[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59697-59699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21247]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0343; FRL-10200-01-R6]


Air Plan Approval; Texas; Clean Air Act Requirements for 
Nonattainment New Source Review

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 portions of the 
State Implementation Plan (SIP) revisions submitted to the EPA by the 
State of Texas (``the State'') for the 2008 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). The SIP revisions being approved 
describe how CAA requirements for Nonattainment New Source Review 
(NNSR) are met in the Dallas-Fort Worth (DFW) and Houston-Galveston-
Brazoria (HGB) serious ozone nonattainment areas.

DATES: This rule is effective on November 2, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID EPA-R06-OAR-2020-0343. 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: Ms. Carrie Paige, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6521, [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 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 March 
1, 2021, proposal (86 FR 11913). In that document we proposed to 
approve portions of two revisions to the Texas SIP submitted to the EPA 
on May 13, 2020, that describe how CAA requirements for enhanced 
vehicle inspection and maintenance (I/M) and NNSR are met in the DFW 
and HGB serious ozone nonattainment areas for the 2008 ozone NAAQS.
    Our March 2021 proposal provided a detailed description of the 
revisions and the rationale for the EPA's proposed actions, together 
with a discussion of the opportunity to comment. The public comment 
period for our March 2021 proposal action closed on March 31, 2021. We 
received comments during the public comment period from two sources: 
Earthjustice, on behalf of Achieving Community Tasks Successfully, 
Coalition of Community Organizations, Downwinders at Risk, Sierra Club, 
Texas Environmental Justice Advocacy Services, and itself, together 
with Caring for Pasadena Communities; and Air Law for All (ALFA), on 
behalf of the Center for Biological Diversity and the Center for 
Environmental Health.\1\ The comments received are available for review 
in the docket for this rulemaking. The EPA is not finalizing the 
proposed approval of revisions that address the CAA requirements for 
vehicle I/M at this time. Those revisions will be addressed in a 
separate rulemaking. Our responses to the comments addressing NNSR 
follow.
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    \1\ Henceforth, we refer to Earthjustice and ALFA as 
``commenters.''
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II. Response to Comments

    Comment: Commenters assert that the proposed rule relies on the 
provisions of the Texas Administrative Code which require new or 
modified major sources of ozone precursors in ozone nonattainment areas 
to procure emission offsets for their emission increases through the 
state's Emission Credit Banking and Trading program. According to the 
Commenters, these provisions authorize inter-precursor trading (IPT) of 
NOx and VOC emissions which was vacated by the United States Court of 
Appeals for the District of Columbia Circuit on January 29, 2021. The 
commenters also argued that EPA's approval of an inter-precursor trade 
is presumed unless the EPA disapproves the trade during its comment 
period, according to TCEQ guidance memorandum.
    Response: The commenter correctly points out that the D.C. Circuit 
(the court) vacated the portion of the EPA's NNSR regulation at 40 CFR 
51.165 that allows IPT to meet the offset requirements for ozone. 
Following the court's decision, the EPA notified the TCEQ in a letter 
dated June 17, 2021, that the EPA would no longer approve any IPT 
trades under the previously approved Texas SIP rules based on the court 
decision. In a response to the EPA dated June 25, 2021, the TCEQ 
confirmed that its NNSR IPT provisions cannot function without the 
EPA's prior approval of each trade, and that the TCEQ has not approved 
any IPT request in the past without prior approval from the EPA.\2\
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    \2\ The text of each letter is available in the docket to this 
action.
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    The TCEQ also confirmed that without the IPT provisions, its 
regulations continue to meet the NNSR program requirements at 40 CFR 
51.165. EPA agrees that, without the IPT provisions, the Texas SIP 
regulations meet the CAA's NNSR requirements. The EPA-approved Texas 
SIP already includes 30 TAC Section 116.12 (Nonattainment and 
Prevention of Significant Deterioration Review Definitions) and 30 TAC 
Section 116.150 (New Major Source or Major Modification in Ozone 
Nonattainment Area). Based on EPA's review of Texas SIP regulations for 
the NNSR program requirements for serious ozone nonattainment areas, we 
are approving this portion of the SIP revision.
    The EPA does not agree with the commenters that the EPA's approval 
of an IPT can be presumed under the Texas SIP unless the EPA 
disapproved the trade during the comment period. Texas has not 
submitted, and the EPA has not approved the State's guidance document, 
described by the commenters, as part of the Texas SIP. Nothing in the 
previously approved Texas regulations establishes a presumption of the 
EPA's approval of an IPT if the EPA does not communicate its 
disapproval during a relevant public notice and comment period.
    In addition, the EPA's commitment that it will not approve IPT for 
ozone because of the court's decision is sufficient to render the Texas 
IPT provisions inoperative for ozone. Texas has confirmed that IPT is 
not permitted under its regulation without prior EPA approval of a 
trade. Finally, we would work with Texas to get the inoperative IPT 
provisions removed in future SIP revisions.
    As stated in our proposal, NNSR permitting program requirements

[[Page 59698]]

specific to serious ozone nonattainment areas are reflected in CAA 
section 182 and further defined in 40 CFR part 51, subpart I (Review of 
New Sources and Modifications). The EPA and states may rely on 
previously approved SIP provisions to meet these NNSR requirements. One 
way that a state may do so is by providing a SIP revision certifying 
that the existing SIP requirements are sufficient to meet the 
requirements of the new classification, as Texas has done here. EPA has 
reviewed this submission and agrees that the existing provisions 
referenced in the Texas certification are sufficient to meet the NNSR 
requirements in 40 CFR 51.165.
    These comments did not result in changes to the EPA's proposed 
approval.

III. Final Action

    We are approving portions of the State Implementation Plan (SIP) 
revisions submitted to the EPA by the State of Texas for the 2008 8-
hour ozone NAAQS. Specifically, we are approving the portion of the SIP 
revision that describes how CAA requirements for NNSR are met in the 
DFW and HGB serious ozone nonattainment areas.

IV. 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.'' \3\ For this final 
action, the EPA conducted screening analyses using the EJScreen 
(Version 2.0) tool. We conducted the analyses for the purpose of 
providing information to the public, not as a basis of our final 
action. The EJScreen analysis reports are available in the public 
docket for this action. The EPA found, based on the EJScreen analyses, 
that this final action will not have disproportionately high or adverse 
human health or environmental effects on communities with EJ concerns, 
as the changes to NNSR will result in an assurance that the applicable 
Texas NNSR requirements for the various ozone nonattainment 
classifications meet the CAA requirements.
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    \3\ https://www.epa.gov//environmentaljustice/learn-about-environmental-justice.
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V. 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. 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 December 2, 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Volatile organic compounds.

    Dated: September 26, 2022.
Earthea Nance,
Regional Administrator, Region 6.
    For the reasons stated in the preamble, the Environmental 
Protection

[[Page 59699]]

Agency 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, paragraph (e), the second table titled ``EPA 
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the 
Texas SIP'' is amended by adding an entry at the end of the table for 
``Nonattainment New Source Review for the 2008 Ozone NAAQS'' 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
      Name of SIP provision          geographic or     State submittal/    EPA approval date       Comments
                                  nonattainment area    effective date
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                                                  * * * * * * *
Nonattainment New Source Review   Dallas-Fort Worth   May 13, 2020......  October 3, 2022     For the Serious
 for the 2008 Ozone NAAQS.         and Houston-                            [Insert Federal     classification.
                                   Galveston-                              Register
                                   Brazoria                                citation].
                                   nonattainment
                                   areas.
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[FR Doc. 2022-21247 Filed 9-30-22; 8:45 am]
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