[Federal Register Volume 85, Number 30 (Thursday, February 13, 2020)]
[Rules and Regulations]
[Pages 8185-8188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02054]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2019-0043; FRL-10004-67-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: Final 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 finalizing 
approval of revisions to the Texas (TX) State Implementation Plan (SIP) 
submitted on February 22, 2019, that revised the State's New Source 
Review (NSR) permitting rules contained in Title 30 of the Texas 
Administrative Code (TAC) Chapter 116 Control of Air Pollution by Air 
Permits for New Construction or Modification. Our final action on the 
February 22, 2019, submittal also addresses portions of an April 16, 
2014, SIP submittal pertaining to the permitting of Greenhouse Gas 
(GHG) emissions that were subsequently invalidated by the U.S. Supreme 
Court. The February 22, 2019, submittal appropriately removes these 
provisions from the Texas SIP.

DATES: This rule is effective on March 16, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2019-0043. 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: Elizabeth Layton, EPA Region 6 Office, 
Air Permits Section (ARPE), 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 ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in depth in our 
November 4, 2019, proposal (84 FR 59325). In that document we proposed 
to approve revisions to the Texas SIP submitted February 22, 2019, by 
the Texas Commission on Environmental Quality (TCEQ) that revise the 
State's New Source Review (NSR) provisions pertaining to air quality 
permits for the control of air pollution by amending the criteria for 
air pollution control permits for new construction or modification, as 
well as make other non-substantive revisions. The February 22, 2019, 
submittal included the removal of provisions originally submitted on 
April 16, 2014, that relate to the permitting of Greenhouse Gas 
Emissions (GHGs) for ``non-anyway'' sources that were later invalidated 
by the Supreme Court in Utility Air Regulatory Group (UARG) v. EPA (134 
S. Ct. 2427 (2014)). See the proposed rulemaking (84 FR 59325) for more 
details. We proposed to approve the removal of these provisions that 
were impacted by the Court's ruling. The comments received on our 
proposed rulemaking are outlined in the section below.

II. Response to Comments

    We received four public comments on the proposal. One commenter 
(State of Texas) supported our proposed approval and agreed with the 
EPA's determination that the revisions to the Texas SIP were consistent 
with the CAA and the applicable federal rules and regulations relating 
to air pollution control. We received three anonymous public comments. 
One commenter opposed the approval of provisions relating to GHGs, 
another commenter opposed approving the Texas SIP, and one commenter 
opposed the approval of previously SIP-approved regulations containing 
provisions that waive permit renewal fees for members of the military 
on active duty stationed outside of the State of Texas. All public 
comments submitted are in the public docket to this rulemaking. Our 
responses to the comments are discussed below.
    Comment: The State of Texas supported the EPA's proposed approval 
action and agreed with our determination that the revisions to the 
Texas SIP were consistent with the CAA and applicable federal rules and 
regulations pertaining to air pollution control.
    Response: The EPA appreciates the supportive comment from the State 
of Texas. No changes will be made to the proposed rule as a result of 
the comment.
    Comment: One anonymous commenter stated that the EPA should not 
approve portions of 30 TAC section 116.196(a) that specifically pertain 
to the exemption from permit renewal fees if a permit holder is on 
active duty in the U.S. Armed Forces and is serving outside the State 
of Texas. The commenter argues that if the permit holder is in fact 
serving in the military, then the TCEQ/EPA should require a secondary 
``responsible official'' to submit timely permit renewal applications 
and the TCEQ/EPA should not grant exemptions from permit renewal fees 
as an approved provision in the SIP. The commenter states that this 
provision should be considered a state-only provision and not be 
approved into the SIP.
    Response: As a threshold matter, the EPA must respond to all 
significant comments received. While considering significant comments, 
a determination must be made regarding the comment's relevance, i.e., 
if the subject matter of the comment is relevant to the specific action 
being reviewed and submitted for approval. The EPA is only required to 
respond to comments that are determined to be relevant, meaning in part 
that any such comment, after our

[[Page 8186]]

consideration, could require a change in our proposed rule. Expressly, 
the EPA is required to address significant comments deemed relevant to 
the specific set of rules being proposed for action and then take 
action on that specific set of rules with consideration of those 
comments. We first note that the provisions quoted by the commenter are 
actually located at 30 TAC Section 116.310. In the current action, we 
did not propose for approval any provisions that relate to the waiver 
of permit renewal fees for members of the military serving outside of 
the State of Texas. Those provisions were submitted to the EPA on 
August 31, 1993, and were approved into the SIP by the EPA on March 10, 
2006 (71 FR 12285). The public comment received by the commenter on a 
prior rulemaking is not relevant to the current rulemaking, and as 
such, no changes will be made in response to the comment received. 
Additionally, no challenge to that prior, final rulemaking action was 
filed and the timeframe has long passed to seek judicial review on that 
particular rulemaking. (See Administrative Procedure Act, 5 U.S.C. 
704).
    Comment: One anonymous commenter states that the ``EPA should 
disapprove the regulation on GHGs,'' and goes on to discuss the 
potential factors that can generally affect the EPA's approval of 
environmental regulations (cost, duration, subject matter). 
Additionally, the commenter requests the EPA to take the opportunity to 
review GHG regulations on carbon dioxide. Lastly, the commenter states 
that pending an official rulemaking on GHG's, EPA may not be able to 
make a ``regulatory ruling in time for the 2022 planned deadline.''
    Response: See our response to the comment above related to the 
EPA's duty to respond to significant comments. The EPA has evaluated 
the comment, and we view the comment as not relevant to the specific 
subject matter at hand and is outside the scope of this rulemaking 
action. The general regulation and review of GHG's is not a part of the 
current action, nor germane to our final action and therefore, we are 
not required to respond to the comment. Further, the commenter does not 
provide context or detail to a ``2022 planned deadline'' therefore we 
are unable to discern the commenter's concern. However, we do note that 
we are bound by the U.S. Supreme Court's ruling, UARG v. EPA (2014), 
concerning the regulation of GHG's that is referenced in this action 
and our approval of the removal of the specific ``Step 2'' GHG 
provisions was based on the Court's ruling.
    Comment: One anonymous commenter stated that the EPA should 
``disapprove the Texas SIPs'' and supply the rationale behind why the 
state does not have the legal authority to do so on its own. 
Additionally, the commenter wants the EPA to examine interstate 
hydrocarbon transport, regulate GHG emissions under the CAA 
(specifically the NSR/PSD and 111(d) programs), as well as consider 
climate change and our demand for resources. The commenter also 
expresses the need to reduce the amount of carbon being burned and 
phase out conventional energy sources by 2020.
    Response: See our responses above related to the EPA's duty to 
respond to significant comments. We do not agree that the EPA should 
disapprove the Texas SIP. We find that the State has submitted 
approvable SIP revisions and are thus approving them under the CAA that 
gives EPA the authority to do so. The comments related to regulating 
GHG's under NSR/PSD and CAA 111(d), climate change, and reduction of 
carbon is outside the scope of this rulemaking action. We are therefore 
not required to respond to the comment. Again, in this action, we are 
acting consistent with the U.S. Supreme Court's ruling in UARG v. EPA 
(2014) and our approval of the removal of the specific ``Step 2'' GHG 
provisions is appropriate here.

III. Final Action

    We are approving revisions to the Texas SIP that revise NSR air 
permitting rules. We are also approving revisions to the Texas NSR 
rules related to the permitting of greenhouse gas emissions as being 
consistent with federal requirements. As explained in detail in the 
proposed rulemaking accompanying this action, we have determined that 
the revisions adopted on October 31, 2018, and 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 Act, the EPA approves the following 
revisions to the Texas SIP in the following Sections of 30 TAC Chapter 
116, submitted on 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

III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference the 
revisions to the Texas regulations described in the Final Action 
section above. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 6 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by the EPA 
for inclusion in the SIP, have been incorporated by reference by the 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
the EPA's approval, and will be incorporated in the next update to the 
SIP compilation.

IV. 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 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

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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 the 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 the 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 April 13, 2020. 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, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 29, 2020.
Kenley McQueen,
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, in paragraph (c), the table titled ``EPA Approved 
Regulations in the Texas SIP'' is amended by revising the entries for 
Sections 116.114, 116.160, 116.164, 116.196, 116.198, 116.310, 116.611, 
and 116.615 to read as follows:


Sec.  52.2270   Identification of plan.

* * * * *
    (c) * * *

                                    EPA Approved Regulations in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                 State approval/
        State citation           Title/subject      submittal      EPA approval             Explanation
                                                      date             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
        Chapter 116 Revisions to Control of Air Pollution by Permits for New Construction or Modification
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                     Subchapter B: New Source Review Permits
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.114...............  Application          10/31/2018  2/13/2020,       ..............................
                                 Review                           [Insert
                                 Schedule.                        Federal
                                                                  Register
                                                                  citation].
 
                                                  * * * * * * *
Section 116.160...............  Prevention of        10/31/2018  2/13/2020,       The PSD SIP includes 30 TAC
                                 Significant                      [Insert          Section 116.160(a) as adopted
                                 Deterioration.                   Federal          by the State as of 6/2/2010.
                                                                  Register         The PSD SIP includes a letter
                                                                  citation].       from the TCEQ dated December
                                                                                   2, 2013, committing that
                                                                                   Texas will follow a SIP
                                                                                   amendment process to apply
                                                                                   its PSD SIP to additional
                                                                                   pollutants that are regulated
                                                                                   in the future, including non-
                                                                                   NAAQS pollutants. The PSD SIP
                                                                                   includes a letter from the
                                                                                   TCEQ dated May 30, 2014,
                                                                                   clarifying the judicial
                                                                                   review process for the Texas
                                                                                   PSD permit program.
 

[[Page 8188]]

 
                                                  * * * * * * *
Section 116.164...............  Prevention of        10/31/2018  ...............  The PSD SIP does NOT include
                                 Significant                                       30 TAC Sections 116.164(b).
                                 Deterioration
                                 Applicability
                                 for Greenhouse
                                 Gases Sources.
 
                                                  * * * * * * *
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                                  Subchapter C: Plant-wide Applicability Limits
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.196...............  Renewal of a         10/31/2018  ...............  ..............................
                                 Plant-wide
                                 Applicability
                                 Limit Permit.
Section 116.198...............  Expiration of        10/31/2018  ...............  ..............................
                                 Voidance.
 
                                                  * * * * * * *
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                                          Subchapter D: Permit Renewals
----------------------------------------------------------------------------------------------------------------
Section 116.310...............  Notification of      10/31/2018  ...............  ..............................
                                 Permit Holder.
 
                                                  * * * * * * *
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                                         Subchapter F: Standard Permits
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 116.611...............  Registration to      10/31/2018  ...............  30 TAC Section 116.611(b) is
                                 Use a Standard                                    SIP-approved as adopted by
                                 Permit.                                           the State as of 11/20/2002.
                                                                                   The SIP does NOT include 30
                                                                                   TAC Section 116.611(c)(3),
                                                                                   (c)(3)(A), and (c)(3)(B).
 
                                                  * * * * * * *
Section 116.615...............  General              10/31/2018  ...............  ..............................
                                 Conditions.
 
                                                  * * * * * * *
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[FR Doc. 2020-02054 Filed 2-12-20; 8:45 am]
 BILLING CODE 6560-50-P


