[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Proposed Rules]
[Pages 22700-22703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08156]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0159; FRL-10008-16-Region 6]


Air Plan Approval; Texas; Construction Prior to Permit Amendment 
Issuance

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 a 
revision to the Texas (TX) State Implementation Plan (SIP) proposed 
January 29, 2020 and submitted for parallel processing by the State on 
January 30, 2020. The proposal amends certain air quality permitting 
rules located in Title 30 of the Texas Administrative Code (TAC), 
Section 116, Control of Air Pollution by Permits for New Construction 
or Modification. These revisions amend the State's New Source Review 
permitting regulations via the addition of new, proposed Section 
116.118, Construction While Permit Application Pending. This proposed 
new section will allow applicants for certain permit amendments to 
begin construction after the executive director has completed a 
technical review and issued a draft permit including the permit 
amendment for public review and comment, i.e., prior to final permit 
issuance. Non-substantive, administrative-type, editorial changes, such 
as grammar, re-lettering, and reference revisions and/or corrections 
are also included in the revisions the EPA is proposing for approval.

DATES: Written comments must be received on or before May 26, 2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2020-0159, at https://www.regulations.gov or via email to 
[email protected]. 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

[[Page 22701]]

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, [email protected]. 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 https://www.regulations.gov. 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: Elizabeth Layton, EPA Region 6 Office, 
Air Permits Section, 214-665-2136, [email protected]. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Region 6 office will be closed to the public to reduce the risk of 
transmitting COVID-19. We encourage the public to submit comments via 
https://www.regulations.gov, as there will be a delay in processing 
mail and no courier or hand deliveries will be accepted. 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(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 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. 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. Additionally, 40 CFR 51.160 through 
51.163 outline the federal requirements which apply to minor permit 
issuance, including the required administrative, public participation, 
and federally enforceable procedures.
    On January 30, 2020, the Texas Commission on Environmental Quality 
(TCEQ) submitted on behalf of the State of Texas, a letter \1\ 
requesting the parallel processing review of the January 29, 2020, 
proposed amendments to 30 TAC Section 116, Control of Air Pollution by 
Permits for New Construction or Modification, including proposed new 
Section 116.118, Construction While Permit Application Pending. Under 
the EPA's ``parallel processing'' procedure, the EPA proposes a 
rulemaking action on a proposed SIP revision concurrently with State's 
public review process. See 40 CFR 2.3 of Appendix V to part 51 for the 
requirements and procedure for parallel processing. The January 30, 
2020, SIP revision request will not meet all the SIP approvability 
criteria and deemed complete until the State concludes the public 
process and submits the final, adopted SIP revision with a letter from 
the Governor or Governor's designee to the EPA. The EPA is proposing to 
approve the January 29, 2020, proposed SIP revision upon completion of 
the State public process and final submittal to the EPA. If the State's 
proposed SIP revision is not significantly or substantively changed, 
the EPA will finalize the rulemaking on the SIP revision as proposed 
after responding to any relevant comments received on our rulemaking. 
Final rulemaking action by the EPA will occur only after the final SIP 
revision has been fully adopted by the TCEQ and submitted formally to 
the EPA for approval as a revision to the Texas SIP. See 40 CFR 
Appendix V to part 51.
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    \1\ Please see January 30, 2020, letter addressed to the 
Regional Administrator at the U.S. EPA, Region 6 requesting parallel 
processing from TCEQ included in the docket to this rulemaking 
action.
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    This action addresses the January 29, 2020, proposed revisions to 
the Texas SIP that amend the State's minor NSR permitting rules by 
proposing the addition of new 30 TAC Section 116.118, Construction 
While Permit Application Pending, which allows an applicant for a 
permit amendment to begin construction, at their own risk, after the 
executive director has completed a technical review and issued a draft 
permit for public review and comment. Historically, the permit 
applicant would not be able to begin construction until the final 
permit was issued. As specified in the new rule, the applicant assumes 
all risk when commencing construction under proposed new Section 
116.118, and the applicant's investment (financial or otherwise) in any 
construction activities commenced prior to final permit issuance is 
prohibited from being used by the permitting authority as a factor when 
making the determination to issue the applicant's requested amendment. 
The new, proposed section does not allow for any pre-permit 
construction prohibited by federal law.

II. The EPA's Evaluation

    On January 29, 2020, the TCEQ proposed revisions to the Texas SIP 
(Rule Project No. 2019-129-116-AI) which revise their rules that 
address the applicable requirements for air pollution control permits 
for new construction or modification under 30 TAC Chapter 116, Sections 
116.110, 116.116, 116.710, and 116.721; and the addition of proposed 
new Section 116.118. These proposed revisions were submitted to the EPA 
with a request for parallel processing on January 30, 2020. The 
proposed revisions to 30 TAC Chapter 116 were partly in response to the 
passage of House Bill (HB) 2726, 86th Texas Legislature, 2019. This 
legislation revised Texas Health and Safety Code (THSC), Section 
382.004, Construction While Permit Application Pending, to provide 
applicants for permit amendments the option to begin construction after 
the permitting authority has completed a technical review and issued 
the draft permit, but prior to final permit issuance.
    The proposed January 29, 2020, revisions amend the Texas SIP at 30 
TAC Subsections 116.110(a), 116.116(b), (e) and (f), 116.710(a), 
116.721(a), and include the addition of new Section 116.118, comprised 
of Subsections 116.118(a)(1)-(8), (b), and (c)(1)-(2). The proposed 
revisions to Subsections 116.110(a), 116.116(b), 116.710(a) and 
116.721(a) add a reference to proposed new Section 116.118 to include 
the option to begin construction when a draft permit is issued. The 
proposed revisions to Subsections 116.116(e)(2)(B), (D) and (E), and 
(8)(A) are non-substantive, grammatical edits such as grammatical 
number and case changes. The proposed revisions to Subsections 
116.116(e)(3), 116.116(f) and 116.721(d)(1) are also non-substantive, 
grammatical-type, editorial

[[Page 22702]]

changes intended to improve readability by replacing the word 
``notwithstanding'' with ``regardless of.''
    The language in Section 116.110 regarding change in ownership, 
submittal under seal of Texas licensed professional engineer and 
responsibility for permit application, originally approved at 
Subsections 116.110(d), (e) and (f), was part of a July 22, 1998, 
submittal and subsequently approved into the SIP on November 14, 2003 
(68 FR 64543). However, in a July 14, 2014, final action, regarding 
revisions to the Texas NSR SIP addressing the Texas Minor NSR Flexible 
Permits Program, the EPA made an error in our amendatory language 
pertaining to 30 TAC Section 116.110 by excluding Subsection 116.110(d) 
from the SIP (See 79 FR 40666). In the July 14, 2014, final rule, we 
note the SIP approved version of 30 TAC Section 116.110 is the July 22, 
1998, submission, which includes the aforementioned language at 
Subsections (d), (e), and (f). Additionally, in 2002, the State 
inserted new rule language at 116.110(c) regarding compliance history, 
which is not included in SIP, but required the re-lettering of the 
provisions listed above at Subsections 116.110(d), (e), and (f) to 
Subsections 116.110(e), (f), and (g), respectively. This re-lettering 
was adopted without changes by the State on August 23, 2002, but not 
yet submitted for SIP action. The TCEQ requested the EPA address this 
ministerial correction to the SIP and revise the table at 40 CFR 
52.2270(c) to accurately reflect the inclusion of these provisions in 
the SIP with their appropriate re-lettering in the January 30, 2020, 
letter requesting the parallel processing of this proposed rulemaking 
(letter is included in the docket for this proposed action).
    The addition of proposed new Section 116.118 allows an applicant to 
begin construction at their own risk after the executive director has 
completed the technical review process and issued a draft permit for 
public review and comment in the purpose provisions at Subsection 
116.118(a)(1). Subsections 116.118(a)(2)-(8) contain the proposed new 
section's applicability requirements and exclusions. Subsection 
116.118(a)(2) excludes concrete batch plants located within 880 yards 
of property being used as a residence, from being eligible for pre-
permit construction under Section116.118. The applicability 
requirements of the new, proposed section are bound by and only 
authorize construction to the extent permissible under federal law. 
Subsection 116.118(a)(3) specifies that projects subject to federal PSD 
or NNSR permitting are not eligible for pre-permit construction under 
Section 116.118. Subsections 116.118(a)(4) and 116.118(a)(5) specify 
that Plant-wide Applicability (PAL) permits and projects triggering 
case-by-case determination of Maximum Achievable Control Technology 
(MACT) under the federal CAA Section 112(g), respectively, are not 
eligible for pre-permit construction under proposed new Section 
116.118. Subsection 116.118(a)(6) excludes qualified facility changes 
implemented under Section 116.116(e) from the proposed pre-permit 
construction provisions at Section 116.118. Subsection 116.118(a)(7) 
specifies that requests, claims, registrations, or applications for a 
standard permit under 30 TAC Chapter 116 Subchapter F (Standard 
Permits) or permit by rule (PBR) under 30 TAC Chapter 106 (Permits by 
Rule) are not eligible for pre-permit construction under proposed 
Section 116.118. Subsection 116.118(a)(8) specifies that Section 
116.118 does not relieve or exempt the applicant or project from any 
other applicable state or federal requirements, including requirements 
for public notice and participation, federal applicability, emission 
control technology, and distance limitations. Compliance with the 
public notice requirements at 30 TAC Chapter 39 is required in 
Subsection 116.118(b) for any permit amendment applicant using the pre-
permit construction provisions in Section 116.118. Subsection 
116.118(c)(1) clarifies that although Section 116.118 allows for pre-
permit construction for eligible projects, operation of a facility is 
still strictly forbidden prior to final permit issuance. Subsection 
116.118(c)(2) prohibits the State's permitting authority (TCEQ) from 
considering investment (of any kind) made by the permit amendment 
applicant in pre-permit construction under Section 116.118 as a factor 
when making the determination to grant the permit amendment requested 
in the application.
    As discussed in detail above, new proposed Section 116.118 allows 
certain preconstruction activities prior to obtaining a final 
construction permit, provided that specific conditions are met. The EPA 
has preliminarily determined that proposed new Section 116.118, 
allowing for construction to commence after the issuance of the draft 
permit, but prior to final permit amendment issuance (under certain 
conditions), is consistent with the requirements of CAA sections 
110(a)(2)(C) and 110(l), and federal regulations at 40 CFR 51.160-
51.164, 51.165 and 51.166. Section 110(a)(2)(C) of the CAA requires 
that state SIPs include a program for regulating the construction and 
modification of stationary sources as necessary to ensure that the 
NAAQS are maintained. Federal regulations at 40 CFR 51.160(b) require 
states to have legally enforceable procedures to prevent the 
construction or modification of a source if it would violate any SIP 
control strategies or interfere with attainment or maintenance of the 
NAAQS. The proposed revisions to the Texas NSR permitting rules under 
proposed new Section 116.118 allow construction to commence only after 
the State has conducted a comprehensive technical review of the 
amendment application and issued a draft permit for public review and 
comment. The permit amendment application must satisfy all applicable 
requirements in the technical review process before the State issues 
the draft permit and preliminary decision. The State's technical 
analysis includes, but is not limited to, evaluating the emission 
sources, confirming the applicant included air pollution control 
measures, which are at least as stringent as best available control 
technology (BACT), verifying the proposed emissions will not jeopardize 
the NAAQS, and ensuring the application satisfies all state and federal 
regulatory requirements. Therefore, the issuance of the draft permit 
provides the State's demonstration that the permit amendment will not 
jeopardize attainment or violate the NAAQS, thereby satisfying the 
federal requirements located in sections 110(a)(2)(c) and 110(l) of the 
Act, and the federal enforceability, public notice, responsible agency 
identification, and administrative procedural requirements at 40 CFR 
51.160-51.163. The proposed Texas regulations also expressly forbid 
preconstruction activities that are not permissible under federal 
law.\2\ Further, other states' rules allowing for commencement of 
construction prior to final permit issuance where those rules applied 
exclusively to minor NSR have been approved by the EPA. These include 
the EPA's approval of analogous regulations into the Mississippi SIP on 
July 10, 2006, and the West Virginia SIP on October 5, 2018 (See 71 FR 
38773 and 83 FR 50266, respectively).
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    \2\ See 40 CFR 51.165(a)(1)(xv), 51.166(b)(11), and 
52.21(b)(11).
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    The TCEQ's existing NSR permitting rules for both minor and major 
sources are approved by the EPA into the SIP and the proposed revisions 
to the State's minor NSR permit rules are consistent with the 
requirements of the CAA and

[[Page 22703]]

EPA's regulations. When reviewing SIP submissions, the EPA's role is to 
approve state choices provided they meet the criteria of the CAA, and 
the applicable federal regulations pertaining to the specific submitted 
revision(s) being acted on. The EPA has reviewed the proposed changes 
to the Texas NSR regulations and preliminarily finds them to be 
consistent with CAA sections 110(a)(2)(C) and 110(l), and the EPA's NSR 
regulations located at 40 CFR 51.160-51.164.

III. Proposed Action

    The EPA has made the preliminary determination that the January 29, 
2020, regulations proposed for adoption by the TCEQ, and submitted to 
the EPA for parallel processing on January 30, 2020, as proposed 
revisions to the Texas SIP and the State's minor NSR permit rules, are 
in accordance with the CAA and the EPA's regulations, policy, and 
guidance for NSR permitting. The EPA's analysis indicates the proposed 
revisions to 30 TAC Section 116 satisfy the federal requirements for 
air pollution control permits and will not cause or contribute to an 
increase in the NAAQS; thus, will not interfere with attainment or 
reasonable further progress. Therefore, pursuant to section 110(l) of 
the CAA, the EPA proposes approval of the following revisions, proposed 
on January 29, 2020, and submitted by the TCEQ on January 30, 2020 with 
a request for parallel processing:
     Revisions to 30 TAC Section 116.110 (except for Sections 
116.110(a)(5), (c) and (d) that are not part of the Texas SIP);
     Revisions to 30 TAC Section 116.116;
     Addition of 30 TAC Section 116.118;
     Revisions to 30 TAC Section 116.710;
     Revisions to 30 TAC Section 116.721.

Additionally, the EPA proposes a ministerial change to 40 CFR 
52.2270(c) to clarify that 30 TAC Section 116.110 Subsections (d) 
change in ownership, (e) submittal under PE seal, and (f) 
responsibility for permit application were approved on November 14, 
2003, and include their appropriate re-lettering to 30 TAC Subsections 
116.110(e), (f), and (g), respectively, from the January 30, 2020, 
parallel processing request.
    The EPA is proposing this action in parallel with the state's 
rulemaking process. We cannot take a final action until the State 
completes its rulemaking process, adopts its final regulations, and 
submits these final adopted regulations as revisions to the Texas SIP. 
If during the response to comments process, the State rule is changed 
significantly from the proposed rule and the rule upon which the EPA 
proposed, the EPA may have to withdraw our initial proposed rule and 
re-propose based on the final SIP submittal.

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 (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: April 14, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-08156 Filed 4-22-20; 8:45 am]
 BILLING CODE 6560-50-P