[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Proposed Rules]
[Pages 13752-13755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04488]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0480; FRL-10676-01-R6]


Air Plan Approval; Texas; New Source Review Updates for Project 
Emissions Accounting

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 portions 
of a revision to the Texas State Implementation Plan (SIP) submitted by 
the Texas Commission on Environmental Quality (TCEQ) on July 9, 2021. 
The revision includes updates to the Texas Prevention of Significant 
Deterioration (PSD) and Nonattainment New Source Review (NNSR) 
permitting programs to incorporate recent Federal New Source Review 
(NSR) regulations for Project Emissions Accounting (PEA).

DATES: Written comments must be received on or before April 5, 2023.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0480, 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 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 Adina Wiley, (214) 665-
2115, [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 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: Adina Wiley, EPA Region 6 Office, Air 
Permits Section (ARPE), 214-665-2115, [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. We encourage the public to submit comments via 
https://www.regulations.gov. 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.

[[Page 13753]]

I. Background

    Section 110 of the Act requires states to develop air pollution 
regulations and control strategies to ensure that air quality meets the 
EPA's National Ambient Air Quality Standards (NAAQS). These ambient 
standards are established under section 109 of the Act and they 
currently address six criteria pollutants: Carbon monoxide, nitrogen 
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The 
state's air regulations are contained in its SIP, which is basically a 
clean air plan. Each state is responsible for developing SIPs to 
demonstrate how the NAAQS will be achieved, maintained, and enforced. 
The SIP must be submitted to the EPA for approval, and any changes a 
state makes to the approved SIP also must be submitted to the EPA for 
approval.
    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 through 51.164. 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. 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. As the EPA 
updates its implementing rules for NSR, states and localities similarly 
are required to update their SIP-approved rules to ensure consistency 
with the minimum Federal NSR permitting requirements.
    On November 24, 2020, the EPA promulgated final revisions to the 
applicability regulations of the major NSR permit programs. A two-step 
applicability test is used in the PSD and NNSR programs to determine 
whether a proposed project will be subject to major NSR requirements. 
In Step 1 of the analysis, the applicant determines if the proposed 
project would result in a significant emissions increase of a regulated 
NSR pollutant. If there is a significant emissions increase, the 
applicant proceeds to Step 2 and determines if there is a significant 
net emissions increase. In the November 24, 2020, final rule, the EPA 
clarified that emissions increases and decreases associated with the 
proposed project could be used in Step 1 of the applicability test; 
this is known as project emissions accounting (PEA). The clarifications 
made to the PSD and NNSR programs are not required elements of the 
Federal program. States with SIP-approved PSD and NNSR programs that 
want to use PEA in PSD and NNSR applicability tests must either 
determine that the state is able to interpret the existing state rules 
such that PEA is already allowed, or the state must adopt and submit a 
revision to the SIP that is consistent with the PEA revisions.
    On July 9, 2021, the TCEQ submitted revisions to the Texas SIP that 
update the Texas PSD and NNSR programs to allow for PEA consistent with 
the EPA's November 24, 2020, final rule at 85 FR 74890. The July 9, 
2021, submittal also included the repeal of obsolete provisions from 
the Texas permitting program.

II. The EPA's Evaluation

    The accompanying Technical Support Document for this action 
includes a detailed analysis of the submitted revisions to the Texas 
SIP which are the subject of this proposed rulemaking. Our analysis 
indicates that the July 9, 2021, SIP revision was developed in 
accordance with the CAA and the State provided reasonable notice and 
public hearing.

A. Evaluation of Revisions to 30 TAC Section 116.12--Nonattainment and 
Prevention of Significant Deterioration Review Definitions

    The TCEQ submitted revisions to the definition of ``Project 
emissions increase'' at 30 TAC Section 116.12(32) to implement the PEA. 
The revisions are consistent with the EPA's November 24, 2020, final 
rule at 85 FR 74890. As stated above, the EPA's implementing 
regulations for NSR establish a two-step process for determining major 
NSR applicability for projects at stationary sources. Under Step 1 of 
the applicability determination, the project itself is analyzed to 
determine if there is a significant emissions increase of the project. 
In our November 24, 2020, final rule the EPA clarified that this Step 1 
analysis may consider the increases and decreases associated with the 
project. If the Step 1 analysis determines there is a significant 
emissions increase, then the applicant proceeds to Step 2 of the 
applicability determination whereby the applicant must perform 
contemporaneous netting and account for the project emission increases 
and the emission increases and decreases attributable to other projects 
at the stationary source within the contemporaneous window to determine 
if there is a significant net emissions increase. The effect of the 
revisions to the Texas definition is that for purposes of determining 
whether a source or modification is major for PSD or NNSR permitting, 
the Step 1 analysis of the project itself will include increases and 
decreases associated with the project to determine if the project 
results in a ``significant emissions increase'', as required under 30 
TAC Section 116.12(32)(D). If there is an increase, the second step of 
the applicability process is to determine if there is a ``significant 
net emissions increase''. Step 2 of the applicability determination is 
unchanged by the submitted SIP revision.

B. Evaluation of Revisions to 30 TAC Section 116.150--New Major Source 
or Major Modification in Ozone Nonattainment Areas

    The submitted revisions to 30 TAC Section 116.150(c)(1) and (c)(2) 
are necessary to maintain consistency with the EPA's final rule on 
November 24, 2020, to show that project emissions increase will include 
project related increases and decreases. These revisions work in 
connection with the revised definition of ``project emissions 
increase'' at 30 TAC Section 116.12(32). The TCEQ also submitted non-
substantive edits to 30 TAC Section 116.150(a), (b), and (c) to correct 
non-substantive, grammar-related provisions.

C. Evaluation of Revisions to 30 TAC Section 116.151--New Major Source 
or Major Modification in Nonattainment Area Other Than Ozone

    The submitted revisions to 30 TAC Section 116.151(b) are necessary 
to maintain consistency with the EPA's final rule on November 24, 2020, 
to show that project emissions increase will include project related 
increases and decreases. These revisions work in connection with the 
revised definition of ``project emissions increase'' at 30 TAC Section 
116.12(32).

D. Evaluation of Revisions to 30 TAC Section 116.160--Prevention of 
Significant Deterioration

    The submitted revisions to 30 TAC Section 116.160(b)(1) and (b)(2) 
are

[[Page 13754]]

necessary to maintain consistency with the EPA's final rule on November 
24, 2020, to show that project emissions increase will include project 
related increases and decreases. These revisions work in connection 
with the revised definition of ``project emissions increase'' at 30 TAC 
Section 116.12(32).

III. Proposed Action

    Pursuant to section 110 of the Act, we are proposing to approve the 
submitted revisions to the Texas SIP that update the PSD and NNSR 
permitting requirements to maintain consistency with the Federal NSR 
program requirements by adopting the provisions for PEA and repeal 
obsolete requirements. Our analysis found that the submitted revisions 
are consistent with the CAA and the EPA's regulations, policy and 
guidance for permitting SIP requirements. The EPA is proposing approval 
of the following revisions adopted on June 9, 2021, effective on July 
1, 2021, submitted to the EPA on July 9, 2021:
     Revisions to 30 TAC Section 116.12--Nonattainment and 
Prevention of Significant Deterioration Review Definitions,
     Revisions to 30 TAC Section 116.150--New Major Source or 
Major Modification in Ozone Nonattainment Areas,
     Revisions to 30 TAC Section 116.151--New Major Source or 
Major Modification in Nonattainment Area Other than Ozone, and
     Revisions to 30 TAC Section 116.160--Prevention of 
Significant Deterioration.

IV. Environmental Justice Considerations

    The EPA reviewed demographic data, which provides an assessment of 
individual demographic groups of the populations living within 
Texas.\1\ The EPA then compared the data to the national average for 
each of the demographic groups. The results of this analysis are being 
provided for informational and transparency purposes. The results of 
the demographic analysis indicate that, for populations within Texas, 
the percent people of color (persons who reported their race as a 
category other than White alone (not Hispanic or Latino)) is less than 
the national average (40.3 percent versus 59.3 percent). Within people 
of color, the percent of the population that is Black or African 
American alone is lower than the national average (13.2 percent versus 
13.4 percent) and the percent of the population that is American 
Indian/Alaska Native is lower than the national average (1.1 percent 
versus 1.3 percent). The percent of the population that is Hispanic or 
Latino is significantly higher than the national average (40.2 percent 
versus 18.9 percent). The percent of the population that is two or more 
races is lower than the national averages (2.2 percent versus 2.9 
percent). The percent of persons in poverty in Texas is higher than the 
national average (14.2 percent versus 11.6 percent). The percent of 
persons aged 25 years and older with a high school diploma in Texas is 
slightly lower than the national average (84.4 percent versus 88.5 
percent), and the percent with a Bachelor's degree or higher is below 
the national average (30.7 percent versus 32.9 percent).
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    \1\ See the United States Census Bureau's QuickFacts on Texas at 
https://www.census.gov/quickfacts/fact/table/TX,US/PST045221. This 
information is also available in the rulemaking docket.
_____________________________________-

    This action proposes to approve revisions to the Texas PSD and NNSR 
programs, consistent with the Federal permitting programs. Final 
approval of these revisions to the Texas permit programs will continue 
to enable the State of Texas to implement control strategies and 
permitting programs. Further, there is no information in the record 
indicating that this action is expected to have disproportionately high 
or adverse human health or environmental effects on a particular group 
of people.

V. 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 Section 
III of this preamble, Proposed Action. 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).

VI. 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);
     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
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 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.''
    The air agency did not evaluate environmental justice 
considerations as

[[Page 13755]]

part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
performed an environmental justice analysis, as is described above in 
the section titled, ``Environmental Justice Considerations.'' The 
analysis was done for the purpose of providing additional context and 
information about this rulemaking to the public, not as a basis of the 
action. In addition, there is no information in the record upon which 
this decision is based inconsistent with the stated goal of E.O. 12898 
of achieving environmental justice for people of color, low-income 
populations, and Indigenous peoples.
    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 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: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04488 Filed 3-3-23; 8:45 am]
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