[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Proposed Rules]
[Pages 22700-22703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08156]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0159; FRL-10008-16-Region 6]
Air Plan Approval; Texas; Construction Prior to Permit Amendment
Issuance
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 a
revision to the Texas (TX) State Implementation Plan (SIP) proposed
January 29, 2020 and submitted for parallel processing by the State on
January 30, 2020. The proposal amends certain air quality permitting
rules located in Title 30 of the Texas Administrative Code (TAC),
Section 116, Control of Air Pollution by Permits for New Construction
or Modification. These revisions amend the State's New Source Review
permitting regulations via the addition of new, proposed Section
116.118, Construction While Permit Application Pending. This proposed
new section will allow applicants for certain permit amendments to
begin construction after the executive director has completed a
technical review and issued a draft permit including the permit
amendment for public review and comment, i.e., prior to final permit
issuance. Non-substantive, administrative-type, editorial changes, such
as grammar, re-lettering, and reference revisions and/or corrections
are also included in the revisions the EPA is proposing for approval.
DATES: Written comments must be received on or before May 26, 2020.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2020-0159, at https://www.regulations.gov or via email to
layton.elizabeth@epa.gov. 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
[[Page 22701]]
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 Elizabeth Layton, 214-665-2136, layton.elizabeth@epa.gov. 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 https://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: Elizabeth Layton, EPA Region 6 Office,
Air Permits Section, 214-665-2136, layton.elizabeth@epa.gov. Out of an
abundance of caution for members of the public and our staff, the EPA
Region 6 office will 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, as there will be a delay in processing
mail and no courier or hand deliveries will be accepted. 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
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 51.160-51.164. 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. 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. Additionally, 40 CFR 51.160 through
51.163 outline the federal requirements which apply to minor permit
issuance, including the required administrative, public participation,
and federally enforceable procedures.
On January 30, 2020, the Texas Commission on Environmental Quality
(TCEQ) submitted on behalf of the State of Texas, a letter \1\
requesting the parallel processing review of the January 29, 2020,
proposed amendments to 30 TAC Section 116, Control of Air Pollution by
Permits for New Construction or Modification, including proposed new
Section 116.118, Construction While Permit Application Pending. Under
the EPA's ``parallel processing'' procedure, the EPA proposes a
rulemaking action on a proposed SIP revision concurrently with State's
public review process. See 40 CFR 2.3 of Appendix V to part 51 for the
requirements and procedure for parallel processing. The January 30,
2020, SIP revision request will not meet all the SIP approvability
criteria and deemed complete until the State concludes the public
process and submits the final, adopted SIP revision with a letter from
the Governor or Governor's designee to the EPA. The EPA is proposing to
approve the January 29, 2020, proposed SIP revision upon completion of
the State public process and final submittal to the EPA. If the State's
proposed SIP revision is not significantly or substantively changed,
the EPA will finalize the rulemaking on the SIP revision as proposed
after responding to any relevant comments received on our rulemaking.
Final rulemaking action by the EPA will occur only after the final SIP
revision has been fully adopted by the TCEQ and submitted formally to
the EPA for approval as a revision to the Texas SIP. See 40 CFR
Appendix V to part 51.
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\1\ Please see January 30, 2020, letter addressed to the
Regional Administrator at the U.S. EPA, Region 6 requesting parallel
processing from TCEQ included in the docket to this rulemaking
action.
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This action addresses the January 29, 2020, proposed revisions to
the Texas SIP that amend the State's minor NSR permitting rules by
proposing the addition of new 30 TAC Section 116.118, Construction
While Permit Application Pending, which allows an applicant for a
permit amendment to begin construction, at their own risk, after the
executive director has completed a technical review and issued a draft
permit for public review and comment. Historically, the permit
applicant would not be able to begin construction until the final
permit was issued. As specified in the new rule, the applicant assumes
all risk when commencing construction under proposed new Section
116.118, and the applicant's investment (financial or otherwise) in any
construction activities commenced prior to final permit issuance is
prohibited from being used by the permitting authority as a factor when
making the determination to issue the applicant's requested amendment.
The new, proposed section does not allow for any pre-permit
construction prohibited by federal law.
II. The EPA's Evaluation
On January 29, 2020, the TCEQ proposed revisions to the Texas SIP
(Rule Project No. 2019-129-116-AI) which revise their rules that
address the applicable requirements for air pollution control permits
for new construction or modification under 30 TAC Chapter 116, Sections
116.110, 116.116, 116.710, and 116.721; and the addition of proposed
new Section 116.118. These proposed revisions were submitted to the EPA
with a request for parallel processing on January 30, 2020. The
proposed revisions to 30 TAC Chapter 116 were partly in response to the
passage of House Bill (HB) 2726, 86th Texas Legislature, 2019. This
legislation revised Texas Health and Safety Code (THSC), Section
382.004, Construction While Permit Application Pending, to provide
applicants for permit amendments the option to begin construction after
the permitting authority has completed a technical review and issued
the draft permit, but prior to final permit issuance.
The proposed January 29, 2020, revisions amend the Texas SIP at 30
TAC Subsections 116.110(a), 116.116(b), (e) and (f), 116.710(a),
116.721(a), and include the addition of new Section 116.118, comprised
of Subsections 116.118(a)(1)-(8), (b), and (c)(1)-(2). The proposed
revisions to Subsections 116.110(a), 116.116(b), 116.710(a) and
116.721(a) add a reference to proposed new Section 116.118 to include
the option to begin construction when a draft permit is issued. The
proposed revisions to Subsections 116.116(e)(2)(B), (D) and (E), and
(8)(A) are non-substantive, grammatical edits such as grammatical
number and case changes. The proposed revisions to Subsections
116.116(e)(3), 116.116(f) and 116.721(d)(1) are also non-substantive,
grammatical-type, editorial
[[Page 22702]]
changes intended to improve readability by replacing the word
``notwithstanding'' with ``regardless of.''
The language in Section 116.110 regarding change in ownership,
submittal under seal of Texas licensed professional engineer and
responsibility for permit application, originally approved at
Subsections 116.110(d), (e) and (f), was part of a July 22, 1998,
submittal and subsequently approved into the SIP on November 14, 2003
(68 FR 64543). However, in a July 14, 2014, final action, regarding
revisions to the Texas NSR SIP addressing the Texas Minor NSR Flexible
Permits Program, the EPA made an error in our amendatory language
pertaining to 30 TAC Section 116.110 by excluding Subsection 116.110(d)
from the SIP (See 79 FR 40666). In the July 14, 2014, final rule, we
note the SIP approved version of 30 TAC Section 116.110 is the July 22,
1998, submission, which includes the aforementioned language at
Subsections (d), (e), and (f). Additionally, in 2002, the State
inserted new rule language at 116.110(c) regarding compliance history,
which is not included in SIP, but required the re-lettering of the
provisions listed above at Subsections 116.110(d), (e), and (f) to
Subsections 116.110(e), (f), and (g), respectively. This re-lettering
was adopted without changes by the State on August 23, 2002, but not
yet submitted for SIP action. The TCEQ requested the EPA address this
ministerial correction to the SIP and revise the table at 40 CFR
52.2270(c) to accurately reflect the inclusion of these provisions in
the SIP with their appropriate re-lettering in the January 30, 2020,
letter requesting the parallel processing of this proposed rulemaking
(letter is included in the docket for this proposed action).
The addition of proposed new Section 116.118 allows an applicant to
begin construction at their own risk after the executive director has
completed the technical review process and issued a draft permit for
public review and comment in the purpose provisions at Subsection
116.118(a)(1). Subsections 116.118(a)(2)-(8) contain the proposed new
section's applicability requirements and exclusions. Subsection
116.118(a)(2) excludes concrete batch plants located within 880 yards
of property being used as a residence, from being eligible for pre-
permit construction under Section116.118. The applicability
requirements of the new, proposed section are bound by and only
authorize construction to the extent permissible under federal law.
Subsection 116.118(a)(3) specifies that projects subject to federal PSD
or NNSR permitting are not eligible for pre-permit construction under
Section 116.118. Subsections 116.118(a)(4) and 116.118(a)(5) specify
that Plant-wide Applicability (PAL) permits and projects triggering
case-by-case determination of Maximum Achievable Control Technology
(MACT) under the federal CAA Section 112(g), respectively, are not
eligible for pre-permit construction under proposed new Section
116.118. Subsection 116.118(a)(6) excludes qualified facility changes
implemented under Section 116.116(e) from the proposed pre-permit
construction provisions at Section 116.118. Subsection 116.118(a)(7)
specifies that requests, claims, registrations, or applications for a
standard permit under 30 TAC Chapter 116 Subchapter F (Standard
Permits) or permit by rule (PBR) under 30 TAC Chapter 106 (Permits by
Rule) are not eligible for pre-permit construction under proposed
Section 116.118. Subsection 116.118(a)(8) specifies that Section
116.118 does not relieve or exempt the applicant or project from any
other applicable state or federal requirements, including requirements
for public notice and participation, federal applicability, emission
control technology, and distance limitations. Compliance with the
public notice requirements at 30 TAC Chapter 39 is required in
Subsection 116.118(b) for any permit amendment applicant using the pre-
permit construction provisions in Section 116.118. Subsection
116.118(c)(1) clarifies that although Section 116.118 allows for pre-
permit construction for eligible projects, operation of a facility is
still strictly forbidden prior to final permit issuance. Subsection
116.118(c)(2) prohibits the State's permitting authority (TCEQ) from
considering investment (of any kind) made by the permit amendment
applicant in pre-permit construction under Section 116.118 as a factor
when making the determination to grant the permit amendment requested
in the application.
As discussed in detail above, new proposed Section 116.118 allows
certain preconstruction activities prior to obtaining a final
construction permit, provided that specific conditions are met. The EPA
has preliminarily determined that proposed new Section 116.118,
allowing for construction to commence after the issuance of the draft
permit, but prior to final permit amendment issuance (under certain
conditions), is consistent with the requirements of CAA sections
110(a)(2)(C) and 110(l), and federal regulations at 40 CFR 51.160-
51.164, 51.165 and 51.166. Section 110(a)(2)(C) of the CAA requires
that state SIPs include a program for regulating the construction and
modification of stationary sources as necessary to ensure that the
NAAQS are maintained. Federal regulations at 40 CFR 51.160(b) require
states to have legally enforceable procedures to prevent the
construction or modification of a source if it would violate any SIP
control strategies or interfere with attainment or maintenance of the
NAAQS. The proposed revisions to the Texas NSR permitting rules under
proposed new Section 116.118 allow construction to commence only after
the State has conducted a comprehensive technical review of the
amendment application and issued a draft permit for public review and
comment. The permit amendment application must satisfy all applicable
requirements in the technical review process before the State issues
the draft permit and preliminary decision. The State's technical
analysis includes, but is not limited to, evaluating the emission
sources, confirming the applicant included air pollution control
measures, which are at least as stringent as best available control
technology (BACT), verifying the proposed emissions will not jeopardize
the NAAQS, and ensuring the application satisfies all state and federal
regulatory requirements. Therefore, the issuance of the draft permit
provides the State's demonstration that the permit amendment will not
jeopardize attainment or violate the NAAQS, thereby satisfying the
federal requirements located in sections 110(a)(2)(c) and 110(l) of the
Act, and the federal enforceability, public notice, responsible agency
identification, and administrative procedural requirements at 40 CFR
51.160-51.163. The proposed Texas regulations also expressly forbid
preconstruction activities that are not permissible under federal
law.\2\ Further, other states' rules allowing for commencement of
construction prior to final permit issuance where those rules applied
exclusively to minor NSR have been approved by the EPA. These include
the EPA's approval of analogous regulations into the Mississippi SIP on
July 10, 2006, and the West Virginia SIP on October 5, 2018 (See 71 FR
38773 and 83 FR 50266, respectively).
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\2\ See 40 CFR 51.165(a)(1)(xv), 51.166(b)(11), and
52.21(b)(11).
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The TCEQ's existing NSR permitting rules for both minor and major
sources are approved by the EPA into the SIP and the proposed revisions
to the State's minor NSR permit rules are consistent with the
requirements of the CAA and
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EPA's regulations. When reviewing SIP submissions, the EPA's role is to
approve state choices provided they meet the criteria of the CAA, and
the applicable federal regulations pertaining to the specific submitted
revision(s) being acted on. The EPA has reviewed the proposed changes
to the Texas NSR regulations and preliminarily finds them to be
consistent with CAA sections 110(a)(2)(C) and 110(l), and the EPA's NSR
regulations located at 40 CFR 51.160-51.164.
III. Proposed Action
The EPA has made the preliminary determination that the January 29,
2020, regulations proposed for adoption by the TCEQ, and submitted to
the EPA for parallel processing on January 30, 2020, as proposed
revisions to the Texas SIP and the State's minor NSR permit rules, are
in accordance with the CAA and the EPA's regulations, policy, and
guidance for NSR permitting. The EPA's analysis indicates the proposed
revisions to 30 TAC Section 116 satisfy the federal requirements for
air pollution control permits and will not cause or contribute to an
increase in the NAAQS; thus, will not interfere with attainment or
reasonable further progress. Therefore, pursuant to section 110(l) of
the CAA, the EPA proposes approval of the following revisions, proposed
on January 29, 2020, and submitted by the TCEQ on January 30, 2020 with
a request for parallel processing:
Revisions to 30 TAC Section 116.110 (except for Sections
116.110(a)(5), (c) and (d) that are not part of the Texas SIP);
Revisions to 30 TAC Section 116.116;
Addition of 30 TAC Section 116.118;
Revisions to 30 TAC Section 116.710;
Revisions to 30 TAC Section 116.721.
Additionally, the EPA proposes a ministerial change to 40 CFR
52.2270(c) to clarify that 30 TAC Section 116.110 Subsections (d)
change in ownership, (e) submittal under PE seal, and (f)
responsibility for permit application were approved on November 14,
2003, and include their appropriate re-lettering to 30 TAC Subsections
116.110(e), (f), and (g), respectively, from the January 30, 2020,
parallel processing request.
The EPA is proposing this action in parallel with the state's
rulemaking process. We cannot take a final action until the State
completes its rulemaking process, adopts its final regulations, and
submits these final adopted regulations as revisions to the Texas SIP.
If during the response to comments process, the State rule is changed
significantly from the proposed rule and the rule upon which the EPA
proposed, the EPA may have to withdraw our initial proposed rule and
re-propose based on the final SIP submittal.
IV. 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 the
Proposed Action section above. 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).
V. 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide 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 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: April 14, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-08156 Filed 4-22-20; 8:45 am]
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