 TAC 101.1. Thus, EPA is proposing
to approve the following portions of the March 11, 2011 SIP revisions:
(1) The non-

substantive revisions to the definition of Nonattainment area at 30 TAC
101.1(70) to reflect the current status of ozone nonattainment areas in
Texas as identified in 40 CFR part 81 and make the definition
consistent with changes proposed for 30 TAC 116.12(18)(A); (2) the non-
substantive revisions to the definition of Reportable quantity at 30
TAC 101.1(88) to make the definition consistent with changes proposed
for 30 TAC 101.1(70); and (3) the non-substantive revisions to the
definition of Maintenance area at 30 TAC 101.1(54) to reflect the
current status of maintenance areas in Texas as identified in 40 CFR
81. We are also proposing to approve non-substantive revisions to 30
TAC 101.1(115) submitted on May 26, 2011, which make the definition of
Volatile organic compound consistent with the EPA's definition for
VOCs, as amended January 21, 2009 (74 FR 3437) \31\ and codified at 40
CFR 51.100(s)(1).
---------------------------------------------------------------------------

    \30\ Footnote 1 in Table I under 30 TAC 116.12(18) reads: Texas
nonattainment area designations as defined in 30 TAC 101.1(70) of
this title.
    \31\ The state's rule at 30 TAC 101.1(115) cites 74 FR 3441. EPA
identifies a Federal Register action by the first page of the
rulemaking, thus our reference to 74 FR 3437.
---------------------------------------------------------------------------

III. How has Texas addressed the elements of Section 110(a)(2)?

    The Texas submittals address the elements of Section 110(a)(2) as
described below. We provide a more detailed review and analysis of the
Texas infrastructure and transport SIP elements in the TSD.
    Enforceable emission limits and other control measures, pursuant to
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures
and other elements in the SIP be enforceable. This provision does not
require the submittal of regulations or emission limits developed
specifically for attaining the 1997 8-hour ozone and 1997 and 2006
PM2.5 standards. Those regulations are due later as part of
attainment demonstrations. Additionally, as explained earlier (see
footnote 1), EPA does not consider SIP requirements triggered by the
nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1). Nevertheless,
Texas has included some SIP provisions originally submitted in response
to part D in its submission documenting its compliance with the
infrastructure requirements of section 110(a)(1) and (2). Texas has
continually updated the elements of its SIP revisions submitted in
response to the infrastructure requirements of section 110(a)(2) and
the nonattainment requirements of part D. For the purposes of this
action, EPA is reviewing any rules originally submitted in response to
part D solely for the purposes of determining whether they support a
finding that the state has met the basic infrastructure requirements
under section 110(a)(2).
    The Texas Clean Air Act (TCAA), which named the Texas Air Control
Board (TACB) as the state's air pollution control agency, provided
enforcement authority to the TACB. In its approval of the Texas 1972
SIP, EPA approved the State's Section V of the SIP Narrative as showing
that the Board had the legal authority to implement and enforce the SIP
(37 FR 10842, 10895, May 31, 1972). Later, in 1981 EPA approved a
replacement of Section V into the SIP as support showing the Board
continued to have the legal authority to implement and enforce the
SIP.\32\ The State has continued to submit updates in its SIP
Narratives concerning its legal authorities.\33\ Pursuant to Acts 1989,
71st Legislature, chapter 678, Section 1, effective September 1, 1989,
the TCAA was codified as Chapter 382 of the Texas Health and Safety
Code (THSC). The TACB was abolished in 1993 and its powers, duties,
responsibilities and functions were transferred to the Texas Natural
Resource Conservation Commission, which was renamed in 2001, to the
Texas Commission on Environmental Quality (TCEQ). The Texas Water Code
(TWC) under Section 5.013 provides the TCEQ with authority over the
responsibilities assigned by the THSC (which may be cited as the TCAA).
The THSC under Section 382.017 authorizes the TCEQ to adopt rules for
the control of air pollution.
---------------------------------------------------------------------------

    \32\ See 46 FR 61124, published December 15, 1981.
    \33\ For examples, see the Houston Attainment Plan (71 FR 52670,
September 6, 2006), the Dallas/Fort Worth Attainment Plan (74 FR
1903, January 14, 2009), and the Beaumont/Port Arthur Redesignation
(75 FR 64675, October 20, 2010).
---------------------------------------------------------------------------

    The TCEQ has promulgated rules to limit and control emissions of
among other things, PM, sulfur compounds (including sulfur dioxide or
SO2), nitrogen compounds (including NOX), and
VOCs.\34\ These rules include emission limits, control measures,
programs for banking and trading of emissions, emission reduction
incentive programs, permits, fees, and compliance schedules and are
found within 30 TAC, chapters 101, 106, and 111-118.
---------------------------------------------------------------------------

    \34\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
---------------------------------------------------------------------------

    EPA promulgated a partial approval and partial disapproval of the
Texas provisions regarding excess emissions occurring during startup,
shutdown, and malfunction (SSM) of operations at a facility on November
10, 2010 (75 FR 68989).\35\ In this action, EPA is not proposing to
approve or disapprove any existing state provisions with regard to
excess emissions during SSM of operations at a facility. EPA believes
that a number of states may have SSM SIP provisions which are contrary
to the Act and inconsistent with existing EPA guidance,\36\ and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having a deficient SSM provision to
take steps to correct it as soon as possible. Similarly, this proposed
action does not include a review of and also does not propose to take
any action to approve or disapprove any existing SIP rules with regard
to director's discretion or variance provisions. EPA believes that a
number of SIPs have such provisions which are contrary to the Act and
not consistent with existing EPA guidance (52 FR 45044, November 24,
1987) \37\ and the Agency plans to take action in the future to address
such SIP regulations. In the meantime, EPA encourages any state having
a director's discretion or variance provision in its SIP which is
contrary to the Act and inconsistent with EPA guidance to take steps to
correct the deficiency as soon as possible.
---------------------------------------------------------------------------

    \35\ EPA approved the provisions that clarify existing reporting
requirements; clarify that the rule does not allow exemptions from
compliance with Federal requirements, including any requirements in
the federally-approved SIP; provide for an affirmative defense from
unplanned startup, shutdown, or maintenance (i.e., malfunctions),
consistent with the CAA as interpreted by EPA; and provide for a
corrective action plan and written notification concerning excessive
emission events. EPA disapproved the provisions that provide for an
affirmative defense against civil penalties for excess emissions
during planned maintenance, startup, or shutdown activities and
related provisions that contain non-severable cross-references to
the affirmative defense provision. For more information, see 75 FR
68989.
    \36\ ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, dated September 20,
1999.
    \37\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
---------------------------------------------------------------------------

    A detailed list of the applicable rules at 30 TAC, listed above, is
provided in the TSD. The Texas SIP contains enforceable emission limits
and other control measures, which are in the federally enforceable SIP.
EPA is proposing to determine that the Texas SIP meets the requirements
of section 110(a)(2)(A) of the Act with respect to

the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    Ambient air quality monitoring/data analysis system, pursuant to
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include
provisions for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to EPA upon request. The TCEQ operates and
maintains a state-wide network of air quality monitors; data are
collected, results are quality assured and the data are submitted to
EPA's Air Quality System \38\ on a regular basis. The Texas Statewide
Air Quality Surveillance Network was approved by EPA (37 FR 10842,
10895) and revised on March 7, 1978 (43 FR 9275). Texas's air quality
surveillance network consists of stations that measure ambient
concentrations of the criteria pollutants, including ozone \39\ and
PM2.5. EPA also approved Texas's enhanced ambient air
quality monitoring network of Photochemical Assessment Monitoring
Stations (PAMS) on October 4, 1994 (59 FR 50502).\40\ The TCEQ Web site
provides the ozone and PM2.5 monitor locations and current
and historical data, including ozone design values for current \41\ and
past trienniums. On June 30, 2010, TCEQ submitted its 2010 Annual Air
Monitoring Network Plan (AAMNP) that addresses each of the criteria
pollutants, including 8-hour ozone and PM2.5 and thus allows
the state to measure its air quality for compliance with the 1997 ozone
and 1997 and 2006 PM2.5 NAAQS; EPA approved the AAMNP on
December 23, 2010.\42\
---------------------------------------------------------------------------

    \38\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5,000
of which are currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic basis.
    \39\ With the exception of maintenance and malfunctions, the
ozone monitors are constantly running and recording one-hour ozone
averages. Texas submits the hourly data into AQS, where the 8-hour
averages are computed. Texas also computes the 8-hour averages and
posts the data at http://www.tceq.state.tx.us/cgi-bin/compliance/monops/8hr_monthly.pl.
    \40\ The PAMS network undergoes review and approval by EPA
whenever there are significant changes to the network. A copy of the
most recent approval, dated October 30, 2009, is in the docket for
this rulemaking.
    \41\ The current design values reflect the 2008-2010 ozone
season data.
    \42\ A copy of our approval letter is in the docket for this
rulemaking. At the time of this writing, the review of the 2011
AAMNP has not been completed.
---------------------------------------------------------------------------

    In summary, Texas meets the requirements to establish, operate, and
maintain an ambient air monitoring network, collect and analyze the
monitoring data, and make the data available to EPA upon request. EPA
is proposing to find that the current Texas SIP meets the requirements
of section 110(a)(2)(B) with respect to the 1997 8-hour ozone and 1997
and 2006 PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the
modification and construction of stationary sources * * * including a
permit program, pursuant to section 110(a)(2)(C): The THSC and the TWC,
as stated previously, provide the state with enforcement authority for
rules adopted under the TCAA. The rules in 30 TAC 101 provide for
enforcement of emissions inventories. The rules in 30 TAC 106, 112, 115
and 117 provide for allowable emission rates, and control, monitoring
and testing requirements; they clarify the boundaries beyond which
regulated entities in Texas can expect enforcement action.
    To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that NAAQS are
achieved, including a permit program as required by Parts C and D,
generally, the State is required to have SIP-approved PSD,
Nonattainment, and Minor NSR permitting programs adequate to implement
the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS. As
discussed previously, we are not evaluating nonattainment-related
provisions, such as the nonattainment NSR program required by part D in
110(a)(2)(C) and measures for attainment required by section
110(a)(2)(I), as part of the infrastructure SIPs for these three NAAQS
because these submittals are required beyond the date (3 years from
NAAQS promulgation) that section 110 infrastructure submittals are
required.
    PSD programs apply in areas that are meeting the NAAQS or are
unclassifiable, referred to as areas in attainment. PSD applies to new
major sources and major modifications at existing sources. The Texas
PSD SIP (found at 30 TAC 116, Division 6) was initially approved on
June 24, 1992 (57 FR 28093). Subsequent revisions to the Texas PSD
program were approved into the SIP on September 9, 1994 (59 FR 46556);
August 19, 1997 (62 FR 44083); September 18, 2002 (67 FR 58697); July
22, 2004 (69 FR 43752); March 20, 2009 (74 FR 11851); and September 15,
2010 (75 FR 55978). As noted earlier in this proposal, part D of the
Act addresses nonattainment area provisions, which are not governed by
the three-year submission deadline for section 110(a)(2) and thus will
not be addressed in this action.\43\
---------------------------------------------------------------------------

    \43\ See footnote 1.
---------------------------------------------------------------------------

    EPA's PSD permitting regulations are found at 40 CFR 51.166 and 40
CFR 52.21. PSD requirements for SIPs are found in 40 CFR 51.166 and 40
CFR Part 51 Appendix W. Similar PSD requirements for SIPs incorporating
EPA's regulations by reference are found in 40 CFR 52.21. To meet the
requirements of 110(a)(2)(C) for the 1997 ozone standard, EPA believes
the State must have updated its PSD rules to treat NOX as a
precursor for ozone (70 FR 71612, November 29, 2005). On March 11,
2011, Texas submitted the provisions for NOX as a precursor
consistent with EPA's November 29, 2005, Phase 2 rule for the 1997 8-
hour ozone NAAQS (70 FR 71612) as part of its revisions to address NSR
Reform. EPA proposes to approve the following portions of the March 11,
2011 SIP revisions to 30 TAC 116.12: (1) The non-substantive revision
to the title of 30 TAC 116.12, changing the title from Nonattainment
Review Definitions to Nonattainment and Prevention of Significant
Deterioration Review Definitions; (2) the non-substantive and
administrative revisions to the introductory paragraph at 30 TAC
116.12; (3) the substantive revisions that add Federally Regulated NSR
pollutant as a new definition \44\ at 30 TAC 116.12(14); (4) the non-
substantive changes to rename and renumber the definition of Major
facility/stationary source at 30 TAC 116.12(10) to Major stationary
source at 30 TAC 116.12(17) and provide minor editorial revisions; (5)
the substantive changes to the definition of Major stationary source at
30 TAC 116.12(17) to make the definition consistent with 40 CFR
51.166(b)(1); (6) the non-substantive changes to renumber the
definition of Major modification at 30 TAC 116.12(11) to 30 TAC
116.12(18) and provide minor editorial revisions to Table I (Major
Source/Major Modification Emission Thresholds), including non-
substantive edits to footnotes 1-3 in Table I; (7) the substantive
changes to the definition of Major modification at 30 TAC 116.12(18) to
make the definition consistent with 40 CFR 51.166(b)(1) and (2); and
(8) the substantive changes that remove footnotes 6 and 7 from Table I
under 30 TAC 116.12(18)(A) to make the Table consistent with the South
Coast decision (South Coast Air Quality Management District, et al., v.
EPA, 472

F.3d 882 (DC Cir. 2006)).\45\ As noted earlier, 30 TAC 116.12
previously addressed Nonattainment Review Definitions and identified
NOX as a precursor, but only applied to nonattainment NSR.
By revising the title of this subchapter to include Nonattainment and
Prevention of Significant Deterioration Review Definitions, the
submitted revisions provide that NOX is an ozone precursor
for PSD and thus address that aspect of the requirements at
110(a)(2)(C) for the 1997 ozone standard.
---------------------------------------------------------------------------

    \44\ Texas did not address GHGs under the definition for
Federally Regulated NSR pollutant. See discussion in section I.C.4
of this action.
    \45\ See the TSD for more detail or the action at 75 FR 56424
for a full explanation.
---------------------------------------------------------------------------

    The March 11, 2011 revisions to the definitions in the Texas rules
for ``major modification'' and ``major stationary source'' meet the
Federal definition in 40 CFR 51.166(b)(1) to identify a major source of
NOX as a major source for ozone. The March 11, 2011
revisions to the Texas rules also meet the Federal definition in 40 CFR
51.166(b)(49) for inclusion of NOX as an ozone precursor.
The March 11, 2011 revisions to the emission rate for ozone in 30 TAC
116.12(18) under Table I for Major Source/Major Modification Emission
Thresholds, under the column for Significant Level in the Texas rules
meet the Federal requirements in 40 CFR 51.166(b)(23)(i), which
establishes these emission thresholds as 40 tpy. Because of their
consistency with 40 CFR part 51, which provides the requirements for an
approvable PSD program, EPA believes these revisions are consistent
with 110(l) and the revisions would not interfere with any applicable
CAA requirement concerning attainment of any applicable standard.
Therefore, EPA is proposing to approve these revisions as meeting the
requirements of section 110 of the Act and 40 CFR 51.166 for
establishing NOX emissions as a precursor for ozone.
    The revisions to 30 TAC 116.12 and EPA's evaluation of these
revisions are discussed in greater detail in the TSD. The provisions
that address NOX as a precursor are severable from the March
11, 2011 submittal and EPA is proposing to approve these provisions in
today's action.
    Permits that are major for Ozone: EPA's PSD regulations require an
ambient impact analysis for ozone for proposed major stationary sources
and major modifications to obtain a PSD permit (40 CFR 51.166(k), (l)
and (m) and 40 CFR 52.21(k), (l) and (m)). The Texas rules at 30 TAC
116.160-.163 meet these requirements for PSD and were approved into the
SIP on June 24, 1992 (57 FR 28093), as revised September 9, 1994 (59 FR
46556), September 27, 1995 (60 FR 49781), August 19, 1997 (62 FR
44083), July 22, 2004 (69 FR 43752); March 20, 2009 (74 FR 11851); and
September 15, 2010 (75 FR 55978). The Texas PSD SIP meets these
requirements by incorporating by reference 40 CFR 52.21(k) and (m) and
including the following rule at 116.160(d) that EPA found meets 40 CFR
51.166(l): ``All estimates of ambient concentrations required under
this subsection shall be based on the applicable air quality models and
modeling procedures specified in the EPA Guideline on Air Quality
Models, as amended, or models and modeling procedures currently
approved by the EPA for use in the state program, and other specific
provisions made in the prevention of significant deterioration state
implementation plan. If the air quality impact model approved by the
EPA or specified in the guideline is inappropriate, the model may be
modified or another model substituted on a case-by-case basis, or a
generic basis for the state program, where appropriate. Such a change
shall be subject to notice and opportunity for public hearing and
written approval of the administrator of the EPA.'' The Texas rule does
not name 40 CFR part 51, Appendix W, as 40 CFR 51.166(l) does, but
Appendix W codifies the Guideline on Air Quality Models, which is named
in the Texas rule, and Section 1.0.a of Appendix W states, in part:
``The Guideline recommends air quality modeling techniques that should
be applied to [SIP] revisions for existing sources and to [NSR],
including [PSD]. Applicable only to criteria air pollutants, it is
intended for use by EPA Regional Offices in judging the adequacy of
modeling analyses performed by EPA, state and local agencies and by
industry. [* * *] The Guideline is not intended to be a compendium of
modeling techniques. Rather, it should serve as a common measure of
acceptable technical analysis when supported by sound scientific
judgment.''
    Appendix W Section 5.2.1 includes the Guideline recommendations for
models to be utilized in assessing ambient air quality impacts for
ozone. Specifically, Section 5.2.1.c: ``Estimating the Impact of
Individual Sources. Choice of methods used to assess the impact of an
individual source depends on the nature of the source and its
emissions. Thus, model users \46\ should consult with the Regional
Office to determine the most suitable approach on a case-by-case basis
(subsection 3.2.2).'' Due to the complexity of modeling ozone and the
dependency on the regional characteristics of atmospheric conditions,
EPA believes this is an appropriate approach rather than specifying one
particular preferred model nationwide, which may not be appropriate in
all circumstances. Instead, the choice of method ``depends on the
nature of the source and its emissions.'' (Appendix W Section 5.2.1.c.)
Therefore, EPA continues to believe it is appropriate for permitting
authorities to consult and work with EPA Regional Offices as described
in Appendix W, including sections 3.0.b and c, 3.2.2 and 3.3, to
determine the appropriate approach to assess ozone impacts for each PSD
required evaluation. Although EPA has not selected one particular
preferred model in Appendix A of Appendix W (Summaries of Preferred Air
Quality Models) for conducting ozone impact analyses for individual
sources, state and local permitting authorities must comply with the
appropriate PSD FIP or SIP requirements with respect to ozone.\47\ We
note in other recent EPA actions, some have raised concerns that the
lack of a preferred model for ozone has resulted in the belief that no
modeling is required or use of inappropriate models is allowed.\48\
This underscores the need for consultation with the EPA Regional
office. EPA agrees that states should not be using inappropriate
analytical tools in this context. The use of ``Scheffe Tables'' and
other particular screening techniques, which involve ratios of
NOX to VOC that do not consider the impact of biogenic
emissions, or that use other outdated or irrelevant modeling, is
inappropriate to evaluate a single source's ozone impacts on an air
quality control region. More scientifically appropriate screening and
refined tools are available and should be considered for use.
Therefore, EPA continues to believe states should consult and work with
EPA Regional Offices as described in Appendix W on a case-by-case basis

to determine the appropriate method for estimating the impacts of these
ozone precursors from individual sources.
---------------------------------------------------------------------------

    \46\ EPA notes ``model users'', as referenced in Appendix W
Section 5.2.1.c, include state and local permitting authorities, and
permitting applicants and their representatives.
    \47\ EPA has received a national administrative petition
entitled, ``Sierra Club's Petition for Rulemaking to Designate Air
Quality Models to use for PSD Permit Applications with Regard to
Ozone and PM2.5 (July 28, 2010).'' The petition is in the
docket for this rulemaking.
    \48\ See the November 26, 2010 final action at 75 FR 72695,
pages 72697-72699, ``Approval and Promulgation of Implementation
Plans; Oklahoma; State Implementation Plan Revisions for Interstate
Transport of Pollution, Prevention of Significant Deterioration,
Nonattainment New Source Review, Source Registration and Emissions
Reporting and Rules of Practice and Procedure.''
---------------------------------------------------------------------------

    For ozone, a proposed emission source's impacts are dependent upon
local meteorology and pollution levels in the surrounding atmosphere.
Ozone is formed from chemical reactions in the atmosphere. The impact
of a new or modified source can have on ozone levels is dependent, in
part, upon the existing atmospheric pollutant loading already in the
region with which emissions from the new or modified source can react.
In addition, meteorological parameters such as wind speed, temperature,
wind direction, solar radiation influx, and atmospheric stability are
also important factors. The more sophisticated analyses consider
meteorology and interactions with emissions from surrounding sources.
EPA has not identified an established modeling system that would fit
all situations and take into account all of the additional local
information about sources and meteorological conditions.
    The Texas SIP satisfies the Federal PSD SIP modeling requirements
for sources that are major for ozone because the state rules approved
by EPA into the SIP include the Federal requirements. EPA has
previously commented to TCEQ on PSD permits regarding concerns with
technical inadequacies in ozone impact analyses and/or a lack of
consultation with the Regional Office on the development of an adequate
ozone modeling protocol for single source ozone impacts.\49\ EPA may
address implementation of the SIP through separate action and is not
precluded by approval of the infrastructure SIP. EPA reaffirms that the
assessment of ozone impacts should be done in consultation with the EPA
Regional Office.
---------------------------------------------------------------------------

    \49\ See letter from Carl E. Edlund to Richard Hyde, dated
February 10, 2010 and letter from Lawrence E. Starfield to Mark
Vickery, dated January 24, 2011, in the docket for this rulemaking.
---------------------------------------------------------------------------

    PM2.5 permitting: To implement section 110(a)(2)(C) for the 1997
PM2.5 standard, states must provide revisions to implement
the PM2.5 standard due May 16, 2011 under 73 FR 28321.\50\
On April 20, 2011, the TCEQ adopted revisions to the Texas SIP to amend
their PSD and nonattainment NSR programs to implement the
PM2.5 NAAQS. These revisions became effective and
enforceable by the state on May 12, 2011. The state submitted these
changes to EPA as a SIP revision on May 19, 2011. EPA will act on this
submission in a separate rulemaking.
---------------------------------------------------------------------------

    \50\ The Federal Register action at 73 FR 28321 was published
May 16, 2008.
---------------------------------------------------------------------------

    Minor Source Permitting: Section 110(a)(2)(C) creates ``a general
duty on States to include a program in their SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved'' (70 FR 71612, 71677). EPA provides
states with a ``broad degree of discretion'' in implementing their
minor NSR programs (71 FR 48696, 48700, August 21, 2006). The
``considerably less detailed'' regulations for minor NSR are provided
in 40 CFR 51.160 through 51.164. EPA has determined that the Texas
minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act
regulates emissions of ozone and its precursors and PM. The Texas minor
source permitting requirements are contained at 30 TAC 116 (Subchapter
B, Division 1). In its initial SIP approved by EPA on May 31, 1972 (37
FR 10842, 10895), Texas provided for review of new sources and
modification of existing sources and for preventing construction or
modification if it would result in violations of applicable portions of
a control strategy or interfere with attainment or maintenance of the
NAAQS, without distinguishing between minor and major sources. Upon
EPA's conditional approval of the Texas nonattainment NSR (NNSR)
requirements for major sources and major modifications in nonattainment
areas, March 25, 1980 (45 FR 19231), the Texas SIP continued to address
minor sources and minor modifications. There have been numerous
revisions approved for the Texas Minor NSR SIP since 1980. Among many
others, they include August 13, 1982 (47 FR 35193); September 18, 2002
(67 FR 58697); November 14, 2003 (68 FR 64543); August 28, 2007 (72 FR
49198); March 8, 2010 (75 FR 10416); and April 2, 2010 (75 FR 16671).
    In this action, EPA is proposing to approve the Texas
infrastructure SIP for the 1997 ozone and 1997 and 2006
PM2.5 NAAQS with respect to the general requirement of
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the state's existing minor NSR program in this action; we
are not evaluating this program for consistency with EPA's regulations
governing minor NSR herein. EPA believes that a number of states may
have minor NSR provisions that are contrary to the existing EPA
regulations for this program. EPA intends to work with states to
reconcile state minor NSR programs with EPA's regulatory provisions for
the program. The statutory requirements of section 110(a)(2)(C) provide
for considerable flexibility in designing minor NSR programs, and EPA
believes it may be time to revisit the regulatory requirements for this
program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
    In this action, EPA is not proposing to approve or disapprove any
state rules with regard to NSR Reform requirements. As noted earlier,
on March 11, 2011, the TCEQ submitted revisions to their NSR program to
meet the requirements of the NSR Reform. We are acting on a limited
portion of that submittal, as described earlier in this discussion of
110(a)(2)(C) and interstate transport \51\ and in Section I.C.3 of this
action. EPA will act on the remainder of the March 11, 2011 SIP
submittals through separate rulemakings.
---------------------------------------------------------------------------

    \51\ See also the discussion on interstate transport under
section 110(a)(2)(D)(i) in this rulemaking.
---------------------------------------------------------------------------

    As noted in Section I.C.4 of this proposal, Texas currently does
not have adequate legal authority to implement the PSD permitting
program with respect to GHG emissions at or above the emissions
thresholds established in the Tailoring Rule, or at other appropriate
levels, and thus the Texas SIP does not satisfy this portion of section
110(a)(2)(C). We are proposing to disapprove the Texas SIP for failing
to meet the infrastructure requirements for the 1997 ozone and the 1997
and 2006 PM2.5 NAAQS with respect to the GHG requirement of
section 110(a)(2)(C). EPA is proposing to find that the Texas SIP meets
the PSD requirement of section 110(a)(2)(C) with respect to the 1997 8-
hour ozone and 1997 and 2006 PM2.5 NAAQS, with the exception
of section 110(a)(2)(C) as it relates to the GHG component of the PSD
program. EPA is proposing to find that the Texas SIP does not meet the
PSD requirement of section 110(a)(2)(C) as it relates to the GHG
component of the PSD program with respect to the 1997 8-hour ozone and
1997 and 2006 PM2.5 NAAQS. However, EPA's disapproval here
does not engender an additional statutory obligation, because EPA has
already promulgated a FIP for the Texas PSD program to address
permitting GHGs at or above the Tailoring Rule thresholds (76 FR
25178).
    Interstate transport, pursuant to section 110(a)(2)(D): Section
110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii).
Section 110(a)(2)(D)(i) requires SIPs to

include provisions prohibiting any source or other type of emissions
activity in one state from contributing significantly to nonattainment,
interfering with maintenance of the NAAQS in another state, or from
interfering with measures required to prevent significant deterioration
of air quality or to protect visibility in another state. Section
110(a)(2)(D)(ii) requires SIPs to include provisions insuring
compliance with sections 115 and 126 of the Act, relating to interstate
and international pollution abatement.
    PSD and interstate transport, pursuant to section 110(a)(2)(D)(i):
    As previously described, one of the four elements or prongs in
section 110(a)(2)(D)(i) requires a SIP to contain adequate provisions
prohibiting emissions that interfere with any other state's required
measures to prevent significant deterioration of its air quality. This
is the only element of 110(a)(2)(D)(i) on which EPA is proposing
approval in this action. EPA's 2006 Guidance made recommendations for
SIP submissions to meet this requirement with respect to both the 1997
8-hour ozone NAAQS and the 1997 PM2.5 NAAQS.
    The 2006 Guidance states that the PSD permitting program is the
primary measure that each state must include to prevent significant
deterioration of air quality in accordance with section
110(a)(2)(D)(i)(II). EPA believes that Texas's May 1, 2008 submission
is consistent with the 2006 Guidance, when considered in conjunction
with the State's PSD program and other PSD program revisions that EPA
is proposing to approve in this action. The submittal states that all
major sources in Texas are subject to PSD and nonattainment NSR
permitting programs. As discussed previously in this rulemaking with
regards to section 110(a)(2)(C) and in the TSD, the State's PSD program
is in the SIP (57 FR 28093, 62 FR 44083, 67 FR 58697, 69 FR 43752, 74
FR 11851 and 75 FR 55978). Please see the TSD and our discussion of
section 110(a)(2)(C) in this rulemaking for additional information.
    Consistent with EPA's November 29, 2005, Phase 2 rule for the 1997
8-hour ozone NAAQS (70 FR 71612), the State submitted SIP revisions to
modify its PSD provisions to address NOX as an ozone
precursor. These revisions have been discussed previously. EPA believes
that the PSD revision for the 1997 8-hour ozone NAAQS that makes NOx a
precursor for ozone for PSD purposes, taken together with the PSD SIP
and the interstate transport SIP, satisfies the requirements of the
third element of section 110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS, i.e., there will be no interference with any other state's
required PSD measures.
    As discussed previously in our analysis of section 110(a)(2)(C) for
this rulemaking, EPA's PSD regulations also require an ambient impact
analysis for ozone for proposed major stationary sources and major
modifications to obtain a PSD permit (40 CFR 51.166(k), (l) and (m) and
40 CFR 52.21(k), (l) and (m)). Our affirmation that the Texas SIP
addresses the Federal PSD modeling requirements is discussed in more
detail under section 110(a)(2)(C) for this rulemaking.
    For the 1997 PM2.5 NAAQS, Texas stated in its section
110(a)(2)(D)(i) submission that its NSR program is being implemented in
accordance with EPA's interim guidance regarding the use of
PM10 as a surrogate for PM2.5. Furthermore, as
indicated earlier, on April 20, 2011 the TCEQ adopted revisions to the
Texas SIP to amend their PSD and nonattainment NSR programs to
implement the 1997 PM2.5 NAAQS. These revisions became
effective and enforceable by the state on May 12, 2011 and the state
submitted these revisions to EPA on May 19, 2011 for approval as a SIP
revision. They effectively supersede the interim guidance allowing the
use of PM10 as a surrogate for PM2.5. Instead, as
announced in EPA's May 16, 2008 rulemaking, the 1997 PM10
Surrogate Policy may not be used for any state PSD permits after the 3
years allowed for SIP development (ending May 16, 2011).\52\ With the
end of the 1997 PM10 Surrogate Policy in SIP-approved states
on May 16, 2011, and the repeal of the grandfather provision in this
final action, the 1997 PM10 Surrogate Policy may only be
relied on as specified in the May 18, 2011 rulemaking (see 76 FR 28646)
for any pending or future applications.
---------------------------------------------------------------------------

    \52\ See 73 FR 28321.
---------------------------------------------------------------------------

    EPA is proposing to find that the Texas SIP meets the PSD
requirement of section 110(a)(2)(D)(i) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS, with the exception of
section 110(a)(2)(D)(i) as it relates to the GHG component of the PSD
program. EPA is proposing to find that the Texas SIP does not meet the
PSD requirement of section 110(a)(2)(D)(i) as it relates to the GHG
component of the PSD program with respect to the 1997 8-hour ozone and
1997 and 2006 PM2.5 NAAQS. We will act on the remaining
three prongs regarding interstate transport, per section
110(a)(2)(D)(i) of the Act in a separate rulemaking.
    EPA is not proposing to approve the PSD program in full because
Texas does not have adequate legal authority to implement the PSD
permitting program with respect to GHG emissions pursuant to section
110(a)(2)(D)(i). EPA's disapproval here does not engender an additional
statutory obligation, because EPA has already promulgated a FIP for the
Texas PSD program related to permitting GHGs at or above the Tailoring
Rule thresholds (76 FR 25178).
    As aforementioned, EPA is not proposing action on the remaining
three prongs of section 110(a)(2)(D) here (see footnote 19). We note
however, that EPA approved into the Texas SIP the Clean Air Interstate
Rule (CAIR) NOx Annual Trading Program on July 30, 2007 (72 FR 41453).
The intended effect of this SIP action implementing the CAIR is to
reduce NOx emissions from within Texas that contribute to nonattainment
of the 1997 PM2.5 NAAQS in downwind states. In addition,
Texas submitted revisions to its CAIR SIP on March 4, 2010 to address
Phase II of the CAIR (which addresses 2015 and thereafter). The CAIR
was overturned by the court. Therefore, the first two prongs of Section
110(a)(2)(D)(i)(I)--which limit emissions that contribute significantly
to nonattainment and interfere with maintenance of the NAAQS in other
states--will be evaluated in light of the EPA's Cross-State Air
Pollution Rule, which found that Texas (and 26 other states in the
eastern half of the United States) must significantly improve air
quality by reducing power plant emissions that cross state lines and
contribute to ground-level ozone and fine particle pollution in other
states.\53\ The protection of visibility requirement of
110(a)(2)(D)(i)(II) will be evaluated when EPA completes its review of
the Texas interstate transport SIP submitted on May 1, 2008 and the
Texas regional haze SIP revision submitted on March 19, 2009.
---------------------------------------------------------------------------

    \53\ See 76 FR 48208.
---------------------------------------------------------------------------

    Interstate and international pollution abatement, pursuant to
section 110(a)(2)(D)(ii):
    Section 110(a)(2)(D)(ii) of the Act requires compliance with
sections 115 and 126 of the Act, relating to interstate and
international pollution abatement. Section 115 addresses endangerment
of public health or welfare in foreign countries from pollution emitted
in the United States. Pursuant to section 115(a), the Administrator has
not been made aware of submissions indicating reports, surveys, or
studies from any duly constituted international agency regarding air
pollution emitted in Texas which may reasonably be anticipated to

endanger public welfare or health in Mexico. Furthermore under section
115(a), the Administrator has not been requested by the Secretary of
State to issue formal notification to Texas that emissions originating
in the State are endangering public health or welfare in Mexico.
    Section 126(a) of the Act requires new or modified sources to
notify neighboring states of potential impacts from such sources. The
Texas SIP requires that each major proposed new or modified source
provide such notification (see 67 FR 58697). The State also has no
pending obligations under section 126 of the Act. For additional
detail, please refer to the TSD. However, as previously discussed in
this rulemaking, Texas does not have adequate legal authority to
implement the PSD program with respect to GHG emissions. Therefore, EPA
is not proposing to approve Texas's interstate pollution abatement
provisions in full because Texas cannot require each major proposed or
modified new source to notify neighboring states of potential impacts
from GHGs emitted by such sources.
    EPA is proposing to find that the Texas SIP meets the interstate
and international pollution abatement requirements of section
110(a)(2)(D)(ii) with respect to the 1997 8-hour ozone and 1997 and
2006 PM2.5 NAAQS, with the exception of section
110(a)(2)(D)(ii) as it relates to the GHG notification component of the
interstate pollution abatement requirement.
    EPA is proposing to find that the Texas SIP does not meet the
interstate and international pollution abatement requirements of
section 110(a)(2)(D)(ii) with respect to the 1997 ozone and 1997 and
2006 PM2.5 NAAQS, as it relates to the GHG notification
component of the interstate pollution abatement requirement. EPA's
disapproval here does not engender an additional statutory obligation,
because EPA has already promulgated a FIP for the Texas PSD program
related to permitting GHGs at or above the Tailoring Rule thresholds
(76 FR 25178).
    Adequate resources and authority, pursuant to section 110(a)(2)(E):
Texas statutes contain basic structural provisions that provide TCEQ
with generic authority for enforcement of the SIP. The TWC at Section
5.012 declares that ``[t]he commission is the agency of the state given
primary responsibility for implementing the constitution and laws of
this state relating to the conservation of natural resources and the
protection of the environment.'' In addition, the TCEQ has general
jurisdiction over the responsibilities assigned under the TCAA (see
THSC at section 382). The general powers and duties of the TCEQ,
pursuant to the TCAA (382.011) include administering the TCAA,
controlling the quality of the state's air, and accomplishing the
purposes of the TCAA ``through the control of air contaminants by all
practical and economically feasible methods.'' In Section 382.011, the
THSC also states that the TCEQ ``has the powers necessary or convenient
to carry out its responsibilities.'' Enforcement authority is provided
under the TWC, Chapter 7 (section 7.002).
    We propose to find that the generic authority concerning
enforcement evinced by these state statutory provisions cumulatively
are sufficient to assure enforcement of the NAAQS in Texas, in
accordance with the requirements of section 110(a)(2)(E). While EPA
proposes to find that these provisions confirm that the TCEQ has
adequate authority pursuant to 110(a)(2)(E), EPA is aware of Texas
legislation that may have altered the ambit of the state's enforcement
authority with respect to the federally approved Texas Title V program.
Senate Bill 12, codified at TWC Section 7.00251, by its own statutory
terms alters TCEQ's enforcement authority for ``violations based on
information [TCEQ] receives as required by Title V of the Clean Air
Act'' upon first infraction. Senate Bill 12 alters TCEQ's enforcement
authority with respect to self-certified violations documented in a
Title V deviation report. EPA believes it is important to note that
Senate Bill 12 does not affect, restrict, or alter the authority
ascribed to EPA, citizens, or parties other than TCEQ to enforce the
provisions of the SIP with respect to violations of the requirements of
the SIP, nor does it preclude TCEQ from seeking injunctive relief for
the violations or penalties for a repeat infraction. In conjunction
with Texas's generic statutory enforcement authority provisions cited
previously, EPA concludes that this legislation does not impede EPA's
approval of Texas's infrastructure SIP for the 1997 8-hour ozone NAAQS
and the 1997 and 2006 PM2.5 NAAQS under the requirements of
CAA 110(a)(2).
    However, EPA's proposed approval of the Texas infrastructure SIP
submission as meeting the requirements of 110(a)(2)(E) does not include
evaluation of adequate enforcement authority under the Title V program,
as Title V is subject to statutory and regulatory mechanisms outside
those provided within the scope of section 110(a). EPA is currently,
under Title V statutory and other regulatory mechanisms, evaluating
Senate Bill 12 for potential impacts on Texas's enforcement authority
to collect penalties with respect to the types of violations covered by
this legislation. EPA believes Senate Bill 12 may affect TCEQ's
enforcement authority under its federally approved Title V program to
collect penalties with respect to a subset of self-reported violations
upon the first infraction. Section 502 of Title V under the CAA
requires that a permitting authority have adequate authority in part,
to recover civil penalties in a maximum amount of not less than $10,000
per day for each violation. This Federal statutory requirement is
codified in regulations governing the Title V program. 40 CFR 70.11
requires that an agency administering a Title V program shall have
enforcement authority, in part, to recover civil penalties for the
violation of any applicable requirement. 40 CFR 70.4(i) establishes
procedures to address a state's Title V revisions, and authorizes EPA
to request, and the state must provide, a supplemental Attorney
General's statement, program description, or other such documents or
other information as the EPA determines are necessary when the agency
has reason to believe the circumstances with respect to a state's
approved Title V program have changed. In conformity with the statutory
and regulatory process for review of a state's Title V program, EPA has
initiated this process by a formal letter to TCEQ requesting a
supplemental Attorney General's statement and information EPA believes
necessary to evaluate the impact of Senate Bill 12 on Texas's Title V
program. A copy of this letter is included in the docket for this
rulemaking.\54\
---------------------------------------------------------------------------

    \54\ See letter from Lawrence E. Starfield to Mark R. Vickery,
dated May 19, 2011, in the docket for this rulemaking.
---------------------------------------------------------------------------

    Because EPA considers evaluation of a state's Title V program
outside the statutory and regulatory parameters of section 110(a), our
evaluation of Texas's enforcement authority and consequent approval
under 110(a)(2)(E) for infrastructure SIP purposes also does not
preclude EPA's future actions with respect to Texas's enforcement
authority pursuant to the Title V program. The scope of this action is
limited to determining whether the existing Texas SIP meets certain
infrastructure and interstate transport requirements of CAA 110(a)(2)
with respect to the 1997 8-hour ozone NAAQS and the 1997 and 2006
PM2.5 NAAQS.
    With regard to whether the State has adequate resources to carry
out its

duties as required by 110(E), the commission may apply for, solicit,
contract for, receive, or accept money from any source to carry out its
duties under this chapter (TCAA, section 382.0335). This section also
requires the TCEQ to establish fees not less than 50 percent of the
TCEQ's actual annual expenditures to review and act on permits or
special permits; amend and review permits, inspect permitted, exempted,
and specially permitted facilities; and enforce the rules and orders of
certain adopted permits, special permits, and exemptions issued.
Furthermore under section 382.0622 of the TCAA, the TCEQ may request
appropriations of sufficient money to contract for services of local
units of government meeting certain eligibility criteria to ensure that
the combination of Federal and state funds annually available for an
air pollution program is equal to or greater than the program costs for
the operation of an air quality program by the local unit of
government. The Texas SIP provides for the collection of fees at 30 TAC
106.50 (Registration Fees) and 30 TAC 116 (Determination of Fees,
Payment of Fees, PSD Permit Fees, Renewal Application Fees, Standard
Permit Fees, and Permit Fees). Most of these provisions have been in
the Texas SIP for many decades and revisions to them were approved on
March 20, 2009 (74 FR 11851) and the Permit Fees at 30 TAC 116.926 were
approved on January 11, 2011 (76 FR 1525). The state also has the
authority to collect fees for vehicle inspection and maintenance (I/M)
programs in several nonattainment areas and in the Austin area under
THSC sections 382.202 and 382.302. These rules are approved in the
Texas SIP and are found at 30 TAC 114.53 (71 FR 52670) and 114.87 (70
FR 45542). See the TSD for more detail.
    There are Federal sources of funding for the implementation of the
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS through, for
example, the CAA sections 103 and 105 grant funds. The TCEQ receives
Federal funds on an annual basis, under section 105 of the Act, to
support its air quality programs. Fees collected for motor vehicle
inspections, the Title V and non-Title V permit programs, and other
inspections, emissions and renewal fees required of other air pollution
sources also provide necessary funds to help implement the State's air
programs. More specific information on permitting fees is provided in
the discussion for 110(a)(2)(L) below and in the TSD.
    Texas has routinely submitted SIP revisions with assurances that
TCEQ has adequate personnel, funding, and authority under state law to
implement the SIP. The State has provided these assurances in SIP
submittals approved by EPA.\55\
---------------------------------------------------------------------------

    \55\ The DFW Reasonable Further Progress SIP to address the 1997
ozone moderate nonattainment area was approved on October 7, 2008
(73 FR 58475). See also the approved SIPs for the three Early Action
Compact (EAC) areas on August 19, 2005, (70 FR 48640 and 70 FR
48642) and August 22, 2005 (70 FR 48877).
---------------------------------------------------------------------------

    Section 110(a)(2)(E)(ii) requires that the state comply with
section 128. Section 128 requires: (1) That the majority of members of
the state body which approves permits or enforcement orders do not
derive any significant portion of their income from entities subject to
permitting or enforcement orders under the CAA; and (2) any potential
conflicts of interest by such body be adequately disclosed. In 1981,
the EPA approved into the SIP the Standards of Conduct of State
Officers and Employees (Texas Revised Civil Statute Annotated, Article
6252-9b) (46 FR 61124). The TWC addresses these requirements in the
Standards of conduct of state officers and employees. See TWC Title 2,
Subtitle A, Chapter 5, Subchapter C, Sec.  5.053: Eligibility for
Membership; Sec.  5.054: Removal of Commission Members; Sec.  5.059:
Conflict of Interest; Sec.  5.060: Lobbyist Prohibition; and Subchapter
D (General Powers and Duties of the Commission), Sec.  5.111: Standards
of Conduct.
    EPA is proposing to find that the Texas SIP meets the requirements
of section 110(a)(2)(E) with respect to the 1997 8-hour ozone and 1997
and 2006 PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section
110(a)(2)(F): 30 TAC chapters 101, 106, 111, 112, and 115-117 require
that stationary sources monitor for compliance, provide recordkeeping
and reporting, and provide for enforcement for ozone, PM2.5,
and precursors to these pollutants (NOX, SO2 and
VOCs). These source monitoring requirements also generate data for
these pollutants.
    Under the Texas SIP rules, the TCEQ is required to analyze the
emissions data from point, area, mobile, and biogenic (natural)
sources. The TCEQ uses this data to track progress towards maintaining
the NAAQS, develop control and maintenance strategies, identify sources
and general emission levels, and determine compliance with Texas and
EPA requirements. Emissions data are available electronically: http://www.tceq.texas.gov/nav/main/air_main.html#report. Texas's point source
emission inventory (EI) is available at http://www.tceq.texas.gov/airquality/point-source/psei/psei.html. These rules are in the
federally approved SIP. A list of the chapters and Federal Register
citations is provided in the TSD.
    EPA is proposing to find that the Texas SIP meets the requirements
of section 110(a)(2)(F) with respect to the 1997 8-hour ozone and 1997
and 2006 PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section
110(a)(2)(G) requires states to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs. The TCAA and TWC provide the TCEQ with
authority to address such activities \56\ and the TCEQ has contingency
plans to implement emergency episode provisions in the SIP. The Texas
Air Pollution Emergency Episode Contingency Plan was initially approved
into the SIP on October 7, 1982 (47 FR 44260). Subsequent revisions
were approved on September 6, 1990 (55 FR 36632) and July 26, 2000 (65
FR 45915). The episode criteria and contingency measures are found in
30 TAC 118. The rules at 30 TAC 118 (Renamed ``Control of Air Pollution
Episodes'') provide for air pollution emergency episodes and preplanned
abatement strategies. The criteria for ozone are based on a 1-hour
average ozone level. These episode criteria and contingency measures
are adequate to address ozone emergency episodes and are in the
federally approved SIP.
---------------------------------------------------------------------------

    \56\ See TCAA at 382.026 and TWC Chapter 5, Subchapter L
(5.514).
---------------------------------------------------------------------------

    The 2009 Infrastructure SIP Guidance for PM2.5
recommends that a state with at least one monitored 24-hour
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006
establish an emergency episode plan and contingency measures to be
implemented should such level be exceeded again. The 2006-2010 ambient
air quality monitoring data \57\ for Texas do not exceed 140.4
[micro]g/m\3\. The PM2.5 levels have consistently remained
below this level (140.4 [micro]g/m\3\), and furthermore, the state has
appropriate general emergency powers to address PM2.5
related episodes to protect the environment and public health. Given
the state's monitored PM2.5 levels, EPA is proposing that
Texas is not required to submit an emergency episode plan and
contingency measures at this time, for the 1997 and 2006
PM2.5 standards.

Additional detail is provided in the TSD.
---------------------------------------------------------------------------

    \57\ The ozone and PM data are available through AQS and the
State Web site (http://www.tceq.texas.gov/agency/air_main.html).
The AQS data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA is proposing to find that the Texas SIP meets the requirements
of section 110(a)(2)(G) with respect to the 1997 8-hour ozone and 1997
and 2006 PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The TCAA
directs the TCEQ to prepare and develop the SIP and provides TCEQ with
the power to amend any rule or regulation it makes (TCAA Section
382.0173). In addition, the TCAA in Section 382.036 provides that
``[t]he board shall: [* * *] advise, consult and cooperate with [* * *]
the federal government, [* * *] in regard to matters of common interest
in air control.'' Thus, Texas has the authority to revise its SIP from
time to time as may be necessary to take into account revisions of
primary or secondary NAAQS, or the availability of improved or more
expeditious methods of attaining such standards. Furthermore, Texas
also has the authority under these TCAA provisions to revise its SIP in
the event the EPA pursuant to the Act finds the SIP to be substantially
inadequate to attain the NAAQS.
    EPA is proposing to find that the Texas SIP meets the requirements
of section 110(a)(2)(H) with respect to the 1997 8-hour ozone and 1997
and 2006 PM2.5 NAAQS.
    Consultation with government officials, pursuant to section
110(a)(2)(J): \58\ The TCAA provides under Section 382.017 that ``[t]he
commission shall hold a public hearing before adopting a rule
consistent with the policy and purposes of this chapter.'' In addition,
the TCAA provides under Section 382.036 that ``[t]he commission shall:
[* * *] advise, consult, and cooperate with other state agencies,
political subdivisions of the state, industries, other states, the
Federal government, and interested persons or groups concerning matters
of common interest in air quality control.'' The TCAA under Section
382.035 also authorizes the TCEQ to adopt by rule any Memorandum of
Understanding (MOU) between the TCEQ and any other state Agency.
Accordingly, the TCEQ has provisions to establish a Memorandum of
Agreement (MOA) with one or more agencies in order to clarify areas of
responsibility. Several of these MOAs are in the federally approved
SIP.\59\
---------------------------------------------------------------------------

    \58\ Section 110(a)(2)(J) is divided into three segments:
Consultation with government officials; public notification; and PSD
and visibility protection.
    \59\ For example, see the Memorandum of Understanding (MOU) with
the Texas Department of Transportation, 70 FR 73380 (December 12,
2005).
---------------------------------------------------------------------------

    EPA is proposing to find that the Texas SIP meets the requirements
of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Public notification if NAAQS are exceeded, pursuant to section
110(a)(2)(J): Public notification begins with the air quality
forecasts, which advise the public of conditions capable of exceeding
the 8-hour ozone \60\ and PM2.5 NAAQS. The air quality
forecasts can be found on the TCEQ Web site: for 8-hour ozone, the
forecast includes 9 regions \61\ in the State; for PM2.5,
the forecast includes 14 regions \62\ in the State. Ozone forecasts are
made daily during the ozone season for each of the nine forecast
areas.\63\ The ozone forecasts are made, in most cases, a day in
advance by 2 p.m. local time and are valid for the next day. The only
exception is for the Houston area, where the forecast can be updated as
late as 9 a.m. local time on the same day that the forecast is in
effect. When the forecast indicates that ozone levels will be above the
8-hour ozone standard, the State notifies the National Weather Service,
who then broadcasts the information across its weather wire. In
addition, four areas receive ``ozone warnings'' when monitors measure
levels above the 8-hour ozone standard.\64\ Ozone warnings for these
areas are generated automatically, approximately 20 minutes after the
hour when high ozone is measured for that particular area. The ozone
forecasts and warnings are available through e-mail notification.\65\
---------------------------------------------------------------------------

    \60\ The TCEQ forecasts for 8-hour ozone are based on the 2008
ozone standard, which is 75 ppb.
    \61\ The 9 forecast areas for 8-hour ozone are Austin, Beaumont-
Port Arthur, Corpus Christi, Dallas-Fort Worth, El Paso, Houston,
San Antonio, Tyler-Longview, and Victoria. See http://www.tceq.texas.gov/cgi-bin/compliance/monops/ozone_actionday.pl.
    \62\ The 14 forecast areas for PM2.5 are Austin,
Beaumont-Port Arthur, Brownsville-McAllen, Corpus Christi, Dallas-
Fort Worth, El Paso, Houston, Laredo, Lubbock, Midland-Odessa, San
Antonio, Tyler-Longview, Victoria, and Waco-Killeen. See http://www.tceq.texas.gov/airquality/monops/forecast_today.html.
    \63\ Ozone is a gas composed of three oxygen atoms. Ground level
ozone is generally not emitted directly from a vehicle's exhaust or