[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Proposed Rules]
[Pages 82560-82563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0480; FRL-10676-02-R6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Environmental Protection Agency (EPA) is supplementing a 
proposed approval published on March 6, 2023 (``March 2023 proposal''), 
for revisions to the Texas State Implementation Plan (SIP) that updates 
the Texas Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NNSR) permitting programs to 
incorporate Federal New Source Review (NSR) regulations for Project 
Emissions Accounting (PEA). This proposal supplements the March 2023 
proposal with respect to the EPA's evaluation of the Texas SIP 
submittal and the anti-backsliding requirements of the Clean Air Act 
(CAA) sections 110(l) and 193. The EPA is providing an opportunity for 
public comment on this supplemental proposal. The EPA is not reopening 
for comment the March 2023 proposal. Comments received on the March 
2023 proposal and this supplemental proposal will be addressed in a 
final rule.

DATES: Written comments must be received on or before November 12, 
2024.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0480 at https://www.regulations.gov or via email to 
<a href="/cdn-cgi/l/email-protection#27504e4b425e0946434e49466742574609404851"><span class="__cf_email__" data-cfemail="4c3b25202935622d2825222d0c293c2d622b233a">[email protected]</span></a>. 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

[[Page 82561]]

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, <a href="/cdn-cgi/l/email-protection#27504e4b425e0946434e49466742574609404851"><span class="__cf_email__" data-cfemail="74031d18110d5a15101d1a15341104155a131b02">[email protected]</span></a>. 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, 214-665-2115, <a href="/cdn-cgi/l/email-protection#e5928c89809ccb84818c8b84a5809584cb828a93"><span class="__cf_email__" data-cfemail="f7809e9b928ed996939e9996b7928796d9909881">[email protected]</span></a>. 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.

I. Background

    On July 9, 2021, the Texas Commission on Environmental Quality 
(TCEQ) submitted to the EPA 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; the EPA addressed the repeal of obsolete 
provisions in a separate final action on August 24, 2023, at 88 FR 
57882.
    In our March 2023 proposal (88 FR 13752), we provided information 
on how the Texas SIP revision was evaluated and found to be consistent 
with the Federal NSR program requirements for PEA. Comments on our 
March 2023 proposal were due by April 5, 2023. We received relevant 
adverse comments on our proposal that included, among other comments, 
that our proposal did not provide an air quality analysis demonstrating 
that the Texas SIP revision will not violate the anti-backsliding 
requirements of section 110(l) and section 193 of the CAA. Thus, we are 
providing our evaluation of the Texas SIP revision under CAA sections 
110(l) and 193 in this supplemental proposal action. All comments 
received on our March 2023 proposal and this supplemental proposal will 
be addressed in the final action.

II. The EPA's Evaluation

    Section 110(l) of the CAA requires that (1) each revision to a SIP 
must be adopted by the State after reasonable notice and public 
hearing, and (2) the EPA cannot approve a plan revision ``if the 
revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of this Act.''
    The July 9, 2021, Texas SIP submittal included evidence that the 
public was provided notice of the proposed SIP revisions in three 
newspapers on December 18, 2020: Austin American-Statesman, Dallas 
Morning News, and Houston Chronicle. The TCEQ published the proposed 
revisions and the notice of public hearing in the Texas Register on 
January 1, 2021, at 46 TexReg 123 and 46 TexReg 219, respectively. The 
EPA finds that the TCEQ submitted the July 9, 2021, SIP revision after 
reasonable notice and public hearing. The submittal therefore satisfies 
the first requirement of CAA section 110(l).
    As to the second requirement of CAA section 110(l), for over 15 
years, the EPA has interpreted section 110(l) as permitting approval of 
a SIP revision so long as ``emissions in the air are not increased,'' 
thereby preserving ``status quo air quality.'' \1\ According to the 
plain meaning of the word ``interfere,'' a SIP revision satisfies 
section 110(l) if it does not hamper, frustrate, hinder, or impede any 
applicable CAA requirements.\2\ EPA's 110(l) analysis is not a one-
size-fits all provision and the variables that must be analyzed depend 
on the particular interference the SIP revision poses.\3\ To 
demonstrate noninterference, a state may either: (1) offset any 
expected increases with equivalent or greater emissions reductions, 
thereby maintaining status quo air quality; or (2) submit an air 
quality analysis showing that the SIP revision will not interfere with 
applicable requirements.
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    \1\ Ky. Res. Council, Inc. v. EPA, 467 F.3d 986, 991 (6th Cir. 
2006); see also Indiana v. EPA, 796 F.3d 803, 806 (7th Cir. 2015); 
Ala. Env't Council v. EPA, 711 F.3d 1277, 1292-93 (11th Cir. 2013); 
Galveston-Houston Ass'n for Smog Prevention v. EPA, 289 F. App'x 
745, 754 (5th Cir. 2008).
    \2\ Bryan A. Garner, Garner's Dictionary of Legal Usage 570 (3d 
ed. 2011); see also Merriam-Webster's Collegiate Dictionary 652 
(11th ed. 2005) (``to interpose in a way that hinders or impedes''); 
Webster's New World Dictionary Third College Edition 704 (1988) 
(defining ``interfere with'' as ``to hinder'').
    \3\ Center for Biological Diversity v. EPA, 75 F.4th 174, 181 
(3rd Cir. 2023).
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    The July 9, 2021, Texas SIP submittal argued that a project that is 
not permitted through major NSR (PSD and/or NNSR) would still be 
permitted through the Texas minor NSR program. The EPA evaluated 
whether the existing Texas minor NSR program requirements are an 
acceptable substitute measure in the event a modification uses PEA and 
is no longer subject to the requirements of the Texas PSD and NNSR 
programs. Our evaluation presented below analyzes whether the Texas 
minor NSR program requirements preserve the air quality status quo and 
benefits of the Texas NSR permit program.
    In the July 9, 2021, SIP submittal, the TCEQ identified the 
possibility that a portion of projects that would otherwise have been 
subject to the Texas PSD and NNSR requirements under 30 TAC chapter 
116, may instead use PEA to proceed as a minor NSR permitting action 
under the SIP-approved Texas minor NSR requirements. The TCEQ stated in 
the final preamble ``. . . the commission emphasizes that the adopted 
changes are not expected to significantly affect human health or 
ambient air quality, due to the requirements for minor NSR in Texas.'' 
See 46 TexReg 3925, June 25, 2021. The July 9, 2021, SIP submittal does 
not relieve the owner/operator of a source from the obligation to 
obtain a preconstruction permit. The owner or operator would still be 
responsible for obtaining a valid permit through the Texas minor NSR 
program.
    The purpose of the NSR permitting program (PSD, NNSR, and minor 
NSR) is to protect human health and the environment while providing for 
industrial growth. Preconstruction permitting programs, including minor 
NSR, establish legally and practicably enforceable emission limits for 
the subject facilities. The Texas SIP includes several mechanisms for 
evaluating and authorizing minor NSR actions. Each mechanism has been 
separately evaluated and approved by the EPA as consistent with minor 
NSR requirements and protective of human health and the environment to 
satisfy the requirements at 40 CFR 51.160 through 51.164. Existing PSD 
or NNSR permitted facilities in Texas may use PEA to determine, 
consistent with the Federal regulations, that a project at an existing 
major stationary source does not qualify as a major modification and

[[Page 82562]]

thus is not subject to the requirements for major PSD modifications at 
30 TAC section 116.160 or major NNSR modifications at 30 TAC section 
116.150 or 116.151. Modifications to facilities in Texas that will be 
permitted via minor NSR mechanisms because of the application of PEA 
will still be protective of human health and the environment because 
these modifications are permitted via SIP-approved minor NSR mechanisms 
that establish legally and practicably enforceable emission limits. We 
briefly describe each of the Texas SIP-approved minor NSR mechanisms 
below.
    The Texas SIP at 30 TAC section 116.110(b) requires that 
modifications to existing permitted facilities be addressed through an 
amendment to an existing permit. Permit amendments are SIP-approved at 
30 TAC section 116.116(b). See 85 FR 64968, October 14, 2020. Permit 
amendments are used if the modification results in (1) a change in the 
method of control of emissions, (2) a change in the character of the 
emissions, or (3) an increase in the emission rate of any air 
contaminant. Applications for permit amendments are subject to the SIP-
approved public notice provisions at 30 TAC chapter 39 and must satisfy 
the general application requirements at 30 TAC section 116.111, 
including the requirement at 30 TAC section 116.111(a)(2)(C) for the 
application of Texas best available control technology (BACT) to 
determine the applicable control technology requirements. Texas 
explains in the final preamble that ``Sources undergoing construction 
or modification which are not subject to PSD best available control 
technology (BACT) or lowest achievable emission rate (LAER) under major 
NSR requirements must still comply with Texas' BACT requirements in 
Sec.  116.111(a)(2)(C). Every permit amendment, including non-major 
permit amendments, undergoes a review process to evaluate the impact of 
the project on human health and evaluate compliance with ambient air 
quality standards. Even non-major permitting projects are evaluated to 
ensure that they do not cause or contribute to an exceedance of the 
NAAQS and meet any applicable state property line standards. This 
evaluation may consist of both air dispersion modeling predictions and 
ambient monitoring data.'' See 46 TexReg 3925 and 3926, June 25, 2021.
    The Texas SIP at 30 TAC section 116.110(d) provides that a Permit 
by Rule (PBR) can be used in lieu of a permit amendment. The Texas PBR 
program is SIP-approved at 30 TAC chapter 106.\4\ The Texas PBR program 
is an alternative process for approving the construction of new and 
modified facilities or changes within facilities. Pursuant to 30 TAC 
sections 106.1 and106.2, the TCEQ develops a PBR applicable to certain 
types of facilities or changes within facilities the TCEQ has 
determined will not make a significant contribution of air 
contaminants. The PBR must satisfy the general requirements at 30 TAC 
section 106.4, including establishing enforceable limits on actual 
emissions, and the TCEQ provides for public notice and comment of the 
PBR through 30 TAC chapter 39.
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    \4\ The Texas Permits by Rule (PBR) program was initially SIP-
approved on November 1, 2003. See 68 FR 64548. The EPA approved 
revisions to the Texas PBR program on November 10, 2014. See 79 FR 
66626.
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    The Texas SIP at 30 TAC section 116.615(3) provides that standard 
permits can be used in lieu of permit amendments. The Texas Standard 
Permit program is SIP-approved at 30 TAC chapter 116, subchapter F, and 
provides a streamlined, alternative mechanism to approve the 
construction of certain new and modified sources within categories 
which contain numerous similar sources where the TCEQ has adopted a 
standard permit.\5\ Individual standard permits are developed by the 
TCEQ using a 30-day public notice and comment process as provided in 30 
TAC section 116.603. Standard permits generally require the application 
of BACT and will also contain registration of emission requirements to 
limit a source's potential to emit and sufficient recordkeeping 
requirements to demonstrate compliance. Standard permits cannot be used 
by new major stationary sources or major modifications that are subject 
to the requirements of PSD or NNSR permitting.
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    \5\ The Texas Standard Permit Program was initially SIP-approved 
on November 14, 2003. See 68 FR 64543. The EPA has approved several 
revisions to the Standard Permit program since our initial program 
approval. The most recent EPA action was taken on February 13, 2020. 
See 85 FR 8185.
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    The EPA finds that the argument presented by the State--
specifically that a project that would not result in a significant 
emissions increase when considering the overall effect of the change on 
emissions, i.e., considering both increases and decreases in emissions 
that result from the project as provided for with PEA--is an acceptable 
use of the substitute measure approach under section 110(l). The Texas 
minor NSR permitting program functions as a backstop to preserve the 
status quo air quality and protect human health and the environment in 
the event a modification is determined to be non-major in accordance 
with the revised regulations. Each of the available minor NSR options 
for permitting non-major modifications have been previously reviewed 
and approved by the EPA as protective of human health and the 
environment. Each minor NSR option provides for public comment on the 
permit and establishes enforceable emission limitations that have been 
demonstrated as protective of air quality. Additionally, the reliance 
on minor NSR in the event a project uses PEA is consistent with the 
intent outlined in the EPA's final rule for PEA where we explain that 
projects that may not be subject to major NSR modification requirements 
may still be subject to applicable minor NSR program permitting 
requirements.\6\ The application of PEA in Texas is also likely to 
incentivize energy efficiency and/or other environmentally beneficial 
projects that may have been foregone because of the perceived 
complexity of major NSR permitting requirements.<SUP>7 8</SUP> The EPA 
therefore proposes to find that the July 9, 2021, Texas SIP submittal 
satisfies the second requirement of CAA section 110(l) because the 
Texas SIP-approved minor NSR program will preserve the air quality 
status quo and benefits of the Texas SIP-approved NSR program.
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    \6\ See 85 FR 75890, 74896.
    \7\ See 85 FR 74890, 74896.
    \8\ See the Qualitative Environmental Impacts Analysis of the 
Final Project Emissions Accounting Rule presented on page 122 of 
``EPA's Response to Comments Document on Proposed Rule: ``Prevention 
of Significant Deterioration (PSD) and Nonattainment New Source 
Review (NNSR): Project Emissions Accounting''--84 FR 39244, August 
9, 2019'' available at https://www.regulations.gov/document/EPA-HQ-OAR-2022-0381-0013.
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    Section 193 of the CAA, the ``General Savings Clause'', provides 
that control measures in effect or required to be adopted in 
nonattainment areas by an order, settlement agreement, or plan in 
effect before the 1990 CAA amendments in nonattainment areas may not be 
removed or modified absent a SIP revision that ensures equivalent or 
greater emissions reductions.
    The July 9, 2021, Texas SIP revision ensures that modifications 
that are not subject to the requirements of major NNSR permitting 
because of the application of PEA must still be permitted through the 
SIP-approved minor NSR program. Each of these minor NSR mechanisms has 
been separately evaluated and approved as discussed above. The EPA 
therefore proposes to find that the July 9, 2021, Texas SIP submittal 
satisfies the

[[Page 82563]]

requirements of CAA section 193 because the modification will still be 
subject to SIP-approved NSR program requirements, including public 
notice and the establishment of enforceable emission limits that have 
been demonstrated as protective of air quality.

III. Supplemental Proposed Action

    The EPA is supplementing our March 2023 proposal addressing 
revisions to the Texas SIP to update the Texas PSD and NNSR permitting 
programs to provide for PEA consistent with Federal NSR requirements. 
In this supplemental proposal, we are proposing to approve the Texas 
SIP revisions submitted July 9, 2021, as consistent with the 
requirements of CAA sections 110(l) and 193. 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:
    <bullet> Revisions to 30 TAC section 116.12--Nonattainment and 
Prevention of Significant Deterioration Review Definitions,
    <bullet> Revisions to 30 TAC section 116.150--New Major Source or 
Major Modification in Ozone Nonattainment Areas,
    <bullet> Revisions to 30 TAC section 116.151--New Major Source or 
Major Modification in Nonattainment Area Other than Ozone, and
    <bullet> Revisions to 30 TAC section 116.160--Prevention of 
Significant Deterioration.
    The EPA is providing an opportunity for public comment on this 
supplemental proposal. However, we are not reopening for comment our 
March 2023 proposal. The EPA will address all comments received on our 
March 2023 proposal and on this supplemental proposal in our final 
action.

IV. Environmental Justice Considerations

    Please see the March 6, 2023, proposal at 88 FR 13752, 13754.

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, Supplemental 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:
    <bullet> 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 14094 (88 FR 21879, April 11, 2023);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
    <bullet> 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 Clean Air Act.
    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 communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
The EPA defines 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 EJ considerations as part of its 
SIP submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. The EPA performed an EJ 
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 EJ for 
communities with EJ concerns.
    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: September 27, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024-23282 Filed 10-10-24; 8:45 am]
BILLING CODE 6560-50-P


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