Rule2022-21247
Air Plan Approval; Texas; Clean Air Act Requirements for Nonattainment New Source Review
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
October 3, 2022
Effective
November 2, 2022
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving portions of the State Implementation Plan (SIP) revisions submitted to the EPA by the State of Texas ("the State") for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). The SIP revisions being approved describe how CAA requirements for Nonattainment New Source Review (NNSR) are met in the Dallas-Fort Worth (DFW) and Houston-Galveston- Brazoria (HGB) serious ozone nonattainment areas.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 190 (Monday, October 3, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59697-59699]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21247]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0343; FRL-10200-01-R6]
Air Plan Approval; Texas; Clean Air Act Requirements for
Nonattainment New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving portions of the
State Implementation Plan (SIP) revisions submitted to the EPA by the
State of Texas (``the State'') for the 2008 8-hour ozone National
Ambient Air Quality Standard (NAAQS). The SIP revisions being approved
describe how CAA requirements for Nonattainment New Source Review
(NNSR) are met in the Dallas-Fort Worth (DFW) and Houston-Galveston-
Brazoria (HGB) serious ozone nonattainment areas.
DATES: This rule is effective on November 2, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID EPA-R06-OAR-2020-0343. 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: Ms. Carrie Paige, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-6521, <a href="/cdn-cgi/l/email-protection#6616070f010348050714140f032603160748010910"><span class="__cf_email__" data-cfemail="daaabbb3bdbff4b9bba8a8b3bf9abfaabbf4bdb5ac">[email protected]</span></a>.
Out of an abundance of caution for members of the public and our staff,
the EPA Region 6 office may be 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 March
1, 2021, proposal (86 FR 11913). In that document we proposed to
approve portions of two revisions to the Texas SIP submitted to the EPA
on May 13, 2020, that describe how CAA requirements for enhanced
vehicle inspection and maintenance (I/M) and NNSR are met in the DFW
and HGB serious ozone nonattainment areas for the 2008 ozone NAAQS.
Our March 2021 proposal provided a detailed description of the
revisions and the rationale for the EPA's proposed actions, together
with a discussion of the opportunity to comment. The public comment
period for our March 2021 proposal action closed on March 31, 2021. We
received comments during the public comment period from two sources:
Earthjustice, on behalf of Achieving Community Tasks Successfully,
Coalition of Community Organizations, Downwinders at Risk, Sierra Club,
Texas Environmental Justice Advocacy Services, and itself, together
with Caring for Pasadena Communities; and Air Law for All (ALFA), on
behalf of the Center for Biological Diversity and the Center for
Environmental Health.\1\ The comments received are available for review
in the docket for this rulemaking. The EPA is not finalizing the
proposed approval of revisions that address the CAA requirements for
vehicle I/M at this time. Those revisions will be addressed in a
separate rulemaking. Our responses to the comments addressing NNSR
follow.
---------------------------------------------------------------------------
\1\ Henceforth, we refer to Earthjustice and ALFA as
``commenters.''
---------------------------------------------------------------------------
II. Response to Comments
Comment: Commenters assert that the proposed rule relies on the
provisions of the Texas Administrative Code which require new or
modified major sources of ozone precursors in ozone nonattainment areas
to procure emission offsets for their emission increases through the
state's Emission Credit Banking and Trading program. According to the
Commenters, these provisions authorize inter-precursor trading (IPT) of
NOx and VOC emissions which was vacated by the United States Court of
Appeals for the District of Columbia Circuit on January 29, 2021. The
commenters also argued that EPA's approval of an inter-precursor trade
is presumed unless the EPA disapproves the trade during its comment
period, according to TCEQ guidance memorandum.
Response: The commenter correctly points out that the D.C. Circuit
(the court) vacated the portion of the EPA's NNSR regulation at 40 CFR
51.165 that allows IPT to meet the offset requirements for ozone.
Following the court's decision, the EPA notified the TCEQ in a letter
dated June 17, 2021, that the EPA would no longer approve any IPT
trades under the previously approved Texas SIP rules based on the court
decision. In a response to the EPA dated June 25, 2021, the TCEQ
confirmed that its NNSR IPT provisions cannot function without the
EPA's prior approval of each trade, and that the TCEQ has not approved
any IPT request in the past without prior approval from the EPA.\2\
---------------------------------------------------------------------------
\2\ The text of each letter is available in the docket to this
action.
---------------------------------------------------------------------------
The TCEQ also confirmed that without the IPT provisions, its
regulations continue to meet the NNSR program requirements at 40 CFR
51.165. EPA agrees that, without the IPT provisions, the Texas SIP
regulations meet the CAA's NNSR requirements. The EPA-approved Texas
SIP already includes 30 TAC Section 116.12 (Nonattainment and
Prevention of Significant Deterioration Review Definitions) and 30 TAC
Section 116.150 (New Major Source or Major Modification in Ozone
Nonattainment Area). Based on EPA's review of Texas SIP regulations for
the NNSR program requirements for serious ozone nonattainment areas, we
are approving this portion of the SIP revision.
The EPA does not agree with the commenters that the EPA's approval
of an IPT can be presumed under the Texas SIP unless the EPA
disapproved the trade during the comment period. Texas has not
submitted, and the EPA has not approved the State's guidance document,
described by the commenters, as part of the Texas SIP. Nothing in the
previously approved Texas regulations establishes a presumption of the
EPA's approval of an IPT if the EPA does not communicate its
disapproval during a relevant public notice and comment period.
In addition, the EPA's commitment that it will not approve IPT for
ozone because of the court's decision is sufficient to render the Texas
IPT provisions inoperative for ozone. Texas has confirmed that IPT is
not permitted under its regulation without prior EPA approval of a
trade. Finally, we would work with Texas to get the inoperative IPT
provisions removed in future SIP revisions.
As stated in our proposal, NNSR permitting program requirements
[[Page 59698]]
specific to serious ozone nonattainment areas are reflected in CAA
section 182 and further defined in 40 CFR part 51, subpart I (Review of
New Sources and Modifications). The EPA and states may rely on
previously approved SIP provisions to meet these NNSR requirements. One
way that a state may do so is by providing a SIP revision certifying
that the existing SIP requirements are sufficient to meet the
requirements of the new classification, as Texas has done here. EPA has
reviewed this submission and agrees that the existing provisions
referenced in the Texas certification are sufficient to meet the NNSR
requirements in 40 CFR 51.165.
These comments did not result in changes to the EPA's proposed
approval.
III. Final Action
We are approving portions of the State Implementation Plan (SIP)
revisions submitted to the EPA by the State of Texas for the 2008 8-
hour ozone NAAQS. Specifically, we are approving the portion of the SIP
revision that describes how CAA requirements for NNSR are met in the
DFW and HGB serious ozone nonattainment areas.
IV. Environmental Justice Considerations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \3\ For this final
action, the EPA conducted screening analyses using the EJScreen
(Version 2.0) tool. We conducted the analyses for the purpose of
providing information to the public, not as a basis of our final
action. The EJScreen analysis reports are available in the public
docket for this action. The EPA found, based on the EJScreen analyses,
that this final action will not have disproportionately high or adverse
human health or environmental effects on communities with EJ concerns,
as the changes to NNSR will result in an assurance that the applicable
Texas NNSR requirements for the various ozone nonattainment
classifications meet the CAA requirements.
---------------------------------------------------------------------------
\3\ <a href="https://www.epa.gov//environmentaljustice/learn-about-environmental-justice">https://www.epa.gov//environmentaljustice/learn-about-environmental-justice</a>.
---------------------------------------------------------------------------
V. 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. The 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 December 2, 2022. 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, Ozone, Volatile organic compounds.
Dated: September 26, 2022.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the preamble, the Environmental
Protection
[[Page 59699]]
Agency amends 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Texas
0
2. In Sec. 52.2270, paragraph (e), the second table titled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP'' is amended by adding an entry at the end of the table for
``Nonattainment New Source Review for the 2008 Ozone NAAQS'' to read as
follows:
Sec. 52.2270 Identification of plan.
* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable
Name of SIP provision geographic or State submittal/ EPA approval date Comments
nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Nonattainment New Source Review Dallas-Fort Worth May 13, 2020...... October 3, 2022 For the Serious
for the 2008 Ozone NAAQS. and Houston- [Insert Federal classification.
Galveston- Register
Brazoria citation].
nonattainment
areas.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2022-21247 Filed 9-30-22; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 3, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.