[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66641-66651]
[FR Doc No: 2014-26315]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0808; FRL-9912-50-OAR]

Approval and Promulgation of Air Quality Implementation Plans;
Withdrawal of Federal Implementation Plan; Texas; Prevention of
Significant Deterioration; Greenhouse Gas Tailoring Rule Revisions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to rescind a Federal Implementation Plan (FIP) for Texas for
greenhouse gas (GHG) Prevention of Significant Deterioration (PSD)
permitting, with three limited circumstances for retained federal
permitting authority. We are removing the majority of the GHG PSD FIP
because in a separate but simultaneous action being published elsewhere
in this issue of the Federal Register, we are finalizing approval of
the majority of revisions to the Texas State Implementation Plan (SIP)
submitted by the Texas Commission on Environmental Quality (TCEQ) to
the EPA on October 5, 2010, and April 16, 2014, that address the
state's authority to regulate GHGs and establish an approvable GHG PSD
permitting program. The EPA is finalizing this action under Section 110
and Part C of the Clean Air Act (CAA).

DATES: This final rule is effective on November 10, 2014.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2013-0808. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Air Planning Section (6PD-L), Environmental
Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-
2733. Contact the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph below to make an appointment.

FOR FURTHER INFORMATION CONTACT: Adina Wiley, Air Permits Section (6PD-
R), telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background
II. Recent UARG v. EPA U.S. Supreme Court Decision
    A. Overview of the Decision and Implications for this Action
    B. Changes to the Transition Process as a Result of the UARG v.
EPA Decision
III. Response to Comments
IV. Effective Date of Final Action
V. Final Action
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act (CRA)
    L. Petitions for Judicial Review

I. Background

    The background for today's final action to rescind the Texas GHG
PSD FIP, but for three limited circumstances, and the background for
the separate but simultaneous final action also being published today
to approve the majority of revisions to the Texas SIP, are discussed in
detail in our February 18, 2014, proposal (79 FR 9123). In that
document, we proposed to approve portions of two revisions to the Texas
SIP submitted by the TCEQ on October 5, 2010, and December 2, 2013. The
December 2, 2013, submittal was a request for parallel processing of
revisions proposed by the TCEQ on October 23, 2013. Our February 18,
2014, proposed approval and accompanying Technical Support Document
provide the EPA's evaluation of the October 5, 2010, and December 2,
2013, revisions to the Texas SIP that would provide for the regulation
of GHG emissions in the Texas PSD program and clarify the applicability
of BACT for all PSD permit applications. We preliminarily determined
that the revisions were consistent with the CAA and the EPA's
regulations and guidance for the permitting of GHG emissions in the PSD
program. Therefore, we proposed approval of the SIP revisions and
simultaneously proposed to rescind the GHG PSD Federal Implementation
Plan (FIP) for Texas with the exception of the three limited
circumstances for retained federal permitting authority.
    The December 2, 2013, submittal was a request for parallel
processing; meaning that the EPA proposed a rulemaking action on a
proposed SIP revision concurrently with the State's public review
process. As discussed in our separate but simultaneous final approval
action on the Texas SIP revisions published elsewhere in this issue of
the Federal Register, the EPA evaluated the April 16, 2014, final Texas
SIP submittal and determined that the changes made by the TCEQ at
adoption are not material changes to the regulations that we proposed
to approve; and therefore do not alter our rationale presented in the
February 18, 2014 proposed approval. By extension, the underlying
rationale for the proposed rescission of the majority of the Texas GHG
PSD FIP remains unchanged from proposal. However, as discussed in
Section II of this final FIP rescission and the separate but
simultaneous final SIP approval, the EPA is not acting on certain
sections of the April 16, 2014, submittal that are no longer necessary
after the recent United States Supreme Court decision, UARG v. EPA.
    In this action, the EPA is finalizing only the rescission of the
majority of the Texas GHG PSD FIP. We are also finalizing in a separate
but simultaneous action published elsewhere in this issue of the
Federal Register the approval of the majority of the above referenced
revisions to the Texas PSD SIP. Therefore, as of the effective date of
this final action, the TCEQ becomes the primary permitting authority
for GHGs, except in the three limited circumstances described this
final action. As explained in our separate but simultaneous final SIP
action, we explain in the final notice the recent United States Supreme
Court decision, Utility Air Regulatory Group (UARG) v. Environmental
Protection Agency (EPA) (No. 12-1146). We discuss in that notice that
we are finalizing the majority of the proposed approval of the Texas
SIP revisions but are not acting on certain sections of the submittal
that appear no longer necessary after the decision. Please see that
notice for further discussion.

II. Recent UARG v. EPA U.S. Supreme Court Decision

A. Overview of the Decision and Implications for This Action

    On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of stationary source permitting requirements
to GHGs in Utility Air Regulatory Group (UARG) v. Environmental
Protection Agency (EPA) (No. 12-1146). The Supreme Court held that the
EPA may not treat GHGs as an air pollutant for purposes of determining
whether a source is a major source required to obtain a PSD permit, but
that the EPA could continue to require that PSD permits, otherwise
required based on a source's emissions of conventional pollutants
(``anyway'' sources), contain limitations on GHG emissions based on the
application of the BACT.
    The Supreme Court reversed in part and affirmed in part the
decision of the D.C. Circuit Court that upheld several EPA actions
addressing PSD permitting requirements for greenhouse gases including
the Tailoring Rule.\1\ Although the Supreme Court concluded that ``EPA
exceeded its statutory authority when it interpreted the Clean Air Act
to require PSD and Title V permitting for stationary sources based on
their greenhouse gas emissions,'' 134 S.Ct. at 2449, it did not
specifically identify particular provisions of the EPA regulations it
was striking down. Thus, pending further action by the United States
Court of Appeals for the District of Columbia Circuit (the D.C.
Circuit) and EPA action to revise the regulations in accordance with a
more specific remedy ordered by the D.C. Circuit, the provisions of 40
CFR 51.166 that provide criteria for EPA approval of state PSD permit
programs remain in the Code of Federal Regulations. This includes 40
CFR 51.166(b)(48)(v), which addresses permitting of ``Step 2'' sources
that emit greenhouse gases in excess of 100,000 tons per year and no
other pollutants over the major source thresholds. In light of UARG,
the EPA is not requiring PSD permits, either directly or through state
implementation plans for sources emitting greenhouse gases at any level
unless a source emits a regulated pollutant other than greenhouse gases
above the statutory major source thresholds. That means that the EPA
will not apply or enforce regulations that would require states to
include in their SIPs a requirement that ``Step 2'' sources obtain PSD
permits. Thus, despite the fact that 40 CFR 51.166(b)(48)(v) remains in
the Code of Federal Regulations at this time, in light of the Supreme
Court's decision the EPA is not taking action on the provisions of the
Texas SIP that would require a stationary source to obtain a PSD permit
if GHGs are the only pollutant (i) that the source emits or has the
potential to emit above the major source thresholds, or (ii) for which
there is a significant emissions increase and a significant net
emissions increase from a modification.
---------------------------------------------------------------------------

    \1\ See ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 June 3,
2010. See also our February 18, 2014, Proposal (79 FR 9123) for a
full background discussion.
---------------------------------------------------------------------------

    The Supreme Court also affirmed the lower court's decision that the
BACT requirement applies to GHG emissions from new and modified sources
that trigger PSD permitting obligations on the basis of their emissions
of air pollutants other than GHG (also known as ``Step 1'' or
``anyway'' sources). The Court concluded that ``EPA may continue to
treat greenhouse gases as a `pollutant subject to regulation under [the
Clean Air Act]' for purposes of requiring BACT for `anyway' sources.''
134 S.Ct. at 2449. Accordingly, the PSD BACT requirement continues to
apply to greenhouse gas emissions from any new

or modified source that is otherwise subject to PSD requirements as a
result of its emissions of a criteria pollutant (i.e. to an ``anyway''
source), and EPA will continue to implement existing regulations that
limit application of the statutory BACT requirement to greenhouse gases
where the construction project to be completed would emit at or above a
level of 75,000 tpy of CO2e as provided in 40 CFR
51.166(b)(48)(iv).
    The EPA and D.C. Circuit have long recognized, and the D.C.
Circuit's decision affirmed by the Supreme Court further confirmed,
that PSD requirements apply to emissions of PSD pollutants ``by
automatic operation of'' the Clean Air Act. Coalition for Responsible
Regulation v. EPA, 684 F.3f 102, 115 (D.C. Cir. 2012). The Supreme
Court rejected ``a greenhouse-gas-inclusive interpretation of the PSD
and Title V triggers,'' because the CAA does not allow the Agency to
``treat greenhouse gases as a pollutant for purposes of defining a
`major emitting facility' (or a `modification' thereof) in the PSD
context.'' 134 S.Ct. at 2442, 2449. But the Court did not question the
longstanding interpretation of the EPA and the D.C. Circuit court that
the CAA PSD permitting requirements automatically apply to major source
emissions of pollutants that are ``subject to regulation'' under the
Act. 134 S.Ct. at 2442 n. 6. See also UARG, 134 S.Ct. at 2435 (``it is
unlawful to construct or modify a `major emitting facility' in `any
area to which [the PSD program] applies' without first obtaining a
permit.''). To the contrary, UARG affirmed the portion of the D.C.
Circuit's decision holding that the BACT requirement clearly applies to
greenhouse gas emissions from ``anyway'' sources and that such PSD
requirements apply to sources automatically by operation of the Clean
Air Act. Accordingly, the EPA does not interpret UARG to alter the
settled understanding that the BACT requirement automatically applies
to a pollutant (including greenhouse gases) once it becomes subject to
regulation under the Clean Air Act. Thus, consistent with the Supreme
Court's holding that EPA can ``continue to'' require compliance with
the BACT requirement in the Clean Air Act, 134 S.Ct. 2449, the EPA will
continue to apply the BACT requirement to greenhouse gases under its
existing regulations applicable to EPA's review of state implementation
plans, including 40 CFR 51.166(j), 40 CFR 51.166(b)(12), 40 CFR
51.166(b)(49), and 40 CFR 51.166(b)(48)(i)-(iv).
    The Supreme Court noted that the EPA could exercise its discretion
to limit application of BACT to sources with the potential to emit
greenhouse gases above a de minimis threshold, but that if EPA wished
to do so, it would need to justify such threshold for application of
BACT to GHGs on proper grounds. The Court observed that when EPA
established the existing 75,000 tpy threshold the Agency did not
characterize it as a de minimis level. 134 S.Ct. at 2449. Rather, that
threshold represents a level that EPA determined to be both
administratively feasible for permitting authorities to implement and
reasonable for sources to comply with. 75 FR 31514, 31560 (June 3,
2010). EPA is considering additional action to establish a de minimis
threshold for application of the BACT requirement to GHGs. Pending
additional action by EPA addressing the threshold for application of
the BACT requirement to greenhouse gases, the Agency will continue to
apply the existing regulations that require a state PSD program to
apply the PSD BACT requirement to GHG emissions from ``anyway'' sources
that emit or have the potential to emit 75,000 tons per year tpy or
more of GHG on a carbon dioxide (CO2e) basis. With respect
to modified ``anyway'' sources, the EPA is presently reading its
regulations to require that state PSD programs apply the PSD BACT
requirements to GHG if both of the following circumstances are present:
(1) The modification is otherwise subject to PSD for a pollutant other
than GHG; (2) the modification results in a GHG emissions increase and
a net GHG emissions increase equal to or greater than 75,000 tpy
CO2e and greater than zero on a mass basis.
    Based on information submitted by TCEQ, EPA concluded in its Notice
of Proposed Rulemaking that TCEQ had provided sufficient assurance that
it has the legal authority, personnel, and funding to implement PSD
permitting requirements for greenhouse gases. Following the UARG
decision, the State of Texas has argued in litigation before the D.C.
Circuit that GHGs are not presently subject to regulation under the PSD
program and that EPA must conduct additional rulemaking to establish a
de minimis level before the BACT requirement can be applied to
greenhouse gas emissions in PSD permits required for construction at
anyway sources. Nevertheless, the TCEQ has communicated to the EPA that
it ``continues to pursue EPA approval of [its] SIP submittal . . . so
our agency has the full authority to implement the greenhouse gas
permitting program in Texas.'' \2\ The State has further stated that
``[r]egardless of litigation positions, we are currently advocating and
might pursue in the future, we think it is necessary for TCEQ to assume
this permitting role and issue PSD permits for greenhouse gas
emissions.'' Based on information supplied by TCEQ before the proposed
rule and this additional assurance, EPA concludes that Texas intends to
implement the PSD permitting requirements for greenhouse gases
consistent with EPA's understanding of those requirements, as
articulated above, and that TCEQ continues to have sufficient legal
authority to do so. Furthermore, TCEQ has provided sufficient assurance
that it will commit the personnel and funding necessary to issue PSD
permits addressing greenhouse gases, notwithstanding the State's
ongoing efforts to persuade the court that such permits are not
required under the Clean Air Act until EPA conducts further rulemaking.
EPA's rescission of the majority of the FIP and its approval of the
majority of the Texas GHG SIP are predicated on the understanding that
the State of Texas will implement the PSD program requirements for
greenhouse gases in accordance with TCEQ's representations.
---------------------------------------------------------------------------

    \2\ On October 1, 2014, the TCEQ sent EPA Region 6 a
clarification letter in light of the UARG v. EPA decision. That
letter is also posted in the public docket to this rulemaking.
---------------------------------------------------------------------------

    In sum, therefore, the EPA is taking no action on the portion of
the Texas SIP submittal requiring sources to obtain PSD permits based
solely on their emissions of GHGs, but is otherwise finalizing its
rescission of the majority of the FIP and its approval of the majority
of the Texas SIP submittals as discussed in the separate final SIP
action published elsewhere in this issue of the Federal Register.

B. Changes to the Transition Process as a Result of the UARG v. EPA
Decision

    The EPA must also consider how the July 23, 2014, Supreme Court
decision in UARG v. EPA will impact our final FIP rescission and
simultaneous SIP actions. In our February 18, 2014, proposed rulemaking
we identified the following three possible circumstances for retaining
federal GHG PSD permitting authority: (1) The EPA would retain
permitting authority for any pending permit application where the
permit applicant submitted a written request to remain with EPA for
permit issuance, (2) the EPA would retain permitting authority for any
pending permit applications where the permit

applicant did not submit a written request regarding permit authority
and the EPA had made a proposed determination through a public-noticed
draft permit upon the signature date of the EPA's rescission of the GHG
PSD FIP, and (3) the EPA would retain permitting authority over any
permit that was issued but had not yet completed the administrative and
judicial review process. In conjunction with our February 18, 2014,
proposal we issued the ``Transition Process for Pending GHG PSD Permit
Applications and Issued GHG PSD Permits Upon Rescission of the GHG PSD
FIP'' (the Transition Process). As specified in this Transition
Process, the EPA sent letters to each existing pending permit applicant
requesting a written response by May 15, 2014, regarding whether EPA
should retain responsibility for processing the permitting application
or transfer it to the TCEQ. We received such a response by the May 15,
2014 deadline from all of the initial GHG PSD permit applicants.
    Since the time of our proposed rulemaking, we have received
additional GHG PSD permit applications. For the purposes of the
Transition Process and our final action today rescinding the Texas GHG
PSD FIP, these GHG permit applicants would be considered pending permit
applications. According to our February 18, 2014, proposed action, the
EPA would retain authority over any of these permit applications where
we had not proposed a draft permit at the time of final signature on
the FIP rescission. However, because of the Supreme Court's UARG v.
EPA, this has created some delay in the issuance of a final action on
the proposed Texas SIP approval and FIP rescission. As such, these
pending permit applicants were not afforded the same opportunity to
communicate with the EPA that was provided to the other permit
applications, submitted to the EPA, at the time of our February 18,
2014, proposed approval. We believe it is appropriate to modify our
retained FIP authorities such that the EPA will retain permitting
authority for any pending permit application submitted after our
February 18, 2014, proposal that did not respond in writing to the EPA
by May 15, 2014, regardless of whether the EPA has published public
notice of a proposed permit. We will retain the permitting authority
and proceed with our evaluation and processing of the permit
application until the applicant submits a written request to be
transferred to the TCEQ, withdraws its application, or the EPA issues a
final and effective permit.
    In this circumstance, the EPA will consider a request for transfer
to be a withdrawal of the application that removes the application from
review and further action by EPA Region 6. As discussed in our February
18, 2014, proposed rulemaking, the EPA's permitting authority ``will
cease upon an applicant's written request to the EPA withdrawing the
pending permit application before a final determination is made.'' See
79 FR 9123, 9133. For those applications transferred to the TCEQ for
which the EPA has not proposed a draft permit, the Texas SIP-approved
public notice process will involve two opportunities for public comment
under 30 TAC Sections 39.418 and 39.419 for the Notice of Receipt of
Application and Intent to Obtain Permit (NORI) and the Notice of
Application and Preliminary Decision (NAPD). In the instances where a
permit applicant requests that EPA transfer the permit application to
the TCEQ and Region 6 has already public noticed a draft permit, an
additional public notice will be necessary to initiate and complete the
permitting process in accordance with the process required under Texas
procedures approved in the SIP. If the EPA has received any public
comments on its draft permit, the EPA intends to contact each commenter
to advise them to resubmit comments to the TCEQ pursuant to 30 TAC
Sections 39.412 and 55.152.
    The EPA's Region 6 will consider such a request to transfer a
permit application until the time that Region 6 issues a final permit
decision under 40 CFR 124.15(b) of the EPA's regulations. After this
point in the permitting process, interested parties who commented on
the draft permit will have 30 days to request an administrative appeal
of the permit before the EPA Environmental Appeals Board (EAB) under 40
CFR 124.19. During this 30 day period, the EPA will retain authority
over the permit and will no longer consider any requests to transfer a
permit application. If no party petitions the EAB for review, the
permit will become final and effective under 40 CFR 124.15(b). At this
point, Region 6 will transfer administration of the final and effective
permit to TCEQ. If a party petitions the EAB for review of a final
permit decision by Region 6, the EPA will retain authority over the
permit until administrative and judicial review proceedings are
exhausted with one exception. If a petition for review has been filed
with the EAB, the permit does not become final and effective, and EPA
Region 6 will still have the opportunity to withdraw the permit or
request that the EAB grant a voluntary remand under 40 CFR 124.19(j).
An applicant that wishes to withdraw a permit under EAB review must
provide written notice to the EAB that it is doing so. If an applicant
wishes for Region 6 to initiate this withdrawal process while
administrative review of a permit is pending before the EAB, the
applicant will need to communicate with Region 6 in writing that it
seeks to withdraw its permit application. The applicant may submit a
new permit application to TCEQ after withdrawing its application from
the EPA in this manner, but the EPA will not transfer a permit
application at this point in the process. If a permit decision is
remanded to Region 6 by the EAB, the permit applicant may also request
withdrawal of its permit application prior to Region 6 issuing a final
permit after remand, but Region 6 will also not transfer a permit
application at this point in the process. Once the final permit
decision is issued under 40 CFR 124.19(i)(2), the EPA would retain
authority under the FIP until the period for seeking judicial review
has expired or any judicial review proceedings are completed.
    Under the UARG v. EPA decision, the U.S. Supreme Court stated that
the EPA may not treat GHG as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit. Therefore, consistent with our understanding of the Supreme
Court's decision, the EPA will no longer process pending permit
applications for ``non-anyway'' sources or modifications. The EPA will
also not transfer the permitting authority for ``non-anyway'' sources
or modifications or any issued ``non-anyway'' permits to the TCEQ.
After the completion of the GHG litigation in the D.C. Circuit, the EPA
will determine the best course of disposition of these issued ``non-
anyway'' permits.
    In summary, the EPA is finalizing retained permitting authority in
the following circumstances:
    (1) The EPA will continue to be the permitting authority for a
pending permit application for an ``anyway'' source or ``anyway''
modification where the permit applicant submitted a written request by
May 15, 2014, that the EPA remain as the permitting authority.
    (2) The EPA will continue to be the permitting authority for any
pending permit applications for ``anyway'' sources or ``anyway''
modifications submitted after the February 18, 2014, rulemaking. The
EPA will continue to evaluate and process the pending permit
applications unless the applicant submits a written request to transfer

permitting authority to TCEQ prior to Region 6 issuing a final permit
decision under 40 CFR 124.15(b).
    (3) The EPA will retain authority over any permit for ``anyway''
sources or ``anyway'' modifications that was issued by the EPA or for
``anyway'' permit applications denied by the EPA for which either the
time for filing an administrative appeal has not expired or all
administrative and judicial appeals processes have not been completed.
Except that, the EPA will not retain authority over a permit if an
applicant submits a written request to the EPA to withdraw the permit
application while an administrative appeal is pending and Region 6 then
withdraws the permit under 40 CFR 124.19(j) or the EAB grants a
voluntary remand under 40 CFR 124.19(j) or another appropriate remedy.

III. Response to Comments

    We received comments from Air Alliance Houston, the Greater Houston
Partnership (GHP), the House Bill 788 Working Group (HB 788 Working
Group), Sierra Club, Texas Chemical Council (TCC), Texas Commission on
Environmental Quality (TCEQ), Texas Industry Project (TIP), the Texas
Oil and Gas Association (TXOGA), the Texas Pipeline Association (TPA),
and public citizens on our February 18, 2014 proposal. All comments
received on the February 18, 2014, proposed action are available in the
public docket to this rulemaking. Following is our summary of each
comment relating to the FIP action and our response. The EPA notes that
the comments and our responses to comments that relate solely to the
SIP action are in the separate but simultaneous final approval notice
of those revisions. Comments and responses that relate to both actions
are found in both final documents.
    Comment 1: The TCEQ, GHP, HB 788 Working Group, TCC, TIP, and TPA
submitted comments supportive of our proposed action and urge the EPA
to proceed with final approval and rescind the associated FIP.
    Response 1: The EPA appreciates the support of the commenters. No
changes have been made to the final FIP action as a result of these
comments.
    Comment 2: The TCC encouraged the EPA to make the FIP rescission
effective immediately upon approval of the SIP. As support, the
commenters referenced the EPA's final approval action of the Wyoming
GHG PSD Program at 78 FR 69998, November 22, 2013.
    Response 2: The EPA interprets the comment as a request that the
EPA make the final approval of the rescission of the GHG PSD FIP and
final approval of the GHG PSD SIP effective immediately upon
publication in the Federal Register pursuant to the Administrative
Procedure Act Section (APA), 5 U.S.C. Section 553(d). As explained more
fully in Section IV of this document and in Comment/Response 3, the EPA
finds that today's final FIP action and the separate but simultaneous
final SIP approval action be made effective immediately upon
publication in the Federal Register.
    The EPA also wishes to clarify that the Wyoming action, cited in
the comment as precedent for an immediate effective action, does not
utilize Section 553(d) of the APA. The EPA's November 22, 2013 final
approval of the Wyoming GHG PSD Program and FIP rescission were both
effective 30 days after publication in the Federal Register.
Specifically, the Wyoming action was published on November 22, 2013,
and the SIP approval and FIP rescission were effective on December 23,
2013.
    Comment 3: TXOGA requested that the final SIP approval and the FIP
rescission be effective on the date of Federal Register publication
rather than waiting 30 days after publication. TIP commented that the
EPA should invoke the ``good cause'' exception in the APA to make the
final approval and FIP rescission immediately effective upon
publication. TIP suggested that using the good cause exception would:
(1) ``level the playing field'' between Texas GHG permitting and GHG
permitting in states with EPA-approved GHG permitting programs; (2)
provide economic benefits by allowing consolidation of air permitting
for Texas GHG sources at the TCEQ; (3) relieve a restriction imposed by
the FIP; and (4) is procedural in nature and does not change
substantive requirements for GHG PSD permitting.
    Response 3: The EPA agrees that this is an appropriate circumstance
to make this rule effective immediately upon publication, pursuant to 5
U.S.C. Section 553(d) of the APA. As detailed in Section III of the
final FIP action and in Section III of the separate but simultaneous
final SIP approval, we have determined that both the final rescission
of the GHG PSD FIP and the separate but simultaneous approval of the
GHG PSD SIP be effective immediately upon publication in the Federal
Register. An immediate effective date is authorized under the APA at 5
U.S.C. Sections 553(d)(1) and 553(d)(3). Section 553(d)(1) provides
that rulemaking actions may become effective less than 30 days after
publication if the rule ``grants or recognizes an exemption or relieves
a restriction,'' and Section 553(d)(3) allows an effective date less
than 30 days after publication ``as otherwise provided by the agency
for good cause found and published with the rule.'' First, an immediate
effective date is authorized for the rescission of the GHG PSD FIP
under Section 553(d)(1), because this rulemaking relieves the
requirement that sources obtain both a federal permit and a state
issued permit. The immediate effective date helps to relieve the
restriction on TCEQ's ability to issue single GHG PSD permits and will
eliminate the dual EPA/TCEQ PSD permit system, which in turn, promotes
a more efficient single permitting authority process. Second, we have
determined there is ``good cause'' under Section 553(d)(3) to make this
rule effective immediately because it will allow Texas to begin
processing complete PSD GHG applications that meet the appropriate
federal PSD requirements immediately and it will allow the regulated
community to receive PSD permits containing GHG limits, issued by
Texas, as soon as possible. An immediate effective date provides Texas
with undelayed authority to regulate GHG emissions in PSD permits
issued to ``anyway'' sources and allows Texas to become the sole PSD
permitting authority in the State, except in three limited
circumstances, as described above. In addition, an expedited transition
of the GHG PSD program from the EPA to Texas creates a more efficient
use of EPA and State resources, and creates certainty for the regulated
community and public. The EPA and the TCEQ have worked closely to
ensure Texas has adequate authority and resources to administer the GHG
PSD permitting program without a 30 day delay, which is normally the
time required for affected parties to adjust their behavior and prepare
before the final rule takes effect. The EPA has determined that moving
as expeditiously as practicable to consolidate GHG PSD permitting with
the TCEQ PSD permitting program is supported here as the State has the
authority and resources to administer the GHG PSD permitting program.
The EPA finds that the above reasons support an effective date prior to
30 days after the date of publication under 5 U.S.C. Section 553(d) of
the APA for both today's final FIP action and the separate but
simultaneous final SIP approval action. We have revised the effective
date of our final FIP action as a result of these comments.
    Comment 4: The EPA should state for the record that GHG permits
issued by the EPA may be amended by the TCEQ once permitting authority
is delegated.
    Response 4: As stated in our proposed approval, the TCEQ submitted
a letter

on January 13, 2014, (available in the docket for this rulemaking) that
provided clarity and assurances that the TCEQ has the general authority
under the Texas Clean Air Act to administer the EPA-issued GHG PSD
permits, including revising or amending those permits in the future.
Specifically, the ``TCEQ will assume full PSD responsibility for the
administration and implementation of final GHG PSD permits issued by
the EPA upon notification from the EPA that all administrative and
judicial appeal processes have expired or have been completed or
concluded . . . assuming full PSD responsibility includes the authority
to . . . process and issue any and all subsequent PSD permit actions
relating to such permits (e.g., amendments).'' See 79 FR 9123, 9132.
February 18, 2014. The EPA addresses the commenter's statement about
delegation of permitting authority in our separate but simultaneous
final SIP approval also published elsewhere in this issue of the
Federal Register. No changes were made to the final FIP action as a
result of these comments.
    Comment 5: One commenter found it difficult to provide specific
comments due to the pending Supreme Court decision on GHG and asked
that the EPA discuss the impact, if any, of the pending Supreme Court
decision around GHG.
    Response 5: See Section II of today's final action for a detailed
discussion. Although not specifically referenced in the comment, we
believe the commenter's reference to ``pending supreme court decision
around GHG'' refers to the following case before the Supreme Court of
the United States: Case 121146; Utility Air Regulatory Group v. The
Environmental Protection Agency and consolidated cases. The Supreme
Court of the United States decided this case on June 23, 2014. In
summary, the Supreme Court affirmed in part and reversed in part the
lower court's decision on the applicability of the PSD Program to GHGs,
rejecting the application of the PSD program to additional sources
based only on GHG emissions but affirming the applicability of BACT to
GHGs emitted by sources otherwise required to obtain PSD permits based
on emissions of other pollutants. Accordingly, the decision has
influenced our final action on the April 16, 2014 SIP submittal. In our
separate but simultaneous SIP action, the EPA is proceeding with the
finalization of the majority of the revisions to the Texas SIP.
However, in order to proceed consistent with the Court's decision, the
EPA is taking no action at this time on portions of the April 16, 2014
submittal that provided for the permitting of ``Step 2,'' ``non-
anyway'' sources. Please see our final separate but simultaneous SIP
final notice for a more detailed discussion.
    Comment 6: Public citizens submitted several comments regarding the
EPA's proposed approval of the GHG PSD SIP, the rescission of the GHG
PSD FIP, and the transition process to be used when transferring
permitting authority to the TCEQ. Specifically, the commenters are
concerned that the transition process is lacking the ``voice'' of the
people on whether the public feels it is the right of the applicant/
company to be able to choose the EPA or the TCEQ as the permitting
authority without the public's input on pending applications. The
commenters urged the EPA to retain the FIP permitting authority in
sensitive nonattainment areas such as in Brazoria County, Texas.
Finally, the commenters submitted information regarding ozone monitor
siting and air quality in Clute, water quality impacts in the Galveston
Bay, and maps identifying locations of proposed GHG PSD permits.
    Response 6: While the EPA appreciates the commenter's concerns
about the public having a voice in the selection of a permit authority,
we believe the appropriate regulatory and permit transition procedures
are in place to ensure any GHG PSD permit, whether issued by the EPA or
the TCEQ, complies with all federal PSD requirements, including
opportunities for public input. Further, the EPA offered an opportunity
for review and comment on our proposed determination that the TCEQ has
the requisite authority to address GHGs in the PSD program in Texas
upon approval of the SIP and corresponding rescission of the majority
of the FIP for GHGs. We received no comments on this specific issue. In
the separate, but simultaneous final SIP action published elsewhere in
this issue of the Federal Register, we are approving the majority of
revisions to the Texas PSD SIP, except with the noted exceptions where
we are taking no action at this time on certain revisions that appear
to no longer be appropriate after the Supreme Court's UARG v. EPA
ruling. Because of this, the EPA finds the TCEQ has the necessary legal
and regulatory provisions in place to successfully implement the
appropriate federal requirements for GHG PSD permitting. Therefore, we
are simultaneously rescinding the Texas GHG PSD FIP but for three
limited circumstances for retained federal permitting authority, and
approving the majority of revisions to the Texas SIP in a separate but
simultaneous final action published elsewhere in this issue of the
Federal Register. Upon the effective date of both of these actions, the
TCEQ will have the authority to process applications and issue GHG PSD
permits except for the three limited circumstances where the EPA is
retaining federal permitting authority. As stated in the EPA's February
18, 2014, proposal and transition document referenced in that action,
the EPA contacted each GHG PSD permit applicant who had submitted an
application to the EPA at the time of our proposed approval. We
provided these permit applicants the opportunity to elect either the
EPA or the TCEQ as the issuer of its GHG permit by May 15, 2014. All
permit applicants submitted a request for permitting authority by the
deadline of May 15, 2014. For the permit applications that have been
submitted since the EPA's proposed approval, the EPA is retaining
permitting authority and will continue evaluating and processing these
permit applications unless and until the applicant submits a written
request to transfer to the TCEQ, the EPA issues a final permit, or the
applicant withdraws the permit application from the EPA's
consideration. The EPA Region 6 GHG Web site has been updated to
identify which permit applications have been retained by the EPA for
processing and those which have been transferred to the TCEQ. We will
continue to update this Web site as applicants make their decisions
regarding permitting authority. Upon the effective date of our final
SIP approval and simultaneous FIP rescission, the EPA will no longer
accept applications for GHG PSD permits in Texas. From that point
forward, the TCEQ will be the only permitting authority for GHG PSD
permits in Texas, with the exception of the three limited circumstances
where the EPA retained authority over a permit application or issued
permit that has not exhausted all administrative and judicial appeals.
Both the EPA and the TCEQ are required to issue GHG PSD permits that
satisfy federal requirements for PSD permitting. In the instances where
a permit applicant elected to transfer the permitting authority to the
TCEQ and the EPA has already public noticed a draft permit and received
comments, the EPA intends to contact each commenter to advise them to
resubmit comments to the TCEQ pursuant to 30 TAC Sections 39.412 and
55.152.
    Second, in our separate but simultaneous final PSD SIP action
published elsewhere in this issue of the Federal Register, we are
finding the

TCEQ has adopted regulations sufficient to regulate emissions of GHGs
from ``anyway'' major emitting sources under the Texas PSD program. As
part of the Texas PSD SIP approval final action, a GHG PSD permit
application will be subject to the Texas SIP-approved public notice and
comment procedures that are consistent with the EPA's federal PSD
public notice requirements at 40 CFR 51.166(q). For new GHG PSD permit
applications processed by the TCEQ and those applications transferred
to the TCEQ for which the EPA has not proposed a draft permit, the
Texas SIP-approved public notice process will involve two opportunities
for public comment under 30 TAC Sections 39.418 and 39.419 for the
Notice of Receipt of Application and Intent to Obtain Permit (NORI) and
the Notice of Application and Preliminary Decision (NAPD). For the
subset of permit applications that are transferred to the TCEQ after
the EPA has already proposed a draft permit, these applications will
either use the NORI and NAPD or will go through a Combined Public
Notice under 30 TAC Section 39.412. Opportunity for public review and
comment will be provided in all instances where the TCEQ is the
permitting authority for a GHG PSD permit application.
    We would like to correct one statement from the commenter
concerning nonattainment permitting, which is that the EPA should
retain the GHG PSD FIP permitting authority in sensitive nonattainment
areas. There are no GHG nonattainment areas; the EPA was the permitting
authority only for GHG PSD permits. The TCEQ has been, and continues to
be, the permitting authority for Nonattainment New Source Review (NNSR)
permits in Texas. In Brazoria County, the EPA was the permitting
authority for the GHG PSD permits but the TCEQ was the permitting
authority for the NNSR permitting program and all other non-GHG PSD
pollutants.
    After review and consideration of the additional materials
submitted by the citizens, the EPA has determined that the data
submitted regarding ozone monitors and air quality in Clute, water
quality in Galveston Bay, and maps identifying locations of the
proposed GHG PSD permit applications, are beyond the scope of our
review and are not relevant to our rescission of the GHG PSD FIP.
    No changes were made to the final FIP action as a result of these
comments.
    Comment 7: Several commenters submitted comments regarding the
EPA's document titled ``Transition Process for Transferring GHG PSD
Permitting Authority to TCEQ.'' These comments are summarized below:
    A. Comments about notification to companies regarding the
Transition Process:
    [cir] TCC suggests that the EPA clarify that letters sent to
applicants will not be mailed until the final rule has been published
in the Texas Register, on or about April 17, 2014.
    [cir] TCC requests that the EPA post a message or announcement on
its Web site indicating that letters concerning the transition process
have been submitted to any of the GHG applicants.
    B. Comments about the deadline for selecting a permitting authority
under the Transition Process:
    [cir] TCC suggests the EPA not impose a firm 30-day decision
deadline because of concerns that permit applicants selecting the TCEQ
as the permitting authority may experience delay in processing of
applications if the FIP rescission is delayed.
    [cir] TCC requests that the EPA clarify whether a permit applicant
will have the opportunity to request additional time beyond 30 days to
submit a response regarding permitting authority.
    C. Comments about the Transition Process for Issued Permits: TCC,
TIP, and TXOGA requested that the EPA reconsider the transition
process, such that permit applications currently being reviewed in the
Environmental Appeals Board (EAB) could be transferred to TCEQ.
    Response 7: The EPA appreciates the comments on the Transition
Process we will be using to transfer GHG PSD permitting authority to
the TCEQ upon the effective date of rescission of the GHG PSD FIP and
our simultaneous approval of the majority of the Texas GHG PSD SIP.
After consideration of the comments and in light of the recent UARG v.
EPA decision, we have determined it necessary to amend, in part, our
Transition Process and EPA's proposed retained authority under the FIP.
Below are our specific responses to the comments raised regarding the
Transition Process and how the EPA finds it necessary to amend, in
part, our retained authority under today's final FIP rescission.
    Response 7A: For permit applicants with applications submitted at
the time of our February 18, 2014 proposal, we are making no changes to
the Transition Process. The EPA has provided adequate notice to those
initial permit applicants regarding the Transition Process. The EPA
mailed letters to each GHG permit applicant on file with the EPA on
March 27, 2014, requesting a response no later than May 15, 2014. Those
letters are available for public access in the docket for this
rulemaking action. By communicating with our initial permit applicants
immediately following the March 26, 2014 TCEQ Commissioners vote to
adopt the GHG PSD revisions, we provided our initial permit applicants
with a reasonable amount of time to weigh individual business
considerations and respond with a permitting authority request. The
letters were delivered to the applicants via the U.S. Postal delivery
and email, ensuring multiple means of communication with each
applicant. Additionally, our Region 6 GHG Web site was updated to
indicate the availability for review and comment on the EPA's proposed
approval of the Texas GHG PSD SIP, rescission of the Texas GHG PSD FIP,
and Transition Process. No changes were made to the final FIP action as
a result of these comments.
    The EPA recognizes that since the time of our proposed rulemaking,
we have received additional permit applications and those permit
applicants were not afforded a similar opportunity to select a
permitting authority by the May 15, 2014, deadline specified in the
Transition Process. For these permit applications submitted after the
February 18, 2014, proposal, the EPA is retaining the permitting
authority until the EPA either issues a final permit and all subsequent
administrative and judicial appeals are exhausted, or the applicant
submits a written request to be transferred to the TCEQ, or the
applicant withdraws the permit application from the EPA's
consideration.
    Response 7B: The EPA does not believe it is necessary to extend the
deadline for requesting a transfer of permitting authority beyond the
May 15, 2014 deadline, as specified in our Transition Process for the
initial permit applications that were submitted at the time of our
February 18, 2014 proposed action. We received written permit authority
requests from all permit applicants, submitted to the EPA, at the time
of the proposed notice by the specified May 15, 2014, deadline.
    However, in consideration of these comments and in light of the
UARG v. EPA decision, we have decided that for any permit application
that was submitted after our proposed rulemaking, the EPA will retain
permitting authority and continue to process and evaluate any pending
permit application for an ``anyway'' source or modification unless or
until the applicant submits a written request to transfer the authority
to the TCEQ or the applicant withdraws the application from the EPA's
consideration. There is

no 30-day time period for decision imposed on these permit applicants.
Rather the applicant can make an informed business decision through
consultation with the EPA and the TCEQ, up until the EPA has issued a
final permit. The EPA's retained authority under the FIP was revised as
a result of these comments.
    Response 7C: At this time, we intend to transfer all initial permit
applications and related materials to the TCEQ where a permit applicant
requested the transfer in writing by May 15, 2014, as specified in the
Transition Process. Additionally, as discussed above in Responses 6A
and 6B, for any permit application submitted after our February 18,
2014, proposed rulemaking, the EPA will transfer the permit application
and related materials to the TCEQ where the permit applicant submits a
written request to the EPA to transfer to the TCEQ. The EPA will
confirm the transfer of the permit application by providing a letter to
the TCEQ and the permit applicant wherein we transfer the permit
application, related materials, and state that we consider the request
for transfer a withdrawal of the application that removes the
application from review and further action by the EPA. As discussed in
our February 18, 2014, proposed rulemaking, the EPA's permitting
authority ``will cease upon an applicant's written request to the EPA
withdrawing the pending permit application before a final determination
is made.'' See 79 FR 9123, 9133. A final determination on the permit is
made when all administrative and judicial appeals processes have been
exhausted. The EPA will retain permitting authority for ``anyway'' GHG
PSD permits that are issued or for ``anyway'' permit applications
denied by the EPA for which either the time for filing an
administrative appeal has not expired or all administrative and
judicial appeals processes have not been completed. As stated in our
Transition Process, a GHG PSD permit applicant has the ability to
withdraw the permit application before the EPA and submit a new
application to the TCEQ at any time until the permit becomes final.
Because a permit does not become final until agency review procedures
are exhausted, an applicant can withdraw an application while a permit
is under EAB review. No changes were made to the final FIP action as a
result of these comments, but we have modified the authority retained
by EPA in the FIP for certain permit applications for other reasons.
    Comment 8: Sierra Club submitted several comments and supporting
exhibits requesting that the EPA not approve the GHG PSD SIP and
rescind the FIP until the TCEQ submits clarifications regarding access
to judicial review for GHG PSD permits. First, Sierra Club commented
that if the commission acts on a GHG permit, then the Texas regulations
appear to require a party to go through the contested case hearing
process in order to exhaust administrative remedies, which is necessary
to later seek judicial review. However, HB 788 removes the opportunity
for a contested case hearing for GHG permits. As a result, the TCEQ has
not adequately clarified the process to exhaust all administrative
remedies before seeking judicial review when the commission acts on a
GHG permit.
    Response 8: Because judicial review of PSD permits is important and
necessary under the Act, we have reevaluated the Texas judicial review
process as it applies to GHG PSD permits issued by the TCEQ. 77 FR
65305, at 65307 (Oct. 26, 2012).\3\ The TCEQ provided a letter to the
EPA dated May 30, 2014 \4\ to clarify the judicial review process and
the associated administrative remedies with respect to the GHG PSD
permits issued by Texas. This letter explains the processes to exhaust
administrative remedies and confirms that Texas law provides an
opportunity for judicial review of all GHG PSD permits issued by the
TCEQ. Texas regulations do not require a party to go through the
contested case hearing process in order to exhaust administrative
remedies when the commission acts on a GHG permit. Section 50.119(b)
provides that ``[i]f the commission acts on an application, Sec.
80.272 [Motion for Rehearing] of this title applies.'' Further, Section
50.119(c)(3) provides that motions for rehearing may be filed on ``the
commission's decision on an application.'' Section 80.272 is a
procedural provision that sets out the process for filing a motion for
rehearing after the commission makes a decision on a permit. State law
allows the TCEQ to establish a motion for rehearing via regulation,
even when there is no statutory right to a contested case hearing.\5\
Section 50.119(c) does not require a contested case hearing for a
motion for rehearing to be available. We recognize that the judicial
review process under Texas law differs from the administrative and
judicial review processes available for PSD permit decisions under 40
CFR Part 124 (opportunity to petition for administrative review by the
EPA's Environmental Appeals Board (EAB)) and section 307(b) of the CAA
(opportunity to seek review before the federal Circuit Court of
Appeals) when the EPA or a delegated agency under 40 CFR 52.21 is the
PSD permit issuer. However, the CAA does not require that the process
for judicial review of the grant or denial of a PSD permit issued under
a SIP approved PSD program be identical to that provided when the EPA
or a delegated agency is the PSD permit issuer under 40 CFR 52.21. 77
FR 65305 at 65307 (Oct. 26, 2012). No revisions were made to the final
FIP action as a result of this comment.
---------------------------------------------------------------------------

    \3\ ``[W]e interpret the CAA to require an opportunity for
judicial review of a decision to grant or deny a PSD permit, whether
issued by EPA or by a State under a SIP-approved or delegated PSD
program. See 61 FR 1880, 1882 (Jan. 24, 1996) (EPA's proposed
disapproval of Virginia's PSD program SIP revision due to State law
standing requirements that limited judicial review); 72 FR 72617,
72619 (December 21, 2007) (in approving South Dakota's PSD program,
EPA stated: ``We interpret the statute and regulations to require at
minimum an opportunity for state judicial review of PSD
permits'').'' 77 FR at 65307.
    \4\ Clarification Letter from Mr. Richard A. Hyde, P.E.,
Executive Director, TCEQ to Mr. Ron Curry, Regional Administrator,
EPA Region 6 (May 30, 2014) (hereinafter ``Judicial Review
Clarification Letter''. This letter is available in the docket for
this rulemaking.
    \5\ Tex. Air Control Bd. v. Travis Cnty, 502 SW.2d 213, 215
(Tex. Civ. App.-Austin 1973, no writ); see also, Sproles Motor
Freight Line, Inc. v. Smith, 130 SW.2d 1087, 1088 (Tex. Civ. App.-
Austin 1939, writ ref d).
---------------------------------------------------------------------------

IV. Effective Date of Final Action

    The EPA has determined that today's final FIP action and the
separate but simultaneous final approval of the majority of the Texas
GHG PSD SIP are effective immediately upon publication under 5 U.S.C.
Section 553(d) of the APA. The expedited effective date for this final
FIP action and the separate but simultaneous SIP approval action is
authorized under both 5 U.S.C. Section 553(d)(1) and 553(d)(3) of the
APA. Section 553(d)(1) allows an effective date less than 30 days after
publication if a substantive rule relieves a ``restriction.'' Section
553(d)(3) allows an effective date less than 30 days after publication
``as otherwise provided by the agency for good cause found and
published with the rule.'' The EPA has determined that it is
appropriate to make both final actions effective upon publication
because the final removal of the Texas GHG PSD FIP and the separate but
simultaneous final approval of the majority of Texas GHG PSD SIP will
both relieve a permitting restriction and there is ``good cause'' to
allow Texas to begin processing PSD GHG applications that meet the
appropriate federal PSD requirements immediately. Final immediate
action relieves a restriction by promoting an efficient single GHG
permit process, supports an efficient use of EPA and

State resources, and creates certainty for the regulated community and
public. It provides Texas with undelayed authority to regulate major
GHG emitting sources, and the EPA and TCEQ have worked closely to
ensure the State has adequate authority and resources to administer the
GHG permitting program without a 30 day delay, which is normally the
time required for affected parties to adjust their behavior and prepare
before a final rule takes effect. The EPA has determined that moving as
expeditiously as practicable to consolidate GHG PSD permitting with the
TCEQ is consistent with the State's authority and resources to
administer the GHG PSD permitting program. The EPA finds that the above
reasons support an effective date prior to thirty days after the date
of publication under 5 U.S.C. Section 553(d) for both today's final FIP
action and the separate but simultaneous final SIP approval action by
establishing good cause for making the rule immediately effective and
demonstrating that the rule relieves a restriction.

V. Final Action

    The EPA is rescinding the GHG PSD FIP for Texas at 40 CFR
52.2305(a) and (b), with three limited circumstances for retained
authority for ``anyway'' source permit applications as specified in the
new section of 40 CFR 52.2305(d). First, the EPA retains GHG PSD
permitting authority for any pending ``anyway'' permit applications
where the permit applicant submitted a written request to remain with
the EPA for permit issuance by the deadline specified in our Transition
Process. Second, the EPA will retain GHG PSD permitting authority for
``anyway'' source permit applications submitted after February 18,
2014, unless or until the applicant submits a written request
transferring the permitting authority to the TCEQ. Finally, the EPA
will retain GHG PSD permitting authority for any issued ``anyway''
permit or ``anyway'' permit application denied by the EPA for which
either the time for filing an administrative appeal has not expired or
all administrative and judicial appeals processes have not been
completed by the publication date of the EPA's final actions to rescind
the GHG FIP and simultaneously approve the TCEQ's PSD SIP submittal.
Note, even for those cases where the EPA announces it will retain GHG
PSD permitting authority over an ``anyway'' application, this authority
will cease upon an applicant's written request to the EPA withdrawing
the pending permit application before a final determination is made.
The EPA Region 6 GHG Web site identifies the permit applications where
the EPA retains GHG permitting authority. We intend to update this Web
site as we process the pending permit applications and transfer the
issued permits to the TCEQ for implementation. When all permit
applications have been processed and transferred to the TCEQ, the EPA
will, in a separate action, revise 40 CFR 52.2305 to remove the
remaining GHG PSD FIP authority at Sec.  52.2305(a) and (b).
    Consistent with the UARG v. EPA decision, the EPA does not find it
appropriate at this time to act on revisions to the Texas SIP providing
the authority to regulate and permit non-``anyway'' sources and
modifications of GHGs. Therefore, the EPA will not transfer issued non-
``anyway'' source permits to the TCEQ. The EPA will also not continue
to process or evaluate pending permit applications for ``non-anyway''
sources or modifications.
    Our final action today also finds that through a letter dated
January 13, 2014, the TCEQ has provided necessary and adequate
assurances that the Texas PSD program will be revised in the future to
address pollutants that become newly regulated under the CAA after
January 2, 2011, and that the TCEQ has the adequate authority under
State law to regulate any new PSD pollutants. Therefore, the EPA
rescinds the PSD FIP for Newly Regulated Pollutants for Texas at 40 CFR
52.2305(c).
    As explained in our February 18, 2014 proposal (see 79 FR 9123),
this action is made possible because of our separate but simultaneous
final action being published elsewhere in this issue of the Federal
Register to approve the majority of the Texas PSD SIP revisions, which
updates the Texas SIP to provide for the regulation of GHG emissions
for ``anyway'' sources, and clarifies the applicability of BACT for all
PSD permit applications. The EPA has made the determination that the
majority of revisions to the Texas SIP are approvable because the
revisions meet all applicable requirements of the CAA, and EPA
implementing regulations that were not affected by the recent U.S.
Supreme Court decision in UARG v. EPA. We noted that we are taking no
action at this time other certain revisions that appear to no longer be
needed in light of that decision. The EPA also has determined under the
authority of 5 U.S.C. Section 553(d) of the APA, to make this final FIP
action and the separate but simultaneous final PSD SIP approval action
effective upon November 10, 2014. Upon the effective date of today's
final FIP action and the separate but simultaneous final PSD SIP
approval, the TCEQ will immediately assume responsibility for GHG PSD
permitting, with the exception of the three limited circumstances where
the EPA is retaining GHG PSD permitting authority under the FIP, as
described this final FIP action. As such, all new GHG PSD permit
applications will be submitted to and processed by the TCEQ.
    The EPA is finalizing this action under Section 110 and Part C of
the Act.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This FIP withdrawal action is not a ``significant regulatory
action'' under the terms of Executive Order 12866 (58 FR 51735, October
4, 1993) and is therefore not subject to review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This FIP withdrawal action does not impose an information
collection burden under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. because this partial FIP rescission under
Section 110 and Part C of the CAA will not in-and-of itself create any
new information collection burdens but simply transfers the permitting
authority from EPA to the State. Burden is defined at 5 CFR 1320.3(b).
Because this final action does not impose an information collection
burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This rule
will transfer the majority of GHG PSD permitting responsibility from
the EPA to the State of Texas. This final rule applies to large
emitters of GHGs that tend to be large sources. The result of this
final action, however, simply is to transfer the majority of authority
to administer the PSD program for GHGs from EPA to the State of Texas
and does not create any new requirements. The substantive requirement
for a source to obtain a PSD permit prior to construction of a new
major source of GHGs or modification of an existing major source that
will significantly increase GHGs is not changed by this final FIP
action. This

final FIP action will not impose any new requirements on small
entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action removes the majority of a Federal plan
and transfers most permitting responsibility of GHG emissions from the
EPA to the State of Texas. Small governments are not impacted.

E. Executive Order 13132: Federalism

    This FIP withdrawal action does not have federalism implications.
It will not have substantial direct effects on Texas, on the
relationship between the national government and the State of Texas, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between the EPA and State and local
governments, the EPA specifically solicited comment on the proposed
action from State and local officials. The EPA received no adverse
comments from state or local governments on this rulemaking but only
comments in support from the State.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action,
the EPA is not addressing any Tribal Implementation Plans. This action
is limited to the withdrawal of the majority of the Texas GHG PSD FIP.
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because the EPA is withdrawing the majority of
the federal GHG PSD FIP in Texas as authorized by the CAA.

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

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

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    This final rule does not provide the EPA with the discretionary
authority to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. The CRA allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and comment rulemaking procedures are
impracticable, unnecessary or contrary to the public interest (5 U.S.C.
808(2)). The EPA has made a good cause finding for this rule as
discussed in Section IV (Effective Date of Final Action), including the
basis for that finding.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 9, 2015. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See CAA section 307(b)(2); 5 U.S.C.
7607(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: October 30, 2014.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR Part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS--Texas

0
2. Section 52.2305 is amended by removing and reserving paragraph (c)
and by adding paragraph (d) to read as follows.

Sec.  52.2305  What are the requirements of the Federal Implementation
Plan (FIP) to issue permits under the Prevention of Significant
Deterioration requirements to sources that emit greenhouse gases?

* * * * *
    (d) The authority provided in paragraphs (a) and (b) of this
section is rescinded except in the three limited circumstances
described in paragraphs (d)(1) through (3) of this section:
    (1) The EPA will retain permitting authority for all GHG PSD permit
applications for major sources and major modifications required to
obtain PSD permits because of emissions of pollutants other than GHGs
submitted to the EPA where the permit applicant submitted a written
request by May 15, 2014, that the EPA continue processing the
application.
    (2) The EPA will retain permitting authority for all GHG PSD permit
applications for major sources and major modifications required to
obtain PSD permits because of emissions of pollutants other than GHGs
submitted to the EPA after February 18, 2014, unless and until the
applicant submits to the EPA a written request to transfer the
permitting authority to TCEQ (or withdraws the application) prior to
issuance of a final permit decision under 40 CFR 124.15(b).
    (3) The EPA will retain permitting authority for GHG PSD permits
issued by the EPA for major sources and major modifications required to
obtain PSD permits because of emissions of pollutants other than GHGs
and GHG PSD permit applications denied by the EPA for major sources and
major

modifications required to obtain PSD permits because of emissions of
pollutants other than GHGs for which either the time for filing an
administrative appeal has not expired or all administrative and
judicial appeals processes have not been completed by November 10,
2014. Except that the EPA will not retain authority over a permit if an
applicant submits a written request to the EPA to withdraw the permit
application while an administrative appeal is pending and the Regional
Administrator then withdraws the permit under 40 CFR 124.19(j) or the
Environmental Appeals Board grants a voluntary remand under 40 CFR
124.19(j) or another appropriate remedy.

[FR Doc. 2014-26315 Filed 11-7-14; 8:45 am]
BILLING CODE 6560-50-P