Proposed Rule2023-08437
Air Plan Approval; Texas; Updates to Public Notice and Procedural Rules and Removal of Obsolete Provisions
Primary source
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Published
April 21, 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 three revisions to the Texas State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) on July 9, 2021, and January 21, 2022. The first revision, adopted on April 22, 2020, submitted on January 21, 2022, updates internal cross- references and removes or replaces obsolete provisions identified during a routine review of the Texas permitting regulations. The second revision, adopted on June 9, 2021, submitted July 9, 2021, repeals obsolete permitting provisions, and makes necessary corresponding edits to other permitting provisions. The third revision, adopted on August 25, 2021, submitted January 21, 2022, enhances the public notice requirements of the air permitting program.
Full Text
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<title>Federal Register, Volume 88 Issue 77 (Friday, April 21, 2023)</title>
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[Federal Register Volume 88, Number 77 (Friday, April 21, 2023)]
[Proposed Rules]
[Pages 24518-24521]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08437]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0307; FRL-10892-01-R6]
Air Plan Approval; Texas; Updates to Public Notice and Procedural
Rules and Removal of Obsolete Provisions
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 three revisions to the Texas State Implementation Plan (SIP)
submitted by the Texas Commission on Environmental Quality (TCEQ) on
July 9, 2021, and January 21, 2022. The first revision, adopted on
April 22, 2020, submitted on January 21, 2022, updates internal cross-
references and removes or replaces obsolete provisions identified
during a routine review of the Texas permitting regulations. The second
revision, adopted on June 9, 2021, submitted July 9, 2021, repeals
obsolete permitting provisions, and makes necessary corresponding edits
to other permitting provisions. The third revision, adopted on August
25, 2021, submitted January 21, 2022, enhances the public notice
requirements of the air permitting program.
DATES: Written comments must be received on or before May 22, 2023.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2022-0307, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#14637d78716d3a75707d7a75547164753a737b62"><span class="__cf_email__" data-cfemail="64130d08011d4a05000d0a05240114054a030b12">[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.
[[Page 24519]]
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#22554b4e475b0c43464b4c43624752430c454d54"><span class="__cf_email__" data-cfemail="bbccd2d7dec295dadfd2d5dafbdecbda95dcd4cd">[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, 214-665-2115, <a href="/cdn-cgi/l/email-protection#7e0917121b07501f1a17101f3e1b0e1f50191108"><span class="__cf_email__" data-cfemail="186f71747d6136797c717679587d6879367f776e">[email protected]</span></a>. 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.
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.
On July 9, 2021, the TCEQ submitted revisions to the Texas SIP that
repealed obsolete provisions from the Texas permitting program and made
other necessary updates to the permitting regulations to remove cross-
references to the repealed provisions and renumbered existing
provisions accordingly. The July 9, 2021, submittal also included
updates to the Texas Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR) permitting programs to allow for
project emissions accounting (PEA). The EPA is addressing the PSD and
NNSR specific revisions to allow for PEA in a separate rulemaking.
On January 21, 2022, Mr. Jon Nierman, Chairman of the TCEQ,
submitted two revisions to the Texas SIP. The first revision was a
suite of regulatory amendments that were adopted on April 22, 2020, to
update cross-references and remove or replace obsolete provisions
identified during a routine review of the Texas permitting program
regulations. The second revision included amendments adopted on August
25, 2021, to expand the public notice requirements for the air
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, and two January 21, 2022, SIP
revisions addressed in this proposed rulemaking action were developed
in accordance with the CAA and the State provided reasonable notice and
public hearing.
A. Evaluation of the Repeal of Obsolete Permitting Provisions
On June 9, 2021, the TCEQ adopted the repeal of the entirety of 30
TAC Chapter 116, Subchapter H, Permits for Grandfathered Facilities. On
July 9, 2021, The TCEQ submitted the repeal of 30 TAC Sections 116.770-
116.772, 116.774-116.775, 116.777-116.781, 116.783, 116.785, 116.788,
and 116.790 to the EPA. The TCEQ administrative record demonstrates
that these provisions are no longer needed in Texas and that any
facilities that were covered by the previous rule have either submitted
an appropriate permit authorization or submitted a notification of
shutdown thereby negating the need for the grandfathered facilities
provisions. Therefore, any previously grandfathered facilities subject
to 30 TAC Chapter 116, Subchapter H are covered under other SIP-
approved provisions.
The repeal of 30 TAC Chapter 116, Subchapter H, necessitated
additional cleanup within the Texas permitting regulations to remove
cross-references to the obsolete and repealed provisions. These
revisions are identified in our accompanying Technical Support Document
(TSD) and summarized below.
<bullet> 30 TAC Section 116.910(e) was deleted because the
requirements in 30 TAC Chapter 116, Subchapter H were removed. Former
provisions at 30 TAC Section 116.910(f) were renumbered to 30 TAC
Section 116.910(e).
<bullet> Provisions in 30 TAC Section 116.911(g) were deleted
because the underlying provisions in 30 TAC Chapter 116, Subchapter H
were deemed obsolete and repealed.
<bullet> Provisions in 30 TAC Section 116.920(b) were deleted
because the underlying provision in 30 TAC Chapter 116, Subchapter H
were deemed obsolete and repealed. The remaining provisions in 116.920
were renumbered accordingly but not otherwise substantively revised.
<bullet> Provisions at 30 TAC Section 116.1530(b) removed a
reference to 30 TAC Chapter 116, Subchapter H.
The EPA supports the repeal of and deletion from the Texas SIP for
the above identified provisions. We also support the non-substantive,
minor grammatical changes that the TCEQ submitted at 30 TAC Chapter
116, Sections 16.911(b), 116.911(e), renumbered 116.920(c) to address
formatting of subscripts and acronym.
B. Evaluation of the Procedural Rule Updates
On January 21, 2022, the TCEQ submitted revisions to the Texas SIP
[[Page 24520]]
adopted on April 22, 2020, at 30 TAC Chapters 39, 55, 101, and 116.
These amendments were identified during a routine review of the Texas
regulations. The amendments remove obsolete date references, update
internal cross-references, and correct grammar and punctuation. The
submitted revisions to 30 TAC Sections 39.405, 39.411, 39.419. 39.420,
39.601, 39.603, 55.154, 55.156, 101.306, 116.111 and 116.112 are
identified in our accompanying TSD. These revisions are approvable and
necessary for the functionality of the Texas SIP.
C. Evaluation of the Public Notice Revisions
On January 21, 2022, the TCEQ submitted revisions to the Texas SIP
adopted on August 25, 2021, to enhance existing public notice
requirements for air permitting. The TCEQ adopted new requirements at
30 TAC Section 39.405(k) to require a plain-language summary of the
application for all applications declared administratively complete on
or after May 1, 2022. The applicant is required to provide a plain-
language summary of the application that will describe the function of
the proposed plant or facility, expected output, expected pollutants,
and how the applicant will control the pollutants to show the proposed
plant will not have an adverse impact on human health or the
environment. The requirement for a plain-language summary for all
applications will promote transparency in the air permitting process.
New 30 TAC Section 39.426 was established for alternative language
requirements. This new section incorporates and expands upon the
previous SIP-approved requirements that were moved from 30 TAC Section
39.405(h). This move necessitated several updates to numbering and
cross-references throughout the TAC. These structural updates are
approvable. The applicability of new 30 TAC Section 39.426 is
established at 30 TAC Section 39.426(a) and is consistent with the
previous SIP-approved applicability requirements under 30 TAC Section
39.405(h). The expansion of the alternative language requirements is
reviewed in detail in the accompanying TSD and summarized below.
<bullet> New 30 TAC Section 39.426(b)(5) requires the TCEQ Office
of Chief Clerk to publish the alternative language notice on the TCEQ
website if there is not a publication available in the alternative
language or if the publisher of the alternative language publication
refuses to publish the notice. The English language notice must also
include information about how to access the alternative language
notice.
<bullet> New 30 TAC Section 39.426(c) requires the plain language
summary of the application must be provided in the alternative language
and will be posted on the TCEQ website.
<bullet> Under New 30 TAC Section 39.426(d), if alternative
language notice is required, notifications of any public meetings must
be provided in the alternative language. The applicant must also
provide interpretative services in the alternative language if comments
were received in the alternative language or there is substantial or
significant public interest in translation services.
<bullet> New 30 TAC Section 39.426(e) provides the criteria to
determine when the response to comments required under 30 TAC Section
55.156(b) must be provided in the alternative language.
<bullet> New 30 TAC Section 39.426(f) extends the alternative
language requirements to requests for reconsideration or rehearing
requests in some circumstances.
<bullet> New 30 TAC Section 39.426(g) establishes the procedures
used for correcting alternative language translation errors.
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 air permitting
program by removing obsolete provisions and enhancing public notice by
extending requirements for alternative language notices to notices for
public meetings in certain circumstances. 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 116.910--Applicability,
<bullet> Revisions to 30 TAC Section 116.911--Electric Generating
Facility Permit Application,
<bullet> Revisions to 30 TAC Sections 116.920--Public Participation
for Initial Issuance,
<bullet> Revisions to 30 TAC Sections 116.1530--Best Available
Retrofit Technology (BART) Control Implementation, and
<bullet> Repeal of 30 TAC Sections 116.770-116.772, 116.774,
116.775, 116.777-116.781, 116.783, 116.785-116.788, and 116.790.
The EPA is proposing approval of the following revisions adopted on
April 22, 2020, effective on May 14, 2020, submitted to the EPA on
January 21, 2022:
<bullet> Revisions to 30 TAC Section 39.405,
<bullet> Revisions to 30 TAC Section 39.411,
<bullet> Revisions to 30 TAC Section 39.419,
<bullet> Revisions to 30 TAC Section 39.420,
<bullet> Revisions to 30 TAC Section 39.601,
<bullet> Revisions to 30 TAC Section 39.603,
<bullet> Revisions to 30 TAC Section 55.154,
<bullet> Revisions to 30 TAC Section 55.156,
<bullet> Revisions to 30 TAC Section 101.306,
<bullet> Revisions to 30 TAC Section 116.111, and
<bullet> Revisions to 30 TAC Section 116.112.
The EPA is also proposing approval of the following revisions
adopted on August 25, 2021, effective September 16, 2021, submitted to
the EPA on January 21, 2022:
<bullet> Revisions to 30 TAC Section 39.405,
<bullet> Revisions to 30 TAC Section 39.412,
<bullet> Revisions to 30 TAC Section 39.418,
<bullet> Revisions to 30 TAC Section 39.419,
<bullet> New 30 TAC Section 39.426,
<bullet> Revisions to 30 TAC Section 39.602,
<bullet> Revisions to 30 TAC Section 39.604,
<bullet> Revisions to 30 TAC Sections 55.154, and
<bullet> Revisions to 30 TAC Sections 55.156.
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
[[Page 24521]]
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 portions of three revisions to the
Texas SIP submitted on July 9, 2021, and January 21, 2022. Final
approval of these revisions to the Texas SIP will continue to enable
the State of Texas to implement control strategies and permitting
programs by removing obsolete provisions and enhancing public notice.
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 state air agency did not evaluate environmental justice
considerations as 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. Due to the nature of the action being
taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. 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 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: April 17, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-08437 Filed 4-20-23; 8:45 am]
BILLING CODE 6560-50-P
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