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, 50456-50459 [2021-19156]
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50456
Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations
Authority: 46 U.S.C. 70034, 70051; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 00170.1, Revision No. 01.2.
ENVIRONMENTAL PROTECTION
AGENCY
■
2. Add § 165.T05–0710 to read as
follows:
[EPA–R06–OAR–2020–0166; FRL–8893–02–
R6]
§ 165.T05–0710 Safety Zone; Anacostia
River, Washington, DC
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
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(a) Location. The following area is a
safety zone: All navigable waters of the
Anacostia River within 600 feet of the
fireworks barge in approximate position
latitude 38°52′14.29″ N, longitude
077°00′12.00″ W, located near Nationals
Park, in Washington, DC. These
coordinates are based on datum NAD
83.
(b) Definitions. As used in this
section—
Captain of the Port (COTP) means the
Commander, U.S. Coast Guard Sector
Maryland-National Capital Region.
Designated representative means any
Coast Guard commissioned, warrant, or
petty officer who has been authorized
by the Captain of the Port MarylandNational Capital Region to assist in
enforcing the safety zone described in
paragraph (a) of this section.
(c) Regulations. (1) Under the general
safety zone regulations in subpart C of
this part, you may not enter the safety
zone described in paragraph (a) of this
section unless authorized by the COTP
or the COTP’s designated representative.
(2) To seek permission to enter,
contact the COTP or the COTP’s
representative by telephone at 410–576–
2693 or on Marine Band Radio VHF–FM
channel 16 (156.8 MHz). The Coast
Guard vessels enforcing this section can
be contacted on Marine Band Radio
VHF–FM channel 16 (156.8 MHz).
Those in the safety zone must comply
with all lawful orders or directions
given to them by the COTP or the
COTP’s designated representative.
(d) Enforcement officials. The U.S.
Coast Guard may be assisted in the
patrol and enforcement of the safety
zone by Federal, State, and local
agencies.
(e) Enforcement period. This section
will be enforced from 8 p.m. to 11 p.m.
on September 4, 2021, and from 8 p.m.
to 11 p.m. on September 17, 2021.
Dated: September 2, 2021.
David E. O’Connell,
Captain, U.S. Coast Guard, Captain of the
Port Maryland-National Capital Region.
[FR Doc. 2021–19426 Filed 9–8–21; 8:45 am]
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40 CFR Part 52
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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).
SUMMARY:
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, todd.robert@epa.gov. 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.
DATES:
I. Background
The background for this action is
discussed in detail in our February 11,
2021 proposal (86 FR 9041). In that
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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 interprecursor 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.
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 interprecursor 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,
1 Sierra Club v. EPA, 985 F.3d 1055 (D.C. Cir.
2021).
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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Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations
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 viceversa. 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.
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
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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-levelozone-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
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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
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart SS—Texas
2. In § 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:
■
§ 52.2270
*
Identification of plan.
*
*
(e) * * *
*
*
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
Applicable geographic or
nonattainment area
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Name of SIP provision
State submittal/
effective date
*
*
*
*
Nonattainment New Source Review Dallas-Fort Worth, Houston Galand Emission Statement Requireveston-Brazoria, and Bexar Counments for the 2015 Ozone NAAQS.
ty Ozone Nonattainment Areas.
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June 24, 2020 ...............
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EPA approval date
*
September 9, 2021,
[Insert Federal
Register citation].
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*
........................
Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Rules and Regulations
[FR Doc. 2021–19156 Filed 9–8–21; 8:45 am]
(312) 353–0987 before visiting the
Region 5 office.
BILLING CODE 6560–50–P
FOR FURTHER INFORMATION CONTACT:
*
*
*
*
*
David Ogulei, Environmental Engineer,
Air Permits Section, Air Programs
Branch (AR–18J), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 353–0987, ogulei.david@
epa.gov.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2020–0501, EPA–R05–
OAR–2020–0502, EPA–R05–OAR–2020–
0503; FRL–8919–02–R5]
Air Plan Approval; Illinois; Prevention
of Significant Deterioration
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving revisions to
the Illinois State Implementation Plan
(SIP) that were submitted by the Illinois
Environmental Protection Agency
(IEPA) on September 22, 2020, and
amended on November 5, 2020, and
March 3, 2021. These revisions
implement new preconstruction
permitting regulations for certain new or
modified sources of air pollution in
attainment and unclassifiable areas
under the Prevention of Significant
Deterioration (PSD) program of the
Clean Air Act (CAA). EPA is also
transferring to IEPA responsibility for
administering existing PSD permits that
EPA previously issued to sources in
Illinois, and for processing any PSD
permit actions related to such permits.
DATES: This final rule is effective on
October 12, 2021.
ADDRESSES: EPA has established dockets
for this action under Docket ID Nos.
EPA–R05–OAR–2020–0501, EPA–R05–
OAR–2020–0502, and EPA–R05–OAR–
2020–0503. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information (CBI) 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 either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and
facility closures due to COVID–19. We
recommend that you telephone David
Ogulei, Environmental Engineer, at
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SUMMARY:
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SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
I. Background.
II. Summary of EPA Analysis.
III. What comments did we receive on the
proposed rule?
IV. What action is EPA taking?
V. Incorporation by Reference.
VI. Statutory and Executive Order Reviews.
I. Background
Section 110(a)(2)(C) of the CAA
requires that each SIP include a program
to provide for the regulation of the
construction and modification of
stationary sources within the areas
covered by the SIP. We refer to these as
the New Source Review (NSR)
provisions. They consist primarily of:
(1) A permit program as required by part
C of subsection I of the CAA, PSD, as
necessary to assure that national
ambient air quality standards (NAAQS)
are achieved; (2) a permit program as
required by part D of subsection I of the
CAA, Plan Requirements for
Nonattainment Areas, as necessary to
assure that NAAQS are attained and
maintained in ‘‘nonattainment areas’’
(known as ‘‘nonattainment NSR’’), and
(3) a permit program for minor sources
and minor modifications of major
sources as required by section
110(a)(2)(C) of the CAA. Specific plan
requirements for an approvable PSD SIP
are provided in sections 160–169 of the
CAA and the implementing regulations
at 40 CFR 51.166. The requirements
applicable to SIP requirements for
nonattainment areas are provided in
sections 171–193 of the CAA and the
implementing regulations at 40 CFR
51.165. The Federal PSD requirements
at 40 CFR 52.21 apply through Federal
Implementation Plans (FIPs) in states
without a SIP-approved PSD program.
The PSD SIP requirements apply to
new major sources or major
modifications at existing major
stationary sources for pollutants where
the area the source is located has been
designated as ‘‘attainment’’ or
‘‘unclassifiable’’ with respect to the
NAAQS under section 107(d) of the
CAA. Under section 160 of the CAA, the
purposes of the PSD program are to: (1)
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50459
Protect public health and welfare; (2)
preserve, protect and enhance the air
quality in national parks, national
wilderness areas, national monuments,
national seashores, and other areas of
special national or regional natural,
recreational, scenic, or historic value;
(3) ensure that economic growth will
occur in a manner consistent with the
preservation of existing clean air
resources; (4) assure that emissions from
any source in any State will not
interfere with any portion of the
applicable implementation plan to
prevent significant deterioration of air
quality for any other State; and (5)
assure that any decision to permit
increased air pollution in any area to
which the PSD program applies is made
only after careful evaluation of all the
consequences of such a decision and
after adequate procedural opportunities
for informed public participation in the
decision making process.
Before a PSD permit can be issued,
the stationary source must demonstrate
that the new major source or major
modification will be equipped with the
Best Available Control Technology
(BACT) for all po11utants regulated
under the PSD program that are emitted
in significant amounts, and that
increased emissions from the project
will not result in a violation of the
NAAQS or applicable ambient air
quality increments. See CAA section
165.
Because Illinois does not currently
have a SIP-approved PSD program, PSD
permits in Illinois have been issued
under a FIP incorporating the
requirements of 40 CFR 52.21. Prior to
April 7, 1980, EPA was solely
responsible for, and operated, the PSD
permitting program in Illinois. However,
since April 7, 1980, IEPA has issued
PSD permits under a delegation
agreement with EPA that authorizes
IEPA to implement the FIP. See 46 FR
9580 (Jan. 29, 1981) (1980 Delegation
Agreement). Under a November 16,
1981 amendment to the 1980 Delegation
Agreement,1 IEPA also has the authority
to amend or revise any PSD permit
issued by EPA under the FIP. Thus, all
PSD permits issued in Illinois are
currently considered Federal permits;
and PSD permits issued after April 7,
1980, are enforceable by Illinois and
EPA since they were issued under both
Illinois and EPA authority.
On September 22, 2020, IEPA
submitted to EPA a request to revise the
Illinois SIP to establish a SIP-approved
PSD program in Illinois. Specifically,
IEPA requested that EPA incorporate
1 A copy of this amendment to the delegation
agreement is available in the docket for this action.
E:\FR\FM\09SER1.SGM
09SER1
Agencies
[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,
[[Page 50457]]
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
[[Page 50458]]
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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[[Page 50459]]
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[FR Doc. 2021-19156 Filed 9-8-21; 8:45 am]
BILLING CODE 6560-50-P