[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Rules and Regulations]
[Pages 50456-50459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19156]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0166; FRL-8893-02-R6]


Air Plan Approval; Texas; Clean Air Act Requirements for 
Nonattainment New Source Review and Emission Statements for the 2015 
Ozone National Ambient Air Quality Standards

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 
Environmental Protection Agency (EPA) is approving the portions of a 
State Implementation Plan (SIP) revision submitted by the State of 
Texas that describes how CAA requirements for Nonattainment New Source 
Review (NNSR) and emission statements are met in the Dallas-Fort Worth 
(DFW), Houston-Galveston-Brazoria (HGB), and Bexar County ozone 
nonattainment areas for the 2015 Ozone National Ambient Air Quality 
Standards (NAAQS).

DATES: This rule is effective on October 12, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2020-0166. 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. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert Todd, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-2156, [email protected]. 
The EPA Region 6 office is closed to the public to reduce the risk of 
transmitting COVID-19. 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 ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our 
February 11, 2021 proposal (86 FR 9041). In that document we proposed 
to approve portions of a SIP revision submitted by the State of Texas 
on June 24, 2020, that describes how CAA requirements for NNSR and 
emission statements are met in the DFW, HGB, and Bexar County ozone 
nonattainment areas for the 2015 ozone NAAQS.
    We received comments on our proposal, from several commenters. Our 
responses to the comments follow.

II. Response to Comments

    Comment: Two commenters pointed out that the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) vacated 
portions of the 2018 rule implementing the 2015 Ozone NAAQS that 
allowed inter-precursor trading of pollutants.\1\ One commenter stated 
that according to a Texas Commission on Environmental Quality (TCEQ) 
guidance document, EPA's approval of inter-precursor trade (IPT) is 
presumed unless EPA disapproves the trade during the public comment 
period. The commenter also stated that EPA cannot rely on previous 
approvals of the State's NNSR program to meet current requirements.
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    \1\ Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021).
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    Response: While the D.C. Circuit has rendered a judgment vacating 
the portion of EPA's NNSR EPA regulation that allows inter-precursor 
trading to meet the offset requirements for ozone, the ozone inter-
precursor trading component in the Texas NNSR program regulations is no 
longer operative for ozone and thus does not preclude approval of this 
SIP revision that otherwise satisfies NNSR requirements. The court held 
that the IPT provision for ozone in EPA's NNSR regulation was contrary 
to the CAA because ``[t]he plain language in the statute . . . requires 
that increased [volatile organic compound] VOC emissions be offset with 
reductions in VOC, and the same is true for ozone in most 
circumstances.''\2\ Following the court's decision, EPA notified TCEQ 
in a letter dated June 17, 2021, that the EPA can no longer approve any 
IPT requests for ozone under procedures in the Texas SIP rules that 
require that TCEQ submit such trades to EPA for approval. In a response 
to EPA dated June 25, 2021, TCEQ confirmed that its NNSR inter-
precursor trading provisions cannot function without EPA's approval of 
trades, and the State has not approved any IPT requests for ozone 
without the prior approval of EPA.\3\ In its June 25,

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2021, letter, TCEQ also stated that its regulations otherwise continue 
to meet the NNSR program requirements in EPA's regulations at 40 CFR 
51.1565 without the operation of the IPT provisions for ozone. EPA 
agrees with that assessment, as the NNSR offset requirement for ozone 
may be satisfied under the Texas regulations with offsets for each 
individual ozone precursor, without trading NOX for VOC or 
vice-versa. Since the IPT portion of the Texas regulations is no longer 
operative for ozone precursors, these provisions do not preclude EPA 
from approving the Texas NNSR program regulations that otherwise meet 
the SIP requirements for marginal nonattainment areas under the 2015 
ozone NAAQS. EPA's approval finalized via this action does not include 
TCEQ's IPT provisions for ozone.
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    \2\ Sierra Club, 985 F.3d at 1060-61.
    \3\ The text of each letter is available in the docket to this 
action.
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    EPA does not agree with the commenter that EPA's approval of an 
inter-precursor trade would be presumed under the Texas SIP unless EPA 
disapproved the trade during the comment period. EPA's previous 
approval of certain SIP provisions related to IPTs included only Texas 
regulations on that subject. EPA did not at any time approve the state 
guidance document described by the commenter as part of the federally 
approved SIP. Nothing in the previously-approved regulations 
establishes a presumption of EPA approval of an inter-precursor trade 
if EPA does not communicate its disapproval during a relevant public 
notice and comment period. EPA's inability to approve IPT trades for 
ozone because of the court decision is sufficient to render the Texas 
IPT provisions inoperative for ozone.
    As stated in our proposal, NNSR permitting program requirements 
specific to marginal ozone nonattainment areas are reflected in section 
182(a)(2)(C), and further defined in 40 CFR part 51, subpart I. EPA and 
states may rely on previously approved SIP provisions to meet these 
NNSR requirements, so long as the State provides a SIP revision 
certifying that the existing SIP requirements are sufficient to meet 
the requirements of the new classification as is being done here. As 
stated in our proposal, a more stringent NNSR requirement than the 
marginal requirements under the 2015 standard currently applies in the 
DFW and HGB areas as both areas are classified serious nonattainment 
for the 2008 ozone standard.
    Comment: One commenter believes that the State and EPA did not 
adequately take climate change into consideration when forming air 
quality standards and the future effects of increased average 
temperatures on ozone concentrations.
    Response: We appreciate the commenter's concern and attention to 
climate change. However, the climate change related issues raised by 
the commenter are beyond the scope of our current action which is 
limited to whether the State's emission statement provisions and 
nonattainment new source review program, currently in their SIP, meet 
the requirements set out by the CAA and associated EPA regulations. 
This action does not set, revise, or form any air quality standards. We 
refer the commenter to Executive Order 14008 of January 27, 2021, and 
EPA's web page on climate change. (See https://www.epa.gov/climate-change).
    Comment: One commenter stated that EPA's 2015 Ozone NAAQS is 
significantly higher than the World Health Organization's 
recommendation of 50 parts per billion.
    Response: We appreciate the commenter's concerns related to ozone 
pollution. However, the level of the NAAQS is beyond the scope of our 
current action. EPA follows a separate and specific CAA process to set 
and review the NAAQS, including ozone. See 80 FR 65292 (Oct. 26, 2015) 
as well as CAA sections 108 and 109. That process is beyond the scope 
of our current action. We refer the commenter to the EPA's ozone air 
quality standards web page for more information. (See https://www.epa.gov/ground-level-ozone-pollution).
    Comment: One commenter stated that the City of San Antonio is not 
adequately funding its pollution control plan.
    Response: We appreciate the commenter's concerns over funding and 
implementation of air programs. Although somewhat unclear, EPA is 
reading the comment in regard to the adequacy of funding for local, 
voluntary pollution control programs as opposed to the State's ability 
to carry out the SIP. As such, this comment is beyond the scope of this 
action.
    Comment: Two commenters expressed concerns over consumer use of 
fragrant laundry related products. One commenter asked to eliminate 
dryer sheets and chemically scented laundry detergents because such 
products contain harmful chemicals that are contributing to the 
depletion of ozone. Another commenter stated that consumer use of 
fragrant laundry products, such as dryer sheets, other laundry 
chemicals, and personal care products affect air quality and suggested 
that the EPA should hold the manufacturers of these products 
accountable. Further, the commenter stated that residential use of such 
laundry products by a larger sector of residential dwellings is not a 
small source of VOC emissions. The commenter stated that these are a 
source of chemical irritants and that consumers should switch to more 
environmentally friendly products. Lastly, the commenter asked EPA to 
implement restrictions at the consumer level, if it had authority to do 
so.
    Response: We appreciate the concerns raised by these commenters. 
However, such concerns are beyond the scope of this action. This action 
only pertains to CAA NNSR and emissions statement requirements for 
facilities in the DFW, HGB, and Bexar County ozone nonattainment areas 
for the 2015 Ozone NAAQS. As stated in our proposal, the NNSR program 
applies to the construction of new major sources or major modifications 
of existing sources of NOX or VOC in an area that is 
designated nonattainment for the ozone NAAQS. The NNSR requirements for 
Marginal ozone nonattainment areas apply to facilities with the 
potential to emit 100 tons per year of NOX or VOC. The 
emissions statement requirement applies to the State in regard to 
certain stationary sources of NOX and/or VOC emissions. CAA 
section 182(a)(3)(B). States may choose to inventory emissions from 
``any class or category of stationary sources which emit less than 25 
tons per year of'' VOC and/or NOX via use of emission 
factors provided by EPA and compiled and reported for the National 
Emissions Inventory (NEI) every three years. Id. The last NEI was 
produced for the year 2017. Further, it is beyond the scope of this 
action to implement restrictions on consumer products.
    Comment: One commenter stated that Texas is emitting significantly 
more carbon dioxide (CO2) per capita than New York and 
implied this is not appropriate. The commenter also raised questions 
concerning the impact of our action on the State's economy and 
automotive industry in particular.
    Response: We appreciate the commenter's concern and attention to 
CO2 emissions and economic impact of regulatory actions. 
However, CO2 related issues, including the economic impact 
of CO2 regulation on the automotive industry, are beyond the 
scope of our current action explained above. The NNSR and emission 
statement rules requirements are implemented for the control of ozone 
and apply to NOX and VOCs as these pollutants are precursors 
to ozone formation. These Clean Air Act requirements do not apply to 
CO2 emissions. We refer the commenter to

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Executive Order 14008 of January 27, 2021, and EPA's web page on 
climate change. (See https://www.epa.gov/climate-change).

III. Final Action

    We are approving portions of a SIP revision submitted by the State 
of Texas on June 24, 2020, that describes how CAA requirements for 
NNSR, and emission statements are met in the DFW, HGB, and Bexar County 
ozone nonattainment areas for the 2015 ozone NAAQS.

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);
     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 8, 2021. 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: August 31, 2021.
David Gray,
Acting Regional Administrator, Region 6.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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(e), the second table titled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding the entry ``Nonattainment New Source Review 
and Emission Statement Requirements for the 2015 Ozone NAAQS'' at the 
end of the table to read 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
                                 geographic or     State submittal/ effective      EPA approval
    Name of SIP provision        nonattainment                date                     date          Comments
                                     area
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                                                  * * * * * * *
Nonattainment New Source       Dallas-Fort       June 24, 2020.................  September 9,     ..............
 Review and Emission            Worth, Houston                                    2021, [Insert
 Statement Requirements for     Galveston-                                        Federal
 the 2015 Ozone NAAQS.          Brazoria, and                                     Register
                                Bexar County                                      citation].
                                Ozone
                                Nonattainment
                                Areas.
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[FR Doc. 2021-19156 Filed 9-8-21; 8:45 am]
BILLING CODE 6560-50-P