Air Plan Approval; Texas; Interstate Visibility Transport
| Published date | 27 October 2020 |
| Citation | 85 FR 68021 |
| Record Number | 2020-22846 |
| Section | Proposed rules |
| Court | Environmental Protection Agency |
Federal Register, Volume 85 Issue 208 (Tuesday, October 27, 2020)
[Federal Register Volume 85, Number 208 (Tuesday, October 27, 2020)]
[Proposed Rules]
[Pages 68021-68026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22846]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2016-0611; FRL-10015-44-Region 6]
Air Plan Approval; Texas; Interstate Visibility Transport
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 disapprove
elements of two State Implementation Plan (SIP) submissions from the
State of Texas for the 2012 PM2.5 National Ambient Air
Quality Standard (NAAQS) and the 2015 Ozone NAAQS. These submittals
address how the existing SIP provides for implementation, maintenance,
and enforcement of the 2012 PM2.5 and 2015 Ozone NAAQS
(infrastructure SIP or i-SIP). The i-SIP requirements are to ensure
that the Texas SIP is adequate to meet the state's responsibilities
under the CAA for these NAAQS. Specifically, this proposed disapproval
addresses the interstate visibility transport requirements of the i-SIP
for the 2012 PM2.5 and 2015 Ozone NAAQS under CAA section
110(a)(2)(D)(i)(II). In addition to this proposed disapproval, however,
we are proposing to find that the requirements of those i-SIP elements
are met through the Federal Implementation Plans (FIPs) in place for
the Texas Regional Haze program, and no further federal action is
required.
DATES: Comments must be received on or before November 27, 2020.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0611, at https://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Jennifer Huser, 214-665-
7347, [email protected]. For the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at www.regulations.gov. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Jennifer Huser, EPA Region 6 Office,
Regional Haze and SO2 Section, 214-665-7347,
[email protected]. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office will be closed to the
[[Page 68022]]
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, ``we,'' ``us,''
and ``our'' means the EPA.
I. Background
Whenever a new or revised National Ambient Air Quality Standard
(NAAQS) is promulgated, the Clean Air Act (CAA) requires states to
submit a plan for the implementation, maintenance, and enforcement of
the standard, commonly referred to as infrastructure requirements. One
of the elements of an infrastructure SIP is found within section
110(a)(2)(D)(i)(II), often referred to as prong 4 or visibility
transport. Prong 4 requires states to demonstrate that their SIP has
adequate provisions in place to prohibit emissions from any source
within a state from interfering with visibility protection measures of
other states. In EPA's 2013 guidance for states regarding i-SIPs,\1\
EPA discussed its interpretation of prong 4 and its relationship to the
Regional Haze program under CAA sections 169A and 169B. EPA suggested
two options states may have to demonstrate that the requirements of
prong 4 are met. One way in which prong 4 may be satisfied for any
relevant NAAQS is through confirmation in its infrastructure SIP
submission that it has an approved regional haze SIP that fully meets
the requirements of 40 CFR 51.308 or 51.309. Alternatively, states may
submit a demonstration in its infrastructure SIP submission that
emissions within its jurisdiction do not interfere with other states'
plans to protect visibility. The demonstration must show that the state
has sufficient measures that have been approved into its SIP that
prevent emissions within its jurisdiction from interfering with the
visibility protection plans of other states.
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\1\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1
through 10, September 13, 2013 (hereinafter ``2013 I-SIP
Guidance'').
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A. Texas' Infrastructure SIP Submittals for 2012 PM2.5 and
2015 Ozone NAAQS
EPA has regulated particulate matter (PM) since 1971, when we
published the first NAAQS for PM (36 FR 8186 (April 30, 1971)). Most
recently, by notice dated January 15, 2013, following a periodic review
of the NAAQS for fine particulate matter (PM2.5), EPA
revised the primary annual PM2.5 NAAQS to 12.0 [micro]g/m\3\
and retained the secondary PM2.5 annual standard of 15
[micro]g/m\3\ as well as the 24-hour PM2.5 primary and
secondary standards of 35 [micro]g/m\3\ (2012 PM2.5
NAAQS).\2\ The primary NAAQS is designed to protect human health, and
the secondary NAAQS is designed to protect the public welfare. On
December 1, 2015, the Chairman of the Texas Commission on Environmental
Quality (TCEQ) submitted a SIP revision to address certain 2012
PM2.5 NAAQS infrastructure SIP elements. On June 5, 2018, we
approved all elements of the this i-SIP submission, except for the
interstate visibility transport sub-element under CAA section
110(a)(2)(D)(i)(II) upon which we took no action.\3\
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\2\ 78 FR 3085 (Jan. 15, 2013).
\3\ 83 FR 25920.
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EPA has regulated ozone since 1971, when we published the first
NAAQS for Photochemical Oxidants (36 FR 8186 (April 30, 1971)). Most
recently, following a periodic review of the 2008 NAAQS for ozone, EPA
revised the primary and secondary ozone NAAQS to 0.070 ppm.\4\ In 2015,
the EPA promulgated a revision to the ozone NAAQS lowering the level of
both the primary and secondary standards to 0.070 parts per million (80
FR 65292 (October 2015)). On August 17, 2018, the Chairman of the TCEQ
submitted a SIP revision to meet certain 2015 ozone NAAQS
infrastructure requirements. On September 23, 2019, we approved certain
elements of the 2015 ozone i-SIP submission, but did not act on the
interstate visibility transport sub-element under CAA section
110(a)(2)(D)(i)(II).\5\
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\4\ 82 FR 65291 (Oct. 26, 2015). Additional information on the
history of the NAAQS for ozone is available at https://www.epa.gov/ozone-pollution/table-historical-ozone-national-ambient-air-quality-standards-naaqs.
\5\ See 84 FR 49663 (September 23, 2019).
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B. Regional Haze and Visibility Transport in Texas
On March 31, 2009, Texas submitted a regional haze SIP (the 2009
Regional Haze SIP) to the EPA that included reliance on Texas'
participation in trading programs under the Clean Air Interstate Rule
(CAIR) as an alternative to BART for sulfur dioxide (SO2)
and nitrogen oxide (NOX) emissions from EGUs.\6\ This
reliance was consistent with the EPA's regulations at the time that
Texas developed its 2009 Regional Haze SIP.\7\ However, at the time
that Texas submitted this SIP to the EPA, the D.C. Circuit had remanded
CAIR (without vacatur).\8\ The court left CAIR and our CAIR FIPs in
place in order to ``temporarily preserve the environmental values
covered by CAIR'' until we could, by rulemaking, replace CAIR
consistent with the court's opinion. The EPA promulgated the Cross-
State Air Pollution Rule (CSAPR) to replace CAIR in 2011 \9\ and
revised it several times in 2011 and 2012.\10\ CSAPR established FIP
requirements for sources in a number of states, including Texas, to
address the states' interstate transport obligations under CAA section
110(a)(2)(D)(i)(I). CSAPR addresses interstate transport of fine
particulate matter and ozone by requiring affected EGUs in these states
to participate in one or more of the CSAPR trading programs, which
establish emissions budgets that apply to electric generating units'
(EGUs') collective annual emissions of SO2 and
NOX (to address PM2.5 transport), as well as
EGUs' emissions of NOX during ozone season (to address ozone
transport).\11\
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\6\ CAIR required certain states, including Texas, to reduce
emissions of SO2 and NOX that significantly
contribute to downwind nonattainment of the 1997 NAAQS for fine
particulate matter and ozone. See 70 FR 25152 (May 12, 2005).
\7\ See 70 FR 39104 (July 6, 2005).
\8\ See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), as
modified, 550 F.3d 1176 (D.C. Cir. 2008).
\9\ 76 FR 48207 (Aug. 8, 2011).
\10\ CSAPR was amended three times in 2011 and 2012 to add five
states to the seasonal NOX program and to adjust certain
state budgets. 76 FR 80760 (Dec. 27, 2011); 77 FR 10324 (Feb. 21,
2012); 77 FR 34830 (June 12, 2012).
\11\ The ozone season for CSAPR purposes is May 1 through
September 30.
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Following issuance of CSAPR, EPA determined that CSAPR would
achieve greater reasonable progress towards improving visibility than
would source-specific BART in CSAPR states (a determination often
referred to as ``CSAPR Better-than-BART'').\12\ In the same action, we
revised the Regional Haze Rule to allow states whose sources
participate in the CSAPR trading programs to rely on such participation
in lieu of requiring BART-eligible EGUs in the state to install BART
controls as to the relevant pollutant.
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\12\ 77 FR 33641 (June 7, 2012). This determination was upheld
by the D.C. Circuit. See Util. Air Regulatory Grp. v. EPA, 885 F.3d
714 (D.C. Cir. 2018).
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In the same action that EPA determined that states could rely on
CSAPR to address the BART requirements for EGUs, EPA issued a limited
disapproval of a number of states' regional haze SIPs, including the
2009 Regional Haze SIP submittal from Texas, due to the states'
reliance on
[[Page 68023]]
CAIR, which had been replaced by CSAPR.\13\ The EPA did not immediately
promulgate a FIP to address those aspects of the 2009 Regional Haze SIP
submittal subject to the limited disapproval in order to allow more
time for the EPA to assess the remaining elements of the 2009 Texas SIP
submittal.
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\13\ 77 FR 33641.
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In December 2014, we proposed an action to address the remaining
regional haze obligations for Texas.\14\ In that action, we proposed,
among other things, to rely on our CSAPR FIP requiring Texas sources'
participation in the CSAPR trading programs to satisfy the
NOX and SO2 BART requirements for Texas' BART-
eligible EGUs; we also proposed to approve the portions of the 2009
Regional Haze SIP addressing PM BART requirements for the state's EGUs.
Before that rule was finalized, however, the D.C. Circuit issued a
decision on a number of challenges to CSAPR, denying most claims, but
remanding the CSAPR SO2 and/or seasonal NOX
emissions budgets of several states to the EPA for reconsideration,
including the Phase 2 SO2 and seasonal NOX
budgets for Texas.\15\ Due to the uncertainty arising from the remand
of Texas' CSAPR budgets, we did not finalize our December 2014 proposal
to rely on CSAPR to satisfy the SO2 and NOX BART
requirements for Texas EGUs.\16\ Additionally, because our proposed
action on the PM BART provisions for EGUs was dependent on how
SO2 and NOX BART were satisfied, we did not take
final action on the PM BART elements of the 2009 Texas' Regional Haze
SIP.\17\ In January 2016, we finalized action on the remaining aspects
of the December 2014 proposal.\18\ This final action disapproved, among
other things, Texas' Reasonable Progress Goals for the Big Bend and
Guadalupe Mountains Class I areas in Texas, Texas' reasonable progress
analysis and Texas' long-term strategy. EPA promulgated a FIP
establishing a new long-term strategy that consisted of SO2
emission limits for 15 coal-fired EGUs at eight power plants. That
rulemaking was judicially challenged, however, and in July 2016, the
Fifth Circuit granted the petitioners' motion to stay the rule pending
review.\19\ On March 22, 2017, following the submittal of a request by
the EPA for a voluntary remand of the parts of the rule under
challenge, the Fifth Circuit Court of Appeals remanded the rule in its
entirety.\20\
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\14\ 79 FR 74818 (Dec. 16, 2014).
\15\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 132 (D.C. Cir. 2015).
\16\ See 81 FR 296, 301-02 (Jan. 5, 2016).
\17\ Id.
\18\ 81 FR 296 (Jan. 5, 2016).
\19\ Texas v. EPA, 829 F.3d 405 (5th Cir. 2016).
\20\ Order, Texas v. EPA, 16-60118 (5th Cir. Mar. 22, 2017).
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On October 26, 2016, the EPA finalized an update to CSAPR to
address the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR
Update).\21\ The EPA also responded to the D.C. Circuit's remand in EME
Homer City II of certain CSAPR seasonal NOX budgets in that
action. As to Texas, the EPA withdrew Texas' seasonal NOX
budget finalized in CSAPR to address the 1997 ozone NAAQS. However, in
that same action, the EPA promulgated a FIP with a revised seasonal
NOX budget for Texas to address transport requirements under
the 2008 ozone NAAQS.\22\ Accordingly, Texas sources remain subject to
CSAPR seasonal NOX requirements.
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\21\ 81 FR 74504 (Oct. 26, 2016).
\22\ Id. 74524-25.
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On November 10, 2016, in response to the D.C. Circuit's remand of
Texas' CSAPR SO2 budget, we proposed to withdraw the FIP
provisions that required EGUs in Texas to participate in the CSAPR
trading programs for annual emissions of SO2 and
NOX.\23\ We also proposed to reaffirm the EPA's 2012
analytical demonstration that CSAPR provides greater reasonable
progress than BART, despite changes in CSAPR's geographic scope to
address the EME Homer City II remand, including removal of Texas' EGUs
from the CSAPR trading program for SO2 emissions. On
September 29, 2017, we finalized the withdrawal of the FIP provisions
for annual emissions of SO2 and NOX for EGUs in
Texas \24\ and affirmed our proposed finding that the EPA's 2012
analytical demonstration remains valid and that participation in the
CSAPR trading programs as they now exist meets the Regional Haze Rule's
criteria for an alternative to BART. (We refer to this as the ``2017
CSAPR Better-than-BART affirmation finding'' throughout this proposed
rule.) As discussed in Section I.D below, certain environmental
organizations filed a petition for reconsideration of this finding in
November 2017.
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\23\ 81 FR 78954 (Nov. 10, 2016).
\24\ 82 FR 45481 (Sept. 29, 2017). As explained above, Texas
sources continue to be subject to the CSAPR Update FIP, under which
they participate in a CSAPR trading program for ozone season
NOX.
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On October 17, 2017, we finalized our January 2017 proposed
determination that Texas' participation in CSAPR's trading program for
ozone-season NOX qualifies as an alternative to source-
specific NOX BART. We determined that the SO2
BART requirements for all BART-eligible coal-fired units and a number
of BART-eligible gas- or gas/fuel oil-fired units are satisfied by a
BART alternative for SO2--specifically, a new intrastate
trading program that we established addressing emissions of
SO2 from certain EGUs in Texas. The remaining BART-eligible
EGUs not covered by the SO2 BART alternative were previously
determined to be not subject to BART based on screening methods using
model plants and CALPUFF \25\ modeling as described in our proposed
rule and BART Screening technical support document (TSD).\26\ Finally,
because both NOX and SO2 were now being addressed
by a BART alternative, we approved the 2009 Regional Haze SIP's
determination, based on a pollutant-specific screening analysis, that
Texas' EGUs are not subject to BART for PM. With respect to interstate
visibility transport obligations, we determined that the BART
alternative to address SO2 and Texas sources' participation
in CSAPR's trading program for ozone-season NOX to address
NOX BART at Texas' EGUs fully addresses Texas' obligations
for six NAAQS.
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\25\ CALPUFF (California Puff Model) is a multi-layer, multi-
species non-steady-state puff dispersion modeling system that
simulates the effects of time- and space-varying meteorological
conditions on pollutant transport, transformation, and removal.
CALPUFF is intended for use in assessing pollutant impacts at
distances greater than 50 kilometers to several hundreds of
kilometers. It includes algorithms for calculating visibility
effects from long range transport of pollutants and their impacts on
Federal Class I areas. EPA previously approved the use of the
CALPUFF model in BART related analyses. See Regional Haze
Regulations and Guidelines for Best Available Retrofit Technology
(BART) Determinations; Final Rule; 70 FR 39104 (July 6, 2005). For
instructions on how to download the appropriate model code and
documentation that are available from Exponent (Model Developer/
Owner) at no cost for download, see EPA's website: https://www.epa.gov/scram/air-quality-dispersion-modeling-preferred-and-recommended-models#calpuff.
\26\ See document at docket identification number EPA-R06-OAR-
0611-0005.
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In June 2020, we affirmed our finding that Texas' participation in
CSAPR to satisfy NOX BART and our SO2 intrastate
trading program, as amended, fully address Texas' interstate visibility
transport obligations for the following six NAAQS: (1) 1997 8-hour
ozone; (2) 1997 PM2.5 (annual and 24 hour); (3) 2006
PM2.5 (24-hour); (4) 2008 8-hour ozone; (5) 2010 1-hour
NO2; and (6) 2010 1-hour SO2.\27\ We determined
in the October 2017 FIP that the regional haze measures in place for
Texas are
[[Page 68024]]
adequate to ensure that emissions from the State do not interfere with
measures to protect visibility in nearby states, because the emission
reductions are consistent with the level of emissions reductions relied
upon by other states during interstate consultation under 40 CFR
51.308(d)(3)(i)-(iii) and when setting their reasonable progress
goals.\28\ As discussed in our August 2018 affirmation proposal, the
2009 Texas Regional Haze SIP relied on participation in CAIR to meet
SO2 and NOX BART requirements for Texas EGUs.
Under CAIR, Texas EGU sources were projected to emit approximately
350,000 tons of SO2 annually.\29\ These are the 2018 EGU
emission projections used by CENRAP for Texas that other states relied
on in their regional haze SIPs for the first planning period.\30\ While
CAIR is no longer in operation, and therefore cannot be relied upon to
satisfy BART requirements, the emissions projections based on CAIR used
in interstate consultation remain valid as benchmarks for assessing
states' impacts on other states' Class I areas. As we explained in our
June 2020 final affirmation of the Texas BART alternative FIP for
SO2, annual SO2 emissions for sources covered by
the Texas SO2 Trading Program will be constrained by the
annual budgets and an assurance level \31\ of 255,083 tons. Including
an estimated 35,000 tons per year of emissions from units not covered
by the Texas SO2 Trading Program yields 290,083 tons of
SO2, which is well below the 350,000-ton emissions
projection for 2018 for Texas sources under CAIR or the 317,100-ton
emissions level assumed for Texas sources under CSAPR participation in
the BART alternative sensitivity analysis utilized for the 2012 CSAPR
Better-than-BART determination. Additionally, the October 2017 FIP
relies on CSAPR for ozone season NOX as an alternative to
EGU BART for NOX. The ozone season NOX emission
reductions achieved by CSAPR exceed the emission reductions that would
have been realized from Texas EGUs under CAIR and that other states
relied upon during interstate consultation for the first planning
period.\32\ Because the revisions to the Texas SO2 Trading
Program ensure emission reductions consistent with and below the
emission levels relied upon by other states during interstate
consultation, we determined that the BART alternative for
SO2 in the October 2017 FIP, as amended by the June 2020
affirmation, as well as Texas' EGUs' continuing participation in the
CSAPR Update for ozone season NOX, result in emission
reductions adequate to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to interstate visibility transport for
the six identified NAAQS.
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\27\ See final rule at 85 FR 49170, at 49187 (August 12, 2020);
see also supplemental proposed rule at 84 FR 61850 (November 14,
2019) and affirmation proposed rule at 83 FR 43586 (August 27,
2018).
\28\ See 2009 Texas Regional Haze SIP, section 4.3 titled
``Consultations On Class I Areas In Other States.'' The submittal
can be found at www.regulations.gov, Docket ID EPA-R06-OAR-2016-
0611, Document ID EPA-R06-OAR-2016-0611-0002.
\29\ See section 10 of the 2009 Texas Regional Haze SIP. Table
10-7 shows that under CAIR, the 2018 emission from Texas EGUs were
projected to be approximately 350,000 tons SO2. The SIP
submittal can be found in www.regulations.gov, Docket ID EPA-R06-
OAR-2016-0611, Document ID EPA-R06-OAR-2016-0611-0002.
\30\ To develop its 2009 Regional Haze SIP, TCEQ worked through
its regional planning organization, the Central Regional Air
Planning Association (CENRAP), to develop strategies to address
regional haze, which at that time were based on emissions reductions
from CAIR. To help states in establishing reasonable progress goals
for improving visibility in Class I areas, the CENRAP modeled future
visibility conditions based on the mutually agreed emissions
reductions from each state. The CENRAP states then relied on this
modeling in setting their respective reasonable progress goals.
\31\ An assurance level is the total level of annual emissions
above which units in the program would be penalized with a higher
allowance surrender ratio (i.e., a three-to-one rate) than the one-
to-one ratio that applies to emissions below the assurance level.
\32\ Under CAIR, Texas had an annual 2009 CAIR Phase 1 budget of
181,017 tons of NOX and an annual 2015 CAIR Phase 2
budget of 150,845 tons of NOX. See Section 11, Table 11-
15 of the 2009 Texas Regional Haze SIP. The SIP submittal can be
found at www.regulations.gov, Docket ID EPA-R06-OAR-2016-0611,
document ID EPA-R06-OAR-2016-0611-0002. The 2018 EGU emission
projections for NOX used by CENRAP for Texas, which other
states potentially impacted by emissions from Texas sources agreed
upon during interstate consultation and relied on in their regional
haze SIPs, were approximately 160,000 tons. In contrast, under the
CSAPR ozone season NOX trading program, Texas' 2017
NOX ozone season budget is 52,301 tons of NOX.
See 81 FR 74504, 74508 (Oct. 26, 2016). In 2018, Texas reported to
CAMD, for all sources in Texas, approximately 107,000 tons of NOx
emissions, and approximately 96,000 tons in 2019, well below the
160,000-ton emissions projection for 2018 assumed for Texas sources
under CAIR and used in interstate consultation.
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II. Texas Infrastructure SIP Submittals
On December 1, 2015, TCEQ submitted a SIP revision to address the
infrastructure and transport requirements for the 2012 PM2.5
NAAQS. In its evaluation, TCEQ asserted that its March 19, 2009
regional haze SIP met all of the requirements for approval.
On August 17, 2018, TCEQ submitted a SIP revision to address the
CAA section 110(a)(1) and 110(a)(2) infrastructure and transport
requirements for the 2015 ozone NAAQS. In its evaluation, TCEQ
acknowledged that it does not have a SIP-approved regional haze program
but asserted that EPA's October 17, 2017 FIP to address best available
retrofit technology (BART) requirements for Texas EGUs sufficiently
meets the requirements for visibility transport. In that October 17,
2017 action, EPA included a disapproval of Texas' interstate visibility
transport SIP submittals for the 1997 eight-hour ozone, 1997
PM2.5 (annual and 24-hour), 2006 PM2.5 (24-hour),
2008 eight-hour ozone, 2010 one-hour nitrogen dioxide, and 2010 one-
hour SO2 NAAQS (82 FR 48324). However, EPA also made a
finding that the BART alternatives adopted in the FIP meet the
interstate visibility transport requirements for these NAAQS under CAA
section 110(a)(2)(D)(i)(II).
Texas relied on the following points to support its conclusion that
Texas meets the visibility transport provision for the 2015 ozone
NAAQS: (1) EPA's finding that the October 2017 BART FIP meets the
visibility transport provision for these other NAAQS; (2) the modeling
analysis in the State's interstate transport SIP revision (as to
``prongs 1 and 2'' under section 110(a)(2)(D)(i)(I)) purportedly
demonstrating that Texas does not significantly contribute to
nonattainment or maintenance in another state for the 2015 ozone NAAQS;
(3) the fact that the EPA has not established a separate visibility
standard for ozone; and (4) Texas' inclusion in the Cross-State Air
Pollution Rule (CSAPR) Update ozone season NOX trading
program.
III. The EPA's Evaluation
Our 2013 infrastructure SIP guidance addresses the requirements for
prong 4 and lays out two ways in which a state's infrastructure SIP
submittal may satisfy these requirements.\33\ One way is through a
state's confirmation in its infrastructure SIP submittal that it has a
fully approved regional haze SIP in place. As previously discussed, EPA
promulgated a limited disapproval of the 2009 Texas Regional Haze SIP
in 2012 because the visibility improvement plan relied on CAIR emission
reductions to satisfy BART requirements for EGUs for SO2 and
NOX emissions.\34\ Texas has not submitted a SIP revision to
address this deficiency and remove reliance on CAIR for Regional Haze.
The 2009 Texas Regional Haze SIP cannot be relied upon to meet its
interstate visibility transport obligations for the 2012 PM and the
2015 ozone NAAQS.
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\33\ See 2013 I-SIP Guidance at 32-35.
\34\ 77 FR 33641.
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In the absence of a fully approved Regional Haze SIP, the second
method provided by the guidance to meet these
[[Page 68025]]
requirements is a demonstration that emissions within a state's
jurisdiction do not interfere with other states' plans to protect
visibility. EPA interprets prong 4 to be pollutant-specific such that
the state need only address the potential for interference with
visibility protection caused by the pollutant (including precursors) to
which the new or revised NAAQS applies.\35\ According to the guidance,
such a demonstration for the first planning period should establish or
identify the measures in the approved SIP that limit visibility-
impairing pollutants and ensure that the resulting reductions conform
with any mutually agreed emission reductions under the relevant
regional haze regional planning organization (RPO) process.\36\ As
explained below, the TCEQ did not make such a demonstration in their
infrastructure SIPs.
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\35\ See 2013 I-SIP Guidance at 33.
\36\ See 2013 I-SIP Guidance at 34. See also 76 FR 22036 (April
20, 2011) (containing EPA's approval of the visibility requirement
of 110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did
not rely on the Colorado Regional Haze SIP).
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A. Analysis of Texas' 2015 Prong 4 Submittal for the 2012 PM2.5 NAAQS
The 2015 i-SIP submittal for the 2012 PM2.5 NAAQS relied
on Texas' 2009 Regional Haze SIP submittal. As explained above, the
prong 4 requirements are pollutant specific. The portions of Texas'
2009 Regional Haze SIP that address PM BART have been approved, but
portions of the SIP that address PM and PM precursor emissions have not
been approved and thus cannot be relied upon to satisfy the prong 4
requirements. Some PM emissions are emitted directly from sources, but
PM can also form in the atmosphere as a result of complex reactions of
other pollutants such as SO2 and NOX, which are
visibility impairing pollutants themselves and are required to be
addressed under regional haze. The 2015 i-SIP submittal does not
provide any additional information to demonstrate that the measures in
the SIP are sufficient to prohibit emissions from sources within Texas
from interfering with measures that have been developed by other states
to protect visibility. EPA cannot approve the interstate visibility
transport portion of this i-SIP submittal without additional analysis
that demonstrates that there are SIP-approved measures that prevent
emissions within its jurisdiction from interfering with the visibility
protection plans of other states. We therefore propose to disapprove
the interstate visibility transport portion of the 2015 Texas i-SIP
submittal for the 2012 PM2.5 NAAQS.
B. Analysis of Texas' 2018 Prong 4 Submittal for the 2015 Ozone NAAQS
In Texas's 2018 i-SIP submittal for the 2015 Ozone NAAQS, TCEQ
acknowledges the limited disapproval of its 2009 Regional Haze SIP
submittal but explains that EPA's October 17, 2017 FIP to address BART
requirements for Texas EGUs sufficiently meets the requirements for
interstate visibility transport for the 2015 ozone NAAQS. However, the
BART-alternative emission limitations in the FIP are not part of the
approved SIP and thus cannot be relied upon by the State to address
visibility transport requirements. Infrastructure SIPs are intended to
be a means by which both states and the EPA can ensure that the state
has sufficient measures in their SIP to meet the requirements in CAA
section 110(a) for newly promulgated NAAQS. The Act requires that the
state submit implementation plans that ``contain'' the listed
requirements under section 110(a)(2)(D). As such, states cannot rely
upon measures in FIPs to meet these requirements.\37\
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\37\ See also id. at 34 (``A number of air agencies do not have
fully approved regional haze SIPs in place and instead have FIPs in
place, which cannot be relied upon to satisfy prong 4.'').
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Texas points to its 2015 ozone NAAQS i-SIP submittal that purports
to find that Texas emissions do not significantly contribute to
nonattainment or interfere with maintenance in another state under
section 110(a)(2)(D)(i)(I). The analysis in that SIP submittal focuses
on the potential impact of ozone-precursor emissions at certain ozone
monitor locations in other states as related to the attainment and
maintenance of the ozone NAAQS and does not provide an analysis of
visibility impacts at Class I areas due to emissions of ozone
precursors as visibility pollutants.\38\ This basis for approval is
inadequate.
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\38\ See id. at 33 (``The EPA interprets [prong 4] to be
pollutant-specific, such that the infrastructure SIP submission need
only address the potential for interference with protection of
visibility caused by the pollutant (including precursors) to which
the new or revised NAAQS applies.'')
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Texas stated that the EPA has not established a separate visibility
transport standard for ozone because ozone does not directly impair
visibility or substantially produce or contribute to the production of
the secondary air contaminants that cause visibility impairment or
regional haze. The visibility transport requirement found in CAA
section 110(a)(2)(D)(i)(I) applies to all pollutants (including
precursors) for which EPA has promulgated a NAAQS. As such, Texas is
required to demonstrate to EPA that it has approved measures in its
SIPs that ensure that ozone-precursor emissions within its jurisdiction
do not interfere with other states' visibility protection plans. While
it is true that ozone itself does not directly impair visibility or
contribute to the production of secondary air contaminants that cause
visibility impairment, ozone precursors (NOX and in some
cases volatile organic compounds (VOCs)) do contribute to visibility
impairment.
Texas also points to the fact that they are included in the CSAPR
Update for ozone season NOX.\39\ However, as described
above, this is currently implemented as a FIP in Texas, both as to
interstate ozone transport (for the 2008 ozone NAAQS) under section
110(a)(2)(D)(i)(I) and as a BART alternative. Texas has not used its
SIP planning authority to submit a SIP revision to establish reliance
on this CSAPR program to address regional haze requirements. Therefore,
because the Texas Regional Haze SIP is not fully approved and Texas has
not provided a demonstration that shows that its SIP contains measures
that are sufficient to prevent emissions within its jurisdiction from
interfering with the visibility protection measures of other states, we
propose to disapprove the 2018 i-SIP submittal addressing interstate
visibility transport for the 2015 Ozone NAAQS.
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\39\ 81 FR 74504 (October 26, 2016).
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C. EPA's Proposed Finding That Prong 4 Obligations Are Satisfied
In October 2017, EPA promulgated a BART FIP, as amended and
affirmed in June 2020. In that FIP, EPA has established emission
limitations under the Texas SO2 Trading Program--including
the assurance provisions. As explained in section I.B. of this proposed
rule, these emission limitations that were established in the FIP
result in SO2 emission levels that are lower than the levels
that were projected for Texas during the Regional Haze consultation
process. Thus, the Texas SO2 emission levels achieved by the
FIP's emission limitations \40\ are lower than the levels that states
relied on in developing their Regional Haze
[[Page 68026]]
SIPs. Additionally, this FIP relies on CSAPR as an alternative to EGU
BART for NOX, which exceeds the emissions reductions relied
upon by other states during consultation. Consistent with our previous
action (detailed above) to disapprove Texas' interstate visibility
transport obligations for the following six NAAQS: (1) 1997 8-hour
ozone; (2) 1997 PM2.5 (annual and 24 hour); (3) 2006
PM2.5 (24-hour); (4) 2008 8-hour ozone; (5) 2010 1-hour
NO2; and (6) 2010 1-hour SO2, and finding that
the FIP addresses these requirements, we continue to find that the
existing FIP is adequate to ensure that emissions from Texas do not
interfere with measures to protect visibility in nearby states with
respect to the 2012 PM2.5 NAAQS and the 2015 Ozone NAAQS.
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\40\ The Act defines an emissions limitation as a requirement
established by the State or the Administrator which limits the
quantity, rate, or concentration of emissions of air pollutants on a
continuous basis, including any requirement relating to the
operation or maintenance of a source to assure continuous emission
reduction, and any design, equipment, work practice or operational
standard promulgated under Chapter 85 of Title 42. Trading programs
like the ones in the FIPs that fulfill Texas' regional haze
requirements fall within the Act's definition of emissions
limitations.
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Texas' obligations under prong 4 are being addressed through the
October 2017 BART FIP, as amended and affirmed in June 2020 for the
first planning period. This ensures that emissions from sources within
Texas are not interfering with measures required to be included in
other air agencies' plans to protect visibility. Under EPA's 2013
guidance, this is sufficient to satisfy prong 4 requirements for the
first planning period. See Guidance at 33. Thus, there are no
additional practical consequences from this disapproval for the state,
the sources within its jurisdiction, or the EPA. See Guidance at 34-35.
EPA finds its prong 4 obligations for the 2012 PM2.5 and the
2015 ozone NAAQS are satisfied.
IV. Proposed Action
We are proposing to disapprove the interstate visibility transport
elements of two SIP submissions from the State of Texas: One for the
2012 PM2.5 NAAQS and the other for 2015 Ozone NAAQS. We are
simultaneously exercising our authority under section 110(c) of the
Act, and we are proposing to find that the prong 4 requirements that
were intended to be addressed by those infrastructure SIPs are met
through the BART-alternative FIP already in place for the Texas
Regional Haze program, and no further action is required.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action merely proposes to disapprove a SIP submission as not meeting
the CAA.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it merely proposes to disapprove a SIP
submission as not meeting the CAA.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk addressed by
this action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income or
indigenous populations. This action merely proposes to disapprove a SIP
submission as not meeting the CAA.
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental protection, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Visibility transport.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 9, 2020.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2020-22846 Filed 10-26-20; 8:45 am]
BILLING CODE 6560-50-P
