[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81371-81393]
[FR Doc No: 2011-33253]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0638; FRL-9613-7]

Approval and Disapproval 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: Final rule.

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SUMMARY: The EPA is partially approving and partially disapproving
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 determining that the current Texas State
Implementation Plan (SIP) meets the infrastructure requirements for the
1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS at
110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of
(C), (D)(ii) and (J). We are determining that the current Texas SIP
does not meet the infrastructure requirements for the 1997 8-hour ozone
and the 1997 and 2006 PM2.5 NAAQS at 110(a)(2) for portions
of (C), (D)(ii) and (J). The EPA is also partially approving and
partially disapproving SIP revisions submitted by the state of Texas
for the purpose of addressing the 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. The EPA is partially approving and partially disapproving
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 disapprovals herein are
because Texas has stated it cannot issue permits for and does not
intend to regulate greenhouse gas (GHG) emissions. The EPA is also
approving 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: This rule is effective on January 27, 2012.

ADDRESSES: The EPA established a docket for this action under Docket ID
No. EPA-R06-OAR-2008-0638. All documents in the docket are listed at
www.regulations.gov. 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 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 Freedom of
Information Act (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 or Mr. Bill Deese
at<PHONE_NUMBER> to make an appointment. Please make the appointment
at least two working days in advance of your visit. There is 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.

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>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means the EPA.

Table of Contents

I. Background
II. What action is the EPA taking?
A. What is the EPA approving in this action?
    B. What is the EPA disapproving in this action?
III. Comments
    A. What comments did the EPA receive on the September 22, 2011
action for Texas?
    B. General Format
    C. Comments That Address the Consideration of Existing SIP
Provisions
    D. Comments That Address Implementation Issues
    E. Comments That Address Greenhouse Gases (GHGs)
    F. Comments That Address Section 110(a)(2)(E)
    G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)
    H. Comments That Address Best Available Control Technology
(BACT)
    I. Comments That Address Regulation of PM2.5
    J. Comments That Address Single Source Ozone Modeling
    K. Comments That Address Cumulative Air Quality Impacts
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    The background for today's action is discussed in detail in our
September 22, 2011 proposal to partially approve and partially
disapprove revisions \1\ to the Texas SIP (76 FR 58748). In that
action, we proposed to partially approve and partially disapprove the
current Texas SIP for meeting the provisions of the CAA sections
110(a)(1) and 110(a)(2) (i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-(H), and
(J)-(M)) for the 1997 ozone and the 1997 and 2006 PM2.5
NAAQS. We also proposed to approve severable \2\ portions of revisions
to the Texas PSD SIP that address NOX as a precursor to
ozone, submitted by the TCEQ to the EPA on March 11, 2011 and May 26,
2011.
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    \1\ The specific submittals and our actions are detailed in
Section II of this rulemaking.
    \2\ 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.
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    Our September 22, 2011 proposal provides a detailed description of
the revisions and the rationale for the EPA's proposed actions,
together with a discussion of the opportunity to comment. The public
comment period for these actions closed on October 24, 2011. See the
Technical Support Document (TSD) and our proposed rulemaking at 76 FR
58748 for more information.

II. What action is the EPA taking?

    The EPA is partially approving and partially disapproving
submittals from the state of Texas pursuant to the CAA that address the
infrastructure elements specified in section 110(a)(2) of the Act,
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
1997 and 2006 PM2.5 standards.

A. What is the EPA approving in this action?

    The EPA is approving portions of the December 12, 2007; March 11,
2008; April 4, 2008; and November 23, 2009 submissions from Texas,
determining 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)).
    We are also approving portions of the May 1, 2008 (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.\3\ We are
determining 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 portions that address GHGs. 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.
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    \3\ As noted in the proposed rulemaking for 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.
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    In conjunction with our 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 approving
severable portions of the SIP revisions submitted by the TCEQ to the
EPA on March 11, 2011 and a correction submitted on May 26, 2011. These
portions address revisions to 30 TAC sections 101.1 and 116.12. The
revisions to 116.12 add PSD to the title of the section, such that the
section will address Nonattainment and Prevention of Significant
Deterioration Review Definitions and thus provide that NOX
is an ozone precursor for the PSD program; and add the definition of
Federally Regulated NSR Pollutant, which identifies volatile organic
compounds (VOCs) and NOX as

precursors in all attainment and unclassifiable areas. Thus, the
definitions for Major stationary source, Major modification, and the
table identifying the Significant Level for emission thresholds for
major sources and major modifications 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 EPA intends to act on
the remaining Texas New Source Review (NSR) SIP revisions at a later
date. The inclusion of these requirements in the SIP means that Texas
has met the requirement to treat NOX as a precursor for
ozone as necessary to implement the 1997 ozone standard.

B. What is the EPA Disapproving in this Action?

    We are determining 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 therefore disapproving portions
of the December 12, 2007; March 11, 2008; April 4, 2008; and November
23, 2009 submissions from Texas, and determining that the current Texas
SIP does not meet the infrastructure requirements for the 1997 8-hour
ozone 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.
    We are also disapproving 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)).
    For the 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 this section), the EPA remains obligated to
implement a FIP at the same time the disapproval is finalized. The
EPA's disapproval here, however, does not engender an additional
statutory obligation, because the 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.

III. Comments

A. What comments did the EPA receive on the September 22, 2011 action
for Texas?

    We received five comment letters on the proposed rulemaking. These
comments are available for review in the docket for this rulemaking.
The comment letters came from the following sources:
    1. October 24, 2011 letter from Gabriel Clark-Leach, for
Environmental Integrity Project and on behalf of Public Citizen and the
Sustainable Energy and Economic Development (SEED) Coalition.
    2. October 24, 2011 letter from Tangela Niemann, Texas Commission
on Environmental Quality.
    3. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for
the BCCA Appeal Group.
    4. October 24, 2011 letter from Matthew G. Paulson, Baker Botts for
the Texas Industry Project.
    5. October 24, 2011 letter from Elena Saxonhouse, for Sierra Club
and on behalf of its members in Texas and states downwind of Texas,
such as Arkansas, Louisiana and Oklahoma.

B. General Format

    Our responses to comments (RTCs) received follow a general format
of summarizing the comment or group of similar comments, and then
providing our response to that particular summary of comments. Thus the
general format provided herein is ``Comment'' and then ``Response.''
The RTCs in Sections III-C and D however, do not follow the general
format, but still provide a summary of the comments with our responses.

C. Comments That Address the Consideration of Existing SIP Provisions

    Two commenters objected generally to the EPA's statements in the
proposal concerning substantive issues the Agency considers outside the
scope of actions on infrastructure SIP submissions. In the proposal,
the EPA explained that in the context of acting upon the infrastructure
SIP submissions required by section 110(a)(1) and (2), the Agency must
determine what substantive issues states and the EPA need to address in
this specific type of SIP submission. In particular, the EPA noted four
substantive issues that may exist in the previously existing SIPs that
the Agency wanted to be clear were not among the issues that states and
the EPA are addressing in actions on infrastructure SIPs: (i) Start-up,
shut-down, malfunction (SSM) provisions; (ii) director's discretion
provisions; (iii) minor source NSR provisions; and (iv) NSR Reform
related provisions.\4\
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    \4\ See 76 FR 58750-53.
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    One commenter expressed that it was ``not sympathetic'' to the
EPA's assertion that an action on an infrastructure SIP is ``not the
appropriate time and place to address all potential existing SIP
problems.'' Instead, the commenter argued that the EPA's position that
it could act on ``deficient'' portions of the existing SIP at another
time through more appropriate statutory mechanisms is inconsistent with
the requirements of section 110(a)(2), and with section 110(k)(3). The
commenter noted that the latter provision of the CAA only contemplates
a partial EPA approval of a state's SIP submission if that part ``meets
all the applicable requirements.''
    The EPA disagrees with the premise of the commenter that the Agency
must address all possible substantive issues in existing SIPs in the
context of acting on an infrastructure SIP submission, whether in a
full or partial approval. As explained in the proposal, the EPA
considers action on the infrastructure SIP submissions required by
section 110(a)(1) and (2) to be an exercise to assure that a state's
SIP meets the basic structural requirements for the new or revised
NAAQS, not a time to address all potential defects in existing SIP
provisions. The EPA believes this approach is permissible under the
statute because the individual provisions of section 110(a)(2) are
worded in ways that require interpretation and do not explicitly
require that the EPA address certain issues in existing SIPs that the
EPA identified in the proposal.
    Moreover, the commenter's reference to section 110(k)(3) as
permitting a partial approval only when the part approved ``meets all
applicable requirements'' suggests that the commenter believes either
that the EPA is deferring action on issues that are integral to action
on an infrastructure SIP, or alternatively that the EPA is approving
the infrastructure SIP with respect to the substantive issues in the
existing SIP that the EPA explicitly indicated it was not acting upon.
In either case, the EPA believes that the commenter is mistaken on this
point. As explained in more detail in the proposal, the EPA
specifically noted certain issues that it considers outside the scope
of an action on an infrastructure SIP as required by section 110(a)(1)
and (2), and explained the

statutory basis for this position. Therefore, the EPA does not agree
that it is deferring action on substantive issues that are integral to
acting on an infrastructure SIP, e.g., the EPA does not agree that it
is necessary to address existing SSM provisions already in the SIP in
the context of acting on an infrastructure SIP submission. As the EPA
also explained in the proposal, the agency intentionally highlighted
specific substantive issues that it considers outside the scope of an
action on an infrastructure SIP because it 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.'' 76 FR 58750. In other words, the EPA's
approval of the state's infrastructure SIP should not be viewed as
approving an existing deficient provision in the state's SIP, such as
an exemption for excess emissions during SSM events that does not meet
CAA requirements. To the contrary, the EPA explicitly noted that if
there were problematic provisions in the state's existing SIP with
respect to the four issues identified as outside the scope of action on
an infrastructure SIP, the EPA may elect to deal with those issues
separately in another action.
    The other commenter likewise objected in general to the EPA's view
that certain substantive issues are beyond the scope of an action on an
infrastructure SIP, but also critiqued the specific explanations and
rationale provided by the EPA for its position in the proposal. The
commenter raised four specific arguments in response to the EPA's
reasoning: (1) The existence of other tools to rectify SIP deficiencies
does not make an infrastructure SIP approvable; (2) a SIP cannot meet
``basic structure'' requirements if it contains known deficiencies; (3)
it may not be possible to review every provision of a SIP in acting on
an infrastructure SIP, but the EPA has to consider any issues that
commenters bring to the EPA's attention; and (4) the EPA action on a
state SIP submission that relies on existing SIP provisions combined
with the Agency's decision not to examine certain types of deficiencies
in the existing SIP provisions ``deprives the public of any opportunity
to comment upon or challenge the submissions.'' We will address these
concerns in turn.
    First, the commenter argued that the mere existence of other
statutory tools, such as a section 110(k)(5) SIP call, to address SIP
deficiencies ``has no bearing'' on the fundamental question of whether
the EPA should approve a state's infrastructure SIP submission if the
underlying SIP contains any deficiencies. The commenter reasoned that
the ability of the EPA to use section 110(k)(5) to rectify a problem
does not mean that the EPA should not address the problem when acting
on an infrastructure SIP for a new or revised NAAQS. Indeed, the
commenter asserts that if the existing provisions in a SIP could be the
basis for a section 110(k)(5) SIP call, then those issues ``should be
addressed during the SIP approval process for the new NAAQS.''
    The EPA agrees that the mere existence of other statutory tools to
address SIP deficiencies, such as a section 110(k)(5) SIP call, does
not per se answer the question of whether the EPA must address all
potential existing SIP deficiencies in the context of acting on a
state's infrastructure SIP submission. However, the EPA did not make
such an argument in the proposal. The EPA's point in noting the
existence of other statutory tools to address existing SIP deficiencies
was merely that the availability of these tools supported the EPA's
reasonable reading of section 110(a)(2) as not requiring that any and
all possible issues in the existing SIP be addressed in the context of
acting on an infrastructure SIP submittal, when those issues are not
explicitly among those that must be addressed in this context. As
explained in more detail in the proposal, the EPA believes that the
provisions of section 110(a)(2) are in some cases ambiguous and it is
necessary to interpret what they require in the specific context of the
infrastructure SIP as contemplated in section 110(a)(1). The EPA
pointed to other statutory tools such as a section 110(k)(5) SIP call
as support for its reading of the statute that permits the EPA to
address existing SIP deficiencies outside of an action on an
infrastructure SIP, because Congress provided other mechanisms for the
EPA to use as appropriate for such problems. To reiterate, the EPA
believes that even though it is not necessary to address a particular
issue while acting on an infrastructure SIP submission, it should not
be viewed as precluding the EPA from separately exercising other
authority such as section 110(k)(5) to address any existing deficiency
in the SIP. Thus the EPA indicated that it may take steps to address
such problems via a SIP call or other means.
    Second, the commenter disagreed with the EPA's view that a state
could meet basic structural requirements for a SIP even if there may be
potential deficiencies in the existing SIP. The commenter focused in
particular on the description of the deficiencies as merely
``potential'' deficiencies and asserted that the EPA cannot acknowledge
deficiencies and nevertheless approve the infrastructure SIP submission
as meeting the requirements of section 110(a). According to the
commenter, there is ``no `basic structure' requirement in Section
110(a)'' and that if there were such a requirement the EPA must
evaluate the basic structure of the state's SIP ``as it actually
exists.''
    With respect to this point, the EPA disagrees with the commenter's
view that the specific SIP submission required in section 110(a)(1) and
(2) within three years after the promulgation of a new or revised NAAQS
is not intended to be a submission directed at basic structural
requirements for a SIP. The commenter can take issue with the EPA's
characterization or terminology when the agency refers to ``basic
structure'' requirements, but the fact remains that the agency has to
evaluate whether the SIP submission in question meets the various
requirements of section 110(a)(2), as applicable, in this specific type
of SIP submission.
    As the EPA articulated in the proposal, the various elements of
section 110(a)(2) address a host of different issues, some of which
entail legal authority requirements, some of which entail substantive
requirements, and some of which entail both. Many of the elements of
section 110(a)(2) are ambiguous with respect to what they require in
the context of an infrastructure SIP. In order to act on the
infrastructure SIP, the EPA has to interpret the provisions of section
110(a)(2) to ascertain which of those provisions apply to this specific
type of SIP submission, and how they apply. The commenter objected to
the EPA's approach, but did not support its contentions with specific
arguments based upon the actual wording of section 110(a)(2), nor did
the commenter explain how or why it disagreed with the interpretation
of the statutory language provided by the EPA in the proposal. Having
had to determine which issues are properly within the scope of an
action on an infrastructure SIP, for informational purposes the EPA
sought to make clear that its action should not be construed as
reapproving existing provisions of certain types because the EPA
considers those issues that may be dealt with separately. The EPA did
not, therefore, determine definitively whether the state's existing SIP
contained any of these types of provisions that may be deficiencies,
hence the agency referred

to any such provisions as ``potential'' deficiencies. Contrary to the
commenter's view, the EPA believes it is appropriate to refer to any
such provisions as potential deficiencies, until such time that the EPA
can undertake the requisite analysis and undergo the proper procedures
to establish that any such provisions are in fact inconsistent with the
requirements of the CAA.
    Third, the commenter objected to the EPA's statement that it is
reasonable to defer action on a deficient provision in an existing SIP
because it is not possible ``for [the] EPA to consider whether every
provision of every SIP in every state meets the current requirements of
the federal Clean Air Act.'' The commenter asserted that it was not
asking the EPA ``to evaluate every word of the Texas SIP,'' but rather
that it believes that the EPA must evaluate the SIP for the four
substantive issues that the Agency concluded were outside the scope of
infrastructure SIP actions as well as any other substantive issue that
the commenter brings to the EPA's attention in this rulemaking context.
    With respect to this point, the EPA believes that the commenter
misunderstood the reason that the Agency stated that it is not required
to review SIPs for all possible existing deficiencies when evaluating
an infrastructure SIP submission, including any related to the four
issues specifically identified in the proposal. The EPA noted this
practical point as part of explaining its view that where the specific
requirements of the provisions of section 110(a)(2) are ambiguous, it
is appropriate for the EPA to interpret the statute in a way that makes
logical and feasible sense. Thus, for example, because the provisions
of section 110(a)(2) do not explicitly provide that the SIP submission
required by section 110(a)(1) after the promulgation of a new or
revised NAAQS must rectify any and all potential substantive issues
concerning any pre-existing SSM provisions in the state's SIP, the EPA
concluded that it was reasonable to interpret the statute as not
requiring the EPA to address that issue in this specific action on an
infrastructure SIP submission. The SSM issue in and of itself is
complex and could take substantial time and resources by both the state
and EPA to identify, evaluate, and address as necessary any such
provisions.
    Rather than a basic structural SIP requirement for a new or revised
NAAQS, such as having state law authority to carry out the SIP, an
overarching permitting program in place, or a monitoring network
deployed, such an SSM issue might arise in the context of an individual
existing emission limit that might apply only to a small number of
sources of a certain type as part of the nonattainment area plan for a
particular geographic area within the state. The EPA does not disagree
that such a provision might be problematic in and of itself and that
once examined through the appropriate mechanisms could prove to be
inconsistent with the CAA and EPA's policy guidance on excess
emissions. However, such a provision could be but one substantive issue
among many in the existing SIP for which in depth analysis as part of
the action on an infrastructure SIP is not practicable. To attempt to
do such an analysis in this action would detract from the larger
exercise to assure that the state SIP meets basic structural
requirements for a new or revised NAAQS.
    The EPA agrees that where the specific provisions of section
110(a)(2) clearly indicate that the EPA should evaluate a state's
infrastructure SIP submission with respect to a given issue, the EPA
must do so. Thus, the EPA has evaluated the state's submission on an
element by element basis in the proposal, and explained why the agency
believes that the state has or has not met the various individual
requirements of section 110(a)(2), as applicable and as the EPA
interprets them. For example, the EPA explained in detail why the
agency believes that the state has adequately complied with section
110(a)(2)(A) concerning enforceable emissions limits and other control
measures; section 110(a)(2)(B) concerning air quality monitoring. By
contrast, the EPA explained in detail why the agency believes that the
state has not met the requirements of a component of section
110(a)(2)(C) with respect to permitting new or modified sources for all
federally regulated pollutants including GHGs. It does not follow,
however, that the specific provisions of section 110(a)(2) require the
EPA to address any and all issues within the existing SIP in the
context of acting on an infrastructure SIP submission, and the EPA has
noted four such substantive issues that it believes are outside the
scope of this exercise as explained in more detail in the proposal.
    Where commenters raise concerns with a state's compliance with an
element of section 110(a)(2) that the EPA agrees is germane to the
infrastructure SIP, the EPA is responding to those comments separately
in this action.
    Fourth, the commenter opposed the EPA's view that some substantive
issues should be addressed separately from action on the infrastructure
SIP on the grounds that this approach would deprive the public from any
opportunity to comment upon or challenge the state's submission. The
commenter evidently believes that because the state's infrastructure
SIP submission did not include new provisions and merely confirmed how
the existing SIP meets the applicable requirements of section 110(a)(2)
that this precluded any comment on the merits of the state's
submission.
    The EPA shares the commenter's concern with adequate public process
and opportunity to comment on a state's infrastructure SIP submission.
In this context, however, the EPA disagrees with the commenter's
implication that the EPA should address any and all possible issues
relating to the existing SIP in any action on a pending SIP submittal.
First, the mere fact that the state's infrastructure SIP submission
does not include actual revisions to the existing EPA-approved SIP does
not alter the fact that it is a SIP submission and therefore its
contents are subject to notice and comment, to the extent that the
issues raised are germane to the action in question. To the extent that
an issue is applicable in the context of the infrastructure SIP
submission, the EPA itself is scrutinizing the content of the
submission for compliance with the CAA, and when the Agency proposes
action on the submission it is providing notice and inviting public
comment on its proposed action. This does not automatically mean,
however, that it is appropriate for the EPA to address, and for the
public to comment upon, all possible substantive issues relating to the
existing SIP beyond those that the EPA interprets as applicable for
evaluation in the context of this specific type of SIP submission. The
same principle, applied more precisely to the actual submission at
hand, suggests that it is reasonable for the EPA to determine that
certain substantive issues are outside the scope of the infrastructure
SIP process and may be assessed separately in another context. This
decision does not foreclose public comment on such issues, it merely
indicates that public comment on such issues should occur at the point
when the EPA is taking an action that more appropriately addresses the
specific issue.
    Additionally, the EPA notes that although the Texas infrastructure
SIP submission was comprised of the state's explanations of why the
state believes its existing SIP meets the applicable requirements of
section 110(a)(2), that approach has not precluded public

comment on the relevant issues. The commenter's own comments illustrate
that this process affords the public an opportunity to comment on the
EPA's proposed action on the infrastructure SIP submission. Where those
comments raise concerns about issues properly within the scope of an
action on an infrastructure SIP, the EPA is evaluating those comments
as part of this action.
    Finally, one commenter more specifically objects to the EPA's
evaluation of the state's infrastructure SIP submissions with respect
to the minor NSR permitting program in Texas. The commenter expresses
concern that the state has ``failed to implement its minor source NSR
program in a way that complies with federal requirements'' and claims
that ``because Texas's failures undermine its ability to implement,
maintain, and enforce the new NAAQS, [the] EPA's action on Texas's
submissions fails to comply with the clear and unambiguous requirements
of section 110(a)(2)(C).'' As further explanation of its concerns, the
commenter contends in more detailed comments that the ``Permit by
Rule'' (PBR) provisions in the Texas SIP must be limited to narrowly
defined source categories and include a mechanism for pre-construction
application and agency review. Another commenter echoes these
statements, and additionally contends the PBR provisions do not allow
for adequate public participation. According to the commenters, these
concerns preclude the EPA approving the state's infrastructure SIP
submissions. Additionally, the commenters contend another component of
Texas's SIP-approved minor NSR program, permit ``alterations,'' fails
to meet the requirements of section 110(a)(2). One commenter states the
alterations rules interfere with NAAQS attainment strategies, fail to
prevent circumvention of NSR permitting requirements for major
stationary sources, and undermine public participation in the
permitting process. Another commenter also states the alteration
provisions violate 40 CFR part 51 notice requirements, fail to provide
adequate mechanisms for denial for cause, and fail to protect the
NAAQS.
    The EPA disagrees with the commenter's view that concerns with
certain components of the minor NSR program in the Texas SIP preclude
approval of the state's infrastructure SIP submissions for the ozone
and PM2.5 NAAQS. In the case of the minor NSR permitting
requirements for a SIP, the EPA agrees that section 110(a)(2)(C)
provides the general statutory basis for this program and for the
agency's regulations that govern such programs. However, in the
proposal and in this response, the EPA explains that the EPA considers
action on the infrastructure SIP submissions required by section
110(a)(1) and (2) to be an exercise to assure that a state's SIP meets
the basic structural requirements for the new or revised NAAQS, not a
time to address all potential substantive defects, or alleged defects,
in existing SIP provisions Therefore, EPA considers an evaluation of
any component of a state's existing minor NSR program to be outside the
scope of an infrastructure SIP review rather than an unambiguous
requirement of the EPA's action on an infrastructure SIP with regard to
section 110(a)(2)(C). The specific concerns the commenters raise are
over the PBR and alterations rules, which were approved into the Texas
SIP as components of the minor NSR program.\5\ Because an action upon
an infrastructure SIP is not the correct place to evaluate the
commenter's specific substantive concerns about existing components of
the state's minor NSR program that the commenters consider defective,
the EPA will not address those concerns at this time. As with the other
substantive issues that the EPA determined to be outside the scope of
infrastructure SIP actions, the EPA notes that the CAA provides other
mechanisms to address existing substantive deficiencies in SIPs,
including potential deficiencies with a state's minor NSR program.
---------------------------------------------------------------------------

    \5\ The PBR rules were approved into the Texas SIP at 68 FR
64543, November 14, 2003. The alterations rules were approved into
the Texas SIP at 67 FR 58697, September 18, 2002.
---------------------------------------------------------------------------

D. Comments That Address Implementation Issues

    Comment: One commenter states that if provisions in Texas's
existing SIP are facially deficient, or if the EPA is aware of the
state's inadequate implementation of facially sufficient SIP-approved
provisions, then the submitted infrastructure SIP is also deficient
with respect to section 110(a)(2) requirements for the relevant NAAQS.
The commenter states the EPA is aware of Texas's inadequate
implementation of the SIP, and posits the EPA does not have discretion
to approve Texas's infrastructure SIP if there is improper
implementation of the existing SIP or deficiencies in the existing SIP.
    Response: The EPA agrees with the commenter that facial
deficiencies in SIP provisions could preclude the EPA from approving an
infrastructure SIP submittal that relies on those provisions. The
commenter's statements highlight an important issue concerning the
distinction between a state's SIP meeting the requirements of the CAA
on its face (i.e., facial sufficiency of the SIP) and a state's actual
compliance with those SIP requirements (i.e., adequacy of
implementation of the SIP), and the question of when implementation
concerns should be considered an issue in the context of acting on a
state's infrastructure SIP.
    However, it is important to note as explained in our previous
response to comment under B, the EPA is not evaluating potential
deficiencies for substantive issues it has determined to be outside the
scope of action on an infrastructure SIP. Because the EPA has
determined certain substantive issues to be outside the scope of action
on an infrastructure SIP, the EPA accordingly is not evaluating those
provisions for facial sufficiency. For the EPA's action on submitted
provisions it has determined to appropriately be within the scope of an
infrastructure SIP, the EPA has evaluated whether the SIP provisions
identified or submitted by the state as part of that submission are
facially sufficient to meet the applicable requirements of section
110(a)(2) of the CAA. In its analysis of the state's infrastructure SIP
submission, the EPA evaluated the provisions submitted within the scope
of the infrastructure SIP for facial sufficiency against the relevant
elements of section 110(a)(2). In the proposal, the EPA explicitly
evaluated the state's submission on a requirement by requirement basis
and explained its views on the adequacy of the state's SIP for purposes
of meeting the infrastructure SIP requirements. Where the EPA had
concerns about the facial adequacy of the state's infrastructure SIP
submission, the Agency proposed disapproval of the submission (e.g.,
deficiencies concerning adequate regulation of GHGs in the PSD
permitting program that are inconsistent with the requirements of
section 110(a)(2)(C)). Aside from the GHG component of the PSD element
of section 110(a)(2)(C), the EPA believes that the other portions of
the infrastructure SIP submission facially meet the applicable
requirements of section 110(a)(2).
    The commenter also contends that a state's failure to implement an
otherwise facially sufficient SIP, in contravention of statutory
requirements, could also preclude the EPA's approval of a state's
infrastructure SIP. First, the EPA does not believe that any concerns
whatsoever regarding adequate implementation of the SIP should be the
basis for a disapproval of an infrastructure SIP.

    The EPA acknowledges, as commenter asserts, there have been
instances regarding particular components of the Texas Major NSR PSD
SIP permitting program where the EPA itself has raised concerns with
the state about implementation issues. The EPA is continuing to
evaluate its review of the implementation issues that have arisen at
this time but believes that it may move forward with finalizing its
proposed approval in the absence of a final EPA determination pursuant
to 110(m) and 179(a)(4) that the SIP is not being implemented
adequately. EPA has not finalized such a determination. EPA believes
that such a determination would undermine the approvability of SIP
language that is otherwise facially sufficient.
    The EPA is not determining in this action that the implementation
concerns that have arisen do not exist, but that the EPA will continue
to examine and analyze the implementation concerns we are currently
aware of and have already communicated to the state, as well as any
others we become aware of in the future. It is important to note that
EPA has already taken a number of actions to attempt to correct some
issues with SIP implementation, including disapproval of certain
proposed SIP packages and objections to individual Title V permits that
did not include all applicable SIP requirements. If the EPA determines
that outstanding implementation issues are sufficiently serious it will
take appropriate action, which could include the use of other
regulatory tools, including the issuance of a SIP call, making a
finding of failure to implement, or taking measures to address specific
permits pursuant to the EPA's case by case permitting oversight. Which
action would be appropriate would depend on the nature and extent of
the particular implementation problems at issue. The commenters raise
additional specific contentions regarding problems with implementation
of particular components of the PSD NSR SIP program. The EPA will
respond to those comments in the following relevant subsections.

E. Comments That Address Greenhouse Gases (GHGs)

    Comment: The EPA received identically phrased comments from two
industry groups on this proposal. These commenters support the EPA's
proposal to the extent of the proposed partial approval of Texas's
infrastructure SIP, but oppose the proposal to the extent of the
proposed partial disapproval of the SIP. The commenters make two
objections as the basis of their opposition to the partial disapproval.
    The commenters' first objection is that the EPA's proposed
disapproval is based on grounds that are outside this rulemaking. They
explain that, in their view, this rulemaking relates to the
requirements of CAA section 110 for the 1997 ozone and 1997 and 2006
PM2.5 NAAQS, and that the GHG permitting requirements--which
were the subject of the EPA's proposed disapproval--are not related to
those NAAQS requirements.
    Response: We disagree with these comments. The premise of these
comments seems to be that CAA PSD permitting requirements apply on a
pollutant-by-pollutant basis, but that premise is incorrect. Those
requirements apply on a source-by-source basis for all pollutants
emitted by that source that meet the PSD applicability thresholds. For
example, a new source that triggers PSD because of its emissions of
ozone precursors or PM2.5 is also subject to PSD for any
other conventional pollutants that it emits above the applicable
significance levels and for GHGs, if it emits those above the Tailoring
Rule thresholds. Accordingly, for the ozone and PM2.5 NAAQS
Texas infrastructure SIP to be fully approvable, that SIP must include
the appropriate PSD requirements for all other pollutants, including
GHGs. Thus, contrary to the commenters' objections, those PSD
requirements are related to--and, in fact, are part and parcel of--the
ozone and PM2.5 infrastructure SIP. Because the
infrastructure SIP fails to include some of those requirements, the EPA
must disapprove that SIP to that extent.\6\
---------------------------------------------------------------------------

    \6\ As discussed below, the Error Correction Rule identified,
and issued a partial disapproval for, flaws in the Texas SIP PSD
program that were broader than the lack of application to GHGs.
---------------------------------------------------------------------------

    Comment: The commenters' second objection is that disapproval of
the infrastructure SIP is ``redundant'' in light of what we call the
GHG PSD SIP Call or, simply, the SIP Call,\7\ and what we call the
Texas GHG PSD Error Correction Rule, or, simply, the Error Correction
Rule.\8\ The commenters add that they have ``serious concerns about,
among other things, the extent to which the GHG SIP Call and [Error
Correction Rule] have a sound basis in the CAA * * *. In light of the
highly questionable basis for these past actions, * * * there is no
reason for [the] EPA to introduce the legal uncertainty associated with
the federal program for GHG permitting at Texas sources to the
straightforward and unrelated action'' concerning the infrastructure
SIP. The commenters incorporate by reference their comments on the SIP
Call and the Error Correction Rule, in which they argue that those
rules are not authorized under the CAA.
---------------------------------------------------------------------------

    \7\ ``Action To Ensure Authority To Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call; Final Rule,'' 75 FR 77698 (December 13, 2010).
    \8\ ``Determinations Concerning Need for Error Correction,
Partial Approval and Partial Disapproval, and Federal Implementation
Plan Regarding Texas's Prevention of Significant Deterioration
Program,'' Interim Final Rule, 75 FR 82430 (December 30, 2010)
(Interim Final Error Correction Rule); ``Determinations Concerning
Need for Error Correction, Partial Approval and Partial Disapproval,
and Federal Implementation Plan Regarding Texas's Prevention of
Significant Deterioration Program,'' Final Rule, 76 FR 25187 (May 3,
2011) (Error Correction Rule).
---------------------------------------------------------------------------

    Response: We disagree with these comments. The infrastructure SIP
action is not unrelated to or redundant in light of the EPA's past
actions regarding GHG permitting. As explained in the proposal for this
infrastructure SIP action, 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. Our proposed
determination evaluated how section 110(a)(2) elements, including the
PSD element of section 110(a)(2)(C), are contained in the current Texas
SIP. In the two recent actions cited by commenters, the EPA identified
substantial deficiencies in the Texas PSD SIP provisions. In the SIP
Call, promulgated under CAA section 110(k)(5) on December 13, 2010, the
EPA determined that the Texas PSD SIP is substantially inadequate to
meet CAA requirements because it does not apply PSD requirements to
GHG-emitting sources. Accordingly, the EPA issued a ``SIP call'' for
Texas, which required the state to revise its SIP as necessary to
correct the inadequacy. The EPA also established the deadline of
December 1, 2011 for Texas to submit the corrective SIP revision. See
75 FR 77698.
    In the Error Correction Rule, we stated that Texas's PSD SIP was
flawed because it ``failed to address or to include assurances of
adequate legal authority * * * for the application of PSD to each newly
regulated pollutant, including non-NAAQS pollutants, under the CAA,''
among them GHGs (see 76 FR 25178, 25192). Accordingly, we stated that
our approval of the SIP with those flaws was in error. Although our
approval took place in 1992, and concerned SIP submittals in the late
1980s, we made clear that Texas had never corrected those flaws and, in
fact, in the context of participating in the EPA's CAA rulemakings
concerning

GHGs in 2010, had made statements that highlighted those flaws. As a
result, under CAA section 110(k)(6), we revised our previous approval
of the SIP to be a partial approval and partial disapproval. Further,
we promulgated a FIP, the scope of which was commensurate with the
error that we were correcting. We explained that we were promulgating a
FIP to apply appropriate measures to assure that the EPA's PSD
regulatory requirements will apply to non-NAAQS pollutants that are
newly subject to regulation under the CAA that the Texas PSD program
does not already cover. At present, the only pollutant is GHGs.
Therefore, the EPA's FIP will apply the EPA regulatory PSD program for
the GHG portion of PSD permits for GHG-emitting sources in Texas, and
the EPA commits to take whatever steps are appropriate if, in the
future, Texas fails to apply PSD to another newly regulated non-NAAQS
pollutant. Id.
    Therefore the SIP Call and the Error Correction Rule are not only
inextricable from, but are also important for today's rulemaking. As
described in those prior actions, the EPA determined that the Texas PSD
SIP provisions have deficiencies. Texas's infrastructure SIP includes
those same PSD provisions. Accordingly, the EPA is fully justified in
disapproving the Texas infrastructure SIP to the extent those PSD
provisions are deficient.
    Contrary to the commenters' statements, the fact that the EPA
determined the deficiencies in the SIP Call and Error Correction Rule
also does not make the current rulemaking ``redundant.'' As we explain
in the proposal for this rulemaking, Texas is required to have an
infrastructure SIP that meets the applicable requirements of CAA
section 110(a)(2). That obligation is not changed by the fact that the
EPA conducted previous rulemakings--the SIP Call and Error Correction
Rule--that determined that Texas's SIP PSD program has deficiencies.
    As noted above, the industry commenters on this infrastructure
rulemaking commented on the SIP call and the Error Correction Rule, and
we responded to those comments, during the course of those rulemakings.
See 75 FR 77698, 77705-77716 (SIP Call); Response to Comment on
Proposed Rule, ``Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call,'' December 2010; 76 FR 25178, 25192-25205 (Error Correction
Rule); ``Determinations Concerning Need for Error Correction, Partial
Approval and Partial Disapproval, and Federal Implementation Plan
Regarding Texas's Prevention of Significant Deterioration Program;
Proposed Rule--Response to Comments (April 2011) (response to comments
for Error Correction Rule). As of the date of the current rulemaking,
Texas has not submitted the corrective SIP revision required by the SIP
Call, and has taken no action to remedy the flaws that were the basis
for the Error Correction Rule. Texas has challenged both rulemakings in
the U.S. Court of Appeals for the DC Circuit.
    In addition, contrary to the commenters' statements, their
objections to the SIP Call and Error Correction Rule are not relevant
in the current rulemaking. As noted above, those rulemakings made
determinations that the Texas SIP PSD program has deficiencies.
Commenters had the opportunity to, and did, comment on those
rulemakings, and have brought challenges to those rulemakings in court.
The EPA is not re-opening those determinations in this rulemaking.
These determinations apply in this rulemaking to the extent the SIP PSD
provisions at issue in the SIP Call and Error Correction rules are the
same as the SIP provisions at issue in the current rulemaking. In the
alternative, if the comments are relevant, then we respond to them by
incorporating by reference our responses to comments in the SIP Call
and Error Correction Rule, cited above.
    As we noted in the proposal for this rulemaking, Texas did not
submit additional SIP provisions to assure that its 1997
PM2.5 and ozone, and 2006 PM2.5, infrastructure
SIPs met the substantive requirements of CAA section 110(a)(2). See 76
FR 58748, 58750. Rather, in 2008 and 2009, Texas took the position that
its existing SIP provisions meet the infrastructure SIP requirements,
including CAA section 110(a)(2)(C) and (D)(i)(II). Id. Among its
existing SIP provisions are the PSD provisions that the EPA
subsequently, in the 2010 SIP Call and the 2011 Error Correction Rule,
determined to have deficiencies. Accordingly, the EPA's determination
in the SIP Call that Texas's SIP PSD program is deficient because it
does not apply PSD to GHGs, and the EPA's determination in the Error
Correction Rule that Texas's SIP PSD program is deficient because it
does not address, or provide assurances of adequate legal authority to
address, pollutants newly subject to regulation--including non-NAAQS
pollutants, among them GHGs--apply as well for purposes of the current
rulemaking. In this manner, the SIP Call and Error Correction Rule
provide the basis for our disapproval in the current rulemaking of the
Texas SIP for failing to meet the infrastructure requirements for the
1997 ozone and PM2.5 NAAQS and the 2006 PM2.5
NAAQS with respect to the PSD requirements of CAA section 110(a)(2)(C)
that concern GHGs and that concern the applicability of PSD to
pollutants newly subject to regulation.
    The same determinations in the SIP Call and the Error Correction
Rule that the Texas SIP PSD program has deficiencies provide a basis
for our disapproval in the current rulemaking of the Texas SIP for
failing to meet the infrastructure requirements under CAA section
110(a)(2)(D)(i)(II),\9\ under which Texas's SIP must contain adequate
provisions prohibiting emissions that interfere with any other state's
required PSD program; and under CAA section 110(a)(2)(D)(ii), under
which Texas's SIP must require new or modified sources to notify
neighboring states of potential impacts from such sources. As discussed
in the proposal for this rulemaking, Texas's PSD program is the primary
measure that must be included to meet the requirements of section
110(a)(2)(D)(i)(II). See 76 FR 58748, 58760. The EPA's determinations
in the SIP Call and the Error Correction Rule that the Texas SIP does
not meet PSD requirements because it has the deficiencies of failing to
apply to GHGs or to address pollutants newly subject to regulation
means that the infrastructure SIP fails to meet the requirements of (i)
section 110(a)(2)(D)(i)(II) because the PSD program has the same
deficiencies, and (ii) section 110(a)(2)(D)(ii) because, by not
addressing pollutants newly subject to regulation, the infrastructure
SIP does not require new or modifying sources that emit those
pollutants to notify neighboring states of potential impacts.
---------------------------------------------------------------------------

    \9\ As noted above, the EPA is not reopening those
determinations in this rulemaking.
---------------------------------------------------------------------------

F. Comments That Address Section 110(a)(2)(E)

    Comment 1: The commenter states that Texas does not have adequate
authority to enforce the SIP pursuant to section 110(a)(2)(E)
specifically because of Article 6 of Senate Bill 12, Texas state
legislation passed in 2007. The commenter states the EPA's position is
Senate Bill 12 does not disallow the EPA's approval of the
infrastructure SIP for section 110(a)(2)(E) in part because the
legislation does not alter the enforcement authority ascribed to the
EPA, citizens, and other parties other than the TCEQ by the CAA.
According to the commenter's assertion, under

section 110(a)(2)(E) the TCEQ may not cede its authority to other
parties and must have authority to enforce all infractions and not just
repeat infractions, and because Senate Bill 12 partially undermines the
state's enforcement authority the Texas infrastructure SIP does not
meet section 110(a)(2)(E). The commenter also states that the EPA's
separate evaluation of Senate Bill 12 under the Agency's Title V
authority does not make the infrastructure SIP any more compliant with
section 110 requirements.
    Response: Regarding the commenter's assertion that under section
110(a)(2)(E) the TCEQ must have authority to enforce all infractions
and cannot cede this authority to others, Senate Bill 12 (SB 12) does
not preclude the TCEQ from taking certain types of enforcement actions
against sources covered under SB12. The TCEQ has authority to impose
injunctive relief with respect to all violations from the sources
including those for which the legislation altered the TCEQ's
enforcement authority (76 FR 58748). Senate Bill 12, codified at TWC
Section 7.00251, by its own statutory terms alters the TCEQ's
enforcement authority for ``violations based on information [the TCEQ]
receives as required by Title V of the Clean Air Act'' upon first
infraction. In particular, Senate Bill 12 alters the TCEQ's enforcement
authority with respect to particular self-certified\10\ violations,
further classified as ``Category B'' violations, documented in a Title
V deviation report. Under the Title V regulations states must
specifically have the authority to collect civil penalties for the
violation of any applicable requirement; any permit condition; any fee
or filing requirement; any duty to allow or carry out inspection, entry
or monitoring activities or, any regulation or orders issued by the
permitting authority. This provision is in contrast to the more general
requirements for the states to have an enforcement program under Title
I. The EPA reads SB 12 to not legislatively impede the TCEQ's
enforcement authority to seek injunctive relief for any violations, and
as described in the proposal, also does not impede the TCEQ from
collecting penalties for repeat infractions. Therefore, the state has
the authority to subject all infractions to some level of enforcement.
Because the TCEQ has generic enforcement authorities evinced by various
state statute provisions described in the proposal, the authority to
seek injunctive relief for all violations and authority to seek
penalties and injunctive relief for repeat infractions, and SB 12 did
not alter the CAA enforcement authority of the EPA or other parties,
the EPA determined this state legislation did not bar the EPA's
approval and these facts conjunctively supported the EPA's proposal for
approval of the infrastructure SIP as meeting section 110(a)(2)(E), as
discussed in our proposal.
---------------------------------------------------------------------------

    \10\ A self-certified violation is a violation certified by the
source. Category B violations are identified in the TCEQ Enforcement
Initiation Criteria (EIC); the EIC is in the docket for this
rulemaking.
---------------------------------------------------------------------------

    The EPA's approval is based on the specific facts described in this
rulemaking regarding the effects of SB 12. As discussed in our
proposal, the EPA is evaluating SB 12 pursuant to its Title V authority
as the legislation, by the face of its own terms, alters the TCEQ's
enforcement authority with respect to violations based on information
the TCEQ receives as required by Title V of the CAA upon first
infraction. The EPA reiterates that for the bases described in this
response to comment and the proposal for this action, such as generic
enforcement authority under state statutory provisions, the EPA finds
the Texas SIP meets the infrastructure SIP requirements for section
110(a)(2)(E). As described in the proposal, Title V is subject to
statutory and regulatory mechanisms outside the scope of section
110(a), and the scope of this SIP action is limited to determining
whether the existing SIP meets certain infrastructure and interstate
transport SIP requirements of section 110(a)(2) with respect to the
1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS. The reasons
for the EPA's proposed determination of approvability under section
110(a)(2)(E) are discussed in this response and in the proposal, and
are separate and adequate bases that do not preclude the agency's
evaluation of this legislation under Title V.
    Comment 2: The TCEQ agrees with the EPA's proposed finding for this
action that the SIP meets the infrastructure SIP requirements for
adequate enforcement authority and resources pursuant to section
110(a)(2)(E). However, the commenter considers the EPA's discussion of
Senate Bill 12 as inappropriate for inclusion in the proposal for this
rulemaking because the commenter contends the EPA's stated awareness
regarding Senate Bill 12, a Title V program, has no bearing on the
evaluation of the Texas SIP which is solely a Title I program. The
commenter concludes it fails to see the purpose served by the EPA's
discussion of Senate Bill 12 in the proposed action.
    Response: The EPA appreciates the commenter's support for the
proposed finding pursuant to section 110(a)(2)(E). Though the EPA's
evaluation of SB 12 under Title V ultimately does not factor into the
EPA's proposed approval of the infrastructure SIP for reasons explained
in the proposal and in our response to Comment 1 under this subsection,
the EPA believes it was not inappropriate in this particular matter
that involved an overlapping concern--the adequacy of the state's
enforcement authority--to put interested parties and the public on
notice that the agency is evaluating this matter, albeit under another
part of the Act.

G. Comments That Address Sections 110(a)(2)(B) and 110(a)(2)(J)

    Comment: One commenter states that the Texas SIP does not provide
for appropriate monitoring of ambient air quality, particularly for
ozone. The commenter also states that the EPA's prior approvals of the
Texas Statewide Air Quality Surveillance network and the 2010 Annual
Air Monitoring Network Plan (AAMNP) do not nullify the EPA's need to
evaluate Texas's monitoring program in this rulemaking. The commenter
additionally cites to the EPA's raising concerns regarding the 2010
AAMNP with the TCEQ in a separate communication without discussion of
those concerns in this rulemaking as negating a basis for approval of
the Texas SIP for meeting the requirements of 110(a)(2)(B). The
commenter also states that the AAMNP does not discuss ozone monitoring.
The commenter also states that many gaps remain in the State's air
monitoring network in the Houston area and only a few Houston ozone
monitoring stations are equipped with Automated Gas Chromatographs,
which measure highly reactive volatile organic compounds (HRVOCs).
    Response: As the comment indicates, the EPA has approved the Texas
Statewide Air Quality Surveillance Network and its 2010 Annual Air
Monitoring Network Plan. The EPA conducts a comprehensive annual review
to ensure that the state has a monitoring network in place that meets
the technical requirements of 40 CFR Part 58 and its appendices. Part
58 minimally provides a 30-day public inspection opportunity for every
annual monitoring network plan presented by the States and local
agencies that develop the plans; moreover, whenever a plan proposes
network modifications, a public comment opportunity is

furnished by either the State or EPA.\11\ We invite future public
participation from this commenter and others when these opportunities
are provided. Consistent with the findings of our most recent review,
Texas has a monitoring network in place and has no deficiencies in that
network that warrant disapproval of the state's monitoring network
plan. For the reasons discussed below, we do not agree with the
commenter that more is needed to satisfy the requirements of
110(a)(2)(B).
---------------------------------------------------------------------------

    \11\ The TCEQ provides a 30-day comment period for their AAMNP,
but did not receive any comments during the public comment period
for their 2010 AAMNP.
---------------------------------------------------------------------------

    Several of the assertions brought forward by this comment are
misplaced or inaccurate. The current air monitoring network for Texas
includes, but is not limited to monitoring PM2.5, ozone and
ozone precursors. The network design criteria for ambient air quality
monitoring is found at 40 CFR 58, Appendix D (hereafter referred to as
Part 58) \12\ and includes the minimum monitoring requirements for
state and local air monitoring stations (SLAMS), which measure ozone;
Photochemical Assessment Monitoring Stations (PAMS), which measure
ozone precursors, including HRVOCs; and PM2.5. The minimum
number of PAMS required in the Houston area is two and the Texas
Commission on Environmental Quality (TCEQ) operates three PAMS in
Houston. In addition however, there are seven privately owned PAMS in
the Houston area and the TCEQ posts data from these monitors on their
Web site (www.tceq.texas.gov/agency/data/ozone_data.html). The minimum
number of SLAMS for ozone required under Part 58 in the Houston area is
four and the TCEQ operates 12 such monitors in Houston.\13\ The current
TCEQ air monitoring network meets the minimum federal regulatory
requirements in Part 58 for SLAMS and PAMS in the Houston area. The air
monitoring networks in the Austin, Beaumont, Corpus Christi, Dallas-
Fort Worth (DFW), El Paso, Lower Rio Grande Valley, San Antonio, Tyler-
Longview, and Waco areas also meet the minimum requirements for number
of ozone monitors, pursuant to Part 58.\14\ In addition, pursuant to
Part 58, in a metropolitan statistical area (MSA) having a population
over 350,000, a minimum of one ozone monitoring site is required in
areas that have never monitored for ozone. In Texas this has resulted
in one new site in the Killeen-Temple-Fort Hood area. A second ozone
monitoring site will be added when the 3-year ozone design value is at
least 85% of the 2008 ozone NAAQS (64 ppb).\15\
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    \12\ The Network Design Criteria for Ambient Air Quality
Monitoring was promulgated at 71 FR 61236 (October 17, 2006) and
codified at 40 CFR 58, Appendix D. The ozone specific monitoring
network design criteria are at part 58, Appendix D, section 4.1.
    \13\ See the TCEQ Web site air monitoring pages at
www.tceq.texas.gov/agency/data/ozone_data.html.
    \14\ Pursuant to Table D-2 of Appendix D to Part 58 (SLAMS
Minimum Ozone Monitoring Requirements), the Longview, Tyler and Waco
areas each must have a minimum of one SLAMS; the Austin, Beaumont,
Corpus Christi, El Paso, the Lower Rio Grande Valley, and San
Antonio areas each must have a minimum of two SLAMS and DFW must
have a minimum of three SLAMS. These areas have at least the minimum
number of required SLAMS. See 71 FR 61236, 61318. See also the TCEQ
Web site for a listing of the current SLAMS in these cities:
www.tceq.texas.gov/agency/data/ozone_data.html.
    \15\ The Killeen monitor was activated in June 2009, several
months after the start of the ozone season. Thus, the first,
complete 3-year ozone design value for this site is anticipated with
the completion of the 2012 ozone season.
---------------------------------------------------------------------------

    Texas established a State-wide monitoring system in their initial
SIP (37 FR 10842, 10895) and while SIP revisions to the monitoring
system have not been made since 1978 (43 FR 9275), the TCEQ has made
many revisions to the monitoring network. For example, in 1997, there
were 23 regulatory ozone monitoring sites in six MSAs \16\ and today,
there are approximately 72 regulatory ozone monitoring sites in 10
MSAs.\17\ The locations of these regulatory monitors have been chosen
following the requirements of Part 58, to support the basic monitoring
objectives of public data reporting, air quality mapping, compliance,
and understanding ozone-related atmospheric processes. To meet these
goals the monitoring network includes more sites than the minimum
numbers required in Part 58, as we see in the Beaumont, DFW, El Paso,
and Houston areas. Data from the State's air quality monitors are
collected, evaluated for quality and the quality-assured data are
submitted to the EPA's Air Quality System \18\ on a quarterly basis.
The TCEQ Web site provides the ozone and PM2.5 monitor
locations and data from as far back as 1999\19\ through today. In
general, the TCEQ currently operates one of the most extensive and up-
to-date air monitoring systems in the United States. Thus, for the
Texas air monitoring network, the lack of recent SIP revisions does not
support a finding that the SIP does not meet the requirements of
section 110(a)(2)(B).
---------------------------------------------------------------------------

    \16\ Texas cities with regulatory ozone monitoring sites in
1997: Dallas-Fort Worth, Tyler-Longview-Marshall, Beaumont-Port
Arthur, Austin, and Houston-Galveston-Brazoria, and San Antonio.
    \17\ The TCEQ added regulatory ozone monitoring sites in the
following cities: El Paso-Juarez, Corpus Christi-Victoria, Lower Rio
Grande Valley (which includes the McAllen-Edinburg-Mission area and
Brownsville), and Waco.
    \18\ The Air Quality System (AQS) is the EPA's repository of
ambient air quality data. AQS stores data from over 10,000 monitors,
5,000 of which are currently active.
    \19\ The TCEQ Web site provides data from as far back as 1997
for 8-hour ozone.
---------------------------------------------------------------------------

    The State's 2010 AAMNP did not address ozone monitoring in its
narrative section, but it included for our review an appendix listing
all of the air monitors, including those for ozone and PM. The
narrative or text portion of the AAMNP addresses proposed changes to
the network. The TCEQ did not propose changes to the ozone network,
thus the text did not reference ozone. We did not have concerns with
the lack of proposed changes to the State's ozone network.
    We expressed concerns in our December 23, 2010 letter to the TCEQ
regarding their 2010 AAMNP.\20\ The TCEQ has addressed all but one of
the concerns expressed in our December 23, 2010 letter \21\ and is
working to resolve our final request to ensure that regulatory ozone
monitoring in an identified gap in the eastern Houston area (the
Wallisville monitor, which currently is not run by the TCEQ) is
completed by July 1, 2012.\22\ A monitor at the Wallisville location is
not required by Part 58, but has been requested by the Regional
Administrator of the EPA's Region 6 office, as it has consistently
recorded some of the highest 8-hour ozone concentrations in the Houston
area (see footnote 22).\23\ See 40 CFR 58, Appendix D, 4.1(a); 40 CFR
58, Appendix D, 1.1.1 et seq. Furthermore, because Texas has been
responsive to and is taking steps to address the EPA's concerns
regarding the air monitoring network there is no basis to determine
that the Texas SIP fails to meet section 110(a)(2)(B) of the Act.
---------------------------------------------------------------------------

    \20\ The December 27, 2010 letter and the TCEQ AAMNP for 2010
are in the docket for this rulemaking.
    \21\ See letter from David W. Bower to Maria L. Martinez, dated
January 31, 2011 and letter from Mark R. Vickery to Al Armendariz,
dated March 31, 2011, in the docket for this rulemaking.
    \22\ See letter from Al Armendariz to Mark R. Vickery, dated
June 2, 2011, in the docket for this rulemaking.
    \23\ The Wallisville site would not qualify as a maximum
concentration monitor because it does not record the highest 8-hour
ozone concentrations in the area. For the last several years, the
ozone monitor at the Manvel site has recorded the highest 8-hour
ozone concentrations in the Houston area.
---------------------------------------------------------------------------

    The commenter also references an article in the Houston Chronicle
dated March 2, 2005, which mentions 20 gaps in the Houston air
monitoring network.

The outdated article did not list where the 20 gaps were located, but
provided names of several cities within the Houston area that, at the
time, lacked ozone monitors. Currently, at least two of those cities
have ozone monitors. Neither the commenter nor the article provided any
documentation showing where any current gaps might be located.
    Our record on the current State-wide air quality network shows that
Texas meets the requirements in Part 58. As stated, the air monitoring
network review occurs annually, and the state has worked to address the
EPA-identified concerns and avoid potential deficiencies in a timely
manner. Furthermore, the State and EPA work together to ensure that the
air monitoring network meets federal regulatory requirements whether
through the demonstration of meeting minimum requirements or by
exercising and implementing the Regional Administrator's authority for
obtaining any additional information. Id. For the 1997 ozone and the
1997 and 2006 PM2.5 NAAQS, the Texas SIP provides for
establishment and operation of appropriate devices, methods, systems,
and procedures necessary to--(i) monitor, compile, and analyze data on
ambient air quality, and (ii) upon request, make such data available to
the Administrator.
    Comment: One commenter posits that the lack of ozone monitors in
nearly all of the counties that include coal-fired power plants
precludes the State from successfully notifying the public if the NAAQS
are exceeded and accordingly, the SIP does not meet the notification
requirements of section 110(a)(2)(J).
    Response: As an initial matter, we do not agree that there is a
``lack of ozone monitors in nearly all of the counties that include
coal-fired power plants'' because, as described more fully below, a
number of counties with coal-fired power plants have ozone monitoring
sites and the monitoring network meets the requirements of part 58,
Appendix D. We also do not agree that Texas's satisfaction of the
requirements of section 110(a)(2)(J) regarding adequacy of public
notification measures is in question. Texas has measures in its plan,
as required by section 127 of the Act, as well as measures that it
implements in practice that are effective to notify the public of
instances or areas in which any primary NAAQS is or was exceeded. When
the forecast indicates that ozone levels will be above the 8-hour ozone
standard, the State notifies the National Weather Service (NWS), who
then broadcasts the information across its weather wire. In addition,
county residents can subscribe to the State's electronic notification
system for ozone forecasts and ozone warnings.\24\ Finally, monitored
ozone values are posted on the TCEQ Web site and are updated hourly.
Thus the State has use of its own Web site, the electronic notification
system and the NWS to successfully notify Texas residents when the
ozone NAAQS are forecast to be or actually are above the 8-hour
standard.
---------------------------------------------------------------------------

    \24\ The ozone warning areas: Austin, DFW, Houston-Galveston-
Brazoria, and San Antonio.
---------------------------------------------------------------------------

    As noted above, we do not agree with this comment's technical
assertion regarding a ``lack of ozone monitors.'' The placement of air
quality monitors is provided by Part 58, which requires an ozone
monitor when the MSA has a population of at least 350,000. In addition
however, Part 58 addresses the need to locate monitoring sites to
determine the impact of significant sources or source categories on air
quality. Ozone is an unstable and highly reactive molecule and it is
well known that by increasing the concentration of NOX, the
concentration of ozone can be depressed, causing chemical loss of ozone
or ``NOX scavenging.'' Therefore, the TCEQ and EPA have
located air quality monitors downwind of significant sources, as
monitors placed in closer proximity to NOX sources can show
lower ozone levels. As indicated in Table 1, two of the counties with
power plants have a monitor in the same county and eight of the
counties with power plants (actual and proposed) have at least one
ozone monitor in an adjacent and/or downwind county. The two counties
in west Texas (Lamb and Potter) will soon have a monitor in the Palo
Duro area of Randall County, which is adjacent to Potter County. Most
(10 out of 12) of the counties listed in Table 1 are within or very
close to the State's established ozone forecast areas.
---------------------------------------------------------------------------

    \25\ This is a Clean Air Status and Trends Network (CASTNET)
monitor that includes a continuous ozone monitor. CASTNET is a
regional long-term environmental monitoring program administered and
operated by the EPA. This monitor will meet Part 58 and data will be
submitted into AQS by early 2012. Additional information on CASTNET
is in the docket for this rulemaking.

         Table 1--Ozone Monitoring Near Coal-Fired Power Plants
------------------------------------------------------------------------
   Facility name and location       Closest monitor
            (county)                   (county)          Forecast areas
------------------------------------------------------------------------
Parish (Fort Bend).............  (Fort Bend,           Houston-Galveston-
                                  Brazoria, Harris).    Brazoria (HGB).
Big Brown (Freestone)..........  Corsicana (Navarro),  Dallas-Fort Worth
                                  adjacent to           (DFW).
                                  Freestone.
Monticello, Welsh (Titus)......  Greenville (Hunt),    DFW.
                                  downwind (east) of
                                  Titus county.
Martin Lake (Rusk).............  Longview (Gregg),     Tyler-Longview.
                                  Tyler (Smith), both
                                  adjacent to Rusk.
Pirkey (Harrison)..............  Karnack (Harrison),   Tyler-Longview.
                                 Longview (Gregg),
                                  Tyler (Smith),
                                  Gregg and Smith are
                                  downwind.
Gibbons Creek (Grimes).........  Conroe (Montgomery),  HGB.
                                  adjacent to Grimes.
Twin Oaks (Robertson)..........  Corsicana (Navarro),  DFW.
                                  downwind from
                                  Robertson.
White Stallion (Matagorda).....  Danciger and Lake     HGB.
Facility is proposed...........   Jackson (Brazoria),
                                  adjacent to
                                  Matagorda.
Coleto Creek (Goliad)..........  Seguin and New        Forecast:
                                  Braunfels Airport     Victoria,
                                  (Guadalupe),         HGB and San
                                  downwind.             Antonio.
San Miguel (Atascosa)..........  San Antonio (Bexar),  San Antonio.
                                  adjacent to
                                  Atascosa.
Tolk (Lamb)....................  Palo Duro
                                  (Randall).\25\
Harrington (Potter)............  Palo Duro (Randall),
                                  adjacent to Potter.
------------------------------------------------------------------------

H. Comments That Address Best Available Control Technology (BACT)

    Comment 1: The commenter states that the Texas Commission on
Environmental Quality (TCEQ) fails to properly implement Best Available
Control Technology (BACT) requirements. The commenter also states that
the TCEQ does not require new and modified sources to meet the BACT
standard consistent with the federal definition of BACT. The commenter
also states that the TCEQ BACT guidance incorporates a three-tier
approach, which is at odds with the federal BACT definition. The
commenter also states that the TCEQ routinely disregards and misapplies
its own BACT guidance and the Commission's implementation of BACT is
not guided by any written BACT methodology.
    Response: Texas's approved SIP is facially sufficient to meet the
federal PSD SIP requirements with respect to BACT. Under Texas's
approved Prevention of Significant Deterioration (PSD) SIP that EPA
approved on September 15, 2010 (75 FR 55978),\26\ a source must
determine applicable BACT for each PSD permit as required under 40 CFR
52.21(b)(12) and (j). See 30 TAC 116.160(c)(1)(A) and (c)(2)(A).\27\
The EPA approved initial revisions to the Texas SIP for its PSD program
and BACT provisions on June 24, 1992. See 57 FR 28093. In that action,
EPA did not specifically require TCEQ to incorporate EPA's Top-Down
BACT review approach into the SIP. Instead, Texas was allowed to use,
although not incorporated into the SIP, the State's Spring 1987 BACT
guidance document that used a three-tier BACT Analysis approach. After
public comment in 2011, TCEQ issued a Reference Guide,\28\ that brings
forward and updates the Spring 1987 BACT guidance document. It
continues to include the three-tier BACT Analysis approach.
---------------------------------------------------------------------------

    \26\ As background, the State's February 1, 2006 SIP submittal
of revisions to its state rules removed the reference to the
definition of federal PSD BACT in 40 CFR 52.21(b)(12). On September
23, 2009, EPA proposed to disapprove the 2006 submittal due in part
to its removal of this definition. See 74 FR 48467. On July 16,
2010, Texas submitted a revision to its state rules that reinstated
the federal PSD BACT definition to 52.21(b)(12). See 30 Texas
Administrative Code (TAC) 116.160(c)(1)(A). The revision also
included a reference to 52.21(j) which implements the BACT
definition. See 30 TAC 116.160(c)(2)(A). We found that the adoption
of the reference to the federal definition of PSD BACT in 40 CFR
52.21(b)(12) corrected the deficiency in the 2006 submittal because
it reinstated the federal BACT definition. See the final rule at 75
FR 55978 for a detailed discussion.
    \27\ The cross-references to the federal PSD requirements
relating to BACT in its State PSD Program serves to distinguish the
federal BACT requirements for PSD from the State's requirement to
apply State BACT under its Minor NSR Program. See 30 TAC
116.111(a)(2)(C). See the discussion at 75 FR 55978, at 55979-55980
and 55981-55986, for detailed information on the basis for the 2010
SIP approval action.
    \28\ See http://www.tceq.texas.gov/assets/public/permitting/air/Guidance/NewSourceReview/airpoll_guidance.pdf.
---------------------------------------------------------------------------

    While we appreciate commenter's concerns regarding BACT
implementation issues, EPA is continuing to evaluate those issues. EPA
has not yet made any final determinations regarding BACT implementation
issues in this action. Therefore, we believe that we may move forward
with finalizing this action and will continue to evaluate the
implementation issues raised.
    Comment 2: The commenter states that the TCEQ guidance and policy
regarding BACT demonstrations for PSD permits fail to require
compliance with the federal standards and thus, Texas's PSD program
fails to ensure the NAAQS will be properly implemented, maintained, and
enforced, per sections 110(A)(2)(A) and (C). The commenter also states
that the TCEQ refuses to require applicants for PSD permits to consider
alternative processes and fuels as expressly required by the federal
definition of BACT, which is incorporated by reference into the TCEQ's
PSD rules. The commenter also states that EPA letters to TCEQ dated
January 24, 2011 and September 29, 2010, regarding permits for White
Stallion and Las Brisas, respectively, and EPA's comments dated March
1, 2010, on the proposed revisions to Title 30 of the Texas
Administrative Code (TAC), Section 116.160 to the Texas PSD SIP all
expressed concern over TCEQ's implementation of BACT requirements.
    Response: See our response to Comment 1 under this subsection.
While we agree that the EPA has expressed concern with the TCEQ's
implementation of the BACT analysis requirements in the above-cited
comment letters (e.g., integrated gasification combined cycle (IGCC)
and alternative fuels), the EPA has not yet made any final
determinations regarding BACT implementation issues in this action.
Therefore, we believe that we may move forward with finalizing this
action and will continue to evaluate the implementation issues raised.
If the EPA determines that outstanding implementation issues are
sufficiently serious it will take appropriate action, which could
include the use of other regulatory tools, including the issuance of a
SIP call, making a finding of failure to implement, or taking measures
to address specific permits pursuant to the EPA's case by case
permitting oversight. Which action would be appropriate would depend on
the nature and extent of the particular implementation problems at
issue.

I. Comments That Address Regulation of PM2.5

    One commenter objected to the EPA's proposed approval of the
state's infrastructure SIP submissions for the 1997 and 2006
PM2.5 NAAQS on the grounds that the state ``has not yet
incorporated the minimum requirements for controlling and regulating
PM2.5 through its PSD program.'' The commenter argued that
as part of acting on the infrastructure SIPs for the 1997 and 2006
PM2.5 NAAQS, the EPA ``must verify that the state has in
place enforceable PM2.5 significant emissions rates for
NOX and SO2, precursors to PM2.5, as
well as for direct PM2.5'' and that the state has in place
the PM2.5 increments required by the EPA in another separate
rulemaking. In support of this latter point, the commenter referred to
the separate rulemaking action by the EPA in October 2010 applicable to
the NSR/PSD requirements for the PM2.5 NAAQS (the 2010
PM2.5 NSR/PSD Rule).\29\ In addition, the commenter
questioned the adequacy of the separate SIP submission made by the
state in May 2011 to meet the requirements of another separate
rulemaking action by the EPA in May 2008 (the 2008 PM2.5
NSR/PSD Rule).\30\
---------------------------------------------------------------------------

    \29\ See, ``Prevention of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant
Monitoring Concentration (SMC),'' 75 FR 64864 (Oct. 20, 2010). This
rulemaking concerned various issues relevant to PM2.5 and
PSD, including increments, significant impact levels, and a
significant monitoring concentration.
    \30\ See, ``Implementation of the New Source Review (NSR)
Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5),'' 73 FR 28321 (May 16, 2008). This rulemaking
concerned various issues relevant to PM2.5 and PSD,
including how to address PM2.5 precursors, significant
emissions rates, and ambient air quality analysis requirements.
---------------------------------------------------------------------------

    The commenter's concerns highlight an important overarching
question that the EPA had to confront when assessing the infrastructure
SIP submissions for the 1997 and 2006 PM2.5 NAAQS: How to
proceed when the timing and sequencing of multiple related SIP
submissions impact the ability of the state and the agency to address
certain substantive issues in the infrastructure SIP submission in a
reasonable fashion. In this instance, the state's infrastructure SIP
for the 1997 PM2.5 NAAQS was, per the explicit terms of the
statute, due in the year 2000.

Because of protracted litigation over the 1997 PM2.5 NAAQS,
however, the EPA and states were significantly delayed in the
implementation of the 1997 PM2.5 NAAQS, including the
infrastructure SIPs required under section 110(a)(1) and (2). The EPA
did not issue guidance to states concerning these infrastructure SIP
submissions until October 2, 2007.\31\ The state submitted its
infrastructure SIP for the 1997 PM2.5 NAAQS soon thereafter
on April 4, 2008. For the 2006 PM2.5 NAAQS, section
110(a)(1) required the submission of an infrastructure SIP for that
NAAQS by November 23, 2009. For this NAAQS, the state submitted its
infrastructure SIP on November 29, 2009. In the proposal notice, for
purposes of efficiency the EPA proposed action on both of these
PM2.5 infrastructure SIP submissions, in addition to the
state's submission for the 1997 8-hour ozone NAAQS. Significantly, the
EPA is required, under the terms of a Consent Decree, to act on the
state's infrastructure SIP for the 1997 PM2.5 NAAQS by no
later than December 16, 2011.
---------------------------------------------------------------------------

    \31\ See, ``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, Office of Air
Quality Planning and Standards (OAQPS).
---------------------------------------------------------------------------

    In the process of acting on the infrastructure SIP submissions for
the 1997 PM2.5 NAAQS and the 2006 PM2.5 NAAQS,
the EPA necessarily had to consider how to approach the requirements of
the 2008 PM2.5 NSR/PSD Rule and the 2010 PM2.5
NSR/PSD Rule. The EPA acknowledges that section 110(a)(2)(C) directs
the EPA to assess the state's infrastructure SIP submission with
respect to the PSD permitting program, and the EPA has taken actions
accordingly.\32\ In both the 2008 PM2.5 NSR/PSD Rule and the
2010 PM2.5 NSR/PSD Rule, the EPA directed states to make
specific SIP submissions relevant to the PSD permitting programs for
PM2.5.\33\ A core question is thus whether the EPA should
take into account these other collateral SIP submissions in evaluating
the state's infrastructure SIP submissions for the PM2.5
NAAQS.
---------------------------------------------------------------------------

    \32\ For example, as part of this action, the EPA is approving a
portion of another SIP submission from the state necessary to make
explicit that NOX is a precursor to ozone formation in
the state's PSD permitting program.
    \33\ The EPA notes that in the context of acting on
infrastructure SIPs, only provisions related to PSD permitting would
be relevant, because the requirements of section 110(a)(2)(I)
pertaining to nonattainment plan requirements are outside the scope
of the infrastructure SIPs.
---------------------------------------------------------------------------

    Unfortunately, the sequence and timing of the various SIP
submissions renders consideration of the other SIP submissions required
by the 2008 PM2.5 NSR/PSD Rule and the 2010 PM2.5
NSR/PSD Rule impracticable or impossible as part of the EPA's action on
these infrastructure SIPs. The 2008 PM2.5 NSR/PSD Rule
itself was delayed by litigation over the NAAQS and other intervening
events, and thus the EPA did not promulgate it until May 16, 2008.
Within that rule, the EPA directed states to make a SIP submission that
would accomplish certain changes to the PSD permitting program to
address PM2.5 by May 16, 2011. The state in fact made a SIP
submission intended to address this requirement on May 19, 2011.\34\
Similarly, in the 2010 PM2.5 NSR/PSD Rule, the EPA required
states to make certain PSD program revisions, but in that case the SIP
submissions to address those requirements are not even due until July
of 2012, and the State has not yet made any SIP submission to address
those requirements.
---------------------------------------------------------------------------

    \34\ As noted in the proposal, on April 20, 2011, the state
adopted revisions to its SIP to amend its 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 the EPA as a SIP revision on May
19, 2011.
---------------------------------------------------------------------------

    Given that the state submitted its infrastructure SIP for the 1997
PM2.5 NAAQS on April 4, 2008, nearly three years in advance
of the SIP submission required by the 2008 PM2.5 NSR/PSD
Rule, that necessarily means that the state's infrastructure SIP
submission for the 1997 PM2.5 NAAQS could not have included
or anticipated those later requirements. Likewise, the state's
infrastructure SIP submission for the 2006 PM2.5 NAAQS on
November 29, 2009, was significantly in advance of that other required
PSD SIP revision. The EPA believes that it is not reasonable to expect
that the state's April 2008 and November 2009 infrastructure SIP
submissions for the 1997 and 2006 PM2.5 NAAQS should have
addressed the specific PSD program requirements that EPA had not
requested the state to make SIP submissions to address until May of
2011. For the same reason, the EPA does not consider it reasonable to
expect the state to have anticipated and addressed the SIP revision
requirements of the 2010 PM2.5 NSR/PSD Rule in these
infrastructure submissions, when by the terms of that rule states have
until July 2012 to make the necessary SIP revisions.
    In theory, the EPA could have elected to act on the PSD portion of
the state's May 2011 submission to meet the requirements of the 2008
PM2.5 NSR/PSD Rule as part of acting at this time on the
infrastructure SIP submissions for the 1997 and 2006 PM2.5
NAAQS. In other words, the EPA could have sought to accelerate action
on the May 2011 submission in order to try to address the more recent
SIP submission requirements relevant to the PSD program for
PM2.5. However, the EPA determined that this would not be
the most appropriate course for two primary reasons: (1) The EPA's
current logistical situation makes it difficult to accelerate action on
a SIP submission; and (2) the EPA believes that the state is currently
addressing PM2.5 in its PSD permitting program pursuant to
state law requirements and will continue to do so in the interim until
the EPA is able to act on the May 2011 submission.
    First, the EPA notes that the state made the SIP submission for the
2008 PM2.5 NSR/PSD Rule only relatively recently. Because
the state made the submission on May 19, 2011, it is now considered
complete by operation of law as of November 23, 2011. Pursuant to
section 110(k)(2), Congress provided the EPA with up to one year to act
on the submission from this date. Under other logistical circumstances,
the EPA might consider accelerating action upon this particular SIP
submission and acting on the PSD portions of it as part of taking
action on the state's infrastructure SIPs for PM2.5 because
that would allow the EPA to address the PSD requirements for
PM2.5 more comprehensively and efficiently in one
consolidated action. However, the EPA is currently working on a large
number of rulemaking matters, many under Consent Decree deadlines
including this specific rulemaking, and this makes it difficult for the
EPA to act on a SIP submission on an accelerated basis, unless such
accelerated action is necessary. As noted in the proposal, the EPA
intends to act on the May 2011 SIP submission for the 2008
PM2.5 NSR/PSD Rule separately, on a schedule that will allow
the agency to evaluate and take action on that submission, as
appropriate.
    Second, the EPA believes that action on the May 2011 SIP submission
is not necessary at this time and as part of acting on the
infrastructure SIP submissions for the 1997 and 2006 PM2.5
NAAQS because the PSD program revisions contained within that
submission are already effective and enforceable as a matter of state
law, as of May 12, 2011. Although the EPA acknowledges that it is
important that these revisions be evaluated and approved into the
state's SIP, the EPA does not believe that it is inappropriate to
approve the state's infrastructure SIP submissions at this time. The
state made the SIP submission required by the 2008

PM2.5 NSR/PSD Rule. Until such time as the EPA has the
opportunity to evaluate that submission and take the necessary
administrative actions to propose and finalize appropriate action upon
it, the agency concludes that it is acceptable to rely on the fact that
the revisions have been made and are currently enforceable for purposes
of state law. The state made the submission to reflect that its PSD
permitting program now includes evaluation of PM2.5 and does
not continue to rely on the use of PM10 as surrogate for
PM2.5 as of May 2011.
    Under these circumstances, the EPA does not consider it reasonable
to interpret section 110(a)(2)(C) to require the EPA to disapprove the
state's infrastructure SIP submissions for the 1997 PM2.5
NAAQS and the 2006 PM2.5 NAAQS simply because the agency has
not yet acted on the May 2011 SIP submission for the 2008
PM2.5 NSR/PSD Rule, or has not required the state to make
other PSD program revisions in advance of the date required in the 2010
PM2.5 NSR/PSD Rule. Instead, the EPA believes that it is
appropriate for the EPA to take into consideration the timing and
sequence of related SIP submissions as part of determining what it is
reasonable to expect a state to have addressed in an infrastructure SIP
for a NAAQS at the time when the EPA acts on such submission. Such an
approach is reasonable, and to adopt a different approach by which the
EPA could not act on an infrastructure SIP, or at least could not
approve an infrastructure SIP, whenever there was any impending
revision to the SIP required by another collateral rulemaking action
would result in regulatory gridlock. The EPA believes that such an
outcome would be an unreasonable reading of the statutory process for
the infrastructure SIPs contemplated in section 110(a)(1) and (2).
    The commenter also specifically expressed concern that the state's
May 2011 SIP submission to meet the requirements of the 2008
PM2.5 NSR/PSD Rule did not ``fully implement the federally
required program to address the PM2.5 NAAQS'' for two
specific reasons: (1) The submission does not establish significant
emissions rates for precursors that would trigger further analysis of
PM2.5 impacts; and (2) the submission does not include the
PM2.5 increments established by the EPA.
    With respect to the first point, the EPA has not yet had the
opportunity to analyze and take action upon the May 2011 submission, so
the agency considers it premature to determine whether or not the state
has correctly addressed the issue of significant emissions rates for
precursors in the submission. The EPA will evaluate the submission for
this and other issues when it takes action on this submission in a
separate rulemaking. The commenter should participate in that action
and resubmit its comments at that time.
    With respect to the second point, the EPA has also not evaluated
the submission yet, but notes that the May 2011 SIP submission would
not be likely to include any PM2.5 increments, nor would EPA
have required it to. The EPA only established the PM2.5
increments in the 2010 PM2.5 NSR/PSD Rule, and did not
require states to make submissions to address PM2.5
increments until July 2012. Again, however, the EPA will evaluate the
May 2011 SIP submission at a later date and the commenter should
participate in that action and resubmit its comments on this issue at
that time, or in the later action that will eventually occur on the SIP
submission from the state to meet the requirements of the 2010
PM2.5 NSR/PSD Rule.
    Finally, one commenter suggested that, rather than approving the
state's infrastructure SIP with respect to the 1997 and 2006
PM2.5 NAAQS, the EPA should instead ``condition any approval
of the infrastructure SIP'' on later revisions to the state's SIP to
incorporate the NSR/PSD requirements that were in the May 2011
submission. The commenter asserted that the infrastructure SIP
submission could not be ``complete'' until it addresses each applicable
element of section 110(a)(2) and that the EPA ``cannot approve the SIP
when some elements are missing.''
    The EPA interprets the commenter's suggestion that it ``condition''
approval of the state's infrastructure SIP submission on later actions
to be a reference to the concept of conditional approval under section
110(k)(4). The EPA considered the commenter's suggestion as a means of
addressing the SIP submission timing issue, but the agency is
constrained by the provisions of the statute. Section 110(k)(4), under
the rubric of ``conditional approval,'' explicitly authorizes EPA to
approve a SIP submission ``based on a commitment of the State to adopt
specific enforceable measures by a date certain, but not later than 1
year after the date of approval of the plan revision.'' Courts have
confirmed that conditional approvals are an available course of action
under section 110(k), but only if the statutory conditions for such a
conditional approval have been met.
    Based on the specific language of section 110(k)(4), the EPA
concluded that it would not be appropriate to use the mechanism of a
conditional approval in this action on the state's infrastructure SIP
submission. The statute clearly contemplates use of this approach when
the state has made a commitment to make a submission in the future that
meets the statutory criteria. In this instance, however, the state has
already made the substantive SIP submission for the NSR/PSD
requirements for the 1997 PM2.5 NAAQS in May of 2011. In
other words, the state would not need to make a commitment to make a
future submission to adopt specific measures by a date certain to meet
this requirement for the 1997 PM2.5 NAAQS because the state
has already made a submission intended to meet the requirement.
    Given that the state has already made the submission in question,
and that the EPA has not yet been able to evaluate it and take the
necessary procedural steps to act upon it, the EPA does not believe
that it is appropriate to use the mechanism of a conditional approval
in these circumstances. Had the EPA already been able to evaluate the
NSR/PSD submission substantively, in theory the agency could have
requested the state to make a commitment to make revisions to that
submission as part of a conditional approval. As previously discussed,
however, the EPA has not yet been able to evaluate that submission
fully. Thus, the EPA concluded that a conditional approval of the
infrastructure SIP for this element would not be a viable option in
this case. It should be noted, however, that the EPA will consider the
commenter's suggestion and may utilize the mechanism of a conditional
approval when it acts on the NSR/PSD submission, should that be
appropriate.
    With respect to the commenter's concern that the 2006
PM2.5 NAAQS infrastructure SIP submission from the state was
not ``complete'' because it did not address the NSR/PSD submission, the
EPA believes that this reflects a misunderstanding of the concept of
``completeness'' as it applies in this situation. In section
110(k)(1)(B), under the rubric of ``completeness finding,'' the statute
directs the EPA to make a finding whether a SIP submission meets
minimum criteria within 60 days. If, however, the EPA does not make
such a completeness finding within 60 days, then the submission is
deemed complete by operation of law, no matter what its content, six
months after submission. Whether by an actual finding, or by operation
of law, the completeness starts the clock for action by the EPA on the
submission under section 110(k)(2). In this instance, the state's 2006
PM2.5 NAAQS

infrastructure SIP submission was deemed complete by operation of law
on May 27, 2010.\35\ Thus, regardless of what that submission said with
respect to section 110(a)(2)(C) in general, or with respect to the NSR/
PSD submission in particular, the state's 2006 PM2.5 NAAQS
infrastructure SIP submission was ``complete'' under the express terms
of the statute for purposes of further actions. Likewise, the
commenter's observation that the EPA's guidance for these SIP
submissions stated that a submission must contain material relevant to
each of the elements of section 110(a)(2) in order to be considered
``complete'' is not germane in this case, because that is superseded
where the statute requires that a submission be deemed complete by
operation of law.
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    \35\ The State's submittal, dated November 23, 2009, was
received by EPA on November 27, 2009.
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    Finally, the commenter's concern that the EPA should not approve an
infrastructure SIP ``when some elements are missing'' raises an
important question about the practical considerations of the EPA's
evaluation of infrastructure SIPs. In general, the EPA of course agrees
that the agency should not approve an infrastructure SIP submission for
a particular element of section 110(a)(2) if the state's submission
does not adequately address that element, whether by establishing that
the state's existing SIP already contains the necessary basic
structural requirements, by submitting revisions to the existing SIP to
meet those requirements, or by some combination thereof. However, the
determination of whether ``some elements are missing'' necessarily
includes consideration of the sequence and timing of SIP submissions,
and as in the situation at issue, there can be complications when a SIP
submission that is collateral to, but also relevant to, the
infrastructure SIP is required to be submitted on a schedule that does
not mesh with the schedule on which the EPA must act on the
infrastructure SIP itself. In short, evaluating whether an element ``is
missing'' depends upon considerations such as when a SIP submission
relevant to that element was or is due to be submitted, whether the EPA
has yet had the opportunity to evaluate that other SIP submission, and
other considerations discussed in more detail earlier in this response
with respect to the commenter's other concerns.

J. Comments That Address Single Source Ozone Modeling

1. Comments That Address the Adequacy of Ozone Modeling Procedures
    Comment: Two commenters assert the TCEQ has incorrectly concluded
that modeling demonstrations evaluating the ozone contributions of
proposed sources to existing nonattainment areas are unnecessary as
summarized in the comments that address SILs,\36\ and that the TCEQ has
consequently issued PSD permits to sources in close proximity to those
areas and also areas that are in near-nonattainment for ozone without
requiring adequate modeling of each source's impact on ozone levels.
Referencing the TCEQ's Air Quality Modeling Guidelines and ``Draft
Ozone Procedures'' document,\37\ the commenters maintain that TCEQ
routinely issues PSD permits based on outdated and inadequate ozone
modeling procedures. One commenter adds that the ozone screening
procedure authorized by the TCEQ's modeling guidance document is partly
based on, or equivalent to, inappropriate ``Scheffe Tables.''
Additionally, the commenter states the ozone screening method involves
ratios of NOX to VOC without considering the impact of
biogenic emissions. Two commenters state that the EPA has on multiple
occasions informed the TCEQ that the ozone screening procedures
authorized by the TCEQ are outdated and unreliable to evaluate a single
source's ozone modeling impact on an air quality control region. One
commenter states that the Texas SIP is insufficient to comport with
section 110(a)(2)(C) of the Act unless it is revised to expressly
require case-by-case ozone impact analyses to be conducted for major
sources of ozone precursors based on sufficient modeling techniques.
The commenters also stated that the TCEQ has indicated that for some
situations TCEQ views the SIP process as the appropriate vehicle for
evaluating ozone impacts on a nearby nonattainment area, and this is
not acceptable.
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    \36\ See Section III-J.3 of this rulemaking for the comments
that address SILs.
    \37\ When we say `modeling guidance' in this response in
reference to the TCEQ's modeling guidance, we are including guidance
based on the TCEQ's ``Air Quality Modeling Guidelines'' prepared by
the TCEQ's New Source Review Permits Division, RG-25 (Revised) and
``Draft Ozone Procedures'' included in the docket for this action as
``TCEQ's Draft Ozone Procedures'' and other guidance the TCEQ has
given applicants in the past.
---------------------------------------------------------------------------

    Response: As further discussed in this response, the appropriate
time to evaluate ozone impacts for major sources of ozone precursors on
attainment and nearby nonattainment areas is in the permitting process.
As we noted in our proposal, the TCEQ has adopted EPA's Guideline on
Air Quality Models as part of its adopted-by-reference regulations.\38\
Therefore, we have concluded that the TCEQ has adopted the necessary
requirements and provisions for implementing a PSD program as it
relates to the 1997 ozone standard infrastructure elements, including
40 CFR part 51, Appendix W: Guideline on Air Quality Models (GAQM).
---------------------------------------------------------------------------

    \38\ TAC Sec.  116.160(d). Prevention of Significant
Deterioration Requirements. 6-77, TXd118, TX110. As adopted by the
TCEQ June 2, 2010, effective June 24, 2010 (6-77). Approved by the
EPA September 15, 2010 (75 FR 55978) effective November 15, 2010
(TXd118). Regulations.gov docket EPA-R06-OAR-2010-0620. ``TAC Sec.
116.160(d). 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.''
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    The commenter has raised a number of concerns with individual
permitting actions. In our proposal, we pointed out that the EPA has
commented to the TCEQ on individual PSD permits regarding concerns with
technical inadequacies in ozone impact analyses. We also pointed out
that the EPA may address implementation of the SIP through separate
action and such separate action is not precluded by approval of the
infrastructure SIP. We continue to believe that specific concerns about
individual permits are best addressed separately from any action taken
specifically with regard to the approvability of this infrastructure
SIP.
    In the event there is not progress in addressing our technical
concerns based on these clarifications, the EPA will consider the other
regulatory tools available.
    While we remain very concerned about the appropriateness of ambient
impacts analyses of ozone for some past permitting actions, herein we
are explaining our technical and scientific expectations for ozone
impacts analysis for the state permitting authorities and the public.
The EPA agrees with the commenter that Texas state permitting authority
should not be using

inappropriate or outdated analytical tools including models or other
ambient analysis techniques based on model outputs. The commenter is
correct that the use of: (1) ``Scheffe Tables,'' (2) screening
techniques which involve ratios of NOX to VOCs that do not
consider the impact of biogenic emissions, or (3) screening techniques
that use other outdated or irrelevant modeling, is inappropriate,
except in limited circumstances, to evaluate a single source's ozone
impacts on an air quality control region.\39\ In our proposal, we note
that these three types of procedures lack the appropriate levels of
biogenic emissions, appropriate consideration of background pollutant
levels, and the resulting chemistry conclusions as to whether the
airshed is NOX limited or that a NOX source would
result in an ozone neutral impact. NOX limited means that
the airshed has plenty of VOCs from biogenics and anthropogenic sources
such that the production of ozone is limited by the amount of
NOX available in the atmosphere to react with VOCs. Addition
of NOX emissions in an airshed that is ``NOX
limited'' will result in the generation of more ozone within the local
airshed. NOX plumes that have a high concentration of
NOX can result in some initial ozone destruction, but as the
plume further disperses the NOX reactions that create ozone
overtake the destruction cycles and the overall net effect is more
ozone molecules within the airshed. To be clear, using techniques that
compare a proposed source's VOC to NOX ratio without
consideration of the overall airshed can lead to scientifically
inappropriate conclusions.\40\
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    \39\ With the exception of limited circumstances, these
techniques would not be acceptable to use. Such a limited
circumstance may arise in an area where biogenic emissions are not
present in significant quantities, such that the overall airshed
being evaluated is actually VOC limited (VOC emissions limit the
formation of ozone). In this unique situation, through consultation
with the EPA Regional Office, the EPA Regional Office and the state
permitting agency may determine a screening approach could be
technically appropriate using these tools.
    \40\ Sillman, S., (1995), ``The Use of NOy,
H2O2, and HNO3 as Indicators for
O3-NOX-ROG Sensitivity in Urban Locations,''
J. Geophys. Res. 100, 14,175-14,188; Sillman, S., D. He, C.
Cardelino, and R.E. Imhoff, (1997), ``The Use of Photochemical
Indicators to Evaluate Ozone-NOX-Hydrocarbon Sensitivity:
Case Studies from Atlanta, New York and Los Angeles,'' J. Air and
Waste Mgmt. Assoc., 47 (10), 1030-1040. (Oct. 1997); Sillman, S.,
(1998), ``Evaluating the Relation Between Ozone, NOX and
Hydrocarbons: The Method of Photochemical Indicators,'' EPA/600R-98/
022, http://www-personal.engin.umich.edu/~sillman/publications.htm;
Sillman, S., and D. He, (2002), ``Some theoretical results
concerning O3-NOX-VOC chemistry and NOX-VOC
indicators,'' J. Geophys. Res., 107, D22, 4659, doi:10.1029/
2001JD001123, 2002, http://www-personal.engin.umich.edu/~sillman/
publications.htm; Ryerson et al, (2003) ``Effect of petrochemical
industrial emissions of reactive alkenes and NOX on
tropospheric ozone formation in Houston, Texas,'' Journal of
Geophysical Research, Vol. 108, No. D8, 4249, doi:10.1029/
2002JD003070, 2003; Ryerson et al., (2001), ``Observations of Ozone
Formation in Power Plant Plumes and Implications for Ozone Control
Strategies,'' Science, April 27, 2001.
---------------------------------------------------------------------------

    We note the TCEQ's ``draft ozone procedures'' document relies upon
outdated EKMA diagrams that conclude most situations are VOC limited
and not NOX limited and that increases in NOX are
assessed as being ozone neutral.\41\ This is an inaccurate conclusion
because it does not appropriately consider the total pollutant
concentration in the local airshed. The procedures discussed in this
response and in the proposal, and as found in the TCEQ Draft Ozone
Procedures guidance, are fundamentally flawed with the exception of
usage in certain limited circumstances (see footnote 39). The EPA will
continue to monitor implementation of the PSD program as it relates to
ozone impacts analysis and remain in communication with the state.
---------------------------------------------------------------------------

    \41\ A copy of the TCEQ Draft Ozone Procedures guidance relying
upon outdated EKMA diagrams is included in the docket for this
rulemaking.
---------------------------------------------------------------------------

    More scientifically appropriate screening and refined analytical
tools are available; they should be considered for use in conducting
ambient impact analyses for ozone. As discussed in a separate comment
and as called for in the GAQM, the approach for an ozone impact
analysis should be determined in consultation with the EPA Regional
Office on a case-by-case basis. The TCEQ has adopted the GAQM and
therefore should be following the guidance and principles outlined in
GAQM to properly implement the TCEQ's PSD program.\42\ We raised our
fundamental concerns with TCEQ's conclusions that NOX-
dominated sources result in ozone neutral impacts in our proposal. The
TCEQ did not provide comments on our proposal, nor did it offer
supporting reasons to disagree with the EPA's position that these
techniques should no longer be used. Therefore, we anticipate that the
TCEQ will not use these techniques.
---------------------------------------------------------------------------

    \42\ Id.
---------------------------------------------------------------------------

    The current Texas SIP facially meets the requirements of 40 CFR
51.166(l)(1) and (2). We disagree with one commenter's statement that
the Texas SIP is insufficient unless it is revised to explicitly
require case-by-case ozone impact analyses for major sources of ozone
precursors based on sufficient modeling techniques. We note that the
GAQM and the Texas SIP indicates the state permitting authority should
consult with the Regional Office to determine the appropriate analysis
techniques, but allows flexibility through the consultation process to
determine either modeling based or other analysis techniques may be
acceptable. We note that not all sources have utilized the TCEQ's draft
ozone procedures. Nevertheless, if the TCEQ continues to utilize
inappropriate techniques, we will consider the other regulatory tools
available to the EPA. The EPA's authority to take action, which may
include a SIP call, a finding of failure to implement, or taking
measures to address specific permits pursuant to the EPA's case-by-case
permitting oversight, is not precluded by its approval of this
infrastructure SIP.
2. Comments That Address Consultation
    Comment: In conjunction with the proposition summarized in the
comment regarding the adequacy of ozone modeling procedures for
proposed PSD permits in Texas,\43\ the commenters both indicated that
the TCEQ routinely does not consult, nor does it require permit
applicants to consult, with the EPA before approving a PSD permit
application based upon those modeling procedures the commenters state
to be inadequate. The commenters both cite to a specific PSD permit
application approved by the TCEQ for the White Stallion Energy Center
as illustrating the TCEQ's position that an applicant may rely on TCEQ
ozone modeling procedures other than those approved by the EPA without
consulting with the EPA. The commenter concludes that the TCEQ
routinely issues PSD permits based upon ozone impacts analyses alleged
to be inadequate (see the comment regarding the adequacy of ozone
modeling procedures and footnote 43) without consulting with the EPA
and therefore the Texas PSD program is insufficient to assure the NAAQS
are achieved. The commenter contends the EPA should require the TCEQ to
amend its SIP-approved rules to explicitly include a consultation
requirement for ozone. Two commenters state that the EPA should require
the TCEQ to amend its SIP to expressly include an approval requirement
for ozone requiring all applicants to submit a proposed modeling
procedure to the EPA regional office and receive written approval from
the EPA regarding that procedure before a PSD permit may be issued.
---------------------------------------------------------------------------

    \43\ See Section III-J.1 of this rulemaking for the comments
that address the adequacy of ozone modeling procedures.

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

    Response: The current Texas SIP facially meets the requirements of
40 CFR 51.166(l)(1) and (2). Specifically, the Texas SIP states ``all
estimates of ambient concentrations required under PSD shall be based
on applicable air quality models and procedures specified in the GAQM,
or other models and modeling procedures currently approved by the EPA
for use in the state program.'' Therefore the Texas SIP requires that
PSD permit applications contain an adequate analysis of ozone impacts
from the proposed project.\44\ As indicated by the GAQM, the methods
used for the ozone impacts analysis for individual PSD permit actions
are determined on a case-by-case basis. 40 CFR Part 51, Appendix W,
Sec.  5.2.1.c.
---------------------------------------------------------------------------

    \44\ As discussed further in another response to comment, the
TCEQ has adopted the EPA's GAQM as part of its adopted-by-reference
regulations. Thus, Texas has the appropriate rules in place to
require an ambient analysis of ozone impacts from a proposed
project.
---------------------------------------------------------------------------

    The TCEQ has adopted and incorporated the EPA's PSD permitting
regulations found at 40 CFR 51.166 and 52.21 into its SIP. The language
of the GAQM clearly applies to permits issued in Texas. Other than the
merging of the requirements from 40 CFR 52.21(l)(1) and (l)(2) and
51.166(l)(1) and (l)(2) into one requirement (30 TAC 116.160(d)), the
requirements of the Texas rules do not vary from the EPA's GAQM.
Section 5.2.1.c. of the GAQM provides that ``model users should consult
with the Regional Office to determine the most suitable approach on a
case-by-case basis (subsection 3.2.2.).'' Since this provision is
incorporated into the Texas SIP, the infrastructure SIP is approvable
as facially sufficient with respect to the analysis of impacts of
proposed facilities on ozone concentrations in PSD permit reviews.
    The commenters assert, and the EPA acknowledges, that EPA has
indicated to the TCEQ on multiple occasions the state should consult
with the EPA to determine the most appropriate method to analyze ozone
impacts on a case-by-case basis. Pursuant to EPA's authority under the
Act, EPA Region 6 has submitted formal comment letters in response to
the TCEQ draft PSD permits indicating the Agency's position that PSD
permit applications and draft permits did not contain an adequate
analysis of ozone impacts from the proposed projects, nor was the EPA
consulted about the appropriateness, or lack thereof, of an ozone
impacts analyses for the facilities. The EPA is concerned that the
TCEQ's consultation to date, including the development of a protocol,
has not always met the EPA's expectations. The TCEQ should consult with
EPA Region 6 on a case-by-case basis for determining the appropriate
techniques in developing an adequate ozone impact analysis.
Furthermore, a modeling protocol should be developed and agreed upon by
EPA Region 6, the TCEQ, and the applicant to ensure that the analysis
conducted will conform to the recommendations, requirements, and
principles of the GAQM.
    As indicated in Section D, the EPA is continuing to evaluate its
review of implementation issues that have arisen at this time but
believes that it may move forward with finalizing its proposed approval
in the absence of a final EPA determination regarding the
implementation issues. The EPA believes that such a determination would
undermine the approvability of SIP language that is otherwise facially
sufficient. The EPA is not determining in this action that the
implementation concerns that have arisen no longer exist. If the EPA
determines that outstanding implementation issues are sufficiently
serious it will take appropriate action, which could include the use of
other regulatory tools, including the issuance of a SIP call, making a
finding of failure to implement, or taking measures to address specific
permits pursuant to the EPA's case by case permitting oversight,