[Federal Register Volume 84, Number 184 (Monday, September 23, 2019)]
[Rules and Regulations]
[Pages 49663-49667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20314]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0673; FRL-9999-17-Region 6]


Air Plan Approval; Texas; Infrastructure for the 2015 Ozone 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving elements of two 
State Implementation Plan (SIP) submissions from the State of Texas for 
the 2015 Ozone National Ambient Air Quality Standard (NAAQS). These 
submittals address how the existing SIP provides for implementation, 
maintenance, and enforcement of the 2015 ozone NAAQS (infrastructure 
SIP or i-SIP).

DATES: This rule is effective on October 23, 2019.

[[Page 49664]]


ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2018-0673. All documents in the docket are 
listed on the https://www.regulations.gov 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 and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270.

FOR FURTHER INFORMATION CONTACT: Carrie Paige, EPA Region 6 Office, 
Infrastructure & Ozone Section, 1201 Elm Street, Suite 500, Dallas, TX 
75270, 214-665-6521, paige.carrie@epa.gov. To inspect the hard copy 
materials, please schedule an appointment with Ms. Paige or Mr. Bill 
Deese at 214-665-7253.

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 April 
30, 2019 proposal (84 FR 18186). In that document we proposed to 
approve the August 17, 2018 i-SIP submittal from the Texas Commission 
on Environmental Quality (TCEQ) for the 2015 ozone NAAQS in its 
entirety. We also proposed to approve the portions of the August 17, 
2018 Transport submittal from the TCEQ for the 2015 ozone NAAQS that 
address CAA section 110(a)(2)(D)(i), pertaining to the prevention of 
significant deterioration in other states for ozone (sub-element 3 or 
prong 3), and CAA section 110(a)(2)(D)(ii). Our proposal did not 
evaluate the portions of the August 17, 2018 Transport submittal from 
the TCEQ for the 2015 ozone NAAQS that address sub-elements (prongs) 1, 
2, and 4 of CAA section 110(a)(2)(D)(i), but stated that we would 
address such in a separate action.
    We received one comment in support of our proposal and one relevant 
adverse comment. The comments are posted in the docket for this action. 
Our responses to the comments are provided below.

II. Response to Comments

    Comment: The TCEQ submitted a comment in support of EPA's proposed 
determination that the Texas SIP meets the infrastructure requirements 
for the 2015 ozone NAAQS as proposed, and reiterated that prongs 1, 2, 
and 4 of CAA section 110(a)(2)(D)(i) will be addressed by the EPA in a 
separate rulemaking.
    Response: We acknowledge the TCEQ's support of our proposed action.
    We received one adverse, relevant comment letter from an anonymous 
source (``Commenter''). We are separating the comments and our 
responses to each below:
    Comment: Commenter asks how the visibility portion of CAA section 
110(a)(2)(J) ``can be approved'' if Texas's visibility portion of CAA 
section 110(a)(2)(D)(i)(II) (prong 4) ``cannot be approved.'' Commenter 
also states that EPA must take consistent action on both visibility 
elements and either approve or disapprove both. Commenter states that 
EPA cannot take later separate action on one and state that no new 
requirements are applicable in element (J) when there is a new or 
revised NAAQS. Commenter questions why states must submit 
infrastructure SIPs if a new or revised NAAQS requires no new 
visibility obligations triggered under CAA section 110(a)(2)(J) and, 
for all other elements, potentially excluding elements (A), (B), (C), 
and (D)(i)(I), no additional requirements or obligations are placed on 
states. The commenter asks that if states must revise their SIP for 
elements (E) through (M), and potentially (A) through (D)(i)(I), why 
would visibility requirements of element (J) be exempt from this 
process. The commenter states that EPA must require Texas to address 
the visibility portion of element (J) unless EPA is willing to exempt 
other elements from section 110(a)(2) from the need to revise their 
SIPs under the Infrastructure requirements.
    Response: In this action, EPA has explained that it is not 
evaluating and will address in a separate action requirements for Texas 
under the 2015 ozone NAAQS related to ``prong 4,'' CAA section 
110(a)(2)(D)(i)(II)), which generally requires a SIP to contain 
adequate provisions prohibiting emissions within the state from 
``interfering with measures required to be in the applicable 
implementation plan for any other State under part C of this subchapter 
. . . to protect visibility.'' See Infrastructure SIP Guidance 32-35 
(providing guidance on how states may satisfy their prong 4 
obligations).\1\ EPA considers prong 4 to be ``pollutant-specific,'' 
such that an infrastructure SIP submission need only address the 
potential for interference with protection of visibility based on the 
pollutant (including precursors) to which the new or revised NAAQS 
applies. See id. at 33. Oxides of nitrogen are ozone precursors subject 
to the revised 2015 ozone NAAQS and they are also visibility-impairing 
pollutants. Therefore, EPA acknowledges that we will need to assess 
prong 4 as related to oxides of nitrogen in the Texas August 17, 2018 
Transport SIP submittal for the 2015 ozone NAAQS. However, as EPA makes 
clear, we are not addressing prong 4 in this action.
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    \1\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013. Such Guidance 
is posted in the docket for this rulemaking and also at https://www.epa.gov/ground-level-ozone-pollution/infrastructure-state-implementation-plan-sip-requirements-and-guidance.
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    We disagree with Commenter that EPA cannot take separate action on 
CAA section 110(a)(2)(D)(i)(II) prong 4. EPA interprets its authority 
under CAA section 110(k) as affording the Agency the discretion to 
approve, disapprove, or conditionally approve, individual elements of 
the Texas infrastructure and Transport submissions for the 2015 ozone 
NAAQS. EPA views discrete infrastructure SIP requirements, such as the 
requirements of 110(a)(2)(D)(i)(I) and (II), as severable from other 
infrastructure SIP elements and interprets section 110(k) as allowing 
it to act on individual severable elements or requirements in a SIP 
submission. In short, EPA has the discretion under CAA section 110(k) 
to act upon the various individual elements of a state's infrastructure 
SIP submission, separately or together, as appropriate. As stated in 
the proposal and earlier in this final action, EPA will address the 
remaining sub-elements (prongs 1, 2, and 4) of CAA section 
110(a)(2)(D)(i) in a separate rulemaking action or actions.
    Section 110(a)(2) (J)'s visibility requirements need not be 
addressed in this i-SIP because a state's requirements relating to 
visibility protection are not affected when EPA establishes or revises 
a NAAQS. The visibility sub-element of element (J), CAA section 
110(a)(2)(J) is different than for prong 4; the revised NAAQS here does 
not give rise to additional visibility obligations that would be 
appropriate to address in an infrastructure SIP. Under 40 CFR part 51 
subpart P, implementing the visibility requirements of CAA title I, 
part C, states are subject to requirements for reasonably attributable 
visibility impairment, new source review for possible impacts on air 
quality related values in Class I areas, and regional haze planning. 
These include timeframes for SIP submittals related to

[[Page 49665]]

visibility requirements. See, e.g., 40 CFR 51.308(b) (establishing a 
deadline for initial SIPs to meet regional haze requirements of 
December 17, 2007). Our proposed action contains the relevant language 
regarding the visibility sub-element of element (J), and our rationale 
is not changing from the proposed action to this final action. As EPA 
recognized in the 2013 Infrastructure SIP Guidance, generally speaking, 
when the EPA establishes or revises a NAAQS, the visibility 
requirements under part C of title I of the CAA do not change. See 
Guidance at 54-55. There are no new visibility protection requirements 
under part C as a result of the revised NAAQS here. Therefore, there 
are no newly applicable visibility protection obligations pursuant to 
element (J) applicable in or to Texas, and this sub-element is 
therefore not being addressed in this action. For this reason, unlike 
prong 4, EPA does not intend to take action at a later time addressing 
this sub-element of element (J) for Texas in the context of 
infrastructure SIP requirements for the 2015 ozone NAAQS.
    The lack of newly applicable obligations is not an exemption from 
meeting visibility requirements of the CAA. In fact, EPA, Texas, and 
other stakeholders have been engaged in a series of ongoing actions, 
rulemakings, and litigation related to the State's visibility 
obligations for the first regional haze planning period under subpart 
P. See generally EPA's Fourteenth Status Report on Remand, Texas v. 
EPA, No. 16-60118 (5th Cir. May 30, 2019) (briefly summarizing recent 
history of actions related to regional haze in Texas).\2\ Furthermore, 
Texas and other states are in the process of developing SIPs for the 
second planning period, which are due to EPA July 31, 2021. See Final 
Rule, Protection of Visibility: Amendments to Requirements for State 
Plans (82 FR 3078, January 10, 2017). It is wholly appropriate for EPA 
to apply the 2013 Guidance here to conclude that in the absence of any 
new visibility obligations occasioned by the 2015 ozone NAAQS, Texas' 
infrastructure SIP need not address pre-existing visibility obligations 
already being addressed in those separate, ongoing actions.
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    \2\ Status Report is posted in the docket for this rulemaking.
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    Commenter also generally questions EPA's guidance that some 
elements in CAA section 110(a)(2) are to be included in infrastructure 
SIPs while the visibility sub-element of element (J), are not. EPA's 
views on the appropriate treatment of the various requirements of 
section 110(a)(2) are generally set out in the 2013 Guidance cited 
above. EPA has explained above the basis for its treatment of the prong 
4 and the visibility sub-element of element (J) in this action, which 
is consistent with the Guidance as well as the facts and circumstances 
related to this revised NAAQS for Texas.
    Comment: Commenter states that EPA must conduct a more detailed 
financial accounting of the State's finances and staffing needs. 
Commenter states that EPA cannot take the State's word and the onus 
should not be on the public to disprove the State's statements on 
financial security or staffing requirements. Commenter states that EPA 
is responsible for determining whether the State has the necessary 
staffing and funding to implement the SIP under section 110(a)(2)(E) 
and (L).
    Response: We disagree with Commenter that EPA must conduct a more 
detailed accounting of the State's finances and staffing needs. Section 
110(a)(2) does not require a specific quantitative metric or 
methodology for determining adequate resources. CAA section 
110(a)(2)(E) requires that the state provide necessary assurances that 
it will have adequate funding under state law to carry out the SIP. As 
described in our TSD, to address adequate funding, the Texas statute 
charges the TCEQ with preparing and developing the SIP and provides the 
agency with ``[. . .] powers necessary or convenient to carry out its 
responsibilities'' (see Texas Health and Safety Code (THSC) Title 5, 
Subtitle C, Chapter 382). To address funding, the Texas statute 
provides that ``[t]he commission shall request the appropriation of 
sufficient money to safeguard the air resources of the state'' (see 
THSC 382.0622). As cited in our TSD, these State statute-assured funds 
are supplemented by Federal funds, including CAA section 103 and 
section 105 grants. Consequently, there are additional monetary sources 
which contribute to Texas' ability to provide adequate personnel and 
funding to implement the SIP for the 2015 ozone NAAQS.
    Section 110(a)(2)(L) requires SIPs to require each major stationary 
source to pay permitting fees to cover the cost of reviewing, 
approving, implementing and enforcing a permit. As described in our 
TSD, Texas statute provides TCEQ the authority to collect fees for 
applications, permits, and inspections (see THSC section 382.062) and 
thus receives fees for such, as well as for penalties and interest on 
fees owed. Texas requires that applicable sources meet the requirements 
in 30 TAC 116, Subchapter B, which includes permit fees and establishes 
the fee schedule for permits by rule (see 30 TAC 106, Subchapter B, 
Section 106.50, approved into the Texas SIP at 74 FR 11851, March 20, 
2009). State rules that address determination and payment of fees, 
prevention of significant deterioration (PSD) permit fees, renewal 
application fees, and fees for standard and flexible permits are 
approved in the Texas SIP (see 74 FR 11851 and 80 FR 42729, July 20, 
2015). State rules that address fees for electric generating facilities 
(see 76 FR 1525, January 11, 2011), small business stationary source 
permits, pipeline facility permits, and existing facility permits are 
also approved in the Texas SIP (see 79 FR 577, January 6, 2014). In 
addition, Texas statute provides TCEQ authority to collect fees for 
vehicle inspection and maintenance programs in several nonattainment 
areas and in the Austin area (see THSC sections 382.202 and 382.302) 
and these rules are approved in the Texas SIP (see 70 FR 45542, August 
8, 2005 and 81 FR 69684, October 7, 2016).
    Finally, Commenter provides no evidence to support their concerns 
regarding the State's submittal addressing CAA sections 110(a)(2)(E) 
and (L). As described in our proposal, TSD, and previously in this 
response, the EPA's evaluation and approval of adequate resources for 
Texas are based upon various sources of funding, state statutes and 
rules pursuant to section 110(a)(2). We do not understand Commenter's 
concern regarding the State's ``statements on financial security or 
staffing requirements'' since such documentation was neither required 
nor submitted.

III. Final Action

    We are approving the August 17, 2018 Texas i-SIP submittal for the 
2015 ozone NAAQS in its entirety. We are also approving the portion of 
the August 17, 2018 Texas Transport submittal for the 2015 ozone NAAQS 
that addresses CAA section 110(a)(2)(D)(i), pertaining to the 
prevention of significant deterioration in other states for ozone, and 
CAA section 110(a)(2)(D)(ii). Our final action on the specified CAA 
section 110(a)(2) elements is detailed in Table 1, shown below.

[[Page 49666]]



     Table 1--Final Action on Texas Infrastructure and Transport SIP
                   Submittals for the 2015 Ozone NAAQS
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                        Element                            Final action
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(A): Emission limits and other control measures........               A
(B): Ambient air quality monitoring and data system....               A
(C)(i): Enforcement of SIP measures....................               A
(C)(ii):PSD program for major sources and major                       A
 modifications.........................................
(C)(iii): Permitting program for minor sources and                    A
 minor modifications...................................
(D)(i)(I): Contribute to nonattainment/interfere with                SA
 maintenance of NAAQS (sub-elements 1 and 2)...........
(D)(i)(II): PSD (sub-element 3)........................               A
(D)(i)(II): Visibility protection (sub-element 4)......              SA
(D)(ii): Interstate and international pollution                       A
 abatement.............................................
(E)(i): Adequate resources.............................               A
(E)(ii): State boards..................................               A
(E)(iii): Necessary assurances with respect to local                  A
 agencies..............................................
(F): Stationary source monitoring system...............               A
(G): Emergency power...................................               A
(H): Future SIP revisions..............................               A
(I): Nonattainment area plan or plan revisions under                  +
 part D................................................
(J)(i): Consultation with government officials.........               A
(J)(ii): Public notification...........................               A
(J)(iii): PSD..........................................               A
(J)(iv): Visibility protection.........................               +
(K): Air quality modeling and data.....................               A
(L): Permitting fees...................................               A
(M): Consultation and participation by affected local                 A
 entities..............................................
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Key to Table: A: Approved; +: Not germane to infrastructure SIPs; SA:
  EPA to address this infrastructure requirement in a separate
  rulemaking action.

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:
     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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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
     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 22, 2019. 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.


[[Page 49667]]


    Dated: September 16, 2019.
David Gray,
Acting Regional Administrator, Region 6.

    40 CFR part 52 is amended 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, the second table in paragraph (e), titled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
Texas SIP,'' is amended by adding the entry ``Infrastructure and 
Interstate Transport for the 2015 Ozone NAAQS'' at the end of the table 
to reads 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           State
     Name of SIP provision          geographic or      submittal/     EPA approval date          Comments
                                 nonattainment area  effective date
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                                                  * * * * * * *
Infrastructure and Interstate    Statewide.........       8/17/2018  9/23/2019, [Insert  Approval for CAA
 Transport for the 2015 Ozone                                         Federal Register    elements 110(a)(2)(A),
 NAAQS.                                                               citation].          (B), (C), (D)(i)(II)
                                                                                          (portion pertaining to
                                                                                          PSD), (D)(ii), (E),
                                                                                          (F), (G), (H), (J),
                                                                                          (K), (L), and (M).
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[FR Doc. 2019-20314 Filed 9-20-19; 8:45 am]
 BILLING CODE 6560-50-P


