assumes that one can rely on the Nonattainment NSR rules to interpret
the general definitions. If one cannot use the Nonattainment NSR
definitions to interpret the general definition of ``facility,'' then
one must resort to the definition of ``source'' in 30 TAC 116.10(17),
which is defined as ``a point of origin of air contaminants, whether
privately or publicly owned or operated.'' Pursuant to this reading, a
facility is more like a Federal ``emissions unit.'' 40 CFR
51.165(a)(1)(vii). `` `Emissions unit' means any part of a stationary
source that emits or would have the potential to emit any regulated NSR
pollutant * * *'' At least in the Qualified Facility rules, it appears
that TCEQ use of the definition of ``facility'' is more like a Federal
``emissions unit.'' The circular nature of these definitions, and the
existence of two different definitions of ``facility'' without clear
description of their applicability, makes Texas's rules, including the
Qualified Facility rules, vague. The commenter urges EPA to require
Texas to clarify its definition of ``facility'' and to ensure that its
use of the term throughout the rules is consistent with that
definition.
    Response: EPA agrees with this comment. See our response to comment
1 above for further information.
    Comment 3: Concerning the definition of ``facility,'' BCCA, TIP,
and TCC commented that the term ``facility'' is defined in Chapter 116
and in the Texas Clean Air Act, and is used in a consistent manner
throughout. The term has identical meaning in the NNSR non-PAL rules
and the PSD non-PAL rules. Any failure to ``explicitly limit the
definition'' in one part of Chapter 116 is not grounds for disapproval,
given the well-established definition of ``facility'' in the context of
Texas air permitting and that it is comparable to the Federal
definition of ``emissions unit.'' TCEQ regulations in 30 TAC 116.10(6)
defines a facility as: ``A discrete or identifiable structure, device,
item, equipment, or enclosure that constitutes or contains a stationary
source, including appurtenances other than emission control equipment.
A mine, quarry, well test, or road is not a facility.'' See 30 TAC
116.10(6). Section 116.10 states that the definitions contained in the
section apply to all uses throughout Chapter 116. 30 TAC 116.10
(``[T]he following words and terms, when used in this chapter, shall
have the following meanings, unless the context clearly indicates
otherwise.'') This definition is similar to the definition of
``emission unit'' in Texas's Title V rules. There, ``emissions unit''
is defined as: ``A discrete or identifiable structure, device, item,
equipment, or enclosure that constitutes or contains a stationary
source, including appurtenances other than emission control equipment.
See 30 TAC 122.10(8). Under the express terms of 30 TAC 116.10, the
definition of ``facility'' is clear, and is equivalent to the Federal
definition of ``emission unit'' in the nonattainment NSR non-PAL rules,
as it is throughout Chapter 116.
    Response: EPA disagrees with these comments. See our response to
comment 1 above for further information.
    Comment 4: TCEQ comments that TCEQ rules includes maintenance,
startup and shutdown emissions in the development of ``baseline actual
emissions'' to the extent that the permit reviewer can verify that
these emissions occurred, were properly quantified and reported as part
of the baseline, and were creditable. Otherwise, startup and shutdown,
as well as maintenance emissions, are treated as unauthorized and, as
such, have a baseline actual emission rate of zero. Further, TCEQ rules
do not authorize malfunction emissions. TCEQ has concerns about
crediting a major source with an emission associated with
malfunctioning of equipment when the source determines baseline actual
emissions. TCEQ is concerned that including malfunction emissions would
inflate the baseline and narrow the gap between baseline actual
emissions and the planned emission rate. Therefore, the number of
``major'' sources or modifications would be reduced. It is unclear how
emissions that are not authorized would be considered creditable within
the concept of NSR applicability.
    EPA has approved the exclusion of malfunction emissions from the
baseline calculation in other States' rules. TCEQ considers the
exclusion of malfunction emissions from baseline actual emissions to be
at least as stringent as the Federal rule. TCEQ is willing to work with
EPA to clarify the inclusion of startup and shutdown emissions when
determining baseline actual emissions.

    Response: EPA disagrees with this comment. We note two fundamental
concerns with the Texas definitions, as discussed in this response.
First, the Texas definition of ``baseline actual emissions'' provides
discretion to include emissions from malfunctions, startups, and
shutdowns, but does not contain specific, objective, and replicable
criteria for determining whether TCEQ's choice of emissions events to
be included in the baseline actual emissions will be effective in terms
of enforceability, compliance assurance, and ambient impacts. Second,
the Texas definition of ``projected actual emissions'' does not include
emissions from startups, shutdowns and malfunctions in contrast to the
Federal definition which includes such emissions.
    The Federal definition of ``baseline actual emissions'' requires
such emissions to include emissions associated with startups,
shutdowns, and malfunctions. See 40 CFR 51.165(a)(1)(xxxv)(A)(1) and
(B)(1) and 51.166(b)(47)(i)(a) and (ii)(a). In contrast, Texas's
submitted definition of ``baseline actual emissions'' at 30 TAC
116.12(3)(E) differs from the Federal definition by providing that
``[u]ntil March 1, 2016, emissions previously demonstrated as emissions
events or historically exempted under [30 TAC] Chapter 101 of this
title * * * may be included the extent they have been authorized, or
are being authorized, in a permit action under Chapter 116.'' Emphasis
added. EPA's understanding of State law is that the use of the term
``may'' creates discretionary authority or grants permission or power.
See section 311.016 of the Texas Code Construction Act.
    TCEQ considers emission events as unauthorized emissions associated
with the startup, shutdown, and malfunction related activities. See 30
TAC 101.1(28). Texas has adopted an affirmative defense approach to
handle such emissions. See 30 TAC 101.222. For emissions associated
with the planned maintenance, startup or shutdown activities, the State
rule has adopted a phased-in approach to allow a source to file an
application to permit its planned maintenance, startup or shutdown
related emissions in a source's NSR permit. This approach is based on
the source's SIC code. See 101.222(h) and (i). For EPA's proposed
rulemaking action on the State's Emission Events rule, see May 13, 2010
(75 FR 26892). The State's submitted definition provides director
discretion whether to include these types of emissions. Such director
discretion provisions are not acceptable for inclusion in SIPs, unless
each director decision is required under the plan to be submitted to
EPA for approval as a single-source SIP revision. This Program does not
contain specific, objective, and replicable criteria for determining
whether the Executive Director's choice of emissions events to be
included in the baseline actual emissions will be effective in terms of
enforceability, compliance assurance, and ambient impacts. This would
include a replicable procedure for use of any discretionary decision to
determine which maintenance, startup, and shutdown emissions are
properly quantified and reported as part of the baseline, and are
creditable; and for determining that maintenance, startup, and shutdown
emissions then do not meet such criteria and can be excluded because
they are unauthorized.
    The State did not provide any demonstration, as required for a
customized Major NSR SIP revision submittal, that the submitted
provision that may exclude any emissions from maintenance, startup, and
shutdown from the definition of baseline actual emissions, is at least
as stringent as the definition in the Federal non-PAL Program SIP
requirements. Texas also includes authorized maintenance emissions in
its baseline actual emissions. Because maintenance emissions are not
specifically required in the Federal definition, the State must provide
a demonstration, as required for a customized Major NSR SIP revision
submittal, that including these emissions in the baseline actual
emissions is at least as stringent as the definition in the Federal
non-PAL Program SIP requirements.
    With respect to ``projected actual emission,'' the Federal
definition of ``projected actual emissions'' requires the projected
emissions to include emissions associated with startups, shutdowns, and
malfunctions. See 40 CFR 51.165(a)(1)(xxviii)(B)(2) and
51.166(b)(40)(ii)(b). Texas's submitted definition of ``projected
actual emissions'' at 30 TAC 116.12(29) differs from the Federal
definitions by not including emissions associated with startups,
shutdowns, and malfunctions. The exclusion of these emissions in the
projected actual emissions while providing for the possible inclusion
of these emissions from baseline actual emissions does not provide a
comparable estimation of emissions increases associated with the
project and could narrow the gap between baseline actual emissions and
the projected actual emissions in a way that allows facilities to avoid
NSR requirements. The State did not provide a demonstration, as
required for a customized Major NSR SIP revision, that excluding these
emissions from projected actual emissions, is at least as stringent as
the Federal non-PALs SIP requirements. (EPA also wishes to note that
the submitted definition of baseline actual emissions is unclear how
TCEQ will include authorized emissions events as baseline actual
emissions and projected actual emissions on and after March 1, 2016.)
    With respect to one aspect specifically related to emissions
associated with malfunctions, EPA appreciates Texas's concern that
including malfunction emissions in the baseline and projected actual
emissions would inflate the baseline and narrow the gap between
baseline and planned emissions. EPA acknowledges that it has approved
the exclusion of malfunction emissions from the baseline calculation in
other States' rules. This includes the approval of such exclusions in
Florida (proposed April 4, 2008 at 73 FR 18466 and final approval on
June 27, 2008 at 73 FR 36435) and South Carolina (proposed September
12, 2007 at 72 FR 52031 and final approval on June 2, 2008 at 73 FR
31368) and the proposed exclusion in Georgia (proposed September 4,
2008 at 73 FR 51606). EPA's review of these actions indicates that in
each State, malfunctions were excluded from both baseline actual
emissions and projected actual emissions. This exclusion was based upon
the difficulty of quantifying past malfunction emissions and estimating
future malfunction emissions as part of the projected actual emissions.
Georgia's rules specify that if malfunction emissions are omitted from
projected actual emissions, they must also be omitted from baseline
emissions, and vice versa, so as to provide a comparable estimation of
emissions increases associated with the project. Florida is also
concerned about the possibility that including malfunction emissions
may result in the unintended rewarding of the source's poor operation
and maintenance, by allowing malfunction to be included in the baseline
emissions that will be used to calculate emissions changes and
emissions credits.
    After reviewing Texas's comments on exclusion of malfunctions from
its baseline actual emissions and projected actual emissions, we note
that TCEQ voices concerns similar to Florida, Georgia, and South
Carolina. Accordingly, we agree with TCEQ's concern that including
malfunction emissions would inflate the baseline and narrow the gap
between baseline actual emissions and the planned emission rate.
Therefore, the number of ``major'' sources or modifications would

be reduced. It is unclear how emissions that are not authorized would
be considered creditable within the concept of NSR applicability.
Nevertheless, we must review the submitted definitions pending before
EPA for action. Both definitions do not exclude malfunctions emissions.
Furthermore, the baseline actual emissions definition allows the
discretionary inclusion of malfunction emissions. To be approvable,
both definitions must mandate the exclusion of malfunction emissions.
    Comment 5: BCCA, TIP, TCC, and TxOGA commented that the Texas
rules' treatment of startups, shutdowns, and malfunctions is not a
proper basis for disapproval of the proposed SIP revision. The Federal
and Texas definitions both require that non-compliant emissions be
excluded from the determination of baseline actual emissions.\20\ Based
on the Texas rules' integration of pending Chapter 101 revisions on
startup, shutdown, and malfunction emissions (as requested by EPA), the
proposed SIP revision's treatment of these types of emissions is a
reasonable approach.
---------------------------------------------------------------------------

    \20\ 30 TAC 116.12(3)(D) (``The actual rate shall be adjusted
downward to exclude any non-compliant emissions that occurred during
the consecutive 24-month period.'')
---------------------------------------------------------------------------

    EPA has approved rules for baseline calculations that exclude some
of the elements they assert should be included in Texas's definition.
For example, Georgia's PSD regulations give applicants the option of
excluding malfunction emissions from the calculation of baseline
emissions.\21\ In approving this approach, EPA noted ``The intent
behind this optional calculation methodology is that it may result in a
more accurate estimate of emission increases. The Federal rules allow
for some flexibility, and EPA supports EPD's analysis that the Georgia
rule is at least as stringent as the Federal rule.'' \22\ Similarly,
Texas's approach to the baseline calculation attempts for a more
accurate estimate of emissions.
---------------------------------------------------------------------------

    \21\ GA. COMP. R. & REGS. 391-3- 1-.02(7)(a)2.(ii)(II)II (2009).
    \22\ 73 FR 51,606, at 51,609 (Sept. 4, 2008).
---------------------------------------------------------------------------

    Moreover, TCEQ is underway in permitting maintenance, startup and
shutdown emissions through Chapter 116 preconstruction permits, and a
SIP revision reflecting the maintenance, startup, and shutdown
permitting initiative has been submitted to EPA for approval. TCEQ is
distinguishing between planned and unplanned maintenance, startup, and
shutdown emissions, and working to authorize those planned maintenance,
startup, and shutdown emissions in Texas air permits. It is reasonable
and appropriate that the maintenance, startup, and shutdown permitting
initiative be properly integrated with the definition of ``baseline
actual emissions.'' The proposed SIP revision recognizes that such
emissions may be added to the baseline in the future, based on TCEQ's
ongoing process of authorizing maintenance, startup, and shutdown
emissions. The proposed SIP revision and TCEQ's current approach is
sound and reasonable based on historical treatment of maintenance,
startup, and shutdown emissions in Texas air permits, and is not
grounds for disapproval of the proposed SIP revision.
    Response: EPA disagrees with this comment. See the response to
Comment 4 above for more information.
    Comment 6: The Clinic comments that Texas's definition of
``baseline actual emissions'' is less stringent than the Federal
definition. The Federal regulations define ``baseline actual
emissions'' as ``the average rate, in tons per year, at which the unit
actually emitted the pollutant during any consecutive 24-month
period.'' See 40 CFR 51.165(a)(1)(xxxv)(A) and (B). This definition
further provided that the average rate ``shall include emissions
associated with startups, shutdowns, and malfunctions.'' See 40 CFR
51.165(a)(1)(xxxv)(A)(1).
    Texas rules define ``baseline actual emissions'' as ``the rate, in
tons per year, at which the unit actually emitted the pollutant during
any consecutive 24-month period.'' See 30 TAC 116.12(3)(A). The Texas
rules do not require baseline actual emissions to include emissions
associated with maintenance, startups, and shutdowns. Instead, the
rules state that maintenance, startup, and shutdown events ``may be
included to the extent they have been authorized, or are being
authorized.'' See 30 TAC 116.12(3)(E). Texas's failure to incorporate
the Federal definition and the express failure to require incorporation
of maintenance, startup, and shutdown emissions in the average rate
renders the definition as inconsistent with Federal regulations.
    The commenter further notes that Texas's failure to include
maintenance, startup, and shutdown emissions is related to a larger
problem with Texas's program. Texas is allowing sources to authorize
their maintenance, startup, and shutdown emissions separately from
their routine emissions. For example, Texas allows sources that have
individual major NSR or PSD permits to authorize their maintenance,
startup, and shutdown emissions through a stand-alone permit-by-rule.
See 30 TAC 106.263. This allows sources to avoid considering their
maintenance, startup, and shutdown emissions in determining potential
to emit, as well as in determining the magnitude of any emission
increases. EPA has repeatedly informed Texas that its approach for
permitting maintenance, startup, and shutdown emissions violates the
Act.\23\ EPA should take action to ensure that Texas follows the Act
when permitting maintenance, startup, and shutdown emissions.
---------------------------------------------------------------------------

    \23\ See ``Letter to Richard Hyde, TCEQ, Director, Air Permits
Division'' from Jeff Robinson, EPA, Region 6, Chief, Air Permits
Section (May 21, 2008) (Attachment 7 in the Clinic's comments).
---------------------------------------------------------------------------

    Response: EPA agrees with the comment relating to not calculating
baseline actual emissions as average emission rates. See section
IV.D.2, responses to comments 1 and 2 for further information.
    EPA agrees with this comment related to the inclusion of emissions
associated with authorized maintenance, startup, and shutdown in the
baseline actual emissions. See the response to comment 4 above. The
comments relating to authorizing maintenance, startup, and shutdown
emissions separately from routine emissions are outside the scope of
this action.
    Comment 7: The Clinic comments that Texas's definition of
``projected actual emissions'' is less stringent than the Federal
definition. The Federal regulations define ``projected actual
emissions'' to include maintenance, startup, and shutdown emissions.
See 40 CFR 51.165(a)(1)(xxviii)(b) and 51.166(b)(40)(ii)(b). Texas's
definition of ``projected actual emissions'' fails to include
maintenance, startup, and shutdown emissions. See 30 TAC 116.12(29).
Even where such emissions are included in a source's baseline actual
emissions, there is no provision to require such emission in the
projected actual emissions. The commenter states that facilities in
Texas often have extremely large maintenance, startup, and shutdown
emissions. See Attachment 8 of the comments (Facility emission event
information). Under Texas's definitions, a source which would trigger a
major modification under Federal rules could avoid a major modification
by failing to include maintenance, startup, and shutdown in their
projected actual emissions. The commenter states that any company that
includes maintenance, startup, and shutdown in its baseline actual
emissions should be required to include a realistic estimate of
maintenance,

startup, and shutdown emissions in its projected actual emissions.
    Response: EPA agrees with this comment. See our response to Comment
4 above for further information.
3. What are the grounds for disapproval of the submitted non-PAL
aspects of the major NSR SIP requirements?
    EPA is disapproving the submitted NNSR non-PAL rules because they
do not explicitly limit the definition of ``facility'' to an
``emissions unit.'' It is our understanding of State law that a
``facility'' can be an ``emissions unit,'' i.e., any part of a
stationary source that emits or may have the potential to emit any air
contaminant, as the State explicitly provides in the revised PSD rule
at 30 TAC 116.160(c)(3). A ``facility'' also can be a piece of
equipment, which is smaller than an ``emissions unit.'' A ``facility''
can include more than one ``major stationary source.'' It can include
every emissions point on a company site, without limiting these
emissions points to only those belonging to the same industrial
grouping (SIP code). Regardless, the State clearly thought the prudent
legal course was to limit ``facility'' explicitly to ``emissions unit''
in its PSD SIP non-PALs revision. TCEQ did not submit a demonstration
showing how the lack of this explicit limitation in the NNSR SIP non-
PALs revision is at least as stringent as the revised Major NSR SIP
requirements. Therefore, EPA is disapproving the use of the submitted
definition as not meeting the revised Major NNSR non-PALs SIP
requirements.
    Under the Major NSR SIP requirements, for any physical or
operational change at a major stationary source, a source must include
emissions resulting from startups, shutdowns, and malfunctions in its
determination of the baseline actual emissions. The definition of the
term ``baseline actual emissions,'' as submitted in 30 TAC
116.12(3)(E), does not require the inclusion of emissions resulting
from startups, shutdowns, and malfunctions as required under Federal
regulations. The submitted definition of baseline actual emissions
provides that until March 1, 2016, emissions previously demonstrated as
emissions events or historically exempted under [30 TAC] Chapter 101 of
this title may be included the extent they have been authorized, or are
being authorized, in a permit action under Chapter 116. The submitted
definition of ``projected actual emissions'' at 30 TAC 116.12(29)
differs from the Federal definitions by not including emissions
associated with startups, shutdowns, and malfunctions. The authorized
emission events under the submitted definition include emissions
associated with maintenance, startups, and shutdowns. Our understanding
of State law is that the use of the term ``may'' creates discretionary
authority or grants permission or a power. See Section 311.016 of the
Texas Code Construction Act. Similarly, the submitted definition of
``projected actual emissions'' at 30 TAC 116.12(29) does not require
that emissions resulting from startups, shutdowns, and malfunctions be
included. The submitted definitions differ from the Federal SIP
definitions and the State has not provided information demonstrating
that these definitions meet the Federal SIP definitions. Specifically,
the State has not provided: (1) A replicable procedure for determining
the basis for which emissions associated with maintenance, startup, and
shutdown will and will not be included in the baseline actual
emissions, (2) the basis for including emissions associated with
maintenance in baseline actual emissions, (3) the basis for not
including maintenance, startup, and shutdown emissions in the projected
actual emissions, and (4) provisions for how it will handle
maintenance, startup, and shutdown emissions after March 1, 2016.
Therefore, based upon the lack of a demonstration from the State, as is
required for a customized Major NSR SIP revision submittal, EPA is
disapproving the definitions of ``baseline actual emissions'' at 30 TAC
116.12(3) and ``projected actual emissions'' at 30 TAC 116.12(29) as
not meeting the revised Major NSR SIP requirements.
    Texas stated that it has excluded emissions associated with
malfunctions from the calculation of baseline actual emissions and
projected actual emissions because including such emissions would
inflate the baseline and narrow the gap between baseline and project
emissions. EPA agrees with the reasons Texas uses to exclude
malfunction emissions from baseline actual emissions and projected
actual emissions are comparable to the reasons EPA used for excluding
malfunction emissions from other States in which EPA approved such
exclusion. Notwithstanding Texas's exclusion of malfunctions from these
definitions, Texas must address the other grounds for disapproval as
discussed above. This includes mandating the exclusion of malfunction
emissions in both definitions.
    The Federal definition of the ``baseline actual emissions''
provides that these emissions must be calculated in terms of ``the
average rate, in tons per year at which the unit actually emitted the
pollutant during any consecutive 24-month period.'' The submitted
definition of the term ``baseline actual emissions'' found at 30 TAC
116.12 (3)(A), (B), (D), and (E) differs from the Federal definition by
providing that the baseline shall be calculated as ``the rate, in tons
per year at which the unit actually emitted the pollutant during any
consecutive 24-month period.''
    Texas has not provided any demonstration, as is required for a
customized Major NSR SIP revision submittal, showing how this different
definition is at least as stringent as the Federal SIP definition.
Therefore, EPA is disapproving the submitted definition of ``baseline
actual emissions'' found at 30 TAC 116.12(3) as not meeting the revised
major NSR SIP requirements.
    EPA received comments from TCEQ, the Clinic, and industry regarding
the proposed disapproval of these submitted SIP revisions. See our
response to these comments in section IV.E.2 above. None of the
provisions and definitions in the February 1, 2006, SIP revision
submittal pertaining to the revised Major NSR SIP requirements for non-
PALs is severable from each other. Therefore, we are disapproving the
portion of the February 1, 2006, SIP revision submittal pertaining to
the revised Major NSR non-PALs SIP requirements as not meeting the Act
and the revised Major NSR SIP regulations. See the proposal at 74 FR
48467, at 48475, our background for these submitted SIP revisions in
section IV.E.1 above, and our response to comments on these submitted
SIP revisions in section IV.E.2 above for additional information.

F. The Submitted Minor NSR Standard Permit for Pollution Control
Project SIP Revision

1. What is the background for the submitted Minor NSR Standard Permit
for Pollution Control Project SIP revision?
    EPA approved Texas's general regulations for Standard Permits in 30
TAC Subchapter F of 30 TAC Chapter 116 on November 14, 2003 (68 FR
64548) as meeting the minor NSR SIP requirements. The Texas Clean Air
Act provides that the TCEQ may issue a standard permit for ``new or
existing similar facilities'' if it is enforceable and compliance can
be adequately monitored. See section 382.05195 of the TCAA. EPA
approved the State's Standard Permit program as part of the Texas Minor
NSR SIP program on November 14, 2003 (68 FR 64548). In the final FRN,
EPA noted that the submitted provisions provide for a

streamlined mechanism for approving the construction or modification of
certain sources in categories that contain numerous similar sources.
EPA approved the provisions for issuing and modifying standard permits
because, among other things, the submitted rules required the
following: (1) No major stationary source or major modification subject
to part C or part D of the Act could be issued a standard permit; (2)
sources qualifying for a standard permit are required to meet all
applicable requirements under section 111 of the Act (NSPS), section
112 of the Act (NESHAPS and MACT), and the TCEQ rules (this includes
the Texas SIP control strategies); (3) sources have to register their
emissions with the TCEQ and this registration imposes an enforceable
emissions limitation; (4) maintenance of records sufficient to
demonstrate compliance with all the permit's conditions; and (5)
periodic reporting of the nature and amounts of emissions necessary to
determine whether a source is in compliance. TCEQ must conduct an air
quality impacts analysis of the anticipated emissions from the similar
facilities before issuing and modifying any standard permit. All new or
revised standard permits are required to undergo public notice and a
30-day comment period, and TCEQ must address all comments received from
the public before finalizing its action to issue or revise a standard
permit. Based upon the above and as further described in the TSD for
the approval action, EPA found that the submitted Texas Minor NSR
Standard Permits Program was adequate to protect the NAAQS and
reasonable further progress (RFP) and was enforceable.
    One of the primary reasons why EPA found that the Standard Permits
Program was enforceable is that these types of Minor NSR permits were
to be issued for similar sources. The issuance of a Minor NSR permit
for similar sources eliminates the need for a case-by-case review and
evaluation to ensure that the NAAQS and RFP are protected and the
permit is enforceable. The provisions of the Texas Standard Permits
Program also ensured that the terms and conditions of an individual
standard permit would be replicable. This is a key component for the
EPA authorization of a generic preconstruction permit. Replicable
methodologies eliminate any director discretion issues. Otherwise, if
there are any director discretion issues, EPA requires that they be
addressed in a case-by-case Minor NSR SIP permit.
    When EPA approved the Texas Standard Permits Program as part of the
Texas Minor NSR SIP, it explicitly did not approve the Pollution
Control Project (PCP) Standard Permit (30 TAC 116.617). See 68 FR
64543, at 64547. On February 1, 2006, Texas submitted a repeal of the
previously submitted PCP Standard Permit and submitted the adoption of
a new PCP Standard Permit at 30 TAC 116.617--State Pollution Control
Project Standard Permit.\24\ One of the main reasons Texas adopted a
new PCP Standard Permit was to meet the new Federal requirements to
explicitly limit this PCP Standard Permit only to Minor NSR. In State
of New York, et al v. EPA, 413 F.3d 3 (DC Cir. June 24, 2005), the
Court vacated the Federal pollution control project provisions for NNSR
and PSD. Although the new PCP Standard Permit explicitly prohibits the
use of it for Major NSR purposes, TCEQ has failed to demonstrate how
this particular Standard Permit meets the Texas Standard Permits NSR
SIP since it applies to numerous types of pollution control projects,
which can be used at any source that wants to use a PCP, and is not an
authorization for similar sources.
---------------------------------------------------------------------------

    \24\ The 2006 submittal also included a revision to 30 TAC
116.610(d), that is a rule in Subchapter F, Standard Permits, to
change an internal cross reference from Subchapter C to Subchapter
E, consistent with the re-designation of this Subchapter by TCEQ.
See section IV.H, and 74 FR 48467, at 48476, for further information
on this portion of the 2006 submittal.
---------------------------------------------------------------------------

    Under the Texas Standard Permits Minor NSR SIP, an individual
Standard Permit must be limited to new or existing similar sources,
such that the affected sources can meet the Standard Permit's
standardized permit conditions. This particular PCP Standard Permit
does not lend itself to standardized, enforceable, replicable permit
conditions. Because of the broad types of source categories covered by
the PCP Standard Permit, this Standard Permit lacks replicable
standardized permit conditions specifying how the Director's discretion
is to be implemented for the individual determinations, e.g., the air
quality determination, the controls, and even the monitoring,
recordkeeping, and reporting. Rather, the types of sources covered by a
Pollution Control Project are better designed for case-by-case
additional authorization, source-specific review, and source-specific
technical determinations. For case-by-case additional authorization,
source-specific review, and source specific technical determinations,
under the minor NSR SIP rules, if these types of determinations are
necessary, under the Texas Minor NSR SIP, the State is required to use
its minor NSR SIP case-by-case permit process under 30 TAC
116.110(a)(1).
    Because of the lack of replicable standardized permit conditions
and the lack of enforceability, the PCP Standard Permit is not the
appropriate vehicle for authorizing PCPs. EPA proposed to disapprove
the PCP Standard Permit, as submitted February 1, 2006. See the
proposal at 74 FR 48467, at 48475-48476, for additional information.
2. What is EPA's response to comments on the submitted Minor NSR
Standard Permit for Pollution Control Project SIP revision?
    Comment 1: TCEQ commented that its PCP Standard Permit has been
used to implement control technologies required by regulatory changes,
statutory changes, and/or EPA consent decree provisions. As such,
control devices may be applied to numerous different facility types and
industry types, ranging from storage tanks to fired units. TCEQ
understands EPA's comments and will work with EPA to develop an
approvable authorization(s) that will achieve the same goals and
emission reductions.
    Response: EPA appreciates TCEQ's understanding of our comments and
intention to work with us to develop an approvable rule revision.
However, our evaluation is based on the submitted rule currently before
us.
    Comment 2: The Clinic comments that the Texas PCP Standard Permit
does not meet Federal NNSR and PSD requirements. See New York v. EPA,
413 F.3d 4 (DC Cir. 2005). The PCP Standard Permit also fails to meet
the minimum standards for minor authorizations as provided by the Act
at 42 U.S.C. 7410(a)(2)(C) and (C) and at 40 CFR 51.160(a) and (b).
Texas's PCP Standard Permit is not limited to a particular source-
category and can apply to various pollution control projects at any
source type. See 30 TAC 116.617(a). Further, the permit itself does not
have emission limits or monitoring; instead, a facility is permitted to
include site-specific limits and monitoring requirements in its
application for coverage under a PCP Standard Permit. See 30 TAC
116.617(d)(2). The PCP Standard Permit includes a generic statement
that the permit must not be used to authorize changes for which the
Executive Director at TCEQ determines whether ``there are health
effects concerns or the potential to exceed a national ambient air
quality standard criteria pollutant or contaminant that results from an
increase in emissions of any air contaminant until those concerns are
addressed by the

registrant.'' See 30 TAC 116.617(a)(3)(B). This provision itself,
without specific emission limits and monitoring requirements in the PCP
Standard Permit, in inadequate to protect the NAAQS, and is an
acknowledgement that provisions on the face of the PCP Standard Permit
are not sufficient to assure protection of the NAAQS and PSD
increments. The commenter supports EPA taking action to disapprove and
to further require facilities that have emissions authorized under the
PCP Standard Permit to seek a Federally valid authorization.
    Response: EPA agrees with the comments that the submitted PCP
Standard Permit does not meet the requirements of the Texas Minor NSR
Standard Permits SIP.
    Comment 3: BCCA, TIP, TCC, GCLC, TxOGA, and TAB commented that the
PCP standard permit does contain on its face all requirements
applicable to its use. See 30 TAC 116.617(d). The rule requires that a
permittee make a submittal to TCEQ, but does not require the Executive
Director to act to approve the submittal. Under the rules, if the
Executive Director does not act, the authorization under the permit
stands. Review by the Executive Director is not to make case-by-case
determination, but rather to review for impacts on air quality and
disallow use if air quality would be negatively impacted. See 30 TAC
116.617(a)(3)(B). This is an important distinction. The Texas PCP
permit is more stringent than a program that lacks a discretionary
denial provision.
    Moreover, the PCP is a minor NSR authorization. The CAA does not
establish requirements for a State's minor NSR programs. The Federal
regulations that govern minor NSR programs at 40 CFR 51.160-.164
provide States great flexibility in establishing SIP approvable minor
NSR programs. Indeed, EPA's Environmental Appeals Board (``EAB'') has
recognized the flexibility provided States in establishing a non-PSD,
non-nonattainment NSR permitting program, noting that Federal
requirements do not mandate a particular minor NSR applicability
methodology or test.\25\
---------------------------------------------------------------------------

    \25\ In re Tennessee Valley Authority, 9 EAD 357, 461 (EAB Sept.
15, 2000).
---------------------------------------------------------------------------

    In light of this flexibility, the Texas PCP standard permit is an
acceptable part of the State's minor NSR SIP. Notably, EPA cites no
statutory authority or provision of Part 51 in suggesting a bar on
approval of general or standard permits. The manner in which TCEQ
implements the PCP standard permit is reasonable and practical, and a
decision to reject the PCP standard permit is a decision to reject an
important minor NSR tool used by Texas sources to authorize
environmentally beneficial projects in an expedited fashion. Site-
specific traditional NSR permitting for such projects is impractical,
inefficient and detrimental to the environment.
    Response: EPA disagrees with this comment. We are not disapproving
the Texas PCP Standard Permit because under the Texas Minor NSR SIP,
Texas cannot issue general or standard permits. In fact, EPA has
approved the Texas Standard Permits Program as part of the Texas Minor
NSR SIP. EPA's approval authorizes Texas to issue so-called general
permits, i.e., the Texas standard permits. Our approval of the Texas
Standard Permit Program as part of the Texas Minor NSR SIP was based on
the statutory and regulatory requirements, including section 110 of the
Act, in particular section 110(a)(2)(C), and 40 CFR 51.160, which
require EPA to determine that the State has adequate procedures in
place in the submitted Program to ensure that construction or
modification of sources will not interfere with attainment of a
National Ambient Air Quality Standard (NAAQS) or Reasonable Further
Progress (RFP).
    This particular submitted individual Standard Permit does not meet
the requirements of the Texas Standard Permits Minor NSR SIP. The
submitted revision allows the Executive Director to selectively review
for impacts on air quality and disallow use if air quality would be
negatively impacted or even revise the emission limit to avoid negative
air quality impacts. It grants the Executive Director too much
discretion to act selectively and make site-specific determinations
outside the scope of the PCP Standard Permit and fails to include
replicable procedures for the exercise of such discretion. It fails to
include replicable procedures for the exercise of such discretion.
Under the Texas Minor NSR Standard Permits SIP, each Standard Permit
promulgated by Texas is required to include replicable standardized
permit terms and conditions. Each Standard Permit is required to stand
on its own. No further action on the part of the Executive Director for
holders of a Standard Permit is authorized under the SIP because each
individual Standard Permit is required to contain upfront all the
replicable standardized terms and conditions. The replicability of a
Standard Permit issued pursuant to the SIP rules eliminates any
director discretion. EPA approval will not be required in each
individual case as the TCEQ evaluates (and perhaps revises) a source's
PCP Standard Permit. If the Director retains the authority to exercise
discretion in the evaluation of each PCP Standard Permit holder's
impact on air quality, this undermines EPA's rationale for approving
the Texas Standard Permits Program as part of the Texas Minor NSR SIP.
Under the SIP, any case-by-case determination must be made through the
vehicle of the case-by-case Minor NSR SIP permit, not using a Minor NSR
SIP Standard Permit as the vehicle. While Minor NSR SIP permit programs
are given great flexibility, they cannot interfere with attainment and
must meet the requirements for minor NSR. The Executive Director's
selective application of his discretion on a case-by-case basis,
without specific replicable criteria, exceeds the scope of EPA's
approval of the Standard Permits Program in 30 TAC Subchapter F of 30
TAC Chapter 116 as approved on November 14, 2003 (68 FR 64548).
    The submitted PCP Standard Permit revision has no replicable
conditions that specify how the Director's discretion is to be
exercised and delineated. We are particularly concerned that the
Executive Director may exercise such discretion in case-specific
determinations in the absence of generic, replicable enforceable
requirements. These replicable methodologies and enforceable
requirements should be in the submitted individual Standard Permit
itself, not in the Executive Director's after the fact case-specific
determinations made in issuing a customized Standard Permit to a
source. If an individual Standard Permit requires any customizations
for a holder, then this particular Standard Permit no longer meets the
requirements for the Texas Standard Permit Program SIP. This customized
Standard Permit has morphed into a case-by-case Minor NSR SIP permit
and must meet the Texas NSR SIP requirements for this type of permit.
    Comment 4: BCCA, TIP, TCC, GCLC, and TAB commented that the manner
in which TCEQ has defined pollution control projects is reasonable and
practical, and a decision to reject the PCP Standard Permit is a
decision to reject an important minor NSR tool used by Texas sources to
authorize environmentally beneficial projects in an expedited fashion.
TCC further comments that EPA does not, and cannot, question that the
Standard Permit for PCPs provides for the regulation of stationary
sources as necessary to assure that that NAAQS are achieved. TCC also
comments that Parts C (PSD) and D (NNSR) are not implicated because PCP
Standard

Permits are expressly made unavailable to major sources and major
modifications. All commenters indicated that narrowing the scope of
projects that can qualify for the expedited standard permit approval
(or requiring TCEQ to promulgate source category-specific PCP standard
permits for every source category in Texas) is impractical,
inefficient, and detrimental to the environment.
    Response: EPA agrees that the submitted PCP Standard Permit does
not apply to major stationary sources and major modifications subject
to PSD or NNSR. While the manner in which TCEQ has defined pollution
control projects may be reasonable and practical, using the Texas
Standard Permits SIP to issue one individual Standard Permit for all
types of PCPs does not meet the SIP's requirements.
    The scope of a Standard Permit promulgated by TCEQ is governed by
the TCAA and the SIP's general regulations for Standard Permits in 30
TAC Subchapter F of 30 TAC Chapter 116. These do not provide for the
issuance of a Standard Permit for dissimilar sources. They provide for
the issuance of a Standard Permit for similar sources so that its
permit terms and conditions are determined upfront in the promulgation
of the individual Standard Permit. There is no need for any director
discretion or customization of the individual Standard Permit. This is
not to say that TCEQ is precluded from issuing various individual
Standard Permits for PCPs; TCEQ can issue various individual Standard
Permits for PCPs that cover similar sources.
    Comment 5: ERCC commented that PCP authorizations are not unique to
Texas and EPA's concerns with Texas PCP Standard Permit is too broad,
is misplaced, and fails to recognize the regulatory restrictions in
place, and the benefits that allow efficient emission reduction
projects to proceed in the State. The commenter refers to two States
with pollution control exemptions from the definition of modification
which allow PCPs to proceed with significantly fewer limitations than
the Texas PCP Standard Permit: Ohio and Oregon. Neither of these States
limits PCP by a category of pollution control techniques or industrial
sources. These SIP-approved provisions fail to provide any guidance for
an application, director review, recordkeeping, or monitoring
requirements. The Texas PCP program is highlighted for disapproval
because it placed too much emphasis on the requirements and limitations
of the PCP program. The Texas program has more safeguards than Oregon
and Ohio. The Texas PCP program is solely a Minor NSR Program. By
proposing disapproval of the Texas PCP program, EPA is holding Texas to
a vastly more stringent approach and is designed to judge Texas in a
way that EPA has not proposed for any other State.
    Response: See response to Comments 3 and 4. EPA also wishes to note
that that the cited Oregon and Ohio PCP exemptions from Major NSR were
approved by EPA before the court held that EPA lacked the authority to
exempt PCPs from the Major NSR SIP requirements. See State of New York
v. EPA, 413 F 3d. 3 (DC Cir. 2005). These exemptions of PCPs from Major
NSR are not the same as a Minor NSR Standard Permit for PCPs. Moreover,
they have no relationship to the Texas Minor NSR Standard Permits SIP.
    Comment 6: TAB commented on the history of the PCP programs at EPA
and in Texas and states that Texas has been issuing Standard Permits
for PCP Projects since 1994. TAB comments that the standard permit
program was administered for several years with no suggestion of
programmatic abuses, and more importantly, no examples given by anyone
of unintended consequences. TAB also asserts that 13 years after Texas
adopted its pollution control project standard permit, EPA finally
commented on it in the proposal. TAB asserts that EPA cannot question
that TCEQ's Minor NSR program, including the PCP Standard Permit, meets
this provision of the Act.
    Response: EPA disagrees with the comment. EPA had no need to
comment on the administration of the general Standard Permit Program in
this action because EPA approved Texas' general regulations for
Standard Permits in 30 TAC Subchapter F of 30 TAC Chapter 116 on
November 14, 2003 (68 FR 64548) as meeting the minor NSR SIP
requirements. That approval describes how the Standard Permit rules met
EPA's requirements for new minor sources and minor modifications. The
scope of EPA's disapproval in this action is limited to Texas's
submission of a SIP revision, on February 1, 2006, adopting a Standard
Permit for PCPs at 30 TAC 116.617--State Pollution Control Project
Standard Permit. CAA section 110 sets out the process for EPA's review
of State SIP submittals. Nothing in the Act suggests EPA is foreclosed
from disapproving a submittal because it failed to comment on it during
the State's rulemaking process. For further response to the remainder
of the comment, see response to comments 3 and 4.
    Comment 7: TAB discussed numerous guidance memoranda that EPA used
to support its position that the PCP Standard Permit is unapprovable
because it is not limited to a particular narrowly defined source
category that the permit is designed to cover and can be used to make
site-specific determinations that are outside the scope of this type
permit. The commenter states that these memos are not law, and cannot
conceivably be used as an independent basis to deny approval of a SIP
revision. Any EPA pronouncement that purports to be binding must be
adopted through notice and comment rulemaking. See Appalachian Power
Company v. EPA, 208 F.3d 1015, 1023 (DC Cir. 2000). The commenter
concludes that if EPA wants to disapprove a submitted SIP revision of a
Standard Permit because it is not limited to a particular narrowly
defined source category and that allow site specific determinations,
then EPA must adopt a rule that says so. TAB comments that even if the
memos could legally support EPA's position, that the PCP Standard
Permit is unapprovable because it not limited to a particular narrowly
defined source category that the permit is designed to cover and can be
used to make site-specific determinations that are outside the scope of
this type permit, neither of the cited memos actually says so. The
commenter reviewed each cited memo and found nothing to suggest any
intent to fill gaps or qualify any provision of 40 CFR 51.160. TAB
further comments on EPA's cites to a series of Federal Registers on
actions taken on other States' minor NSR programs. The commenter states
that these actions offer no explanation of how these particular actions
illuminate EPA's proposal to disapprove Texas' PCP Standard Permit. TAB
further comments on EPA's cites to a series of Federal Registers on
actions taken on other States' minor NSR programs. The commenter states
that these actions offer no explanation of how these particular actions
illuminate EPA's proposal to disapprove Texas' PCP Standard Permit.
    Response: EPA disagrees with this comment. Section 110 of the Act,
in particular section 110(a)(2)(C), and 40 CFR 51.160, require the EPA
to determine that the State has adequate procedures to ensure that
construction or modification of sources will not interfere with
attainment of a National Ambient Air Quality Standard (NAAQS). The CAA
grants EPA the authority to ensure that the construction or
modification of sources will not interfere with attainment of a
National

Ambient Air Quality Standard (NAAQS). The memoranda cited in the
proposal were cited for the purpose of providing documentary evidence
of how EPA has exercised its discretionary authority when reviewing
general permit programs similar to the Texas Standard Permits SIP. They
also collectively provide an historical perspective on how EPA has
exercised its discretion in reviewing regulatory schemes similar to the
submitted PCP Standard Permit. The utility of these citations is not in
the specific subject matter they address, but in their discussion of
the regulatory principles to be applied in reviewing permit schemes
that adopt emission limitations created through standardized protocols.
For example, the memorandum titled Approaches to Creating Federally-
Enforceable Emissions Limits, Memorandum from John S. Seitz, OAQPS,
November 3, 1993, on page 5 discusses EPA recognition that emissions
limitations can be created through standardized protocols. Likewise,
the memorandum titled Guidance on Enforceability Requirements for
Limiting Potential to Emit through SIP and section 112 rules and
General permits, Memorandum from Kathie A Stein, Office of Enforcement
and Compliance Assurance, January 25, 1995, discusses on page 6 the
essential characteristics of a general permit that covers a homogenous
group of sources.
    Again, the Federal Register citations provided in the proposal
serve to further highlight EPA's practical application of the policies
enunciated in the above referenced memoranda. These documents
demonstrate that EPA has consistently applied these policies with
respect to approval of the minor source permit programs which feature
rules which are similar to the Texas Standard Permits SIP. For example
the Federal Register at 71 FR 5979, final approval of Wisconsin SIP
revision, February 6, 2006, states on page 5981 that EPA regards the
prohibitory rules and general permits are essentially similar and goes
on to discuss requirements for approval of permit schemes of this
nature. The cited notices address requirements for approval of general
permit programs submitted as SIP revisions and are illustrative of
regulatory policy applied by EPA in reviewing Standard Permit programs
for SIP approval.
    The cumulative effect of these documents is to provide the public
with an insight to EPA's policy with regard to its application of
discretionary authority in reviewing a variety of proposed general
permit schemes. In this instance, EPA interprets the applicable
statutes and rules to require that Standard Permits be limited to
similar sources and they cannot be used to make site-specific
determinations that are outside the scope of this type of permit. This
is consistent with EPA's prior policy pronouncements on this subject as
evidenced by the memoranda. EPA's interpretation is circumscribed by
the statutory requirement that such a permit program not interfere with
the attainment of the NAAQS. Consequently, the commenter's failure to
find relevant information to illuminate EPA's decision to disapprove
the submitted Texas' PCP Standard Permit is not a reflection on the
utility of the cited documents.
    Comment 8: TAB concludes by observing that there is no evidence of
Standard Permit Program failure or adverse comments. The commenter
criticizes EPA for not taking action on the PCP Standard Permit Program
which the CAA required action long before 2009. EPA is further
criticized for failing to review the record to determine the negative
impacts of the PCP Standard Permit Program during the intervening time
during which TCEQ has been issuing PCP authorizations under this
program. EPA offers no example of a PCP Project that failed to protect
public health or welfare, or could not be enforced, or that did not
accomplish its valuable purpose of quickly, but carefully, authorizing
emission reduction projects.
    Response: EPA disagrees with this comment. The standard for review
in this context is not the existence of adverse comments or failure in
the implementation of a Standard Permit Program SIP. EPA reviews a SIP
revision submission for its compliance with the Act and EPA
regulations. CAA 110(k)(3). See also BCCA Appeal Group v. EPA, 355 F
3d. 817, 822 (5th Cir. 2003); Natural Resources Defense Council, Inc.
v. Browner, 57 F.3d 1122, 1123 (DC Cir. 1995). This includes an
analysis of the submitted regulations for their legal interpretation.
The existence of adverse comments is not the exclusive criteria for
review of submitted revisions. In this particular instance, EPA's
review is limited to Texas's submission of a SIP revision for a new PCP
Standard Permit at 30 TAC 116.617, not a SIP revision for general
Standard Permits Program. EPA has already approved Texas' general
regulations for Standard Permits in 30 TAC Subchapter F of 30 TAC
Chapter 116 on November 14, 2003 (68 FR 64548) as meeting the minor NSR
SIP requirements.
3. What are the grounds for disapproving the submitted Minor NSR
Standard Permit for Pollution Control Project SIP revision?
    EPA is disapproving the submitted Minor NSR Standard Permit for
Pollution Control Project SIP revision because the PCP Standard Permit,
as adopted and submitted by Texas to EPA for approval into the Texas
Minor NSR SIP, does not meet the requirements of the Texas Minor NSR
Standard Permits Program. It does not apply to similar sources. Because
it does not apply to similar sources, it lacks the requisite replicable
standardized permit terms specifying how the Director's discretion is
to be implemented for the case-by-case determinations.
    EPA received comments from TCEQ, the Clinic, and industry regarding
the proposed disapproval of these submitted SIP revisions. See our
response to these comments in section IV.F.2 above. Because the PCP
Standard Permit, in 30 TAC 116.617, does not meet the Texas Minor NSR
SIP requirements for Standard Permits, EPA is disapproving the PCP
Standard Permit, as submitted February 1, 2006. See the proposal at 74
FR 48467, at 48475-48476, our background for these submitted SIP
revisions in section IV.F.1 above, and our response to comments on
these submitted SIP revisions in section IV.F.2 above for additional
information.

G. No Action on the Revisions to the Definitions Under 30 TAC 101.1

    We proposed to take no action upon the June 10, 2005, SIP revision
submittal addressing definitions at 30 TAC Chapter 101, Subchapter A,
section 101.1, because previous revisions to that section are still
pending review by EPA. See 74 FR 48467, at 48476. We received no
comments on this proposal. Accordingly, we will take appropriate action
on the submittals concerning 30 TAC 101.1 in a separate action. As
noted previously, these definitions are severable from the other
portions of the two SIP revision submittals.

H. No Action on Provisions That Implement Section 112(g) of the Act and
for Restoring an Explanation That a Portion of 30 TAC 116.115 Is Not in
the SIP Because It Implements Section 112(g) of the Act

    Texas originally submitted a new Subchapter C--Hazardous Air
Pollutants: Regulations Governing Constructed and Reconstructed Sources
(FCAA, Sec.  112(g), 40 CFR Part 63) on July 22, 1998. EPA has not
taken action upon the 1998 submittal. In the February 1,

2006, SIP revision submittal, this Subchapter C is recodified to
Subchapter E and sections are renumbered. This 2006 submittal also
includes an amendment to 30 TAC 116.610(d) to change the cross-
reference from Subchapter C to Subchapter E. These SIP revision
submittals apply to the review and permitting of constructed and
reconstructed major sources of hazardous air pollutants (HAP) under
section 112 of the Act and 40 CFR part 63, subpart B. The process for
these provisions is carried out separately from the SIP activities.
SIPs cover criteria pollutants and their precursors, as regulated by
NAAQS. Section 112(g) of the Act regulates HAPs, this program is not
under the auspices of a section 110 SIP, and this program should not be
approved into the SIP. These portions of the 1998 and 2006 submittals
are severable. For these reasons we proposed to take no action on this
portion relating to section 112(g) of the Act. See 74 FR 48467, at
48476-48477. We received no comments on this proposal. Accordingly, we
are taking no action on the recodification of Subchapter C to
Subchapter (d) and 30 TAC 116.610(d).
    In a related matter, we are making an administrative correction to
an earlier action which inadvertently removed an explanation that 30
TAC 116.115(c)(2)(B)(ii)(I) is not in the SIP. When we approved 30 TAC
116.115 in the SIP on September 18, 2002, we excluded 30 TAC
116.115(c)(2)(B)(ii)(I) because it implemented the requirements of
section 112(g) of the Act. See 67 FR 58679, at 58699. In a separate
action, we approved revisions to 30 TAC 116.115 on April 2, 2010 (75 FR
16671), which are unrelated to the excluded provisions of 30 TAC
116.115(c)(2)(B)(ii)(I). However, that action inadvertently removed the
explanation that excluded 116.115(c)(B)(ii)(I) from the SIP. In this
action, we are making an administrative correction to restore into the
Code or Federal Regulations the explanation that the SIP does not
include 30 TAC 116.115(c)(B)(ii)(I).

I. No Action on Provision Relating to Emergency and Temporary Orders

    We proposed to take no action upon the February 1, 2006, SIP
revision submittal which recodified the severable provisions relating
to Emergency Orders from 30 TAC Chapter 116, Subchapter E to a new
Subchapter K. See 74 FR 48467, at 48477. We received no comments on
this proposal. Accordingly, we will take appropriate action on the
Emergency Order requirements in a separate action, according to the
Consent Decree schedule.

J. Responses to General Comments on the Proposal

    Comment 1: The following commenters support EPA's proposal to
disapprove the Texas NSR Reform Program, 1-hour NNSR, 1997 8-hour NNSR,
and PCP Standard Permit: HCPHES; several members of the Texas House of
Representatives; the Sierra Club; the City of Houston, and the Clinic.
    Response: Generally, these comments support EPA's analysis of
Texas's NSR Reform Program, 1-hour NNSR, 1997 8-hour NNSR, and PCP
Standard Permit, as discussed in detail at in the proposal at 74 FR
48467, at 40471-48476, and further support EPA's action to disapprove
the Texas NSR Reform Program submission.
    Comment 2: The SCMS and PSR sent numerous similar letters via e-
mail that relate to this action. These comments include 1,789 identical
letters from SCMS (sent via e-mail) and a comment letter from PSR,
which support EPA's proposed ruling that major portions of TCEQ air
permitting program do not adhere to the CAA and should be thrown out.
While agreeing that the proposed disapprovals are a good first step,
the commenters state that EPA should take bold actions such as halting
any new air pollution permits being issued by TCEQ utilizing TCEQ's
current illegal policy; creating a moratorium on the operations of any
new coal fired power plants; reviewing all permits issued since TCEQ
adopted its illegal policies and requiring that these entities resubmit
their applications in accordance with the Federal CAA; and putting
stronger rules in place in order to reduce global-warming emissions and
to make sure new laws and rules do not allow existing coal plants to
continue polluting with global warming emissions.
    The commenters further state that Texas: (1) Has more proposed coal
and petroleum coke fired power plants than any other State in the
nation; (2) Is number one in carbon emissions; and (3) Is on the list
for the largest increase in emissions over the past five years. Strong
rules are needed to make sure the coal industry is held responsible and
that no permits are issued under TCEQ's illegal permitting process.
Strong regulations are vital to cleaning up the energy industry and
putting Texas on a path to clean energy technology that boosts economic
growth, creates jobs in Texas, and protects the air quality, health,
and communities.
    In addition, SCMS sent 273 similar letters (sent via e-mail) that
contained additional comments that Texas should rely on wind power,
solar energy, and natural gas as clean alternatives to coal. Other
comments expressed general concerns related to: impacts on global
warming, lack of commitment by TCEQ to protect air quality, the need
for clean energy efficient growth, impacts upon human health,
endangerment of wildlife, impacts on creation of future jobs in Texas,
plus numerous other similar concerns. The PSR further commented that as
health care professionals, they are concerned about the health effects
they are seeing in their patients due to environmental toxins in the
air and water.
    Response: To the extent that the SCMS and PSR letters comment on
the proposed disapproval of the submitted 1-hour ozone standard, 1997
8-hour ozone standard, and NSR Reform Programs, they support EPA's
action to disapprove these submitted rules. The remaining comments are
outside the scope of our actions in this rulemaking.
    Comment 3: TCEQ understands that EPA's review was conducted by
applying the current applicable law. The Executive Director will
conduct a review of all EPA comments and propose changes to the rules
proposed for disapproval.
    TCEQ understands EPA's concerns with issues regarding, among other
things, applicability, clarity, enforceability, replicable procedures,
recordkeeping, and compliance assurance. Specifically, the Executive
Director will consider rulemaking to address the following concerns:
     Clarify references for major stationary sources and major
modifications to EPA rules for nonattainment and maintenance area
definitions and removing rule language indicating that the 1-hour
thresholds and offsets are not effective unless EPA promulgates rules,
and clarifying the applicability of nonattainment permitting rules;
     Clarify the definition of baseline actual emission rate,
and clarify the inclusion of maintenance, startup, and shutdown
emissions when determining baseline actual emissions; and
     Add missing items and clarify the existing requirements to
obtain and comply with a PAL to meet FNSR requirements.
    New and amended rules will be subject to the statutory and
regulatory requirements for a SIP revision, as interpreted in EPA
policy and guidance on SIP revisions, as well as applicable Texas law.
The revised program will ensure protection of the NAAQS, and

demonstrate noninterference with the Texas SIP control strategies and
reasonable further progress.
    In addition, and as noted, TCEQ will address EPA's concerns
regarding public participation in a separate rulemaking action.
    Response: EPA appreciates TCEQ's commitment to consider rulemaking
to correct the deficiencies in the submitted 1-hour ozone standard,
1997 8-hour ozone standard, and NSR Reform Programs. However, our
evaluation is based on the submitted rules that are currently before
us.
    Comment 4: The Clinic further asks that EPA take action to halt
Texas's use of permits-by-rule that, like the PCP standard permit, fail
to meet minimum standards for minor source permitting and for general
permits and exclusionary rules. Texas has adopted and is applying a
number of permits-by-rule that are not source specific, do not include
specific emission limitations or monitoring, and are inadequate to
protect the NAAQS. These include the permits-by-rule in Subchapter K of
Chapter 106 of the Texas rules. In addition, like the PCP, some of
these permits--rather than authorizing specific types of minor emission
source categories--can be used to increase authorized emissions from
any type of facility.\26\ EPA has repeatedly stated that Texas's
current use of permit-by-rule violates the Act and Texas's approved
SIP.\27\ Yet EPA has failed take action to stop the illegal use of
permits-by-rule.
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    \26\ For example, 30 TAC 106.261, 106.262, 106.263, and 106.264.
    \27\ See ``Letter to Dan Eden, TCEQ Deputy Director'' from Carl
Edlund, EPA Region 6, Director Multimedia Planning and Permitting
Division (March 12, 2008) (``EPA has consistently expressed concern
about PBRs that authorize a category of emissions, such as startup
or shutdown emissions, or that modify an existing NSR permit.'')
(Attachment 10 of the Clinic's comments); ``Letter to Richard Hyde,
TCEQ, Director, Air Permits Division'' from Jeff Robinson, EPA
Region 6, Chief, Air Permits Section (November 16, 2007) (Attachment
11 of then Clinic's comments); ``Letter to Steve Hagle, TCEQ,
Special Assistant, Air Permits Director'' from David Neleigh, EPA
Region 6, Chief, Air Permits Section (March 30, 2006) (Attachment 12
of the Clinic's comments); ``Letter to Lola Brown, TCEQ, Office of
Legal Services'' from David Neleigh, EPA Region 6, Chief, Air
Permits Section (February 3, 2006) (Attachment 13 of the Clinic's
comments).
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    Response: Any action on Texas's use of permits-by-rule, as
requested by the commenter, is outside the scope of our actions in this
rulemaking.
    Comment 5: Concerned Citizens of Grayson expressed concerns about a
hot mix asphalt plant located near the small town of Pottsboro, TX,
which is located near public schools and private residences and has
caused significant disruptions in the lives of those liming nearby
because or ``the noxious stench repeatedly emitted from the plant.''
The commenters are concerned because the plant was authorized under a
Standard Permit issued by TCEQ which only had public participation and
comment when TCEQ issued the Standard Permit for hot mix asphalt plants
and there was no opportunity for public participation and comment on a
source that applied for authorization under a Standard Permit for a
specific source after the Standard Permit has been authorized.
    Response: These comments do not relate to the submitted Standard
Permit for Pollution Control Projects that EPA is reviewing in this
action. These comments, which relate to a Standard Permit for Hot Mix
Asphalt Plants, are outside the scope of this action.
    Comment 6: AECT believes that EPA's proposed disapproval has
injected uncertainty into the Texas permitting program, will cause
tremendous operational-uncertainty for companies-in light of
significant air emission rule proposals considered by EPA (e.g. mercury
MACT, PSD Tailoring Rule), this and other disapprovals may jeopardize
or substantially delay the ability of electric generators to obtain
necessary air permits to install pollution controls that will be
necessary to comply with current and future rules; and prompt EPA
approval of the proposed TCEQ NSR SIP Revisions is needed in order to
provide the regulatory certainty necessary for economic development,
creation of critically needed jobs, and generation of affordable,
reliable electricity in Texas.
    Response: We are disapproving the submitted Texas NSR Reform
Program, 1-hour NNSR, and PCP Standard Permit programs because they do
not meet applicable requirements of the Act, as discussed herein. EPA
is required to review a SIP revision for its compliance with the Act
and EPA regulations. See CAA section 110(k)(3); see also BCCA Appeal
Group v. EPA, 355 F 3d.817, 822 (5th Cir 2003); Natural Resources
Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (DC Cir. 1995).
    Comment 7: BCCA and TIP comment that under Texas's integrated air
permitting regime, air quality in the State is demonstrating strong,
sustained improvement. The commenters cite to substantial reductions in
nitrogen oxides and improvements in the ozone concentrations in the
Houston-Galveston and Dallas-Fort Worth ozone nonattainment areas.
    Response: We are disapproving the submitted Texas NSR Reform
Program, 1997 8-hour NNSR, 1-hour NNSR, and PCP Standard Permit
programs because they do not meet applicable requirements of the Act,
as discussed herein. EPA is required to review a SIP revision
submission for its compliance with the Act and EPA regulations. CAA
110(k)(3); See also BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 (5th
Cir. 2003); Natural Resources Defense Council, Inc. v. Browner, 57 F.3d
1122, 1123 (DC Cir. 1995).
    Even if the commenters' premises are to be accepted, they fail to
substantiate their claim that the Texas NSR Reform Program, 1-hour
NNSR, 1997 8-hour NNSR, and PCP Standard Permit programs have had a
significant impact on improving air quality in Texas by producing data
showing that any such gains are directly attributable to the submitted
Programs, and are not attributable to the SIP-approved control
strategies (both State and Federal programs) or other Federal and State
programs. They provide no explanation or basis for how their numbers
were derived.
    Furthermore, since the commenters thought EPA was acting
inconsistently, they should have identified SIPs that are inconsistent
with our actions and provided technical, factual information, not bare
assertions.
    Comment 8: GCLC, TIP, BCCA, AECT, and TCC comment that EPA ignores
the fact that the Texas NSR Program has had a significant impact on
improving air quality in Texas. TCEQ commented that significant
emission reductions have been achieved by the submitted Program through
the large number of participating grandfathered facilities, which
resulted in improved air quality based upon the monitoring data.
    BCCA, TAB, TxOGA, and ERCC comment that the legal standard for
evaluating a SIP revision for approval is whether the submitted
revision mitigates any efforts to attain compliance with a NAAQS. EPA's
failure to assess the single most important factor in the submitted
Program, the promotion of continued air quality improvement, is
inconsistent with case law and the Act and is a deviation from the SIP
consistency process and national policy. EPA should perform a detailed
analysis of approved SIP programs through the United States and
initiate the SIP consistency process within EPA to ensure fairness to
Texas industries.
    Response: EPA is required to review SIP revisions submission for
their compliance with the Act and EPA regulations. CAA 110(k)(3); See
also BCCA Appeal Group v. EPA, 355 F 3d. 817, 822 (5th Cir. 2003);
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123
(DC Cir. 1995). EPA is not disapproving the

entire Texas NSR SIP. Specifically, on September 23, 2009, EPA proposed
to disapprove revisions to the Texas NSR SIP submitted by the State of
Texas that relate to the Nonattainment NSR (NNSR) Program for the 1-
Hour Ozone Standard and the 1997 8-Hour Ozone Standard, NSR Reform, and
a specific Standard Permit. Further, EPA is not required to initiate
the SIP consistency process within EPA unless the pending SIP revision
appears to meet all the requirements of the Act and EPA's regulations
but raises a novel issue. EPA is disapproving the submitted revisions
because they fail to meet the Act and EPA's regulations. Because the
submitted revisions fail to meet the requirements for a SIP revision,
the SIP consistency process is not relevant.
    Comment 9: The ERCC comments that to avoid negative economic
consequences EPA should exercise enforcement discretion statewide for
sources that obtained government authorization in good faith and as
required by TCEQ, the primary permitting authority. EPA should not
require any injunctive relief and should consider penalty only cases in
this rulemaking.
    Response: EPA enforcement of the CAA in Texas is outside the scope
of our actions.

V. Final Action

    Under section 110(k)(3) of the Act and for the reasons stated
above, EPA is disapproving the following: (1) The submitted definition
of ``best available control technology'' in 30 TAC 116.10(3); (2) Major
NSR in areas designated nonattainment for the 1-hour ozone NAAQS; (3)
Major NSR in areas designated nonattainment for the 1997 8-hour ozone
NAAQS; (4) Major NSR SIP requirements for PALs; (5) Non-PAL aspects
Major NNSR SIP requirements; and (6) submittals for a Minor Standard
Permit for PCP. EPA is also proposing to take no action on certain
severable revisions submitted June 10, 2005, and February 1, 2006.
    Specifically, we are disapproving the following regulations:
     Disapproval of the definition of best available control
technology at 30 TAC 116.10(3), submitted March 13, 1996, and July 22,
1998;
     Disapproval of revisions to 30 TAC 116.12 and 116.150 as
submitted June 10, 2005;
     Disapproving revisions to 30 TAC 116.12, 116.150, 116.151;
and disapproving new sections at 30 TAC 116.121, 116.180, 116.182,
116.184, 116.186, 116.188, 116.190, 116.192, 116.194, 116.196, 116.198,
116.610(a), and 116.617, as submitted February 1, 2006.
    We are also taking no action on the provisions identified below:
     The revisions to 30 TAC 101.1--Definitions, submitted June
10, 2005;
     The recodification of the existing Subchapter C under 30
TAC Chapter 116 to a new Subchapter E under 30 TAC Chapter 116;
     The provisions of 30 TAC 116.610(d); and
     The recodification of the existing Subchapter E under 30
TAC Chapter 116 to a new Subchapter K under 30 TAC Chapter 116.
    Finally, we are making administrative corrections to reinstate an
explanation to the SIP-approved 30 TAC 116.115, that was inadvertently
removed in a separate action on April 2, 2010 (75 FR 16671).
    Sources are reminded that they remain subject to the requirements
of the Federally approved Texas Major NSR SIP and subject to potential
enforcement for violations of the SIP (See EPA's Revised Guidance on
Enforcement During Pending SIP Revisions, dated March 1, 1991).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This final action has been determined not to be a ``significant
regulatory action'' subject to review by the Office of Management and
Budget under Executive Order 12866 (58 FR 51735, October 4, 1993).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this SIP disapproval under section 110 and subchapter I, part D
of the Clean Air Act will not in-and-of itself create any new
information collection burdens but simply disapproves certain State
requirements for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b). Because this final action does not impose an information
collection burden, the Paperwork Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. This rule will not have a significant
impact on a substantial number of small entities because SIP approvals
and disapprovals under section 110 and part D of the Clean Air Act do
not create any new requirements but simply approve or disapprove
requirements that the States are already imposing.
    Furthermore, as explained in this action, the submissions do not
meet the requirements of the Act and EPA cannot approve the
submissions. The final disapproval will not affect any existing State
requirements applicable to small entities in the State of Texas.
Federal disapproval of a State submittal does not affect its State
enforceability. After considering the economic impacts of today's
rulemaking on small entities, and because the Federal SIP disapproval
does not create any new requirements or impact a substantial number of
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of flexibility analysis would constitute Federal
inquiry into the economic reasonableness of State action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42
7410(a)(2).

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 ``for State, local, or Tribal governments or the private
sector.'' EPA has determined that the disapproval action does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or Tribal governments in the
aggregate, or to the private sector. This Federal action determines
that pre-existing requirements under State or

local law should not be approved as part of the Federally approved SIP.
It imposes no new requirements. Accordingly, no additional costs to
State, local, or Tribal governments, or to the private sector, result
from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have Tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP
EPA is disapproving would not apply in Indian country located in the
State, and EPA notes that it will not impose substantial direct costs
on Tribal governments or preempt Tribal law. This final rule does not
have Tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on Tribal governments, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes. This action does not involve or impose
any requirements that affect Indian Tribes. Thus, Executive Order 13175
does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This SIP disapproval under section 110 and subchapter I, part D of the
Clean Air Act will not in-and-of itself create any new regulations but
simply disapproves certain State requirements for inclusion into the
SIP.

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
    EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act. Today's action does not require
the public to perform activities conducive to the use of VCS.

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

    Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove State choices, based on the criteria of the Clean
Air Act. Accordingly, this action merely disapproves certain State
requirements for inclusion into the SIP under section 110 and
subchapter I, part D of the Clean Air Act and will not in-and-of itself
create any new requirements. Accordingly, it does not provide EPA with
the discretionary authority to address, as appropriate,
disproportionate human health or environmental effects, using
practicable and legally permissible methods, under Executive Order
12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 15, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to

enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: August 31, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7410 et seq.

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA-Approved Regulations in
the Texas SIP'' is amended by revising the entry for section 116.115 to
read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

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

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Subchapter B--New Source Review Permits
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Division 1--Permit Application
----------------------------------------------------------------------------------------------------------------
Section 116.115..............  General and Special        8/20/2003  4/2/2010, 75 FR      The SIP does not
                                Conditions.                           16671.               include subsection
                                                                                116.115(c)(2)(B)(ii)(
                                                                                I).
----------------------------------------------------------------------------------------------------------------

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

* * * * *

0
3. Section 52.2273 is amended by adding a new paragraph (d) to read as
follows:

Sec.  52.2273  Approval status.

* * * * *
    (d) EPA is disapproving the Texas SIP revision submittals under 30
TAC Chapter 116--Control of Air Pollution by Permits for New
Construction and Modification as follows:
    (1) The following provisions in 30 TAC Chapter 116, Subchapter A--
Definitions:
    (i) 30 TAC 116.10--General Definitions--the definition of ``BACT''
in 30 TAC 116.10(3), adopted February 14, 1996, and submitted March 13,
1996; and repealed and readopted June 17, 1998, and submitted July 22,
1998;
    (ii) The revisions to 30 TAC 116.12--Nonattainment Review
Definition, adopted May 25, 2005, and submitted June 10, 2005;
    (iii) The revisions to 30 TAC 116.12--Nonattainment and Prevention
of Significant Deterioration Definitions, adopted January 11, 2006, and
submitted February 1, 2006 (which renamed the section title);
    (2) The following section in 30 TAC Chapter 116, Subchapter B--New
Source Review Permits, Division 1--Permit Application: 30 TAC 116.121--
Actual to Projected Actual Test for Emission Increase, adopted January
11, 2006, and submitted February 1, 2006;
    (3) The following sections in 30 TAC Chapter 116, Subchapter B--New
Source Review Permits, Division 5--Nonattainment Review:
    (i) Revisions to 30 TAC 116.150--New Major Source or Modification
in Ozone Nonattainment Area--revisions adopted May 25, 2005, and
submitted June 10, 2005; and revisions adopted January 11, 2006, and
submitted February 1, 2006;
    (ii) Revisions to 30 TAC 116.151--New Major Source or Modification
in Nonattainment Areas Other Than Ozone--revisions adopted January 11,
2006, and submitted February 1, 2006;
    (4) The following sections in 30 TAC Chapter 116, Subchapter C--
Plant-Wide Applicability Limits, Division 1--Plant-Wide Applicability
Limits:
    (i) 30 TAC 116.180--Applicability--adopted January 11, 2006, and
submitted February 1, 2006;
    (ii) 30 TAC 116.182--Plant-Wide Applicability Limit Permit
Application--adopted January 11, 2006, and submitted February 1, 2006;
    (iii) 30 TAC 116.184--Application Review Schedule--adopted January
11, 2006, and submitted February 1, 2006;
    (iv) 30 TAC 116.186--General and Special Conditions--adopted
January 11, 2006, and submitted February 1, 2006;
    (v) 30 TAC 116.188--Plant-Wide Applicability Limit--adopted January
11, 2006, and submitted February 1, 2006;
    (vi) 30 TAC 116.190--Federal Nonattainment and Prevention of
Significant Deterioration Review--adopted January 11, 2006, and
submitted February 1, 2006;
    (vii) 30 TAC 116.192--Amendments and Alterations--adopted January
11, 2006, and submitted February 1, 2006;
    (viii) 30 TAC 116.194--Public Notice and Comment--adopted January
11, 2006, and submitted February 1, 2006;
    (ix) 30 TAC 116.196--Renewal of a Plant-Wide Applicability Limit
Permit--adopted January 11, 2006, and submitted February 1, 2006;
    (x) 30 TAC 116.198--Expiration and Voidance--adopted January 11,
2006, and submitted February 1, 2006;

    (5) The following sections in 30 TAC Chapter 116, Subchapter F--
Standard Permits:
    (i) Revisions to 30 TAC 116.610--Applicability--paragraphs (a)(1)
through (a)(5) and (b)--revisions adopted January 11, 2006, and
submitted February 1, 2006;
    (ii) 30 TAC 116.617--State Pollution Control Project Standard
Permit--adopted January 11, 2006, and submitted February 1, 2006;

[FR Doc. 2010-22670 Filed 9-14-10; 8:45 am]
BILLING CODE 6560-50-P