[Federal Register Volume 84, Number 213 (Monday, November 4, 2019)]
[Proposed Rules]
[Pages 59325-59327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23676]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2019-0043; FRL-10001-20-Region 6]


Air Plan Approval; Texas; Revisions To Control of Air Pollution 
by Permits for New Construction or Modification

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 
United States Environmental Protection Agency (U.S. EPA) is proposing 
to approve revisions to the Texas (TX) State Implementation Plan (SIP) 
submitted on February 22, 2019 that revise the State's New Source 
Review (NSR) permitting rules contained in Title 30 of the Texas 
Administrative Code (TAC) Chapter 116. The EPA is also addressing 
portions of an April 16, 2014, SIP submittal pertaining to provisions 
regarding Greenhouse Gas (GHG) emissions that were invalidated by the 
United States Supreme Court. The February 22, 2019, SIP submittal 
appropriately revises the April 16, 2014, SIP provisions that were 
impacted by the Court's ruling.

DATES: Written comments must be received on or before December 4, 2019.

ADDRESSES: Submit your comments, identified by Docket No. 2017-1641-
RUL, at https://www.regulations.gov or via email to 
layton.elizabeth@epa.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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 Elizabeth Layton, 214-
665-2136, layton.elizabeth@epa.gov. For the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the U.S. EPA 
Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Elizabeth Layton, Air Permits Section 
(ARPE), U.S. EPA Region 6, 1201 Elm Street, Suite 500, Dallas, TX 
75270, 214-665-2136, layton.elizabeth@epa.gov. To inspect the hard copy 
materials, please schedule an appointment with Ms. Elizabeth Layton or 
Mr. Bill Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the United States Environmental 
Protection Agency.

I. Background

    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 51.160-51.164. 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. This action 
addresses revisions to the Texas SIP submitted on February 22, 2019 by 
the Texas Commission on Environmental Quality (TCEQ) that amend the 
State's NSR permitting rules by amending the criteria for air pollution 
control permits for new construction or modification, as well as make 
other non-substantive revisions.
    Additionally, this action addresses portions of an April 16, 2014, 
Texas SIP submittal that relate to the permitting of Greenhouse Gas 
Emissions (GHGs) for Step 2 or ``non-anyway'' sources.\1\ The April 
2014 submittal was affected by a United States Supreme Court ruling 
titled Utility Air Regulatory Group (UARG) v. EPA (134 S.Ct. 2427 
(2014)) where the Court invalidated those portions of the federal rules 
that related

[[Page 59326]]

to the permitting of non-anyway sources.\2\ Consequently, the State and 
EPA determined the portions of the State's SIP submittal that addressed 
``non-anyway'' sources were no longer appropriate for SIP action.\3\ As 
explained in more detail below, the February 22, 2019 GHG related 
revisions appropriately address the April 16, 2014, GHG provisions that 
were affected by the Court's decision.
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    \1\ For more detailed information please see our Federal 
Register action at 79 FR 66626 (November 10, 2014). Step 2 or ``non-
anyway'' sources are sources that that would have been considered 
``major'' under EPA's permitting program for PSD only because of 
their greenhouse gas emissions.
    \2\ Id. For more detail, please see 81 FR 68110 (October 3, 
2016).
    \3\ Id. See the State's October 1, 2014 letter to EPA that is 
included in the docket to this action.
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II. The EPA's Evaluation

A. Evaluation of the February 22, 2019 SIP Submittal Revisions to the 
State's New Source Review Rules

    On February 22, 2019, the TCEQ submitted revisions to the Texas SIP 
(Rule Project No. 2018-003-116-AI) revising their rules that address 
applicable requirements for air pollution control permits for new 
construction or modification under 30 TAC Chapter 116, Sections 
116.114, 116.160, 116.164(a), 116.196, 116.198, 116.310, 116.611, and 
116.615. Revisions to 30 TAC Chapter 116 were partly in response to the 
passage of House Bill (HB) 4181, 85th Texas Legislature, 2017 that 
amended Texas Health and Safety Code (THSC), Sec.  382.055 to provide 
TCEQ with the option to use an electronic method or system to notify 
new source review (NSR) air permit holders that an air permit is 
scheduled for review.
    The February 22, 2019 revisions revise the Texas SIP at 30 TAC 
Sections 116.160(b)(2), 116.164(a), 116.164(a)(3)-(5), 116.196(a), 
116.310, 116.611(a), 116.615(2), and 116.615(2)(A)-(D). The revisions 
to 30 TAC Sections 116.196(a), 116.310, and 116.611(a) provide the 
State the ability to implement existing rules and regulations 
pertaining to the control of air quality by air permits utilizing 
electronic methods for various air permitting processes. These include 
permit renewal notification for Plant-wide Applicability Limit (PAL) 
permits, notification to permit holders of approaching permit 
expiration, and the ability to apply for standard permit registration 
via electronic methods. The substantive revisions at 30 TAC Section 
116.615(2)(A) clarify registration requirements when a new facility is 
added to an existing operation authorized under standard permitting. 
Additional substantive revisions at 30 TAC Section 116.615(2)(B)-(D) 
clarify notification and registration requirements for changes in the 
representation of emissions at facilities authorized by standard 
permits for air quality.
    Other amendments to 30 TAC Chapter 116 include revisions that are 
minor or non-substantive in nature and do not change the intent or 
substance of the originally approved SIP requirements; these minor and 
administrative type revisions to 30 TAC Sections 116.114(c)(3)(A), 
116.196(b)-(f), 116.198(a), and 116.198(b) update cross references, 
correct grammar, and renumber existing SIP approved provisions. The 
accompanying Technical Support Document (TSD) for this action includes 
a comprehensive analysis and discussion of the submitted revisions to 
the Texas SIP that includes both the substantive and minor, non-
substantive revisions. The TSD is included in the docket for this 
proposed rulemaking.
    The EPA has determined it is appropriate to propose approval of the 
above-cited February 22, 2019, revisions to the Texas SIP as these 
amendments to the Texas air permitting process clarify existing 
processes and promote efficiency by implementing electronic 
notifications and registrations. These revisions are consistent with 
federal permitting regulations; therefore, these revisions will not 
interfere with attainment, reasonable further progress, or any other 
applicable requirements of the Act.

B. Evaluation of the April 16, 2014 and February 22, 2019 Revisions to 
New Source Review Permitting for GHG Emissions

    As stated earlier, the State's February 22, 2019, SIP submittal 
appropriately revises provisions in 30 TAC Section 116 to be consistent 
with the U.S. Supreme Court's 2014 UARG v. EPA decision. The TCEQ 
originally submitted revisions to the Texas SIP on April 16, 2014 
(adopted March 16, 2014) to address the permitting for GHG 
emissions.\4\ That submittal contained provisions that would have 
required a permit applicant to conduct PSD review based solely on GHG 
emissions, commonly referred to as non-anyway or Step 2 GHG permitting. 
Based on the outcome of the 2014 U.S. Supreme Court decision, 
provisions that related to the permitting of non-anyway sources in 30 
TAC Sections 116.160(a) and 116.164(a)(3)-(5) were no longer 
appropriate for SIP action. See 79 FR 66626. The February 22, 2019 
submittal appropriately removes these provisions consistent with the 
Court's decision. Therefore, EPA has determined it is appropriate to 
approve the February 22, 2019 submitted revisions to 30 TAC Sections 
116.160(a) and 116.164(a)(3)-(5) that remove the provisions. The 
February 22, 2019, revisions ensure that the Texas NSR program is 
consistent with the EPA's policy, guidance, case law and regulations 
for permitting GHG emissions; therefore, these revisions will not 
interfere with attainment, reasonable further progress, or any other 
applicable requirements of the Act. The TSD that is included in the 
docket for this proposed rulemaking contains a detailed analysis and 
discussion of these revisions.
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    \4\ We approved much of this submittal on November 10, 2014 (70 
FR 66626). Docket No. EPA-R06-OAR-2013-0808.
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III. Proposed Action

    We are proposing to approve revisions to the Texas SIP that revise 
the State's New Source Review permit rules. We are also proposing to 
approve revisions to the Texas NSR rules related to the permitting of 
greenhouse gas emissions as being consistent with federal requirements. 
As explained in this proposed action and the accompanying TSD, we have 
determined that the revisions submitted on February 22, 2019, were 
developed in accordance with the CAA and EPA's regulations, case law, 
policy, and guidance for NSR permitting. Therefore, under section 110 
of the CAA, the EPA proposes approval of the following revisions 
adopted on October 31, 2018 and submitted February 22, 2019:
     Revisions to 30 TAC Section 116.114;
     Revisions to 30 TAC Section 116.160;
     Revisions to 30 TAC Section 116.164(a);
     Revisions to 30 TAC Section 116.196;
     Revisions to 30 TAC Section 116.198;
     Revisions to 30 TAC Section 116.310;
     Revisions to 30 TAC Section 116.611; and
     Revisions to 30 TAC Section 116.615.

IV. 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 the 
Proposed Action section above. We have made, and will continue to make, 
these documents generally available electronically through 
www.regulations.gov and in hard copy at the EPA Region 6 office

[[Page 59327]]

(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information).

V. 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:
     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, as 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 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: October 25, 2019.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2019-23676 Filed 11-1-19; 8:45 am]
 BILLING CODE 6560-50-P


