Proposed Rule2023-04488
Air Plan Approval; Texas; New Source Review Updates for Project Emissions Accounting
Primary source
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Published
March 6, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve portions of a revision to the Texas State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) on July 9, 2021. The revision includes updates to the Texas Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) permitting programs to incorporate recent Federal New Source Review (NSR) regulations for Project Emissions Accounting (PEA).
Full Text
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<title>Federal Register, Volume 88 Issue 43 (Monday, March 6, 2023)</title>
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[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Proposed Rules]
[Pages 13752-13755]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04488]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0480; FRL-10676-01-R6]
Air Plan Approval; Texas; New Source Review Updates for Project
Emissions Accounting
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to approve portions
of a revision to the Texas State Implementation Plan (SIP) submitted by
the Texas Commission on Environmental Quality (TCEQ) on July 9, 2021.
The revision includes updates to the Texas Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NNSR)
permitting programs to incorporate recent Federal New Source Review
(NSR) regulations for Project Emissions Accounting (PEA).
DATES: Written comments must be received on or before April 5, 2023.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0480, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#87f0eeebe2fea9e6e3eee9e6c7e2f7e6a9e0e8f1"><span class="__cf_email__" data-cfemail="186f71747d6136797c717679587d6879367f776e">[email protected]</span></a>. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact Adina Wiley, (214) 665-
2115, <a href="/cdn-cgi/l/email-protection#f98e90959c80d7989d909798b99c8998d79e968f"><span class="__cf_email__" data-cfemail="691e00050c1047080d000708290c1908470e061f">[email protected]</span></a>. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Adina Wiley, EPA Region 6 Office, Air
Permits Section (ARPE), 214-665-2115, <a href="/cdn-cgi/l/email-protection#f087999c9589de9194999e91b0958091de979f86"><span class="__cf_email__" data-cfemail="2f5846434a56014e4b46414e6f4a5f4e01484059">[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. We encourage the public to submit comments via
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
[[Page 13753]]
I. Background
Section 110 of the Act requires states to develop air pollution
regulations and control strategies to ensure that air quality meets the
EPA's National Ambient Air Quality Standards (NAAQS). These ambient
standards are established under section 109 of the Act and they
currently address six criteria pollutants: Carbon monoxide, nitrogen
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The
state's air regulations are contained in its SIP, which is basically a
clean air plan. Each state is responsible for developing SIPs to
demonstrate how the NAAQS will be achieved, maintained, and enforced.
The SIP must be submitted to the EPA for approval, and any changes a
state makes to the approved SIP also must be submitted to the EPA for
approval.
Section 110(a)(2)(C) of the CAA requires states to develop and
submit to the EPA for approval into the SIP, preconstruction review and
permitting programs applicable to certain new and modified stationary
sources of air pollutants for attainment and nonattainment areas that
cover both major and minor new sources and modifications, collectively
referred to as the New Source Review (NSR) SIP. The CAA NSR SIP program
is composed of three separate programs: Prevention of Significant
Deterioration (PSD), Nonattainment New Source Review (NNSR), and Minor
NSR. The EPA codified minimum requirements for these State permitting
programs including public participation and notification requirements
at 40 CFR 51.160 through 51.164. Requirements specific to construction
of new stationary sources and major modifications in nonattainment
areas are codified in 40 CFR 51.165 for the NNSR program. Requirements
for permitting of new stationary sources and major modifications in
attainment areas subject to PSD, including additional public
participation requirements, are found at 40 CFR 51.166. As the EPA
updates its implementing rules for NSR, states and localities similarly
are required to update their SIP-approved rules to ensure consistency
with the minimum Federal NSR permitting requirements.
On November 24, 2020, the EPA promulgated final revisions to the
applicability regulations of the major NSR permit programs. A two-step
applicability test is used in the PSD and NNSR programs to determine
whether a proposed project will be subject to major NSR requirements.
In Step 1 of the analysis, the applicant determines if the proposed
project would result in a significant emissions increase of a regulated
NSR pollutant. If there is a significant emissions increase, the
applicant proceeds to Step 2 and determines if there is a significant
net emissions increase. In the November 24, 2020, final rule, the EPA
clarified that emissions increases and decreases associated with the
proposed project could be used in Step 1 of the applicability test;
this is known as project emissions accounting (PEA). The clarifications
made to the PSD and NNSR programs are not required elements of the
Federal program. States with SIP-approved PSD and NNSR programs that
want to use PEA in PSD and NNSR applicability tests must either
determine that the state is able to interpret the existing state rules
such that PEA is already allowed, or the state must adopt and submit a
revision to the SIP that is consistent with the PEA revisions.
On July 9, 2021, the TCEQ submitted revisions to the Texas SIP that
update the Texas PSD and NNSR programs to allow for PEA consistent with
the EPA's November 24, 2020, final rule at 85 FR 74890. The July 9,
2021, submittal also included the repeal of obsolete provisions from
the Texas permitting program.
II. The EPA's Evaluation
The accompanying Technical Support Document for this action
includes a detailed analysis of the submitted revisions to the Texas
SIP which are the subject of this proposed rulemaking. Our analysis
indicates that the July 9, 2021, SIP revision was developed in
accordance with the CAA and the State provided reasonable notice and
public hearing.
A. Evaluation of Revisions to 30 TAC Section 116.12--Nonattainment and
Prevention of Significant Deterioration Review Definitions
The TCEQ submitted revisions to the definition of ``Project
emissions increase'' at 30 TAC Section 116.12(32) to implement the PEA.
The revisions are consistent with the EPA's November 24, 2020, final
rule at 85 FR 74890. As stated above, the EPA's implementing
regulations for NSR establish a two-step process for determining major
NSR applicability for projects at stationary sources. Under Step 1 of
the applicability determination, the project itself is analyzed to
determine if there is a significant emissions increase of the project.
In our November 24, 2020, final rule the EPA clarified that this Step 1
analysis may consider the increases and decreases associated with the
project. If the Step 1 analysis determines there is a significant
emissions increase, then the applicant proceeds to Step 2 of the
applicability determination whereby the applicant must perform
contemporaneous netting and account for the project emission increases
and the emission increases and decreases attributable to other projects
at the stationary source within the contemporaneous window to determine
if there is a significant net emissions increase. The effect of the
revisions to the Texas definition is that for purposes of determining
whether a source or modification is major for PSD or NNSR permitting,
the Step 1 analysis of the project itself will include increases and
decreases associated with the project to determine if the project
results in a ``significant emissions increase'', as required under 30
TAC Section 116.12(32)(D). If there is an increase, the second step of
the applicability process is to determine if there is a ``significant
net emissions increase''. Step 2 of the applicability determination is
unchanged by the submitted SIP revision.
B. Evaluation of Revisions to 30 TAC Section 116.150--New Major Source
or Major Modification in Ozone Nonattainment Areas
The submitted revisions to 30 TAC Section 116.150(c)(1) and (c)(2)
are necessary to maintain consistency with the EPA's final rule on
November 24, 2020, to show that project emissions increase will include
project related increases and decreases. These revisions work in
connection with the revised definition of ``project emissions
increase'' at 30 TAC Section 116.12(32). The TCEQ also submitted non-
substantive edits to 30 TAC Section 116.150(a), (b), and (c) to correct
non-substantive, grammar-related provisions.
C. Evaluation of Revisions to 30 TAC Section 116.151--New Major Source
or Major Modification in Nonattainment Area Other Than Ozone
The submitted revisions to 30 TAC Section 116.151(b) are necessary
to maintain consistency with the EPA's final rule on November 24, 2020,
to show that project emissions increase will include project related
increases and decreases. These revisions work in connection with the
revised definition of ``project emissions increase'' at 30 TAC Section
116.12(32).
D. Evaluation of Revisions to 30 TAC Section 116.160--Prevention of
Significant Deterioration
The submitted revisions to 30 TAC Section 116.160(b)(1) and (b)(2)
are
[[Page 13754]]
necessary to maintain consistency with the EPA's final rule on November
24, 2020, to show that project emissions increase will include project
related increases and decreases. These revisions work in connection
with the revised definition of ``project emissions increase'' at 30 TAC
Section 116.12(32).
III. Proposed Action
Pursuant to section 110 of the Act, we are proposing to approve the
submitted revisions to the Texas SIP that update the PSD and NNSR
permitting requirements to maintain consistency with the Federal NSR
program requirements by adopting the provisions for PEA and repeal
obsolete requirements. Our analysis found that the submitted revisions
are consistent with the CAA and the EPA's regulations, policy and
guidance for permitting SIP requirements. The EPA is proposing approval
of the following revisions adopted on June 9, 2021, effective on July
1, 2021, submitted to the EPA on July 9, 2021:
<bullet> Revisions to 30 TAC Section 116.12--Nonattainment and
Prevention of Significant Deterioration Review Definitions,
<bullet> Revisions to 30 TAC Section 116.150--New Major Source or
Major Modification in Ozone Nonattainment Areas,
<bullet> Revisions to 30 TAC Section 116.151--New Major Source or
Major Modification in Nonattainment Area Other than Ozone, and
<bullet> Revisions to 30 TAC Section 116.160--Prevention of
Significant Deterioration.
IV. Environmental Justice Considerations
The EPA reviewed demographic data, which provides an assessment of
individual demographic groups of the populations living within
Texas.\1\ The EPA then compared the data to the national average for
each of the demographic groups. The results of this analysis are being
provided for informational and transparency purposes. The results of
the demographic analysis indicate that, for populations within Texas,
the percent people of color (persons who reported their race as a
category other than White alone (not Hispanic or Latino)) is less than
the national average (40.3 percent versus 59.3 percent). Within people
of color, the percent of the population that is Black or African
American alone is lower than the national average (13.2 percent versus
13.4 percent) and the percent of the population that is American
Indian/Alaska Native is lower than the national average (1.1 percent
versus 1.3 percent). The percent of the population that is Hispanic or
Latino is significantly higher than the national average (40.2 percent
versus 18.9 percent). The percent of the population that is two or more
races is lower than the national averages (2.2 percent versus 2.9
percent). The percent of persons in poverty in Texas is higher than the
national average (14.2 percent versus 11.6 percent). The percent of
persons aged 25 years and older with a high school diploma in Texas is
slightly lower than the national average (84.4 percent versus 88.5
percent), and the percent with a Bachelor's degree or higher is below
the national average (30.7 percent versus 32.9 percent).
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\1\ See the United States Census Bureau's QuickFacts on Texas at
<a href="https://www.census.gov/quickfacts/fact/table/TX,US/PST045221">https://www.census.gov/quickfacts/fact/table/TX,US/PST045221</a>. This
information is also available in the rulemaking docket.
_____________________________________-
This action proposes to approve revisions to the Texas PSD and NNSR
programs, consistent with the Federal permitting programs. Final
approval of these revisions to the Texas permit programs will continue
to enable the State of Texas to implement control strategies and
permitting programs. Further, there is no information in the record
indicating that this action is expected to have disproportionately high
or adverse human health or environmental effects on a particular group
of people.
V. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to the Texas regulations as described in Section
III of this preamble, Proposed Action. We have made, and will continue
to make, these documents generally available electronically through
<a href="http://www.regulations.gov">www.regulations.gov</a> (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
VI. Statutory and Executive Order Reviews
Under the CAA, 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 CAA. Accordingly, this
action merely proposes to approve 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, as 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
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 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.''
The air agency did not evaluate environmental justice
considerations as
[[Page 13755]]
part of its SIP submittal; the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. The EPA
performed an environmental justice analysis, as is described above in
the section titled, ``Environmental Justice Considerations.'' The
analysis was done for the purpose of providing additional context and
information about this rulemaking to the public, not as a basis of the
action. In addition, there is no information in the record upon which
this decision is based inconsistent with the stated goal of E.O. 12898
of achieving environmental justice for people of color, low-income
populations, and Indigenous peoples.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the proposed 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).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04488 Filed 3-3-23; 8:45 am]
BILLING CODE 6560-50-P
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