[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Rules and Regulations]
[Pages 26680-26684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09195]



40 CFR Part 62

[EPA-R06-OAR-2021-0517; FRL-8798-02-R6]

Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Texas; Control of Emissions From 
Existing Other Solid Waste Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving the CAA section 
111(d)/129 state plan submitted by the State of Texas for sources 
subject to the Other Solid Waste Incineration Units (OSWI) Emission 
Guidelines (EG). The Texas OSWI plan was submitted to fulfill State 
obligations under CAA section 111(d)/129 to implement and enforce the 
requirements under the OSWI EG. The EPA is approving the state plan in 
part and amending the agency regulations in accordance with the 
requirements of the CAA.

DATES: This rule is effective on June 6, 2022. The incorporation by 
reference of certain material listed in the rule is approved by the 
Director of the Federal Register June 6, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket No. EPA-R06-OAR-2021-0517. 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 electronically through https://www.regulations.gov.

Office, Air and Radiation Division--State Planning and Implementation 
Branch, 1201 Elm Street, Suite 500, Dallas, TX 75270, (214) 665-7346, 
[email protected]. Out of an abundance of caution for members 
of the public and our staff, the EPA Region 6 office may be closed to 
the public to reduce the risk of transmitting COVID-19. Please call or 
email the contact listed above if you need alternative

[[Page 26681]]

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 August 
19, 2021, proposal (86 FR 46639) and accompanying Technical Support 
Document (TSD). In that action, we proposed to partially approve the 
Texas OSWI plan submitted by the Texas Commission on Environmental 
Quality (TCEQ) and amend 40 CFR part 62 in accordance with the 
requirements under sections 111(d) and 129 of the CAA. We proposed to 
find that the Texas OSWI plan, with the exception of 30 TAC section 
113.2313(3), is at least as protective as the Federal requirements 
provided under the OSWI EG, codified at 40 CFR part 60, subpart FFFF. 
We received one comment from the TCEQ in support of EPA's proposed 
partial approval of the Texas CAA section 111(d) OSWI state plan. No 
adverse comment was received on the August 19, 2021, proposal.

II. Final Action

    In this final action, the EPA is amending 40 CFR part 62, subpart 
SS, to reflect approval of the Texas OSWI Plan from TCEQ, received on 
May 18, 2009, with the exception of 30 TAC section 113.2313(3), in 
accordance with sections 111(d) and 129 of the CAA.

III. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' \1\ EPA is providing 
additional analysis of environmental justice associated with this 
action. We are doing so for the purpose of providing information to the 
public, not as a basis of our final action.

    \1\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.

    EPA conducted screening analyses using EJSCREEN, an environmental 
justice mapping and screening tool that provides EPA with a nationally 
consistent dataset and approach for combining various environmental and 
demographic indicators.\2\ The EJSCREEN tool presents these indicators 
at a Census block group (CBG) level or a larger user-specified 
``buffer'' area that covers multiple CBGs.\3\ An individual CBG is a 
cluster of contiguous blocks within the same census tract and generally 
contains between 600 and 3,000 people. EJSCREEN is not a tool for 
performing in-depth risk analysis, but is instead a screening tool that 
provides an initial representation of indicators related to 
environmental justice and is subject to uncertainty in some underlying 
data (e.g., some environmental indicators are based on monitoring data 
which are not uniformly available; others are based on self-reported 
data).\4\ To help mitigate this uncertainty, we have summarized 
EJSCREEN data within larger ``buffer'' areas covering multiple block 
groups and representing the average resident within the buffer areas 
surrounding the incinerators. We present EJSCREEN environmental 
indicators to help screen for locations where residents may experience 
a higher overall pollution burden than would be expected for a block 
group with the same total population. These indicators of overall 
pollution burden include estimates of ambient particulate matter 
(PM2.5) and ozone concentration, a score for traffic 
proximity and volume, percentage of pre-1960 housing units (lead paint 
indicator), and scores for proximity to Superfund sites, risk 
management plan (RMP) sites, and hazardous waste facilities.\5\ 
EJSCREEN also provides information on demographic indicators, including 
percent low-income, communities of color, linguistic isolation, and 
less than high school education. The EPA prepared EJSCREEN reports 
covering buffer areas of approximately 3-mile radii (or 6-mile radii 
for low-density populations/heavily industrialized areas) around the 
existing OSWI in Texas.\6\ Table 1 presents a summary of results from 
the EPA's screening-level analysis for the areas surrounding each OSWI 
compared to the U.S. as a whole (the detailed EJSCREEN reports are 
provided in the docket for this rulemaking).

    \2\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
    \3\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
    \4\ In addition, EJSCREEN relies on the five-year block group 
estimates from the U.S. Census American Community Survey. The 
advantage of using five-year over single-year estimates is increased 
statistical reliability of the data (i.e., lower sampling error), 
particularly for small geographic areas and population groups. For 
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \5\ For additional information on environmental indicators and 
proximity scores in EJSCREEN, see ``EJSCREEN Environmental Justice 
Mapping and Screening Tool: EJSCREEN Technical Documentation,'' 
Chapter 3 and Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.
    \6\ The existing OSWI are located in Harris, Bowie, Dallas, El 
Paso, Jefferson, and Andrews Counties in Texas.

                                                                     Table 1--Existing Texas OSWI EJSCREEN Analysis Summary
                                                               Values for Buffer Areas (radius) for each OSWI and the U.S. (percentile within U.S. where indicated)
                                                                                                                                           Veolia ES
            Variables              Baylor College of  Clean Harbors Deer    Red River Army       University of       U.S. Army Air         Technical         Waste Control
                                   Medicine (Harris,  Park LP (Harris, 6    Depot (Bowie, 3   Texas Southwestern   Defense Artillery     Solutions LLC     Specialists Inc.          U.S.
                                       3 miles)             miles)              miles)         (Dallas, 3 miles)  (El Paso, 3 miles)     Jefferson, 6     (Andrews, 6 miles)
Pollution Burden Indicators:
    Particulate matter (PM2.5),   10.5 [micro]g/m\3\  9.99 [micro]g/m\3\  9.56 [micro]g/m\3\  9.85 [micro]g/m\3\  7.7 [micro]g/m\3\   9.95 [micro]g/m\3\  7.4 [micro]g/m\3\   8.74 [micro]g/m\3\
     annual average.               (89th %ile).        (83rd %ile).        (76th %ile).        (81st %ile).        (25th %ile).        (83rd %ile).        (19th %ile).        (--).
    Ozone, summer seasonal        34.6 ppb (10th      35.2 ppb (12th      41 ppb (38th %ile)  44.6 ppb (71st      54.1 ppb (90th      34.3 ppb (9th       54.8 ppb (91st      42.6 ppb (--).
     average of daily 8-hour max.  %ile).              %ile).                                  %ile).              %ile).              %ile).              %ile).

[[Page 26682]]

    Traffic proximity and volume  2,200 (92nd %ile).  480 (67th %ile)...  210 (49th %ile)...  1,800 (90th %ile).  1,500 (88th %ile).  77 (29th %ile)....  0.079 (0th %ile)..  710 (--).
     score *.
    Lead paint (percentage pre-   0.25% (59th %ile).  0.19% (52nd %ile).  0.16% (48th %ile).  0.21% (54th %ile).  0.57% (81st %ile).  0.28% (61st %ile).  0.41% (72nd %ile).  0.28% (--).
     1960 housing).
    Superfund proximity score *.  0.27 (90th %ile)..  0.19 (85th %ile)..  0.18 (83rd %ile)..  0.21 (86th %ile)..  0.015 (12th %ile).  0.065 (51st %ile).  0.015 (11th %ile).  0.13 (--).
    RMP proximity score *.......  1.2 (81st %ile)...  6.7 (99th %ile)...  0.5 (59th %ile)...  1.7 (87th %ile)...  1.4 (83rd %ile)...  1.1 (77th %ile)...  0.56 (62nd %ile)..  0.75 (--).
    Hazardous waste proximity     5 (88th %ile).....  5.4 (89th %ile)...  1.1 (58th %ile)...  2.6 (76th %ile)...  0.49 (43rd %ile)..  0.31 (37th %ile)..  0.1 (17th %ile)...  2.2 (--).
     score *.
Demographic Indicators:
    People of color population..  52% (67th %ile)...  65% (75th %ile)...  20% (36th %ile)...  47% (63rd %ile)...  85% (86th %ile)...  39% (57th %ile)...  53% (67th %ile)...  40% (--).
    Low-income population.......  26% (46th %ile)...  36% (63rd %ile)...  40% (68th %ile)...  29% (51st %ile)...  57% (87th %ile)...  33% (59th %ile)...  30% (53rd %ile)...  31% (--).
    Linguistically isolated       4% (67th %ile)....  9% (82nd %ile)....  1% (50th %ile)....  5% (70th %ile)....  25% (95th %ile)...  1% (52nd %ile)....  4% (68th %ile)....  5% (--).
    Population with less than     5% (29th %ile)....  23% (84th %ile)...  13% (64th %ile)...  13% (65th %ile)...  29% (90th %ile)...  14% (68th %ile)...  25% (86th %ile)...  12% (--).
     high school education.
    Population under 5 years of   5% (46th %ile)....  8% (70th %ile)....  5% (43rd %ile)....  4% (35th %ile)....  7% (67th %ile)....  9% (78th %ile)....  5% (43rd %ile)....  6%.
    Population over 64 years of   11% (35th %ile)...  11% (31st %ile)...  19% (70th %ile)...  11% (31st %ile)...  15% (53rd %ile)...  17% (63rd %ile)...  13% (45th %ile)...  16% (--).
* The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund proximity, RMP proximity, and hazardous waste
  proximity indicators are all scores calculated by site or facility counts divided by distance in kilometers.

    This final rule approves Texas's OSWI Plan, received on May 18, 
2009, with the exception of 30 TAC section 113.2313(3), in accordance 
with sections 111(d) and 129 of the CAA. The Texas OSWI Plan 
incorporates Federal requirements for OSWI, as specified in the OSWI EG 
at 40 CFR part 60, subpart FFFF. These requirements incorporated by 
Texas resulted in significant emissions reductions for OSWI, as 
described in the Federal Registers for the OSWI rules (69 FR 71472; 70 
FR 74870). These requirements result in emission reductions for nine 
specified pollutants: particulate matter (PM), sulfur dioxide 
(SO2), hydrogen chloride (HCl), nitrogen oxides 
(NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd), 
mercury (Hg), and dioxins/furans, and they additionally provide for 
opacity limits. Some of these pollutants have also been linked to 
serious health problems. Short- and/or long-term exposure to air 
pollution has been associated with a wide range of human health effects 
including increased respiratory symptoms, hospitalization for heart or 
lung diseases, and even premature death. Hazardous (or toxic) air 
pollutants may cause cancer or other serious health effects, such as 
reproductive effects or birth defects.7 8 Therefore, we 
believe that these requirements for existing OSWI and resulting 
emissions reductions have contributed to reduced environmental and 
health impacts on all populations impacted by emissions from these 
sources in Texas, including people of color and low-income populations. 
This final rule is not anticipated to have disproportionately high or 
adverse human health or environmental effects on communities with 
environmental justice concerns because it is not anticipated to result 
in or contribute to emissions increases in Texas. EPA approval of the 
Texas OSWI Plan makes the Plan and the corresponding OSWI EG 
requirements incorporated into the Plan federally enforceable by EPA as 
of the effective date of this final rulemaking.

    \7\ See https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what.
    \8\ See https://www.epa.gov/sites/default/files/2016-01/documents/oswi_factsheet11_30_05.pdf.

IV. Incorporation by Reference

    In accordance with the requirements of 1 CFR 51.5, we are 
finalizing regulatory text that includes the incorporation by reference 
of 30 TAC sections 113.2300 through 113.2357, excluding section 
113.2313(3), adopted April 28, 2009, which is part of the CAA section 
111(d)/129 Plan applicable to existing incinerators subject to the OSWI 
Emission Guidelines, at 40 CFR part 60, subpart FFFF, within TCEQ's 
jurisdiction in the State of Texas. The regulatory provisions of 30 TAC 
sections 113.2300-113.2313(2) and sections 113.2314-113.2357 
incorporate the OSWI Emissions Guidelines promulgated by the EPA at 40 
CFR part 60, subpart FFFF, and establish emission standards and 
compliance times for the control of other solid waste incinerators 
certain air curtain incinerators, as defined in subpart FFFF that 
commenced construction, modification, or reconstruction on or before 
December 9, 2004. The EPA has made and will continue to make 30 TAC 
sections 113.2300-113.2313(2) and sections 113.2314-113.2357 generally 
available electronically through www.regulations.gov, Docket No. EPA-
R06-OAR-2021-0517 and in hard copy at the EPA Region 6 office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). This incorporation by 
reference has been approved by the Office of thE Federal Register and 
the Plan is federally enforceable under the CAA as of the effective 
date of this final rulemaking.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a CAA 
section 111(d)/129 submission that complies with the provisions of the 
Act and

[[Page 26683]]

applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 
CFR part 60, subparts B and FFFF; and 40 CFR part 62, subpart A. Thus, 
in reviewing CAA section 111(d)/129 state plan submissions, EPA's role 
is to approve state choices, provided that they meet the criteria of 
the Act and implementing regulations. 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, 
     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 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 CAA section 111(d) Plans are not approved to apply 
in Indian country, as defined at 18 U.S.C. 1151, located in the state. 
As such, this rule does not have tribal implications, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), and it will not 
impose substantial direct costs on tribal governments or preempt tribal 
    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 rule 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. 
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 5, 2022. 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 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements, Waste treatment 
and disposal.

    Dated: April 25, 2022.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 62 as follows:


1. The authority citation for part 62 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart SS--Texas

2. Amend Sec.  62.10850 by adding paragraphs (b)(5) and (c)(5) to read 
as follows:

Sec.  62.10850   Identification of Plan.

* * * * *
    (b) * * *
    (5) Control of air emissions from incinerators subject to the Other 
Solid Waste Incineration units Emission Guidelines, as adopted by the 
Texas Commission on Environmental Quality (TCEQ) and submitted by the 
Governor in a letter dated May 18, 2009.
    (c) * * *
    (5) Other solid waste incinerators and certain air curtain 
incinerators as defined in the Other Solid Waste Incineration units 
Emission Guidelines at 40 CFR part 60, subpart FFFF.

3. Add an undesignated center heading and Sec.  62.10900 to read as 

Emissions From Existing Other Solid Waste Incineration Units

Sec.  62.10900   Identification of plan.

    (a) Identification of sources. The plan submitted by the Texas 
Commission on Environmental Quality (TCEQ) on May 18, 2009, applies to 
existing incinerators subject to the Other Solid Waste Incineration 
units (OSWI) Emission Guidelines, at 40 CFR part 60, subpart FFFF, 
within TCEQ's jurisdiction in the State of Texas.
    (b) Effective date. The effective date of the plan is June 6, 2022.
    (c) Incorporation by reference. (1) The material incorporated by 
reference in this section was approved by the Director of the Federal 
Register Office in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
Copies of the material may be inspected or obtained from the EPA Region 
6 office, 1201 Elm Street, Suite 500, Dallas, Texas 75270, 214-665-
2200. Copies may be inspected at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to: 
    (2) State of Texas, Office of the Secretary of State, Texas 
Register, P.O. Box 12887, Austin, Texas 78711, (512) 463-5561, 
[email protected], https://www.sos.texas.gov/tac/index.shtml.
    (i) 30 TAC sections 113.2300-113.2313(2) and sections 113.2314 
through 113.2357, excluding section 113.2313(3). Texas Administrative 
Code Title 30, Chapter 113: Standards of Performance for Hazardous Air 
Pollutants and for Designated Facilities and Pollutants, Subchapter D: 
Designated Facilities and Pollutants, Divison 5: Emission Guidelines 
and Compliance Times for Other Solid Waste Incineration Units That

[[Page 26684]]

Commenced Construction On or Before December 9, 2004, adopted April 28, 
    (ii) [Reserved]

[FR Doc. 2022-09195 Filed 5-4-22; 8:45 am]