Rule2021-19156
Air Plan Approval; Texas; Clean Air Act Requirements for Nonattainment New Source Review and Emission Statements for the 2015 Ozone National Ambient Air Quality Standards
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 9, 2021
Effective
October 12, 2021
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving the portions of a State Implementation Plan (SIP) revision submitted by the State of Texas that describes how CAA requirements for Nonattainment New Source Review (NNSR) and emission statements are met in the Dallas-Fort Worth (DFW), Houston-Galveston-Brazoria (HGB), and Bexar County ozone nonattainment areas for the 2015 Ozone National Ambient Air Quality Standards (NAAQS).
Full Text
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<title>Federal Register, Volume 86 Issue 172 (Thursday, September 9, 2021)</title>
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[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Rules and Regulations]
[Pages 50456-50459]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19156]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0166; FRL-8893-02-R6]
Air Plan Approval; Texas; Clean Air Act Requirements for
Nonattainment New Source Review and Emission Statements for the 2015
Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving the portions of a
State Implementation Plan (SIP) revision submitted by the State of
Texas that describes how CAA requirements for Nonattainment New Source
Review (NNSR) and emission statements are met in the Dallas-Fort Worth
(DFW), Houston-Galveston-Brazoria (HGB), and Bexar County ozone
nonattainment areas for the 2015 Ozone National Ambient Air Quality
Standards (NAAQS).
DATES: This rule is effective on October 12, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2020-0166. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Robert Todd, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-2156, <a href="/cdn-cgi/l/email-protection#44302b20206a362b26213630042134256a232b32"><span class="__cf_email__" data-cfemail="fa8e959e9ed48895989f888eba9f8a9bd49d958c">[email protected]</span></a>.
The EPA Region 6 office is closed to the public to reduce the risk of
transmitting COVID-19. Please call or email the contact listed above if
you need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our
February 11, 2021 proposal (86 FR 9041). In that document we proposed
to approve portions of a SIP revision submitted by the State of Texas
on June 24, 2020, that describes how CAA requirements for NNSR and
emission statements are met in the DFW, HGB, and Bexar County ozone
nonattainment areas for the 2015 ozone NAAQS.
We received comments on our proposal, from several commenters. Our
responses to the comments follow.
II. Response to Comments
Comment: Two commenters pointed out that the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) vacated
portions of the 2018 rule implementing the 2015 Ozone NAAQS that
allowed inter-precursor trading of pollutants.\1\ One commenter stated
that according to a Texas Commission on Environmental Quality (TCEQ)
guidance document, EPA's approval of inter-precursor trade (IPT) is
presumed unless EPA disapproves the trade during the public comment
period. The commenter also stated that EPA cannot rely on previous
approvals of the State's NNSR program to meet current requirements.
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\1\ Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021).
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Response: While the D.C. Circuit has rendered a judgment vacating
the portion of EPA's NNSR EPA regulation that allows inter-precursor
trading to meet the offset requirements for ozone, the ozone inter-
precursor trading component in the Texas NNSR program regulations is no
longer operative for ozone and thus does not preclude approval of this
SIP revision that otherwise satisfies NNSR requirements. The court held
that the IPT provision for ozone in EPA's NNSR regulation was contrary
to the CAA because ``[t]he plain language in the statute . . . requires
that increased [volatile organic compound] VOC emissions be offset with
reductions in VOC, and the same is true for ozone in most
circumstances.''\2\ Following the court's decision, EPA notified TCEQ
in a letter dated June 17, 2021, that the EPA can no longer approve any
IPT requests for ozone under procedures in the Texas SIP rules that
require that TCEQ submit such trades to EPA for approval. In a response
to EPA dated June 25, 2021, TCEQ confirmed that its NNSR inter-
precursor trading provisions cannot function without EPA's approval of
trades, and the State has not approved any IPT requests for ozone
without the prior approval of EPA.\3\ In its June 25,
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2021, letter, TCEQ also stated that its regulations otherwise continue
to meet the NNSR program requirements in EPA's regulations at 40 CFR
51.1565 without the operation of the IPT provisions for ozone. EPA
agrees with that assessment, as the NNSR offset requirement for ozone
may be satisfied under the Texas regulations with offsets for each
individual ozone precursor, without trading NO<INF>X</INF> for VOC or
vice-versa. Since the IPT portion of the Texas regulations is no longer
operative for ozone precursors, these provisions do not preclude EPA
from approving the Texas NNSR program regulations that otherwise meet
the SIP requirements for marginal nonattainment areas under the 2015
ozone NAAQS. EPA's approval finalized via this action does not include
TCEQ's IPT provisions for ozone.
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\2\ Sierra Club, 985 F.3d at 1060-61.
\3\ The text of each letter is available in the docket to this
action.
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EPA does not agree with the commenter that EPA's approval of an
inter-precursor trade would be presumed under the Texas SIP unless EPA
disapproved the trade during the comment period. EPA's previous
approval of certain SIP provisions related to IPTs included only Texas
regulations on that subject. EPA did not at any time approve the state
guidance document described by the commenter as part of the federally
approved SIP. Nothing in the previously-approved regulations
establishes a presumption of EPA approval of an inter-precursor trade
if EPA does not communicate its disapproval during a relevant public
notice and comment period. EPA's inability to approve IPT trades for
ozone because of the court decision is sufficient to render the Texas
IPT provisions inoperative for ozone.
As stated in our proposal, NNSR permitting program requirements
specific to marginal ozone nonattainment areas are reflected in section
182(a)(2)(C), and further defined in 40 CFR part 51, subpart I. EPA and
states may rely on previously approved SIP provisions to meet these
NNSR requirements, so long as the State provides a SIP revision
certifying that the existing SIP requirements are sufficient to meet
the requirements of the new classification as is being done here. As
stated in our proposal, a more stringent NNSR requirement than the
marginal requirements under the 2015 standard currently applies in the
DFW and HGB areas as both areas are classified serious nonattainment
for the 2008 ozone standard.
Comment: One commenter believes that the State and EPA did not
adequately take climate change into consideration when forming air
quality standards and the future effects of increased average
temperatures on ozone concentrations.
Response: We appreciate the commenter's concern and attention to
climate change. However, the climate change related issues raised by
the commenter are beyond the scope of our current action which is
limited to whether the State's emission statement provisions and
nonattainment new source review program, currently in their SIP, meet
the requirements set out by the CAA and associated EPA regulations.
This action does not set, revise, or form any air quality standards. We
refer the commenter to Executive Order 14008 of January 27, 2021, and
EPA's web page on climate change. (See <a href="https://www.epa.gov/climate-change">https://www.epa.gov/climate-change</a>).
Comment: One commenter stated that EPA's 2015 Ozone NAAQS is
significantly higher than the World Health Organization's
recommendation of 50 parts per billion.
Response: We appreciate the commenter's concerns related to ozone
pollution. However, the level of the NAAQS is beyond the scope of our
current action. EPA follows a separate and specific CAA process to set
and review the NAAQS, including ozone. See 80 FR 65292 (Oct. 26, 2015)
as well as CAA sections 108 and 109. That process is beyond the scope
of our current action. We refer the commenter to the EPA's ozone air
quality standards web page for more information. (See <a href="https://www.epa.gov/ground-level-ozone-pollution">https://www.epa.gov/ground-level-ozone-pollution</a>).
Comment: One commenter stated that the City of San Antonio is not
adequately funding its pollution control plan.
Response: We appreciate the commenter's concerns over funding and
implementation of air programs. Although somewhat unclear, EPA is
reading the comment in regard to the adequacy of funding for local,
voluntary pollution control programs as opposed to the State's ability
to carry out the SIP. As such, this comment is beyond the scope of this
action.
Comment: Two commenters expressed concerns over consumer use of
fragrant laundry related products. One commenter asked to eliminate
dryer sheets and chemically scented laundry detergents because such
products contain harmful chemicals that are contributing to the
depletion of ozone. Another commenter stated that consumer use of
fragrant laundry products, such as dryer sheets, other laundry
chemicals, and personal care products affect air quality and suggested
that the EPA should hold the manufacturers of these products
accountable. Further, the commenter stated that residential use of such
laundry products by a larger sector of residential dwellings is not a
small source of VOC emissions. The commenter stated that these are a
source of chemical irritants and that consumers should switch to more
environmentally friendly products. Lastly, the commenter asked EPA to
implement restrictions at the consumer level, if it had authority to do
so.
Response: We appreciate the concerns raised by these commenters.
However, such concerns are beyond the scope of this action. This action
only pertains to CAA NNSR and emissions statement requirements for
facilities in the DFW, HGB, and Bexar County ozone nonattainment areas
for the 2015 Ozone NAAQS. As stated in our proposal, the NNSR program
applies to the construction of new major sources or major modifications
of existing sources of NO<INF>X</INF> or VOC in an area that is
designated nonattainment for the ozone NAAQS. The NNSR requirements for
Marginal ozone nonattainment areas apply to facilities with the
potential to emit 100 tons per year of NO<INF>X</INF> or VOC. The
emissions statement requirement applies to the State in regard to
certain stationary sources of NO<INF>X</INF> and/or VOC emissions. CAA
section 182(a)(3)(B). States may choose to inventory emissions from
``any class or category of stationary sources which emit less than 25
tons per year of'' VOC and/or NO<INF>X</INF> via use of emission
factors provided by EPA and compiled and reported for the National
Emissions Inventory (NEI) every three years. Id. The last NEI was
produced for the year 2017. Further, it is beyond the scope of this
action to implement restrictions on consumer products.
Comment: One commenter stated that Texas is emitting significantly
more carbon dioxide (CO<INF>2</INF>) per capita than New York and
implied this is not appropriate. The commenter also raised questions
concerning the impact of our action on the State's economy and
automotive industry in particular.
Response: We appreciate the commenter's concern and attention to
CO<INF>2</INF> emissions and economic impact of regulatory actions.
However, CO<INF>2</INF> related issues, including the economic impact
of CO<INF>2</INF> regulation on the automotive industry, are beyond the
scope of our current action explained above. The NNSR and emission
statement rules requirements are implemented for the control of ozone
and apply to NO<INF>X</INF> and VOCs as these pollutants are precursors
to ozone formation. These Clean Air Act requirements do not apply to
CO<INF>2</INF> emissions. We refer the commenter to
[[Page 50458]]
Executive Order 14008 of January 27, 2021, and EPA's web page on
climate change. (See <a href="https://www.epa.gov/climate-change">https://www.epa.gov/climate-change</a>).
III. Final Action
We are approving portions of a SIP revision submitted by the State
of Texas on June 24, 2020, that describes how CAA requirements for
NNSR, and emission statements are met in the DFW, HGB, and Bexar County
ozone nonattainment areas for the 2015 ozone NAAQS.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 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 action 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).
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 8, 2021. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: August 31, 2021.
David Gray,
Acting Regional Administrator, Region 6.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. In Sec. 52.2270(e), the second table titled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' is amended by adding the entry ``Nonattainment New Source Review
and Emission Statement Requirements for the 2015 Ozone NAAQS'' at the
end of the table to read as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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Applicable
geographic or State submittal/ effective EPA approval
Name of SIP provision nonattainment date date Comments
area
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* * * * * * *
Nonattainment New Source Dallas-Fort June 24, 2020................. September 9, ..............
Review and Emission Worth, Houston 2021, [Insert
Statement Requirements for Galveston- Federal
the 2015 Ozone NAAQS. Brazoria, and Register
Bexar County citation].
Ozone
Nonattainment
Areas.
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[FR Doc. 2021-19156 Filed 9-8-21; 8:45 am]
BILLING CODE 6560-50-P
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