Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan: Proposal of Best Available Retrofit Technology (BART) and Interstate Visibility Transport Provisions, 61850-61863 [2019-24286]
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Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Proposed Rules
appendix. If the conventional cooking top is
capable of operating in off mode, as defined
in section 1.17 of this appendix, measure the
average off mode power of the conventional
cooking top, POM, in watts as specified in
section 3.1.1.1.2 of this appendix.
3.2.2 Combined cooking product standby
mode and off mode power. Make
measurements as specified in section 3.1.2 of
this appendix. If the combined cooking
product is capable of operating in inactive
mode, as defined in section 1.14 of this
appendix, measure the average inactive mode
power of the combined cooking product, PIA,
in watts as specified in section 3.1.2.1 of this
appendix. If the combined cooking product is
capable of operating in off mode, as defined
in section 1.17 of this appendix, measure the
average off mode power of the combined
cooking product, POM, in watts as specified
in section 3.1.2.2 of this appendix.
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[FR Doc. 2019–24331 Filed 11–13–19; 8:45 am]
BILLING CODE 6450–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 97
[EPA–R06–OAR–2016–0611; FRL–10001–
85–Region 6]
Promulgation of Air Quality
Implementation Plans; State of Texas;
Regional Haze and Interstate Visibility
Transport Federal Implementation
Plan: Proposal of Best Available
Retrofit Technology (BART) and
Interstate Visibility Transport
Provisions
Environmental Protection
Agency (EPA).
ACTION: Supplemental notice of
proposed rulemaking.
AGENCY:
In this supplemental notice of
proposed rulemaking (SNPRM), the
Environmental Protection Agency (EPA)
is supplementing the proposal
published on August 27, 2018 to affirm
the Agency’s October 2017 Federal
Implementation Plan (FIP), which
partially approved the 2009 Texas
Regional Haze State Implementation
Plan (SIP) submission and promulgated
a Federal Implementation Plan (FIP) for
Texas to address certain outstanding
Clean Air Act (CAA) regional haze
requirements. The October 2017 FIP
established the Texas SO2 Trading
Program, an intrastate trading program
for certain electric generating units
(EGUs) in Texas, as a Best Available
Retrofit Technology (BART) alternative
for sulfur dioxide (SO2). In response to
certain comments received on the
August 2018 proposal to affirm the
October 2017 FIP, we are proposing
revisions to the Texas SO2 Trading
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SUMMARY:
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Program, including provisions for
penalties on the total annual SO2
emissions from sources covered by the
rule exceeding a proposed assurance
level.
DATES: Comments must be received on
or before January 13, 2020.
Public Hearing: A public hearing, if
requested, will be held in Room 5220,
1201 Elm Street, Suite 500, Dallas,
Texas 75270 on December 9, 2019
beginning at 1:00 p.m. If you wish to
request a hearing and present testimony
or attend the hearing, you should notify,
on or before November 27, 2019, Ms.
Jennifer Huser, Air and Radiation
Division (ARSH), Environmental
Protection Agency Region 6, 1201 Elm
Street, Suite 500; telephone number:
(214) 665–7347; email address:
huser.jennifer@epa.gov. Oral testimony
will be limited to 5 minutes each. The
hearing will be strictly limited to the
subject matter of the proposal, the scope
of which is discussed below. Any
member of the public may file a written
statement by the close of the comment
period. Written statements (duplicate
copies preferred) should be submitted to
Docket ID No. EPA–R06–OAR–2016–
0611, at the address listed above for
submitted comments. The hearing
location and schedule will be posted on
EPA’s web page at https://www.epa.gov/
publicnotices/notices-search/location/
Texas. Verbatim English—language
transcripts of the hearing and written
statements will be included in the
rulemaking docket. If no requests for a
public hearing are received by close of
business on November 27, 2019, a
hearing will not be held, and this
announcement will be made on the web
page at the address shown above.
For additional logistical information
regarding the public hearing please see
the SUPPLEMENTARY INFORMATION section
of this action.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2016–0611, at https://
www.regulations.gov or via email to R6_
TX-BART@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
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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, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at the EPA Region 6, 1201 Elm
Street, Suite 500, Dallas, Texas 75270.
While all documents in the docket are
listed in the index, some information
may be publicly available only at the
hard copy location (e.g., copyrighted
material), and some may not be publicly
available at either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT:
Jennifer Huser, Air and Radiation
Division, Environmental Protection
Agency, Region 6, 1201 Elm Street,
Suite 500, Dallas, Texas 75270,
telephone 214–665–7347; email address
Huser.Jennifer@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
A public hearing, if requested, will
provide interested parties the
opportunity to present information and
opinions to us concerning our proposal.
Interested parties may also submit
written comments, as discussed in the
proposal. Written statements and
supporting information submitted
during the comment period will be
considered with the same weight as any
oral comments and supporting
information presented at the public
hearing. We will not respond to
comments during the public hearing.
When we publish our final action, we
will provide written responses to all
significant oral and written comments
received on our proposal.
At the public hearing, the hearing
officer may limit the time available for
each commenter to address the proposal
to three minutes or less if the hearing
officer determines it to be appropriate.
We will not be providing equipment for
commenters to show overhead slides or
make computerized slide presentations.
Any person may provide written or oral
comments and data pertaining to our
proposal at the public hearing. Verbatim
English—language transcripts of the
hearing and written statements will be
included in the rulemaking docket.
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Table of Contents
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I. Background
II. Public Comment
III. Texas SO2 BART Alternative Trading
Program
A. Proposed Changes to Specific Texas SO2
Trading Program Features
1. Addition of Assurance Provisions
2. Revision of Supplemental Allowance
Pool Allocation Provisions
3. Termination of Opt-In Provisions
4. Revision of Allowance Recordation
Provisions
B. Interstate Visibility Transport
IV. Supplemental Proposed Action
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Overview, Executive Order
13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Technology Transfer and
Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. Background
On August 27, 2018, we proposed to
affirm our October 2017 FIP and
provided an opportunity to comment on
relevant aspects of the rule, as well as
other specified related issues.1 To
address the SO2 BART requirements for
EGUs, we proposed to affirm our
October 2017 FIP, which relied on an
intrastate SO2 trading program as a
BART alternative for certain EGUs in
Texas (‘‘Texas SO2 Trading Program’’).
We proposed to affirm our approval of
the portion of the 2009 Texas Regional
Haze SIP that addresses the BART
requirement for EGUs for particulate
matter (PM). We also proposed to affirm
our determination that the BART
alternatives addressing SO2 and
nitrogen oxides (NOX) BART at Texas’
EGUs were adequate to satisfy the
interstate visibility transport
1 83 FR 43586 (August 27, 2018). Additional
information regarding the regulatory background of
the CAA and regional haze requirements can be
found in the October 2017 FIP, 82 FR 48324 (Oct.
17, 2017), and our January 2017 notice of proposed
rulemaking for Texas Regional Haze, 82 FR 912
(Jan. 4, 2017).
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requirements for the following national
ambient air quality standards (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. The August 2018 proposal contains
more detailed discussion of previous
EPA actions on Texas Regional Haze
and the rationale for our proposed
action to affirm.
The comment period on the August
2018 proposal closed on October 26,
2018. We received timely comments on
the proposal, and we will address all
comments received on the original
proposal and on this supplemental
proposal in our final action.
II. Public Comment
We are reopening the public comment
period with respect to the specific
proposed changes in this notice.
Comments are due January 13, 2020.
EPA is not reopening the comment
period for any other aspects of our
August 2018 proposal. Comments
should be limited to the items discussed
in this supplemental proposal.
III. Texas SO2 BART Alternative
Trading Program
A. Proposed Changes to Specific Texas
SO2 Trading Program Features
In this supplemental proposal, EPA
proposes to make four sets of
amendments to the Texas SO2 Trading
Program: (1) The addition of assurance
provisions; (2) revisions to the
Supplemental Allowance Pool
allocation provisions; (3) termination of
the opt-in provisions; and (4) revision of
the allowance recordation provisions.
The four subsections of this section
discuss each of these proposed sets of
amendments in turn, along with the
associated rationales. In general, these
proposed changes, if finalized, would
strengthen our finding in October 2017,2
which we proposed to affirm in August
2018, that the Texas SO2 Trading
Program will result in SO2 emission
levels from Texas EGUs that are similar
to or less than the emission levels from
Texas EGUs that would have been
realized had Texas continued to
participate in the SO2 trading program
under the Cross-State Air Pollution Rule
(CSAPR).3
The proposed changes to the Texas
SO2 Trading Program would be
implemented through revisions to the
existing regulations at 40 CFR part 97,
subpart FFFFF. A redline/strike-out
document showing subpart FFFFF with
2 82
FR 48324, 48329.
83 FR at 43599.
3 See
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the proposed revisions has been added
to the docket for this proposed action.
1. Addition of Assurance Provisions
In the August 2018 proposal, EPA
proposed to affirm that the Texas SO2
Trading Program is an appropriate SO2
BART alternative for EGUs in Texas on
the basis that the program ‘‘will achieve
greater reasonable progress than BART
towards restoring visibility, consistent
with the June 2012 ‘CSAPR better than
BART’ and September 2017 ‘CSAPR still
better than BART’ determinations.’’ 4
(Further background on those
determinations is set forth in the August
2018 proposal.) In support, EPA
explained that the Texas SO2 Trading
Program, despite some difference in the
scope of coverage of EGUs, would be
comparable in stringency to, if not more
stringent than, the CSAPR SO2 trading
program as applied to Texas sources.5
EPA further explained that its analysis
of the stringency of the CSAPR program
was premised on the CSAPR program’s
structure of state emission budgets plus
‘‘assurance levels.’’ 6
In each of the CSAPR trading
programs, EPA set an assurance level for
each state in order to ensure that,
despite the broad, interstate trading
region, emissions reductions would be
achieved appropriately in a
geographically distributed way
commensurate with states’ ‘‘good
neighbor’’ obligations as determined by
EPA through its analysis under CAA
section 110(a)(2)(D)(i)(I).7 EPA set these
assurance levels for states by first
establishing a ‘‘variability limit’’ as a
percentage of each state’s total emission
budget in order to account for year-toyear variability in the amount of fossil
fuel combusted to produce electricity
required to meet customer demand. EPA
then set the amount of each state’s
assurance level as the sum of the state’s
budget and its variability limit.8 If a
state’s sources’ emissions exceed the
statewide assurance level, the emissions
above that level are ‘‘penalized’’ through
a three-to-one allowance surrender
ratio.9 The CSAPR assurance levels are
thus designed to provide the sources in
each state with a strong incentive not to
exceed a state-specific target in any
compliance period, consistent with the
state-specific nature of the good
neighbor obligations, while providing
4 Id.
at 43590.
at 43591–92.
6 Id. at 43594–95.
7 76 FR 48208, 48265–66 (Aug. 8, 2011).
8 Id. at 48266–68.
9 83 FR at 43594–95.
5 Id.
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flexibility to respond to year-to-year
variability in electricity demand.10
The Texas SO2 Trading Program, as
promulgated in October 2017, does not
include an assurance level. In contrast
to CSAPR, the Texas SO2 Trading
Program does not allow for sources to
purchase allowances from sources in
other states. Therefore, the number of
allowances available to the Texas
sources is limited by the total number
of allowances allocated under the
program. While this limits the average
annual emissions under the program,
we recognize, as discussed in further
detail below, that the potential use of
banked allowances and allowances
allocated from the Supplemental
Allowance Pool could result in
potentially significant year-to-year
variability in emissions. Therefore, the
EPA is proposing to add an assurance
level provision to the Texas SO2 Trading
Program in order to maintain
consistency with the CSAPR program
and to provide additional support for
our determination that SO2 emissions
under the Texas SO2 Trading Program
will remain below the requisite level on
an annual basis. In order to explain our
proposed determination of the
appropriate stringency at which to set
the assurance level, in this
supplemental proposal we will first
review our prior analysis of the
stringency of the Texas SO2 Trading
Program in the August 27, 2018 notice.
We will then summarize the relevant
public comments EPA received on this
issue in response to that notice, and
propose an appropriate assurance level
based on our review of the information.
In the August 2018 proposal, we
summarized relevant Texas-related
aspects of the 2011 proposed and 2012
final ‘‘CSAPR better than BART’’
rulemaking.11 We described how, for
purposes of comparing the impacts of
CSAPR and BART nationwide in the
2011 proposed rule, EPA initially used
a model projection of 266,600 tons for
Texas EGUs’ annual SO2 emissions
under the CSAPR program.12 We then
explained that because of intervening
increases in some CSAPR emissions
budgets—including an increase of
10 For more information on assurance levels in the
CSAPR program, see U.S. EPA, Cross-State Air
Pollution Rule (CSAPR) Fact Sheet—Assurance
Provisions, available at https://www.epa.gov/sites/
production/files/2016-05/documents/fact_sheet_
assurance_provisions_0.pdf and in the docket for
this action.
11 See 83 FR at 43594–95 (citing 77 FR 33642
(June 7, 2012)).
12 See Technical Support Document for
Demonstration of the Transport Rule as a BART
Alternative, Docket ID No. EPA–HQ–OAR–2011–
0729–0014 (December 2011), available in the docket
for this action, at table 2–4.
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50,517 tons in the CSAPR SO2 budget
for Texas—EPA conducted a sensitivity
analysis for the 2012 final rule to assess
the effects of the CSAPR budget
adjustments, making a conservative
assumption that SO2 emissions from
Texas EGUs under CSAPR could
potentially increase by the full amount
of the Texas budget increase, or up to
317,100 tons per year (266,600 +
50,517).13 Finally, we noted the results
of that sensitivity analysis, namely that
CSAPR was expected to provide for
greater reasonable progress than BART
nationwide even with potential SO2
emissions from Texas EGUs under
CSAPR as high as 317,100 tons.14
In our August 2018 proposal, EPA
used this benchmark (317,100 tons of
SO2 emissions per year) to gauge
whether the Texas SO2 Trading Program
was sufficiently stringent for EPA to
continue to rely on the BARTalternative analysis we conducted in the
2012 ‘‘CSAPR better than BART’’
rulemaking. EPA found that the ‘‘annual
average emissions’’ under the Texas SO2
Trading Program would remain below
the 317,100 tons-per-year benchmark
relied upon in the 2012 sensitivity
analysis, because the yearly allocation
to Texas EGUs under the Texas SO2
Trading Program was 238,393 tons of
allowances, plus 10,000 tons allocated
to the Supplemental Allowance Pool.15
Although there may be some year-toyear variability in emissions, EPA
reasoned that variability for units within
the Texas program would be
constrained by the number of banked
allowances and the number of
allowances that can be allocated in a
control period from the Supplemental
Allowance Pool. (Annual allocations
from the Supplemental Allowance Pool
are limited to 54,711 tons.) The total
number of allowances that can be
allocated in a single year is therefore
293,104, which is the sum of the
238,393-ton budget for existing units
plus 54,711. EPA further explained that
certain sources that had been subject to
the CSAPR program, but which are not
covered by the Texas SO2 Trading
Program, emitted less than 27,500 tons
of SO2 in 2016 and their emissions were
not projected to significantly increase
from this level. Taking into account
these figures, as well as recent
emissions data, EPA concluded that
‘‘annual average EGU emissions’’ under
the Texas SO2 Trading Program were
13 See Sensitivity Analysis Accounting for
Increases in Texas and Georgia Transport Rule State
Emissions Budgets, Docket ID No. EPA–HQ–OAR–
2011–0729–0323 (May 29, 2012), available in the
docket for this action.
14 83 FR at 43595.
15 Id. at 43598.
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anticipated to remain ‘‘well below’’ the
317,100 ton per year benchmark and
would be similar to emissions
anticipated under CSAPR. Relying on
this information, EPA concluded that
the weight of evidence supported the
conclusion that the Texas SO2 Trading
Program met the requirements of a
BART alternative.16
Commenters on the August 2018
proposal identified several specific
concerns with the Texas SO2 Trading
Program. EPA has considered these
comments, and they inform this
supplemental proposal. Stated broadly,
these commenters are concerned that
the Texas SO2 Trading Program is
insufficiently stringent to meet the
requirements for a BART alternative
under 40 CFR 51.308(e)(2). Commenters
specifically questioned EPA’s reliance
on the 317,100-ton benchmark and
argued that the Texas SO2 Trading
Program would, unlike source-specific
BART control requirements, allow for
emissions to increase compared to
recent emission levels. Commenters also
identified the availability of
supplemental allowances, the issuance
of allocations to already-retired units,
the general method of allocating
allowances, and the availability of
unlimited allowance banking as features
which, according to them, undermine
the stringency of the Texas SO2 Trading
Program.
EPA proposes to reaffirm its finding
that the current Texas SO2 Trading
Program budget, in general, compares
favorably in stringency to the CSAPR
SO2 trading program. Further, certain
features of the Texas SO2 Trading
Program that were raised as concerns by
commenters, such as allocations to
retired units and use of allowance
banking, are consistent with elements of
the CSAPR trading programs. However,
EPA recognizes that the current Texas
SO2 Trading Program, unlike CSAPR,
does not impose an ‘‘assurance level’’—
a 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. In
EPA’s analysis summarized above, EPA
relied on the number of allowances
allocated annually to indicate ‘‘average’’
annual emission levels. This analysis
did not account for the variability in
emissions due to the availability of
banking or the build-up of allowances
through allocations to retired units.
Although these features are available to
sources participating in the CSAPR
programs, their effect on emissions in
16 Id.
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that program is significantly constrained
by the program’s assurance provisions.
Although assurance levels in the
CSAPR program were, as discussed
above, originally implemented to meet
requirements relevant to interstate
transport under the good neighbor
provision, this feature of the program
was also relevant to the BARTalternative analysis for CSAPR because
the presence of the three-for-one penalty
provision established a practical upper
bound on each state’s emissions in each
year of the program. This informed the
level of emissions EPA could project
with confidence under the CSAPR
program when determining whether it
could serve as a BART alternative. EPA
recognizes that, in the absence of an
assurance level for the Texas SO2
Trading Program, there are no analogous
means of guaranteeing that emissions
would remain below a certain amount
on an annual basis. The resulting
growth in the number of allowances
available for use in future years, without
some constraint on annual emissions,
could in theory impact the stringency of
the program in terms of annual
emissions for purposes of the BARTalternative analysis.
Therefore, EPA is proposing to add an
assurance level to the Texas SO2
Trading Program. EPA is proposing to
set the assurance level using the same
methodology applied in the original
CSAPR rulemaking.17 There, for each
state covered by a given CSAPR
program, EPA analyzed the historical
year-to-year variability in the total
annual quantity of fossil fuel consumed
to generate electricity in the state. From
this analysis, EPA developed for each
state a statistical percentage measure
representing, at a 95% confidence level,
the maximum expected one-year
deviation from average annual fossil
fuel consumption for electricity
generation. EPA used the highest of
these state-specific statistical percentage
measures for any state covered by a
given CSAPR program to define
‘‘variability limits’’ for all the states
covered by the program, where each
state’s variability limit was computed as
that specific state’s emissions budget
multiplied by the highest of the statespecific statistical percentage measures
for all the states in the program. EPA
proposes here to set the assurance level
for the Texas SO2 Trading Program by
relying on the same analysis and
methodology that were used to set
17 See Power Sector Variability Final Rule TSD
(July 2011), available at https://www.epa.gov/csapr/
power-sector-variability-final-rule-tsd and in the
docket for this action.
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assurance levels in the original CSAPR
rulemaking. This approach maintains
consistency with the methodology used
for the CSAPR programs while
accounting for the fact that the Texas
SO2 Trading Program is intrastate-only
(i.e., does not permit interstate trading).
On a state-specific basis for Texas, EPA
determined in the CSAPR rulemaking
that the statistical percentage measure
representing the maximum expected
one-year deviation from the state’s
average annual fossil fuel consumption
for electricity generation was seven
percent.18 Applying that same
percentage to the current Texas SO2
Trading Program budget, EPA proposes
to set the variability limit for Texas at
16,688 tons, which is seven percent of
the trading budget of 238,393 tons. The
proposed assurance level is the sum of
the budget and the variability limit, or
255,081 tons. EPA proposes to amend
the Texas SO2 Trading Program’s
regulations to impose a penalty
surrender ratio of three allowances for
each ton of emissions in any year in
excess of the 255,081-ton assurance
level, and to impose the penalty
proportionately to emissions from those
groups of sources represented by a
common designated representative that
emit in excess of the groups’ annual
allocations of allowances. These
requirements are in nearly all respects
identical to the CSAPR program’s
assurance provisions. The specific
amendments to the regulatory text are
described in more detail below.
In addition to being consistent with
the original CSAPR methodology for
setting assurance levels, EPA also
believes that an assurance level set at
255,081 is appropriate for the Texas SO2
Trading Program because, if finalized, it
will provide further support for our
October 2017 finding that the Texas SO2
Trading Program will result in SO2
emission levels from Texas EGUs that
are similar to or less than the emission
levels from Texas EGUs that would have
been realized from participation in the
SO2 trading program under CSAPR. At
an assurance level of 255,081 tons of
emissions annually, EPA has high
confidence that emissions will be below
the amount assumed in the BARTalternative sensitivity analysis utilized
for the 2012 CSAPR-better-than-BART
determination (i.e., 317,100 tons), and
thus visibility levels at Class I areas
impacted by sources in Texas are
anticipated to be at least as good as the
levels projected in the 2012 analysis
that assumed Texas would be in the
18 Id.
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61853
larger CSAPR SO2 trading program.19 In
reaching that conclusion, EPA includes
in its analysis a reasonable estimate of
projected emissions from units that
would have been in the CSAPR
program, but are not in the Texas SO2
Trading Program. EPA proposes to use
a more conservative (i.e., higher)
estimate of these emissions than in its
August 2018 proposal. We propose to
assume that these units will emit 35,000
tons of SO2 annually based on a
maximum annual emission level of
34,129 tons over the past five years
(2014–2018) and considering that
several of these units have recently shut
down or have been announced for
shutdown in the near future.20 Adding
that amount to the assurance level of
255,081 tons yields 290,081 tons.
Assuming this figure represents a firm
upper bound on annual SO2 emissions
from the relevant EGUs in Texas, this is
less than the 317,100 ton figure EPA had
demonstrated was acceptable in the
original 2012 CSAPR analysis, as
discussed above and in the August 2018
proposal.21 We note that, as
demonstrated in Table 1, SO2 emissions
from power plants in Texas are
currently well below the Texas SO2
Trading Program budget of 238,293 tons
(as well as the proposed assurance level
of 255,081 tons) and are anticipated to
continue to decrease due to the low cost
of natural gas and increasing renewable
energy production.22
19 Two organizations have filed a petition for
reconsideration of EPA’s September 29, 2017
determination that CSAPR continues to satisfy the
BART-alternative analysis under 40 CFR
51.308(e)(4) notwithstanding certain changes to the
geographic scope of the program, including the
removal of Texas from the CSAPR program for
annual SO2 and NOx emissions. See Sierra Club
and National Parks Conservation Association,
Petition for Partial Reconsideration of Interstate
Transport of Fine Particulate Matter: Revision of
Federal Implementation Plan Requirements for
Texas, 82 FR 45481 (Sept. 29, 2017); EPA–HQ–
OAR–2016–0598; FRL09968–46–OAR (dated Nov.
28, 2017). EPA is not proposing to address that
determination through this action, and EPA is not
addressing or revisiting the larger reaffirmation of
the BART-alternative analysis for CSAPR at issue in
that separate action taken in September 2017. EPA
intends to take action at a later date responding to
the petition for reconsideration in that matter.
20 See ‘‘Texas EGU SO emissions, 2014–
2
2018.xlsx’’, available in the docket for this action.
Sandow Station units 5A and 5B have been
permanently retired. AEP has announced retirement
of Oklaunion by September 2020. Gibbons Creek is
currently not operating although it has not been
officially retired.
21 See ‘‘Sensitivity Analysis Accounting for
Increases—EPA–HQ–OAR–2011–0729–0323’’
available in the docket for this action.
22 https://www.ercot.com/content/wcm/lists/
144927/2018_LTSA_Report.pdf.
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TABLE 1—RECENT SO2 EMISSIONS TRENDS IN TEXAS
[Tons]
2014
Texas total EGU emissions .................................................
Participating sources’ emissions ..........................................
Non-participating sources’ emissions ..................................
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EPA also notes that the addition of an
assurance level guaranteeing that SO2
emissions can be expected to remain
below a certain level each year has the
effect of also addressing a number of
other specific concerns about the Texas
SO2 Trading Program raised by
commenters. In particular, to the extent
that commenters claimed the program
would be inadequately stringent due to
the allowance allocation methodology,
including allocations to retired units, or
due to the Supplemental Allowance
Pool or allowance banking, these
concerns are effectively rendered moot
by the addition of the assurance level.
This is because when a mass-based
trading program includes a ‘‘cap’’ on
overall annual emissions, as the Texas
SO2 Trading Program would with the
addition of the proposed assurance
provisions, that overall ‘‘cap’’ on
emissions set by the program (here, the
assurance level) effectively determines
the stringency of the program in each
year. How allowances to emit are
allocated annually within that overall
cap, and whether allowances may be
banked across years by certain market
participants, will not impact the annual
stringency of the program as a whole.
Allocations to retired units and the
availability of banking are important to
ensure market stability, avoid perverse
incentives, and potentially aid in
sources’ operational planning.23 With
the addition of an assurance level, the
potential risk of an undue relaxation of
the annual stringency in the program is
minimized, because sources will remain
strongly incentivized to keep annual
emissions below the level at which the
three-for-one surrender penalty is
imposed. The effectiveness of assurance
levels in guaranteeing the stringency of
trading programs has been borne out in
CSAPR, where no state’s sources’
emissions have exceeded a state’s
assurance level to-date.24
23 See
CSAPR Update Final Rule, 81 FR 74506,
74559, 74566 (Oct. 26, 2016) (discussing rationales
for these features in the context of the CSAPR
Update ozone season NOX trading program).
24 See 2017 and 2018 CSAPR Budgets Emissions
and Assurance Levels Spreadsheets, available at
U.S. EPA, CSAPR Assurance Provision, https://
www.epa.gov/csapr/csapr-assurance-provision.
Copies of the spreadsheets, fact sheet, and web page
are also provided in the docket for this action.
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2015
343,425
309,296
34,129
260,138
236,754
23,384
EPA requests comment on its
proposal to add assurance provisions to
the Texas SO2 Trading Program. EPA
also requests comment on its proposal
to set the assurance level at 255,081
tons. The specific mechanics for the
addition of this feature to the program
are discussed in more detail below.
EPA proposes to make the assurance
level effective beginning with the 2021
compliance period and for each period
thereafter. The proposed assurance
provisions would be implemented
through the addition of new provisions
at multiple locations in the Texas SO2
Trading Program regulations at 40 CFR
part 97, subpart FFFFF (40 CFR 97.901
through 97.935). In § 97.902, new
definitions of several terms used in the
assurance provisions (‘‘assurance
account,’’ ‘‘common designated
representative,’’ ‘‘common designated
representative’s assurance level,’’ and
‘‘common designated representative’s
share’’) would be added. New
§ 97.906(c)(2) and (c)(3)(ii) would set
forth the central requirement of the
assurance provisions—namely, that if
SO2 emissions from all covered sources
in 2021 or any subsequent year
collectively exceed the program’s
assurance level, then the owners and
operators of the groups of sources
determined to be responsible for the
collective exceedance would be
required to surrender allowances
totaling twice the amount of the
exceedance by a specified deadline, in
addition to the allowances surrendered
to account for the sources’ total
emissions. New § 97.910(b) and (c)
would establish the variability limit that
would be added to the trading program
budget to determine the amount of the
assurance level. New § 97.920(b) would
provide for the establishment of
assurance accounts, when appropriate,
to hold the additional allowances to be
surrendered. New § 97.925 would set
forth additional procedures for EPA’s
administration of and sources’
compliance with the assurance
provisions.
Besides the addition of the new
provisions just described, in §§ 97.906
and 97.920, several existing paragraphs
would be renumbered and internal
cross-references would be updated to
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2016
2017
245,799
218,291
27,509
275,993
245,870
30,124
2018
211,025
179,628
31,397
reflect the added and renumbered
paragraphs. Finally, revisions would be
made to existing language at §§ 97.902
(definitions of ‘‘general account’’ and
‘‘Texas SO2 Trading Program allowance
deduction’’), 97.906(b)(2), 97.913(c),
97.926(b), 97.928(b), and renumbered
97.906(c)(4)(ii) to integrate the new
assurance provisions with various
existing provisions of the Texas program
regulations.
The language of the proposed
revisions to the Texas SO2 Trading
Program regulations would generally
parallel the analogous language from the
CSAPR regulations at 40 CFR part 97,
subparts AAAAA through EEEEE,
streamlined to reflect the Texas
program’s narrower applicability (i.e.,
specific units located only in Texas,
excluding any new units built either in
Texas or in Indian country within
Texas’ borders). The only substantive
differences from the analogous CSAPR
assurance provisions concern the
approach used to impute allocation
amounts—for use in apportioning
responsibility for any collective
exceedance of the assurance level—to
any units that do not receive actual
allowance allocations from the trading
program budget. Under CSAPR, the only
units potentially in this situation are
new units that do not receive allowance
allocations from the CSAPR new unit
set-asides, and the CSAPR regulations
include a methodology for computing
unit-specific imputed allocation
amounts based on several data elements
relating to the new units’ design and
potential operation.25 In contrast, under
the Texas SO2 Trading Program, the
only units potentially in this situation
would be existing units that have ceased
operation for an extended period,
thereby losing their allocations from the
trading budget under § 97.911(a), and
that subsequently resume operation.26
25 See, e.g., paragraph (3) of the definition of
‘‘common designated representative’s share’’ at 40
CFR 97.702.
26 Although the owners and operators of a unit in
this situation might receive an allocation of
allowances from the Supplemental Allowance Pool
under § 97.912 based in part on the unit’s emissions
following resumption of operations, under the
Texas program assurance provisions as proposed,
any allocations of allowances from the
Supplemental Allowance Pool would not be
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Because the Texas SO2 Trading Program
regulations already identify the unitspecific allowance allocations that these
units would formerly have received
from the trading budget, the proposed
Texas SO2 Trading Program assurance
provisions would use these previously
established amounts for purposes of
assurance provision calculations instead
of requiring new imputed allocation
amounts to be computed according to
the more complex methodology in the
CSAPR assurance provisions. The
simpler approach proposed for the
Texas SO2 Trading Program assurance
provisions appears at paragraph (2) of
the proposed new definition of
‘‘common designated representative’s
assurance level’’ in § 97.902.
The simpler approach we are
proposing for determining any imputed
allocation amounts allows for some
additional simplifications elsewhere in
the proposed Texas SO2 Trading
Program assurance provisions. The
CSAPR assurance provisions include
regulatory text addressing the
submission of data required to compute
the imputed allocation amounts and the
consequences of appeals relating to
EPA’s use of the data; the CSAPR
provisions also call for issuance of an
initial notice in advance of the required
data submissions. Because under the
proposed Texas SO2 Trading Program
assurance provisions the specific
imputed allocation amounts would
already be stated in the regulations,
analogous provisions addressing data
submissions and appeals are
unnecessary and the contents of the
initial notice can be consolidated into a
later notice. Consequently, the
corresponding paragraphs of the
proposed Texas SO2 Trading Program
assurance provisions at proposed new
§ 97.925(b)(1)(ii), (b)(2)(i), and (b)(6)(ii)
would contain no regulatory language
and instead appear as ‘‘reserved.’’
2. Revision of Supplemental Allowance
Pool Allocation Provisions
Section 97.912 of the existing Texas
SO2 Trading Program regulations
establishes how allowances are
allocated from the Supplemental
Allowance Pool to sources (collections
of participating units at a facility) that
have reported total emissions for that
control period exceeding the total
amounts of allowances allocated to the
participating units at the source for that
control period (before any allocation
from the Supplemental Allowance
Pool). While all other sources required
to participate in the trading program
considered when apportioning responsibility for a
collective exceedance of the assurance level.
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have flexibility to transfer allowances
among multiple participating units
under the same owner/operator when
planning operations, Coleto Creek
consists of only one coal-fired unit, and
at the time of our October 2017 FIP, was
the only coal-fired unit in Texas owned
and operated by Dynegy. To provide
this source additional flexibility, under
the current program, Coleto Creek is
allocated its maximum supplemental
allocation from the Supplemental
Allowance Pool as long as there are
sufficient allowances in the
Supplemental Allowance Pool available
for allocation, and its actual allocation
will not be reduced in proportion with
any reductions made to the
supplemental allocations to other
sources. In our August 2018 proposal,
we noted that Dynegy has merged with
Vistra, which owns other units that are
subject to the trading program. In the
August 2018 proposal, we solicited
comment on eliminating this additional
flexibility for Coleto Creek in light of the
recent change in ownership, and we
received no adverse comments on such
a change. In this SNPRM, we propose to
make this change to the regulations.
Some commenters on the August 2018
proposal supported an analogous further
change to the methodology for
allocating allowances from the
Supplemental Allowance Pool. These
commenters observed that any owner
with multiple sources has the ability to
use surplus allowances allocated to one
source to cover emissions from its other
sources that exceed those other sources’
base allowance allocations. Based on
this observation, the commenters
expressed the view that it would be
more equitable to make allocations from
the Supplemental Allowance Pool in
proportion to each owner’s total
emissions in excess of the owner’s total
base allowance allocations instead of in
proportion to each individual source’s
emissions in excess of the individual
source’s base allowance allocation. EPA
agrees that this change would be
equitable and notes that it would also be
consistent with the rationale for
eliminating the special flexibility in the
existing regulations for Coleto Creek.
Accordingly, EPA proposes to amend
the Supplemental Allowance Pool
allocation provisions to reflect this
further change in the allocation
methodology.
The proposed modifications to the
methodology for allocating allowances
from the Supplemental Allowance Pool
would be implemented through several
revisions to §§ 97.911 and 97.912. In
§ 97.912, paragraph (a) would be edited
to limit applicability of the current
allocation methodology to the 2019 and
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61855
2020 control periods, and a new
paragraph (b) would be added setting
forth the revised allocation methodology
proposed for the control periods in 2021
and subsequent years. Two existing
paragraphs of the section would be
renumbered to accommodate the new
paragraph (b), and internal crossreferences would be updated to reflect
the renumbering and to integrate the
provisions of the revised allocation
methodology with other existing
provisions.
Proposed new § 97.912(b)(1) of the
revised allocation methodology sets
forth a procedure for assigning units
into groups under common ownership
called ‘‘affiliated ownership groups.’’
Under the proposed procedure, the
group assignments would remain
constant unless and until revised by
EPA to reflect an ownership transfer.
The proposed initial group assignments
for all covered units are specified in a
proposed new column that would be
added to the existing allowance
allocation table in § 97.911(a)(1).
Finally, consistent with the existing
language in renumbered § 97.912(d)
capping the number of allowances that
can be allocated from the Supplemental
Allowance Pool for any given control
period, non-substantive revisions to
§§ 97.911(a)(2) and (c)(5) would clarify
that allowances from the trading budget
that are transferred to the Supplemental
Allowance Pool are not necessarily
‘‘allocated under’’ § 97.912, but instead
are made available for ‘‘potential
allocation in accordance with’’ § 97.912.
EPA requests comment on the
proposed revisions to the Supplemental
Allowance Pool allocation provisions.
3. Termination of Opt-In Provisions
Under § 97.904(b) of the existing
Texas SO2 Trading Program regulations,
the EPA provided an opportunity for
any other unit in the State of Texas that
was previously subject to the CSAPR
SO2 Group 2 Trading Program and
would have received an allowance
allocation under that program to opt
into the Texas SO2 Trading Program.
Under § 97.911(b), a unit that opts into
the Texas SO2 Trading Program would
receive the same allowance allocation
that it would have received under the
CSAPR SO2 Group 2 Trading Program.
These allowance allocations would be
in addition to the allocations to other
units from the Texas SO2 Trading
Program budget and would therefore
increase the total number of allowances
available under the program. As of the
date of this supplemental proposal, no
source has notified EPA of intent to opt
into the Texas SO2 Trading Program.
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A commenter on the August 2018
proposal asserted that the opt-in
provision weakened the functional
equivalence of the Texas SO2 Trading
Program to CSAPR. The commenter
cited EPA’s determination not to
include opt-in provisions in the CSAPR
trading programs on the basis that optin provisions would undermine
achievement of the CSAPR program’s
emission reduction objectives. The
commenter also cited EPA’s discussion
of the reasons for this determination,
including the difficulty of
distinguishing new emission reductions
from reductions that opt-in sources
would have made anyway, and the
consequent likelihood that the amounts
of allowances allocated to the sources
would exceed their starting emissions
levels. The allocations to the sources
opting in would thus introduce ‘‘extra’’
allowances into the CSAPR trading
programs, increasing the quantity of
allowances available to be traded to
other sources and thereby decreasing
the programs’ stringency.27 EPA
believes that these considerations about
potentially introducing ‘‘extra’’
allowances also apply to the current
opt-in provisions in the Texas SO2
Trading Program. Therefore, consistent
with this supplemental proposal’s
overall objective of strengthening our
finding that the Texas SO2 Trading
Program will result in SO2 emission
levels from Texas EGUs that are similar
to or less than the emission levels from
Texas EGUs that would have been
realized from participation in the SO2
trading program under CSAPR, EPA
proposes to terminate the opt-in
provisions in the Texas SO2 Trading
Program.
EPA requests comment on the
proposed termination of the opt-in
provisions. EPA also solicits comment
as to what other relevant provisions in
the Texas SO2 Trading Program may
offset the expressed concerns with the
opt-in provisions.
The proposed termination of the optin provisions would be implemented
through revisions in three locations. In
§ 97.904(b)(2), revised language would
provide that the opportunity to
participate in the Texas SO2 Trading
Program by opting in is available only
for the 2019 and 2020 control periods.
Revisions to §§ 97.911(b) and 97.921(d)
would similarly provide that allowance
allocations to opt-in units could be
made and recorded only for the 2019
and 2020 control periods.
27 See
generally 76 FR at 48276.
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4. Revision of Allowance Recordation
Provisions
Under § 97.921(a) of the existing
Texas SO2 Trading Program regulations,
‘‘[t]he Administrator may delay
recordation of Texas SO2 Trading
Program allowances for the specified
control periods if the State of Texas
submits a SIP revision before the
recordation deadline.’’ Similarly, under
§ 97.921(b), ‘‘[t]he Administrator may
delay recordation of the Texas SO2
Trading Program allowances for the
applicable control periods if the State of
Texas submits a SIP revision by May 1
of the year of the applicable recordation
deadline under this paragraph.’’ In this
SNPRM, we are proposing to amend the
language in the recordation provisions
such that the Administrator can delay
recordation in the event that Texas
submits a SIP revision and EPA takes
final action to approve it. These
revisions are necessary to ensure that
the program remains fully operational
unless it is replaced by a SIP revision
that is approved by EPA as meeting the
SO2 BART requirements for the covered
units.
The proposed amendment to
condition any exceptions to scheduled
allowance recordation activities on
EPA’s approval, rather than Texas’
submission, of a SIP revision would be
implemented through revisions to three
paragraphs of § 97.921. In § 97.921(a),
the existing language providing for a
possible delay of recordation activities
scheduled for November 1, 2018, would
be deleted without replacement; the
language is moot because the
recordation date has already passed. In
§ 97.921(b), which governs future
recordation of allowances allocated
from the trading budget under
§ 97.911(a), the existing language would
be revised to provide that future
recordation activities will take place as
scheduled unless provided otherwise in
EPA’s approval of a SIP revision
replacing the provisions of subpart
FFFFF. The same revised condition
would also be added to § 97.921(c),
which governs future recordation of
allowances allocated from the
Supplemental Allowance Pool under
§ 97.912.
EPA requests comment on the
proposed revisions to the allowance
recordation provisions.
B. Interstate Visibility Transport
In our August 2018 proposal, we
proposed to affirm that Texas’
participation in CSAPR to satisfy NOx
BART and the Texas SO2 Trading
Program fully addresses Texas’
interstate visibility transport obligations
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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 SO2.28 The
basis of this proposed affirmation was
our determination in the October 2017
FIP that the regional haze measures in
place for Texas are 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 consultation
and when setting their reasonable
progress goals. As discussed in our
August 2018 proposal, the 2009 Texas
Regional Haze SIP relied on CAIR to
meet SO2 and NOX BART requirements
for EGUs. Under CAIR, Texas EGU
sources were projected to emit
approximately 350,000 tons of SO2
annually. In today’s SNPRM, EPA
proposes to make four revisions to
strengthen the Texas SO2 Trading
Program and increase its consistency
with CSAPR, including the addition of
an assurance level consistent with the
2012 CSAPR demonstration. As
discussed elsewhere in this SNPRM,
Texas EGU annual SO2 emissions for
sources covered by the trading program
would be constrained by the assurance
level of 255,081 tons. Including an
estimated 35,000 tons per year of
emissions from units not covered by the
Texas SO2 Trading Program yields
290,081 tons of SO2, well below the
350,000-ton emissions projection for
Texas sources under CAIR or the
317,100-ton emissions benchmark for
Texas sources under CSAPR discussed
in section III.A.1. Additionally, the
October 2017 FIP relies on CSAPR as an
alternative to EGU BART for NOX,
which exceeds the NOX emission
reductions from Texas relied upon by
other states during consultation.
Because the proposed revisions to the
Texas SO2 Trading Program in this
SNPRM would make the program
consistent with or below those emission
levels relied upon by other states during
consultation, we believe these revisions
provide further support for our earlier
finding that the BART alternatives in
the October 2017 FIP result in emission
reductions adequate to satisfy the
requirements of CAA section
110(a)(2)(D)(i)(II) with respect to
visibility for the six identified NAAQS.
We invite comment on how the
proposed revisions in this SNPRM
impact our August 2018 proposal to
affirm our October 2017 determination
regarding Texas’ visibility transport
28 83
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obligations with respect to the NAAQS
identified above.
because this action is not significant
under Executive Order 12866.
IV. Supplemental Proposed Action
C. Paperwork Reduction Act
This proposed action does not impose
any new information collection burden
under the PRA. OMB has previously
approved the information collection
activities for the Texas SO2 Trading
Program as part of the most recent
information collection request renewal
for the CSAPR trading programs and has
assigned OMB control number 2060–
0667. This proposed action would not
change any information collection
requirements for any entity affected
underthe Texas SO2 Trading Program.
khammond on DSKJM1Z7X2PROD with PROPOSALS
In this SNPRM, EPA proposes to make
four sets of amendments to the Texas
SO2 Trading Program: (1) The addition
of assurance-level provisions; (2)
revisions to the Supplemental
Allowance Pool allocation provisions;
(3) termination of the opt-in provisions;
and (4) revision of the allowance
recordation provisions. The proposed
changes to the Texas SO2 Trading
Program would be implemented through
revisions to the existing regulations at
40 CFR part 97, subpart FFFFF. A
redline/strike-out document showing
subpart FFFFF with the proposed
revisions has been added to the docket
for this proposed action.
In this proposed action we are only
soliciting comment on the four
proposed revisions to the Texas SO2
Trading Program, and how those
proposed changes impact our August
2018 proposal to affirm that (1) the
Texas SO2 Trading Program will result
in SO2 emission levels from Texas EGUs
that are similar to or less than the
emission levels from Texas EGUs that
would have been realized from
participation in the SO2 trading program
under CSAPR, and (2) Texas’ interstate
visibility transport obligations with
respect to six NAAQS (listed in the
preceding section) are satisfied. The
EPA is not reopening the comment
period on any other aspect of the August
2018 proposal. The EPA will not
respond to comments received during
the reopened comment period outside
the above-defined scope. We will
respond to all comments received on
this SNPRM and our August 2018
proposal to affirm our October 2017 FIP
in a single final rulemaking.
D. Regulatory Flexibility Act
I certify that this proposed action will
not have a significant impact on a
substantial number of small entities. In
making this determination, the impact
of concern is any significant adverse
economic impact on small entities. An
agency may certify that a rule will not
have a significant economic impact on
a substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. This
proposed rule does not impose any
requirements or create impacts on small
entities. This proposed action to modify
a FIP action previously issued under
Section 110 of the CAA will not create
any new requirement with which small
entities must comply. Accordingly, it
affords no opportunity for the EPA to
fashion for small entities less
burdensome compliance or reporting
requirements or timetables or
exemptions from all or part of the rule.
The fact that the CAA prescribes that
various consequences (e.g., emission
limitations) may or will flow from this
action does not mean that the EPA
either can or must conduct a regulatory
V. Statutory and Executive Order
flexibility analysis for this action. We
Reviews
have therefore concluded that this
A. Executive Order 12866: Regulatory
proposed action will have no net
Planning and Overview, Executive Order regulatory burden for all directly
13563: Improving Regulation and
regulated small entities.
Regulatory Review
E. Unfunded Mandates Reform Act
This proposed action is not a
(UMRA)
‘‘significant regulatory action’’ under
This proposed action does not contain
the terms of Executive Order 12866 (58
an unfunded mandate of $100 million or
FR 51735, October 4, 1993) and is
more as described in UMRA, 2 U. S. C.
therefore not subject to review under
1531–1538, and does not significantly or
Executive Orders 12866 and 13563 (76
uniquely affect small governments.
FR 3821, January 21, 2011).
F. Executive Order 13132: Federalism
B. Executive Order 13771: Reducing
This proposed action does not have
Regulations and Controlling Regulatory
federalism
implications. It will not have
Costs
substantial direct effects on the states,
on the relationship between the national
This proposed action is not an
Executive Order 13771 regulatory action government and the states, or on the
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61857
distribution of power and
responsibilities among the various
levels of government.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed rule does not have
tribal implications, as specified in
Executive Order 13175. It will not have
substantial direct effects on tribal
governments. Thus, Executive Order
13175 does not apply to this rule.
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks 29 applies to any
rule that: (1) Is determined to be
economically significant as defined
under Executive Order 12866; and (2)
concerns an environmental health or
safety risk that we have reason to
believe may have a disproportionate
effect on children. EPA interprets E.O.
13045 as applying only to those
regulatory actions that concern health or
safety risks, such that the analysis
required under Section 5–501 of the
E.O. has the potential to influence the
regulation. This proposed action is not
subject to Executive Order 13045
because it is not economically
significant as defined in Executive
Order 12866, and because the EPA does
not believe the environmental health or
safety risks addressed by this proposed
action present a disproportionate risk to
children. This proposed action is not
subject to E.O. 13045 because it
implements specific standards
established by Congress in statutes.
However, to the extent this proposed
rule will limit emissions of SO2, the
proposed rule will have a beneficial
effect on children’s health by reducing
air pollution.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed action is not subject to
Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a
significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act (NTTAA)
This proposed action does not involve
technical standards.
29 62
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K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this proposed
action does not have disproportionately
high and adverse human health or
environmental effects on minority
populations, low-income populations
and/or indigenous peoples, as specified
in Executive Order 12898 (59 FR 7629,
February 16, 1994). We have determined
that this proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse
human health or environmental effects
on any population, including any
minority or low-income population. The
proposed rule limits emissions of SO2
from certain facilities in Texas.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxides,
Visibility, Interstate transport of
pollution, Regional haze, Best available
retrofit technology.
40 CFR Part 97
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Reporting
and recordkeeping requirements, Sulfur
dioxides.
Dated: November 1, 2019.
David Gray,
Acting Regional Administrator, Region 6.
For the reasons stated in the
preamble, Part 97 of chapter I of title 40
of the Code of Federal Regulations is
proposed to be amended as follows:
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PART 97—FEDERAL NOX BUDGET
TRADING PROGRAM, CAIR NOX AND
SO2 TRADING PROGRAMS, CSAPR
NOX AND SO2 TRADING PROGRAMS,
AND TEXAS SO2 TRADING PROGRAM
1. The authority citation for Part 97 is
revised to read as follows:
■
Authority: 42 U. S. C. 7401, 7403, 7410,
7426, 7491, 7601, and 7651, et seq.
Subpart FFFFF—TEXAS SO2 TRADING
PROGRAM
■
2. Section 97.902 is amended by:
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a. In the definitions of ‘‘Acid Rain
Program’’, ‘‘Allowance Management
System’’, and ‘‘Allowance Management
System account’’, capitalizing the first
three words;
■ b. Adding in alphabetical order a
definition of ‘‘Assurance account’’;
■ c. In the definition of ‘‘authorized
account representative’’, capitalizing the
word ‘‘trading’’ the first time it appears;
■ d. Adding in alphabetical order
definitions of ‘‘Common designated
representative’’, ‘‘Common designated
representative’s assurance level’’, and
‘‘Common designated representative’s
share’’; and
■ e. Revising the definitions of ‘‘General
account’’ and ‘‘Texas SO2 Trading
Program allowance deduction’’.
The additions and revisions read as
follows:
■
§ 97.902
Definitions.
*
*
*
*
*
Assurance account means an
Allowance Management System
account, established by the
Administrator under § 97.925(b)(3) for
certain owners and operators of a group
of one or more Texas SO2 Trading
Program sources and units, in which are
held Texas SO2 Trading Program
allowances available for use for a
control period in a given year in
complying with the Texas SO2 Trading
Program assurance provisions in
accordance with §§ 97.906 and 97.925.
*
*
*
*
*
Common designated representative
means, with regard to a control period
in a given year, a designated
representative where, as of April 1
immediately after the allowance transfer
deadline for such control period, the
same natural person is authorized under
§§ 97.913(a) and 97.915(a) as the
designated representative for a group of
one or more Texas SO2 Trading Program
sources and units.
Common designated representative’s
assurance level means, with regard to a
specific common designated
representative and control period in a
given year for which the State assurance
level is exceeded as described in
§ 97.906(c)(2)(iii):
(1) The amount (rounded to the
nearest allowance) equal to the sum of
the total amount of Texas SO2 Trading
Program allowances allocated for such
control period under § 97.911, or
deemed to have been allocated under
paragraph (2) of this definition, to the
group of one or more Texas SO2 Trading
Program units having the common
designated representative for such
control period multiplied by the sum for
such control period of the Texas SO2
Trading Program budget under
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Sfmt 4702
§ 97.910(a)(1) and the variability limit
under § 97.910(b) and divided by the
sum of the total amount of Texas SO2
Trading Program allowances allocated
for such control period under § 97.911,
or deemed to have been allocated under
paragraph (2) of this definition, to all
Texas SO2 Trading Program units;
(2) Provided that, in the case of a
Texas SO2 Trading Program unit that
operates during, but has no amount of
Texas SO2 Trading Program allowances
allocated under § 97.911 for, such
control period, the unit shall be treated,
solely for purposes of this definition, as
being allocated the amount of Texas SO2
Trading Program allowances shown for
the unit in § 97.911(a)(1).
Common designated representative’s
share means, with regard to a specific
common designated representative for a
control period in a given year and the
total amount of SO2 emissions from all
Texas SO2 Trading Program units during
such control period, the total tonnage of
SO2 emissions during such control
period from the group of one or more
Texas SO2 Trading Program units
having the common designated
representative for such control period.
*
*
*
*
*
General account means an Allowance
Management System account,
established under this subpart, that is
not a compliance account or an
assurance account.
*
*
*
*
*
Texas SO2 Trading Program
allowance deduction or deduct Texas
SO2 Trading Program allowances means
the permanent withdrawal of Texas SO2
Trading Program allowances by the
Administrator from a compliance
account (e.g., in order to account for
compliance with the Texas SO2 Trading
Program emissions limitation) or from
an assurance account (e.g., in order to
account for compliance with the
assurance provisions under §§ 97.906
and 97.925).
*
*
*
*
*
§ 97.904
[Amended]
3. Section 97.904 is amended in
paragraph (b)(2) by removing the text
‘‘Program, provided’’ and adding in its
place the text ‘‘Program for the control
periods in years before 2021, provided’’.
■ 4. Section 97.906 is amended by:
■ a. In paragraph (b)(2), adding after the
text ‘‘emissions limitation’’ the text
‘‘and assurance provisions’’;
■ b. Redesignating paragraphs (c)(2)
through (6) as paragraphs (c)(3) through
(7) and adding a new paragraph (c)(2);
■ c. Redesignating the text of newly
redesignated paragraph (c)(3) after the
paragraph heading as paragraph (c)(3)(i)
and adding a new paragraph (c)(3)(ii);
■
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d. In newly redesignated paragraph
(c)(4)(ii), removing the text ‘‘paragraph
(c)(1)(ii)(A)’’ and adding in its place the
text ‘‘paragraphs (c)(1)(ii)(A) and
(c)(2)(i) through (iii)’’.
The additions read as follows:
■
§ 97.906
General provisions.
*
*
*
*
*
(c) * * *
(2) Texas SO2 Trading Program
assurance provisions. (i) If total SO2
emissions during a control period in a
given year from all Texas SO2 Trading
Program units at Texas SO2 Trading
Program sources exceed the State
assurance level, then the owners and
operators of such sources and units in
each group of one or more sources and
units having a common designated
representative for such control period,
where the common designated
representative’s share of such SO2
emissions during such control period
exceeds the common designated
representative’s assurance level for such
control period, shall hold (in the
assurance account established for the
owners and operators of such group)
Texas SO2 Trading Program allowances
available for deduction for such control
period under § 97.925(a) in an amount
equal to two times the product (rounded
to the nearest whole number), as
determined by the Administrator in
accordance with § 97.925(b), of
multiplying—
(A) The quotient of the amount by
which the common designated
representative’s share of such SO2
emissions exceeds the common
designated representative’s assurance
level divided by the sum of the
amounts, determined for all common
designated representatives for such
sources and units for such control
period, by which each common
designated representative’s share of
such SO2 emissions exceeds the
respective common designated
representative’s assurance level; and
(B) The amount by which total SO2
emissions from all Texas SO2 Trading
Program units at Texas SO2 Trading
Program sources for such control period
exceed the State assurance level.
(ii) The owners and operators shall
hold the Texas SO2 Trading Program
allowances required under paragraph
(c)(2)(i) of this section, as of midnight of
November 1 (if it is a business day), or
midnight of the first business day
thereafter (if November 1 is not a
business day), immediately after the
year of such control period.
(iii) Total SO2 emissions from all
Texas SO2 Trading Program units at
Texas SO2 Trading Program sources
during a control period in a given year
exceed the State assurance level if such
total SO2 emissions exceed the sum, for
such control period, of the Texas SO2
Trading Program budget under
§ 97.910(a)(1) and the variability limit
under § 97.910(b).
(iv) It shall not be a violation of this
subpart or of the Clean Air Act if total
SO2 emissions from all Texas SO2
Trading Program units at Texas SO2
Trading Program sources during a
control period exceed the State
assurance level or if a common
designated representative’s share of total
SO2 emissions from the Texas SO2
Trading Program units at Texas SO2
Trading Program sources during a
control period exceeds the common
designated representative’s assurance
level.
(v) To the extent the owners and
operators fail to hold Texas SO2 Trading
Program allowances for a control period
in a given year in accordance with
paragraphs (c)(2)(i) through (iii) of this
section,
(A) The owners and operators shall
pay any fine, penalty, or assessment or
comply with any other remedy imposed
under the Clean Air Act; and
(B) Each Texas SO2 Trading Program
allowance that the owners and operators
fail to hold for such control period in
accordance with paragraphs (c)(2)(i)
through (iii) of this section and each day
of such control period shall constitute a
separate violation of this subpart and
the Clean Air Act.
(3) * * *
(ii) A Texas SO2 Trading Program unit
shall be subject to the requirements
under paragraph (c)(2) of this section for
the control period starting on January 1,
61859
2021 and for each control period
thereafter.
*
*
*
*
*
■ 5. Section 97.910 is amended by:
■ a. Revising the section heading; and
■ b. Adding paragraphs (b) and (c).
The revision and additions read as
follows:
§ 97.910 Texas SO2 Trading Program
budget, Supplemental Allowance Pool
budget, and variability limit.
*
*
*
*
*
(b) The variability limit for the Texas
SO2 Trading Program budget for the
control periods in 2021 and thereafter is
16,688 tons.
(c) The Texas SO2 Trading Program
budget in paragraph (a)(1) of this section
does not include any tons in the
Supplemental Allowance Pool budget in
paragraph (a)(2) of this section or the
variability limit in paragraph (b) of this
section.
■ 6. Section 97.911 is amended by:
■ a. Revising paragraph (a)(1);
■ b. In paragraph (a)(2), removing the
text ‘‘allocated under the Texas
Supplemental Allowance Pool under 40
CFR 97.912.’’ and adding in its place the
text ‘‘transferred to the Texas
Supplemental Allowance Pool for
potential allocation in accordance with
§ 97.912.’’;
■ c. In paragraph (b)(1), removing the
text ‘‘SO2 allocation’’ and adding in its
place the text ‘‘allocation’’, and adding
after the text ‘‘each year’’ the text
‘‘before 2021’’; and
■ d. In paragraph (c)(5), removing the
text ‘‘under 40 CFR 97.912.’’ and adding
in its place the text ‘‘for potential
allocation in accordance with
§ 97.912.’’.
The revision reads as follows:
§ 97.911 Texas SO2 Trading Program
allowance allocations.
(a)(1) Except as provided in paragraph
(a)(2) of this section, Texas SO2 Trading
Program allowances from the Texas SO2
Trading Program budget will be
allocated, for the control periods in
2019 and each year thereafter, as
provided in Table 1 to this paragraph
(a)(1):
khammond on DSKJM1Z7X2PROD with PROPOSALS
TABLE 1 TO PARAGRAPH (a)(1)—TEXAS SO2 TRADING PROGRAM ALLOCATIONS
Texas SO2 trading program units
ORIS code
Big Brown Unit 1 ..........................................................
Big Brown Unit 2 ..........................................................
Coleto Creek Unit 1 ......................................................
Fayette/Sam Seymour Unit 1 .......................................
Fayette/Sam Seymour Unit 2 .......................................
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Texas SO2
trading
program allocation
(tons)
3497
3497
6178
6179
6179
Fmt 4702
8,473
8,559
9,057
7,979
8,019
Sfmt 4702
Affiliated ownership group
Vistra Energy.
Vistra Energy.
Vistra Energy.
Lower Colorado River Authority/City of Austin.
Lower Colorado River Authority/City of Austin.
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TABLE 1 TO PARAGRAPH (a)(1)—TEXAS SO2 TRADING PROGRAM ALLOCATIONS—Continued
Texas SO2 trading program units
ORIS code
Graham Unit 2 ..............................................................
H W Pirkey Power Plant Unit 1 ....................................
Harrington Unit 061B ....................................................
Harrington Unit 062B ....................................................
Harrington Unit 063B ....................................................
JT Deely Unit 1 .............................................................
JT Deely Unit 2 .............................................................
Limestone Unit 1 ..........................................................
Limestone Unit 2 ..........................................................
Martin Lake Unit 1 ........................................................
Martin Lake Unit 2 ........................................................
Martin Lake Unit 3 ........................................................
Monticello Unit 1 ...........................................................
Monticello Unit 2 ...........................................................
Monticello Unit 3 ...........................................................
Newman Unit 2 .............................................................
Newman Unit 3 .............................................................
Newman Unit 4 .............................................................
Sandow Unit 4 ..............................................................
Sommers Unit 1 ............................................................
Sommers Unit 2 ............................................................
Stryker Unit ST2 ...........................................................
Tolk Station Unit 171B .................................................
Tolk Station Unit 172B .................................................
WA Parish Unit WAP4 ..................................................
WA Parish Unit WAP5 ..................................................
WA Parish Unit WAP6 ..................................................
WA Parish Unit WAP7 ..................................................
Welsh Power Plant Unit 1 ............................................
Welsh Power Plant Unit 2 ............................................
Welsh Power Plant Unit 3 ............................................
Wilkes Unit 1 ................................................................
Wilkes Unit 2 ................................................................
Wilkes Unit 3 ................................................................
*
*
*
*
*
7. Section 97.912 is amended by:
a. In paragraph (a) introductory text,
removing the text ‘‘each control period
in 2019 and thereafter,’’ and adding in
its place the text ‘‘the control periods in
2019 and 2020,’’;
■ b. In paragraph (a)(1), removing the
text ‘‘each subsequent February 15,’’
and adding in its place the text
‘‘February 15, 2021,’’;
■ c. In paragraph (a)(3)(ii)(A), removing
the text ‘‘paragraph (b)’’ and adding in
its place the text ‘‘paragraph (d)’’;
■ d. In paragraph (a)(3)(ii)(B), removing
the text ‘‘paragraph (b)’’ wherever it
appears and adding in its place the text
‘‘paragraph (d)’’;
■ e. In paragraph (a)(3)(iii), removing
the text ‘‘paragraph (b)’’ and adding in
its place the text ‘‘paragraph (d)’’;
■ f. Redesignating paragraphs (a)(4) and
(b) as paragraphs (c) and (d) and adding
a new paragraph (b); and
■ g. In newly redesignated paragraph
(d), adding after the text ‘‘paragraph
(a)(3)(iii)’’ the text ‘‘or (b)(4)(ii)’’.
The addition reads as follows:
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■
■
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3490
7902
6193
6193
6193
6181
6181
298
298
6146
6146
6146
6147
6147
6147
3456
3456
3456
6648
3611
3611
3504
6194
6194
3470
3470
3470
3470
6139
6139
6139
3478
3478
3478
Texas SO2
trading
program allocation
(tons)
226
8,882
5,361
5,255
5,055
6,170
6,082
12,081
12,293
12,024
11,580
12,236
8,598
8,795
12,216
1
1
2
8,370
55
7
145
6,900
7,062
3
9,580
8,900
7,653
6,496
7,050
7,208
14
2
3
Affiliated ownership group
Vistra Energy.
American Electric Power.
Xcel Energy.
Xcel Energy.
Xcel Energy.
City of San Antonio.
City of San Antonio.
NRG Energy.
NRG Energy.
Vistra Energy.
Vistra Energy.
Vistra Energy.
Vistra Energy.
Vistra Energy.
Vistra Energy.
El Paso Electric.
El Paso Electric.
El Paso Electric.
Vistra Energy.
City of San Antonio.
City of San Antonio.
Vistra Energy.
Xcel Energy.
Xcel Energy.
NRG Energy.
NRG Energy.
NRG Energy.
NRG Energy.
American Electric Power.
American Electric Power.
American Electric Power.
American Electric Power.
American Electric Power.
American Electric Power.
§ 97.912 Texas SO2 Trading Program
Supplemental Allowance Pool.
*
*
*
*
*
(b) For each control period in 2021
and thereafter, the Administrator will
allocate Texas SO2 Trading Program
allowances from the Texas SO2 Trading
Program Supplemental Allowance Pool
as follows:
(1) For each control period, the
Administrator will assign each Texas
SO2 Trading Program unit to an
affiliated ownership group reflecting the
unit’s ownership as of December 31 of
the control period. The affiliated
ownership group assignments for each
control period will be as shown in
§ 97.911(a)(1) except that the
Administrator will revise the
assignments, based on the information
required to be submitted in accordance
with § 97.915(c) and any other
information available to the
Administrator, as necessary to reflect
any ownership transfer resulting in a
50% or greater ownership share of a
unit being held by a new owner that the
Administrator determines is not
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Fmt 4702
Sfmt 4702
affiliated with the previous holder of a
50% or greater ownership share of the
unit.
(2) No later than February 15, 2022
and each subsequent February 15, the
Administrator will review all the
quarterly SO2 emissions reports
provided under § 97.934(d) for each
Texas SO2 Trading Program unit for the
previous control period. The
Administrator will identify each
affiliated ownership group of Texas SO2
Trading Program units as of December
31 of such control period for which the
total amount of emissions reported for
the units in the group for that control
period exceeds the total amount of
allowances allocated to the units in the
group for that control period under
§ 97.911.
(3) For each affiliated ownership
group of Texas SO2 Trading Program
units identified under paragraph (b)(2)
of this section, the Administrator will
calculate the amount by which the total
amount of reported emissions for that
control period exceeds the total amount
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of allowances allocated for that control
period under § 97.911.
(4)(i) The Administrator will allocate
and record allowances from the
Supplemental Allowance Pool as
follows:
(A) If the total for all such affiliated
ownership groups of the amounts
calculated under paragraph (b)(3) of this
section is less than or equal to the total
number of allowances in the
Supplemental Allowance Pool available
for allocation under paragraph (d) of
this section, then the Administrator will
allocate and record in the compliance
accounts for the sources at which the
units in each such group are located a
total amount of allowances from the
Supplemental Allowance Pool equal to
the amount calculated for the group
under paragraph (b)(3) of this section.
(B) If the total for all such affiliated
ownership groups of the amounts
calculated under paragraph (b)(3) of this
section is greater than the total number
of allowances in the Supplemental
Allowance Pool available for allocation
under paragraph (d) of this section, then
the Administrator will calculate each
such group’s allocation of allowances
from the Supplemental Allowance Pool
by dividing the amount calculated
under paragraph (b)(3) of this section for
the group by the sum of the amounts
calculated under paragraph (b)(3) of this
section for all such groups, then
multiplying by the number of
allowances in the Supplemental
Allowance Pool available for allocation
under paragraph (d) of this section and
rounding to the nearest allowance. The
Administrator will then record the
calculated allocations of allowances in
the applicable compliance accounts.
(C) When an affiliated ownership
group receives an allocation of
allowances under paragraph (b)(4)(i)(A)
or (B) of this section, each unit in the
group whose emissions during the
control period for which allowances are
being allocated exceed the amount of
allowances allocated to the unit under
§ 97.911 will receive a share of the
group’s allocation. The Administrator
will compute each such unit’s share by
dividing the amount of the unit’s
emissions during the control period
exceeding the unit’s allocation under
§ 97.911 by the sum for all such units
of the amounts of the units’ emissions
during the control period exceeding the
units’ allocations under § 97.911, then
multiplying by the group’s allocation
under paragraph (b)(4)(i)(A) or (B) of
this section and rounding to the nearest
allowance.
(ii) Any unallocated allowances
remaining in the Supplemental
Allowance Pool after the allocations
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determined under paragraph (b)(4)(i) of
this section will be maintained in the
Supplemental Allowance Pool. These
allowances will be available for
allocation by the Administrator in
subsequent control periods to the extent
consistent with paragraph (d) of this
section.
*
*
*
*
*
■ 8. Section 97.913 is amended by
revising paragraph (c) to read as follows:
§ 97.913 Authorization of designated
representative and alternate designated
representative.
*
*
*
*
*
(c) Except in this section, § 97.902,
and §§ 97.914 through 97.918, whenever
the term ‘‘designated representative’’ (as
distinguished from the term ‘‘common
designated representative’’) is used in
this subpart, the term shall be construed
to include the designated representative
or any alternate designated
representative.
■ 9. Section 97.920 is amended by:
■ a. Revising the section heading;
■ b. Redesignating paragraphs (b)
through (d) as paragraphs (c) through (e)
and adding a new paragraph (b);
■ c. In newly redesignated paragraph
(c)(2)(i) introductory text, removing the
text ‘‘paragraph (b)(1)’’ and adding in its
place the text ‘‘paragraph (c)(1)’’;
■ d. In newly redesignated paragraph
(c)(2)(ii), removing the text ‘‘paragraph
(b)(5)’’ and adding in its place the text
‘‘paragraph (c)(5)’’;
■ e. In newly redesignated paragraphs
(c)(3)(i) and (ii), removing the text
‘‘paragraph (b)(1)’’ and adding in its
place the text ‘‘paragraph (c)(1)’’;
■ f. In newly redesignated paragraph
(c)(4)(i), removing the text ‘‘paragraph
(b)(1)’’ wherever it appears and adding
in its place the text ‘‘paragraph (c)(1)’’;
■ g. In newly redesignated paragraph
(c)(4)(ii), removing the text ‘‘paragraph
(b)(4)(i)’’ and adding in its place text
‘‘paragraph (c)(4)(i)’’;
■ h. In newly redesignated paragraph
(c)(5)(iii) introductory text and
paragraph (c)(5)(iii)(C), removing the
text ‘‘paragraph (b)(5)(i)’’ and adding in
its place the text ‘‘paragraph (c)(5)(i)’’;
■ i. In newly redesignated paragraph
(c)(5)(iii)(D), removing the text
‘‘97.920(b)(5)(iv)’’ and adding in its
place the text ‘‘97.920(c)(5)(iv)’’;
■ j. In newly redesignated paragraph
(c)(5)(iii)(E), removing the text
‘‘97.920(b)(5)(iv),’’ and adding in its
place the text ‘‘97.920(c)(5)(iv),’’, and
removing the text ‘‘97.920(b)(5)’’ and
adding in its place the text
‘‘97.920(c)(5)’’;
■ k. In newly redesignated paragraph
(c)(5)(iv), removing the text ‘‘paragraph
(b)(5)(iii)’’ and adding in its place the
text ‘‘paragraph (c)(5)(iii)’’;
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61861
l. In newly redesignated paragraph
(c)(5)(v), removing the text ‘‘paragraph
(b)(5)(iii)(D)’’ and adding in its place the
text ‘‘paragraph (c)(5)(iii)(D)’’, and
removing the text ‘‘paragraph (b)(5)(iv)’’
and adding in its place the text
‘‘paragraph (c)(5)(iv)’’;
■ m. In newly redesignated paragraph
(d), removing the text ‘‘paragraphs (a)
and (b)’’ and adding in its place the text
‘‘paragraphs (a), (b), and (c)’’; and
■ n. In newly redesignated paragraph
(e), removing the text ‘‘paragraphs
(b)(2)(ii) and (b)(5)’’ and adding in its
place the text ‘‘paragraphs (c)(2)(ii) and
(c)(5)’’.
The revision and addition read as
follows:
■
§ 97.920 Establishment of compliance
accounts, assurance accounts, and general
accounts.
*
*
*
*
*
(b) Assurance accounts. The
Administrator will establish assurance
accounts for certain owners and
operators and States in accordance with
§ 97.925(b)(3).
*
*
*
*
*
■ 10. Section 97.921 is amended by:
■ a. In paragraph (a), removing the
second sentence;
■ b. Revising paragraphs (b) and (c); and
■ c. In paragraph (d), removing the text
‘‘July 1 of each year thereafter,’’ and
adding in its place the text ‘‘July 1,
2020,’’.
The revision reads as follows:
§ 97.921 Recordation of Texas SO2
Trading Program allowance allocations.
*
*
*
*
*
(b) By July 1, 2019, the Administrator
will record in each Texas SO2 Trading
Program source’s compliance account
the Texas SO2 Trading Program
allowances allocated to the Texas SO2
Trading Program units at the source in
accordance with § 97.911(a) for the
control period in the fourth year after
the year of the applicable recordation
deadline under this paragraph, unless
provided otherwise in the
Administrator’s approval of a SIP
revision replacing the provisions of this
subpart.
(c) By February 15, 2020, and
February 15 of each year thereafter, the
Administrator will record in each Texas
SO2 Trading Program source’s
compliance account the allowances
allocated from the Texas SO2 Trading
Program Supplemental Allowance Pool
in accordance with § 97.912 for the
control period in the year of the
applicable recordation deadline under
this paragraph, unless provided
otherwise in the Administrator’s
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approval of a SIP revision replacing the
provisions of this subpart.
*
*
*
*
*
■ 11. Section 97.925 is added to read as
follows:
khammond on DSKJM1Z7X2PROD with PROPOSALS
§ 97.925 Compliance with Texas SO2
Trading Program assurance provisions.
(a) Availability for deduction. Texas
SO2 Trading Program allowances are
available to be deducted for compliance
with the Texas SO2 Trading Program
assurance provisions for a control
period in a given year by the owners
and operators of a group of one or more
Texas SO2 Trading Program sources and
units only if the Texas SO2 Trading
Program allowances:
(1) Were allocated for a control period
in a prior year or the control period in
the given year or in the immediately
following year; and
(2) Are held in the assurance account,
established by the Administrator for
such owners and operators of such
group of Texas SO2 Trading Program
sources and units under paragraph (b)(3)
of this section, as of the deadline
established in paragraph (b)(4) of this
section.
(b) Deductions for compliance. The
Administrator will deduct Texas SO2
Trading Program allowances available
under paragraph (a) of this section for
compliance with the Texas SO2 Trading
Program assurance provisions for a
control period in a given year in
accordance with the following
procedures:
(1) By June 1, 2022 and June 1 of each
year thereafter, the Administrator will:
(i) Calculate the total SO2 emissions
from all Texas SO2 Trading Program
units at Texas SO2 Trading Program
sources during the control period in the
year before the year of this calculation
deadline and the amount, if any, by
which such total SO2 emissions exceed
the State assurance level as described in
§ 97.906(c)(2)(iii).
(ii) [Reserved]
(2) If the calculations under paragraph
(b)(1)(i) of this section indicate that the
total SO2 emissions from all Texas SO2
Trading Program units at Texas SO2
Trading Program sources during such
control period exceed the State
assurance level as described in
§ 97.906(c)(2)(iii):
(i) [Reserved]
(ii) By August 1 immediately after the
deadline for the calculations under
paragraph (b)(1)(i) of this section, the
Administrator will calculate, for such
control period and each common
designated representative for such
control period for a group of one or
more Texas SO2 Trading Program
sources and units, the common
VerDate Sep<11>2014
16:59 Nov 13, 2019
Jkt 250001
designated representative’s share of the
total SO2 emissions from all Texas SO2
Trading Program units at Texas SO2
Trading Program sources, the common
designated representative’s assurance
level, and the amount (if any) of Texas
SO2 Trading Program allowances that
the owners and operators of such group
of sources and units must hold in
accordance with the calculation formula
in § 97.906(c)(2)(i). By each such August
1, the Administrator will promulgate a
notice of data availability of the results
of the calculations under this paragraph
and paragraph (b)(1)(i) of this section,
including separate calculations of the
SO2 emissions from each Texas SO2
Trading Program source.
(iii) The Administrator will provide
an opportunity for submission of
objections to the calculations referenced
by the notice of data availability
required in paragraph (b)(2)(ii) of this
section.
(A) Objections shall be submitted by
the deadline specified in such notice
and shall be limited to addressing
whether the calculations referenced in
the notice required under paragraph
(b)(2)(ii) of this section are in
accordance with § 97.906(c)(2)(iii),
§§ 97.906(b) and 97.930 through 97.935,
the definitions of ‘‘common designated
representative’’, ‘‘common designated
representative’s assurance level’’, and
‘‘common designated representative’s
share’’ in § 97.902, and the calculation
formula in § 97.906(c)(2)(i).
(B) The Administrator will adjust the
calculations to the extent necessary to
ensure that they are in accordance with
the provisions referenced in paragraph
(b)(2)(iii)(A) of this section. By October
1 immediately after the promulgation of
such notice, the Administrator will
promulgate a notice of data availability
of the calculations incorporating any
adjustments that the Administrator
determines to be necessary and the
reasons for accepting or rejecting any
objections submitted in accordance with
paragraph (b)(2)(iii)(A) of this section.
(3) The Administrator will establish
one assurance account for each set of
owners and operators referenced, in the
notice of data availability required
under paragraph (b)(2)(iii)(B) of this
section, as all of the owners and
operators of a group of Texas SO2
Trading Program sources and units
having a common designated
representative for such control period
and as being required to hold Texas SO2
Trading Program allowances.
(4)(i) As of midnight of November 1
immediately after the promulgation of
each notice of data availability required
in paragraph (b)(2)(iii)(B) of this section,
the owners and operators described in
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
paragraph (b)(3) of this section shall
hold in the assurance account
established for them and for the
appropriate Texas SO2 Trading Program
sources and Texas SO2 Trading Program
units under paragraph (b)(3) of this
section a total amount of Texas SO2
Trading Program allowances, available
for deduction under paragraph (a) of
this section, equal to the amount such
owners and operators are required to
hold with regard to such sources and
units as calculated by the Administrator
and referenced in such notice.
(ii) Notwithstanding the allowanceholding deadline specified in paragraph
(b)(4)(i) of this section, if November 1 is
not a business day, then such
allowance-holding deadline shall be
midnight of the first business day
thereafter.
(5) After November 1 (or the date
described in paragraph (b)(4)(ii) of this
section) immediately after the
promulgation of each notice of data
availability required in paragraph
(b)(2)(iii)(B) of this section and after the
recordation, in accordance with
§ 97.923, of Texas SO2 Trading Program
allowance transfers submitted by
midnight of such date, the
Administrator will determine whether
the owners and operators described in
paragraph (b)(3) of this section hold, in
the assurance account for the
appropriate Texas SO2 Trading Program
sources and Texas SO2 Trading Program
units established under paragraph (b)(3)
of this section, the amount of Texas SO2
Trading Program allowances available
under paragraph (a) of this section that
the owners and operators are required to
hold with regard to such sources and
units as calculated by the Administrator
and referenced in the notice required in
paragraph (b)(2)(iii)(B) of this section.
(6) Notwithstanding any other
provision of this subpart and any
revision, made by or submitted to the
Administrator after the promulgation of
the notice of data availability required
in paragraph (b)(2)(iii)(B) of this section
for a control period in a given year, of
any data used in making the
calculations referenced in such notice,
the amounts of Texas SO2 Trading
Program allowances that the owners and
operators are required to hold in
accordance with § 97.906(c)(2)(i) for
such control period shall continue to be
such amounts as calculated by the
Administrator and referenced in such
notice required in paragraph
(b)(2)(iii)(B) of this section, except as
follows:
(i) If any such data are revised by the
Administrator as a result of a decision
in or settlement of litigation concerning
such data on appeal under part 78 of
E:\FR\FM\14NOP1.SGM
14NOP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 84, No. 220 / Thursday, November 14, 2019 / Proposed Rules
this chapter of such notice, or on appeal
under section 307 of the Clean Air Act
of a decision rendered under part 78 of
this chapter on appeal of such notice,
then the Administrator will use the data
as so revised to recalculate the amounts
of Texas SO2 Trading Program
allowances that owners and operators
are required to hold in accordance with
the calculation formula in
§ 97.906(c)(2)(i) for such control period
with regard to the Texas SO2 Trading
Program sources and Texas SO2 Trading
Program units involved, provided that
such litigation under part 78 of this
chapter, or the proceeding under part 78
of this chapter that resulted in the
decision appealed in such litigation
under section 307 of the Clean Air Act,
was initiated no later than 30 days after
promulgation of such notice required in
paragraph (b)(2)(iii)(B) of this section.
(ii) [Reserved]
(iii) If the revised data are used to
recalculate, in accordance with
paragraph (b)(6)(i) of this section, the
amount of Texas SO2 Trading Program
allowances that the owners and
operators are required to hold for such
control period with regard to the Texas
SO2 Trading Program sources and Texas
SO2 Trading Program units involved—
(A) Where the amount of Texas SO2
Trading Program allowances that the
owners and operators are required to
hold increases as a result of the use of
all such revised data, the Administrator
will establish a new, reasonable
deadline on which the owners and
operators shall hold the additional
amount of Texas SO2 Trading Program
allowances in the assurance account
established by the Administrator for the
appropriate Texas SO2 Trading Program
sources and Texas SO2 Trading Program
units under paragraph (b)(3) of this
section. The owners’ and operators’
failure to hold such additional amount,
as required, before the new deadline
shall not be a violation of the Clean Air
Act. The owners’ and operators’ failure
to hold such additional amount, as
required, as of the new deadline shall be
a violation of the Clean Air Act. Each
Texas SO2 Trading Program allowance
that the owners and operators fail to
hold as required as of the new deadline,
and each day in such control period,
shall be a separate violation of the Clean
Air Act.
(B) For the owners and operators for
which the amount of Texas SO2 Trading
Program allowances required to be held
decreases as a result of the use of all
such revised data, the Administrator
will record, in all accounts from which
Texas SO2 Trading Program allowances
were transferred by such owners and
operators for such control period to the
VerDate Sep<11>2014
16:59 Nov 13, 2019
Jkt 250001
assurance account established by the
Administrator for the appropriate Texas
SO2 Trading Program sources and Texas
SO2 Trading Program units under
paragraph (b)(3) of this section, a total
amount of the Texas SO2 Trading
Program allowances held in such
assurance account equal to the amount
of the decrease. If Texas SO2 Trading
Program allowances were transferred to
such assurance account from more than
one account, the amount of Texas SO2
Trading Program allowances recorded in
each such transferor account will be in
proportion to the percentage of the total
amount of Texas SO2 Trading Program
allowances transferred to such
assurance account for such control
period from such transferor account.
(C) Each Texas SO2 Trading Program
allowance held under paragraph
(b)(6)(iii)(A) of this section as a result of
recalculation of requirements under the
Texas SO2 Trading Program assurance
provisions for such control period must
be a Texas SO2 Trading Program
allowance allocated for a control period
in a year before or the year immediately
following, or in the same year as, the
year of such control period.
§ 97.926
[Amended]
12. Amend § 97.926 paragraph (b) by
adding after the text ‘‘§ 97.924,’’ the text
‘‘§ 97.925,’’.
■
§ 97.928
[Amended]
13. Amend § 97.928 paragraph (b) by
removing the text ‘‘a compliance
account,’’ and adding in its place the
text ‘‘a compliance account or an
assurance account,’’.
■
§ 97.931
[Amended]
14. Amend § 97.931 paragraph (d)(3)
introductory text by removing after the
text ‘‘is replaced by’’ the text ‘‘with’’.
■
[FR Doc. 2019–24286 Filed 11–13–19; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 90
[WT Docket No. 02–55; FCC 19–108]
Improving Public Safety
Communications in the 800 MHz Band
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document the
Commission takes steps to streamline
our rules and procedures to accelerate
the successful conclusion of the
Commission’s 800 MHz band
SUMMARY:
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
61863
reconfiguration program, or rebanding.
The document seeks comment on the
proposed rule deletions.
DATES: Comments are due on or before
December 16, 2019 and reply comments
are due on or before December 30, 2019.
ADDRESSES: You may submit comments,
identified by WT Docket No. 02–55, by
any of the following methods:
• Federal Communications
Commission’s website: https://
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Roberto Mussenden, Policy and
Licensing Division, Public Safety and
Homeland Security Bureau, (202) 418–
1428.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking in WT Docket No.
02–55, FCC 19–108, released on October
28, 2019. The complete text of this
document is available for download at
https://fjallfoss.fcc.gov/edocs_public/.
The complete text of this document is
also available for inspection and
copying during normal business hours
in the FCC Reference Information
Center, Portals II, 445 12th Street SW,
Room CY–A257, Washington, DC 20554.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an email to
FCC504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (TTY).
Synopsis
1. In the Notice of Proposed
Rulemaking (NPRM), the Commission,
recognizing that it has determined that
Sprint did not reap an economic
windfall from the spectrum award that
Sprint received in exchange for
undertaking the financial obligation to
support 800 MHz rebanding, proposes
eliminating the rule that requires an
annual auditing of Sprint’s rebanding
expenditures by the 800 MHz Transition
Administrator. The NPRM seeks
comment on proposed procedures for
eliminating the requirement that each
rebanding agreement be reviewed and
E:\FR\FM\14NOP1.SGM
14NOP1
]]>Agencies
[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Proposed Rules]
[Pages 61850-61863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24286]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-R06-OAR-2016-0611; FRL-10001-85-Region 6]
Promulgation of Air Quality Implementation Plans; State of Texas;
Regional Haze and Interstate Visibility Transport Federal
Implementation Plan: Proposal of Best Available Retrofit Technology
(BART) and Interstate Visibility Transport Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In this supplemental notice of proposed rulemaking (SNPRM),
the Environmental Protection Agency (EPA) is supplementing the proposal
published on August 27, 2018 to affirm the Agency's October 2017
Federal Implementation Plan (FIP), which partially approved the 2009
Texas Regional Haze State Implementation Plan (SIP) submission and
promulgated a Federal Implementation Plan (FIP) for Texas to address
certain outstanding Clean Air Act (CAA) regional haze requirements. The
October 2017 FIP established the Texas SO2 Trading Program,
an intrastate trading program for certain electric generating units
(EGUs) in Texas, as a Best Available Retrofit Technology (BART)
alternative for sulfur dioxide (SO2). In response to certain
comments received on the August 2018 proposal to affirm the October
2017 FIP, we are proposing revisions to the Texas SO2
Trading Program, including provisions for penalties on the total annual
SO2 emissions from sources covered by the rule exceeding a
proposed assurance level.
DATES: Comments must be received on or before January 13, 2020.
Public Hearing: A public hearing, if requested, will be held in
Room 5220, 1201 Elm Street, Suite 500, Dallas, Texas 75270 on December
9, 2019 beginning at 1:00 p.m. If you wish to request a hearing and
present testimony or attend the hearing, you should notify, on or
before November 27, 2019, Ms. Jennifer Huser, Air and Radiation
Division (ARSH), Environmental Protection Agency Region 6, 1201 Elm
Street, Suite 500; telephone number: (214) 665-7347; email address:
[email protected]. Oral testimony will be limited to 5 minutes
each. The hearing will be strictly limited to the subject matter of the
proposal, the scope of which is discussed below. Any member of the
public may file a written statement by the close of the comment period.
Written statements (duplicate copies preferred) should be submitted to
Docket ID No. EPA-R06-OAR-2016-0611, at the address listed above for
submitted comments. The hearing location and schedule will be posted on
EPA's web page at https://www.epa.gov/publicnotices/notices-search/location/Texas. Verbatim English--language transcripts of the hearing
and written statements will be included in the rulemaking docket. If no
requests for a public hearing are received by close of business on
November 27, 2019, a hearing will not be held, and this announcement
will be made on the web page at the address shown above.
For additional logistical information regarding the public hearing
please see the SUPPLEMENTARY INFORMATION section of this action.
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, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at the
EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While
all documents in the docket are listed in the index, some information
may be publicly available only at the hard copy location (e.g.,
copyrighted material), and some may not be publicly available at either
location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Jennifer Huser, Air and Radiation
Division, Environmental Protection Agency, Region 6, 1201 Elm Street,
Suite 500, Dallas, Texas 75270, telephone 214-665-7347; email address
[email protected]
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
A public hearing, if requested, will provide interested parties the
opportunity to present information and opinions to us concerning our
proposal. Interested parties may also submit written comments, as
discussed in the proposal. Written statements and supporting
information submitted during the comment period will be considered with
the same weight as any oral comments and supporting information
presented at the public hearing. We will not respond to comments during
the public hearing. When we publish our final action, we will provide
written responses to all significant oral and written comments received
on our proposal.
At the public hearing, the hearing officer may limit the time
available for each commenter to address the proposal to three minutes
or less if the hearing officer determines it to be appropriate. We will
not be providing equipment for commenters to show overhead slides or
make computerized slide presentations. Any person may provide written
or oral comments and data pertaining to our proposal at the public
hearing. Verbatim English--language transcripts of the hearing and
written statements will be included in the rulemaking docket.
[[Page 61851]]
Table of Contents
I. Background
II. Public Comment
III. Texas SO2 BART Alternative Trading Program
A. Proposed Changes to Specific Texas SO2 Trading
Program Features
1. Addition of Assurance Provisions
2. Revision of Supplemental Allowance Pool Allocation Provisions
3. Termination of Opt-In Provisions
4. Revision of Allowance Recordation Provisions
B. Interstate Visibility Transport
IV. Supplemental Proposed Action
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Overview,
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Background
On August 27, 2018, we proposed to affirm our October 2017 FIP and
provided an opportunity to comment on relevant aspects of the rule, as
well as other specified related issues.\1\ To address the
SO2 BART requirements for EGUs, we proposed to affirm our
October 2017 FIP, which relied on an intrastate SO2 trading
program as a BART alternative for certain EGUs in Texas (``Texas
SO2 Trading Program''). We proposed to affirm our approval
of the portion of the 2009 Texas Regional Haze SIP that addresses the
BART requirement for EGUs for particulate matter (PM). We also proposed
to affirm our determination that the BART alternatives addressing
SO2 and nitrogen oxides (NOX) BART at Texas' EGUs
were adequate to satisfy the interstate visibility transport
requirements for the following national ambient air quality standards
(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. The
August 2018 proposal contains more detailed discussion of previous EPA
actions on Texas Regional Haze and the rationale for our proposed
action to affirm.
---------------------------------------------------------------------------
\1\ 83 FR 43586 (August 27, 2018). Additional information
regarding the regulatory background of the CAA and regional haze
requirements can be found in the October 2017 FIP, 82 FR 48324 (Oct.
17, 2017), and our January 2017 notice of proposed rulemaking for
Texas Regional Haze, 82 FR 912 (Jan. 4, 2017).
---------------------------------------------------------------------------
The comment period on the August 2018 proposal closed on October
26, 2018. We received timely comments on the proposal, and we will
address all comments received on the original proposal and on this
supplemental proposal in our final action.
II. Public Comment
We are reopening the public comment period with respect to the
specific proposed changes in this notice. Comments are due January 13,
2020. EPA is not reopening the comment period for any other aspects of
our August 2018 proposal. Comments should be limited to the items
discussed in this supplemental proposal.
III. Texas SO2 BART Alternative Trading Program
A. Proposed Changes to Specific Texas SO2 Trading Program Features
In this supplemental proposal, EPA proposes to make four sets of
amendments to the Texas SO2 Trading Program: (1) The
addition of assurance provisions; (2) revisions to the Supplemental
Allowance Pool allocation provisions; (3) termination of the opt-in
provisions; and (4) revision of the allowance recordation provisions.
The four subsections of this section discuss each of these proposed
sets of amendments in turn, along with the associated rationales. In
general, these proposed changes, if finalized, would strengthen our
finding in October 2017,\2\ which we proposed to affirm in August 2018,
that the Texas SO2 Trading Program will result in
SO2 emission levels from Texas EGUs that are similar to or
less than the emission levels from Texas EGUs that would have been
realized had Texas continued to participate in the SO2
trading program under the Cross-State Air Pollution Rule (CSAPR).\3\
---------------------------------------------------------------------------
\2\ 82 FR 48324, 48329.
\3\ See 83 FR at 43599.
---------------------------------------------------------------------------
The proposed changes to the Texas SO2 Trading Program
would be implemented through revisions to the existing regulations at
40 CFR part 97, subpart FFFFF. A redline/strike-out document showing
subpart FFFFF with the proposed revisions has been added to the docket
for this proposed action.
1. Addition of Assurance Provisions
In the August 2018 proposal, EPA proposed to affirm that the Texas
SO2 Trading Program is an appropriate SO2 BART
alternative for EGUs in Texas on the basis that the program ``will
achieve greater reasonable progress than BART towards restoring
visibility, consistent with the June 2012 `CSAPR better than BART' and
September 2017 `CSAPR still better than BART' determinations.'' \4\
(Further background on those determinations is set forth in the August
2018 proposal.) In support, EPA explained that the Texas SO2
Trading Program, despite some difference in the scope of coverage of
EGUs, would be comparable in stringency to, if not more stringent than,
the CSAPR SO2 trading program as applied to Texas
sources.\5\ EPA further explained that its analysis of the stringency
of the CSAPR program was premised on the CSAPR program's structure of
state emission budgets plus ``assurance levels.'' \6\
---------------------------------------------------------------------------
\4\ Id. at 43590.
\5\ Id. at 43591-92.
\6\ Id. at 43594-95.
---------------------------------------------------------------------------
In each of the CSAPR trading programs, EPA set an assurance level
for each state in order to ensure that, despite the broad, interstate
trading region, emissions reductions would be achieved appropriately in
a geographically distributed way commensurate with states' ``good
neighbor'' obligations as determined by EPA through its analysis under
CAA section 110(a)(2)(D)(i)(I).\7\ EPA set these assurance levels for
states by first establishing a ``variability limit'' as a percentage of
each state's total emission budget in order to account for year-to-year
variability in the amount of fossil fuel combusted to produce
electricity required to meet customer demand. EPA then set the amount
of each state's assurance level as the sum of the state's budget and
its variability limit.\8\ If a state's sources' emissions exceed the
statewide assurance level, the emissions above that level are
``penalized'' through a three-to-one allowance surrender ratio.\9\ The
CSAPR assurance levels are thus designed to provide the sources in each
state with a strong incentive not to exceed a state-specific target in
any compliance period, consistent with the state-specific nature of the
good neighbor obligations, while providing
[[Page 61852]]
flexibility to respond to year-to-year variability in electricity
demand.\10\
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\7\ 76 FR 48208, 48265-66 (Aug. 8, 2011).
\8\ Id. at 48266-68.
\9\ 83 FR at 43594-95.
\10\ For more information on assurance levels in the CSAPR
program, see U.S. EPA, Cross-State Air Pollution Rule (CSAPR) Fact
Sheet--Assurance Provisions, available at https://www.epa.gov/sites/production/files/2016-05/documents/fact_sheet_assurance_provisions_0.pdf and in the docket for this
action.
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The Texas SO2 Trading Program, as promulgated in October
2017, does not include an assurance level. In contrast to CSAPR, the
Texas SO2 Trading Program does not allow for sources to
purchase allowances from sources in other states. Therefore, the number
of allowances available to the Texas sources is limited by the total
number of allowances allocated under the program. While this limits the
average annual emissions under the program, we recognize, as discussed
in further detail below, that the potential use of banked allowances
and allowances allocated from the Supplemental Allowance Pool could
result in potentially significant year-to-year variability in
emissions. Therefore, the EPA is proposing to add an assurance level
provision to the Texas SO2 Trading Program in order to
maintain consistency with the CSAPR program and to provide additional
support for our determination that SO2 emissions under the
Texas SO2 Trading Program will remain below the requisite
level on an annual basis. In order to explain our proposed
determination of the appropriate stringency at which to set the
assurance level, in this supplemental proposal we will first review our
prior analysis of the stringency of the Texas SO2 Trading
Program in the August 27, 2018 notice. We will then summarize the
relevant public comments EPA received on this issue in response to that
notice, and propose an appropriate assurance level based on our review
of the information.
In the August 2018 proposal, we summarized relevant Texas-related
aspects of the 2011 proposed and 2012 final ``CSAPR better than BART''
rulemaking.\11\ We described how, for purposes of comparing the impacts
of CSAPR and BART nationwide in the 2011 proposed rule, EPA initially
used a model projection of 266,600 tons for Texas EGUs' annual
SO2 emissions under the CSAPR program.\12\ We then explained
that because of intervening increases in some CSAPR emissions budgets--
including an increase of 50,517 tons in the CSAPR SO2 budget
for Texas--EPA conducted a sensitivity analysis for the 2012 final rule
to assess the effects of the CSAPR budget adjustments, making a
conservative assumption that SO2 emissions from Texas EGUs
under CSAPR could potentially increase by the full amount of the Texas
budget increase, or up to 317,100 tons per year (266,600 + 50,517).\13\
Finally, we noted the results of that sensitivity analysis, namely that
CSAPR was expected to provide for greater reasonable progress than BART
nationwide even with potential SO2 emissions from Texas EGUs
under CSAPR as high as 317,100 tons.\14\
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\11\ See 83 FR at 43594-95 (citing 77 FR 33642 (June 7, 2012)).
\12\ See Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket ID No. EPA-HQ-OAR-2011-
0729-0014 (December 2011), available in the docket for this action,
at table 2-4.
\13\ See Sensitivity Analysis Accounting for Increases in Texas
and Georgia Transport Rule State Emissions Budgets, Docket ID No.
EPA-HQ-OAR-2011-0729-0323 (May 29, 2012), available in the docket
for this action.
\14\ 83 FR at 43595.
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In our August 2018 proposal, EPA used this benchmark (317,100 tons
of SO2 emissions per year) to gauge whether the Texas
SO2 Trading Program was sufficiently stringent for EPA to
continue to rely on the BART-alternative analysis we conducted in the
2012 ``CSAPR better than BART'' rulemaking. EPA found that the ``annual
average emissions'' under the Texas SO2 Trading Program
would remain below the 317,100 tons-per-year benchmark relied upon in
the 2012 sensitivity analysis, because the yearly allocation to Texas
EGUs under the Texas SO2 Trading Program was 238,393 tons of
allowances, plus 10,000 tons allocated to the Supplemental Allowance
Pool.\15\ Although there may be some year-to-year variability in
emissions, EPA reasoned that variability for units within the Texas
program would be constrained by the number of banked allowances and the
number of allowances that can be allocated in a control period from the
Supplemental Allowance Pool. (Annual allocations from the Supplemental
Allowance Pool are limited to 54,711 tons.) The total number of
allowances that can be allocated in a single year is therefore 293,104,
which is the sum of the 238,393-ton budget for existing units plus
54,711. EPA further explained that certain sources that had been
subject to the CSAPR program, but which are not covered by the Texas
SO2 Trading Program, emitted less than 27,500 tons of
SO2 in 2016 and their emissions were not projected to
significantly increase from this level. Taking into account these
figures, as well as recent emissions data, EPA concluded that ``annual
average EGU emissions'' under the Texas SO2 Trading Program
were anticipated to remain ``well below'' the 317,100 ton per year
benchmark and would be similar to emissions anticipated under CSAPR.
Relying on this information, EPA concluded that the weight of evidence
supported the conclusion that the Texas SO2 Trading Program
met the requirements of a BART alternative.\16\
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\15\ Id. at 43598.
\16\ Id. at 43602.
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Commenters on the August 2018 proposal identified several specific
concerns with the Texas SO2 Trading Program. EPA has
considered these comments, and they inform this supplemental proposal.
Stated broadly, these commenters are concerned that the Texas
SO2 Trading Program is insufficiently stringent to meet the
requirements for a BART alternative under 40 CFR 51.308(e)(2).
Commenters specifically questioned EPA's reliance on the 317,100-ton
benchmark and argued that the Texas SO2 Trading Program
would, unlike source-specific BART control requirements, allow for
emissions to increase compared to recent emission levels. Commenters
also identified the availability of supplemental allowances, the
issuance of allocations to already-retired units, the general method of
allocating allowances, and the availability of unlimited allowance
banking as features which, according to them, undermine the stringency
of the Texas SO2 Trading Program.
EPA proposes to reaffirm its finding that the current Texas
SO2 Trading Program budget, in general, compares favorably
in stringency to the CSAPR SO2 trading program. Further,
certain features of the Texas SO2 Trading Program that were
raised as concerns by commenters, such as allocations to retired units
and use of allowance banking, are consistent with elements of the CSAPR
trading programs. However, EPA recognizes that the current Texas
SO2 Trading Program, unlike CSAPR, does not impose an
``assurance level''--a 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. In EPA's analysis
summarized above, EPA relied on the number of allowances allocated
annually to indicate ``average'' annual emission levels. This analysis
did not account for the variability in emissions due to the
availability of banking or the build-up of allowances through
allocations to retired units. Although these features are available to
sources participating in the CSAPR programs, their effect on emissions
in
[[Page 61853]]
that program is significantly constrained by the program's assurance
provisions.
Although assurance levels in the CSAPR program were, as discussed
above, originally implemented to meet requirements relevant to
interstate transport under the good neighbor provision, this feature of
the program was also relevant to the BART-alternative analysis for
CSAPR because the presence of the three-for-one penalty provision
established a practical upper bound on each state's emissions in each
year of the program. This informed the level of emissions EPA could
project with confidence under the CSAPR program when determining
whether it could serve as a BART alternative. EPA recognizes that, in
the absence of an assurance level for the Texas SO2 Trading
Program, there are no analogous means of guaranteeing that emissions
would remain below a certain amount on an annual basis. The resulting
growth in the number of allowances available for use in future years,
without some constraint on annual emissions, could in theory impact the
stringency of the program in terms of annual emissions for purposes of
the BART-alternative analysis.
Therefore, EPA is proposing to add an assurance level to the Texas
SO2 Trading Program. EPA is proposing to set the assurance
level using the same methodology applied in the original CSAPR
rulemaking.\17\ There, for each state covered by a given CSAPR program,
EPA analyzed the historical year-to-year variability in the total
annual quantity of fossil fuel consumed to generate electricity in the
state. From this analysis, EPA developed for each state a statistical
percentage measure representing, at a 95% confidence level, the maximum
expected one-year deviation from average annual fossil fuel consumption
for electricity generation. EPA used the highest of these state-
specific statistical percentage measures for any state covered by a
given CSAPR program to define ``variability limits'' for all the states
covered by the program, where each state's variability limit was
computed as that specific state's emissions budget multiplied by the
highest of the state-specific statistical percentage measures for all
the states in the program. EPA proposes here to set the assurance level
for the Texas SO2 Trading Program by relying on the same
analysis and methodology that were used to set assurance levels in the
original CSAPR rulemaking. This approach maintains consistency with the
methodology used for the CSAPR programs while accounting for the fact
that the Texas SO2 Trading Program is intrastate-only (i.e.,
does not permit interstate trading). On a state-specific basis for
Texas, EPA determined in the CSAPR rulemaking that the statistical
percentage measure representing the maximum expected one-year deviation
from the state's average annual fossil fuel consumption for electricity
generation was seven percent.\18\ Applying that same percentage to the
current Texas SO2 Trading Program budget, EPA proposes to
set the variability limit for Texas at 16,688 tons, which is seven
percent of the trading budget of 238,393 tons. The proposed assurance
level is the sum of the budget and the variability limit, or 255,081
tons. EPA proposes to amend the Texas SO2 Trading Program's
regulations to impose a penalty surrender ratio of three allowances for
each ton of emissions in any year in excess of the 255,081-ton
assurance level, and to impose the penalty proportionately to emissions
from those groups of sources represented by a common designated
representative that emit in excess of the groups' annual allocations of
allowances. These requirements are in nearly all respects identical to
the CSAPR program's assurance provisions. The specific amendments to
the regulatory text are described in more detail below.
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\17\ See Power Sector Variability Final Rule TSD (July 2011),
available at https://www.epa.gov/csapr/power-sector-variability-final-rule-tsd and in the docket for this action.
\18\ Id.
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In addition to being consistent with the original CSAPR methodology
for setting assurance levels, EPA also believes that an assurance level
set at 255,081 is appropriate for the Texas SO2 Trading
Program because, if finalized, it will provide further support for our
October 2017 finding that the Texas SO2 Trading Program will
result in SO2 emission levels from Texas EGUs that are
similar to or less than the emission levels from Texas EGUs that would
have been realized from participation in the SO2 trading
program under CSAPR. At an assurance level of 255,081 tons of emissions
annually, EPA has high confidence that emissions will be below the
amount assumed in the BART-alternative sensitivity analysis utilized
for the 2012 CSAPR-better-than-BART determination (i.e., 317,100 tons),
and thus visibility levels at Class I areas impacted by sources in
Texas are anticipated to be at least as good as the levels projected in
the 2012 analysis that assumed Texas would be in the larger CSAPR
SO2 trading program.\19\ In reaching that conclusion, EPA
includes in its analysis a reasonable estimate of projected emissions
from units that would have been in the CSAPR program, but are not in
the Texas SO2 Trading Program. EPA proposes to use a more
conservative (i.e., higher) estimate of these emissions than in its
August 2018 proposal. We propose to assume that these units will emit
35,000 tons of SO2 annually based on a maximum annual
emission level of 34,129 tons over the past five years (2014-2018) and
considering that several of these units have recently shut down or have
been announced for shutdown in the near future.\20\ Adding that amount
to the assurance level of 255,081 tons yields 290,081 tons. Assuming
this figure represents a firm upper bound on annual SO2
emissions from the relevant EGUs in Texas, this is less than the
317,100 ton figure EPA had demonstrated was acceptable in the original
2012 CSAPR analysis, as discussed above and in the August 2018
proposal.\21\ We note that, as demonstrated in Table 1, SO2
emissions from power plants in Texas are currently well below the Texas
SO2 Trading Program budget of 238,293 tons (as well as the
proposed assurance level of 255,081 tons) and are anticipated to
continue to decrease due to the low cost of natural gas and increasing
renewable energy production.\22\
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\19\ Two organizations have filed a petition for reconsideration
of EPA's September 29, 2017 determination that CSAPR continues to
satisfy the BART-alternative analysis under 40 CFR 51.308(e)(4)
notwithstanding certain changes to the geographic scope of the
program, including the removal of Texas from the CSAPR program for
annual SO2 and NOx emissions. See Sierra Club and
National Parks Conservation Association, Petition for Partial
Reconsideration of Interstate Transport of Fine Particulate Matter:
Revision of Federal Implementation Plan Requirements for Texas, 82
FR 45481 (Sept. 29, 2017); EPA-HQ-OAR-2016-0598; FRL09968-46-OAR
(dated Nov. 28, 2017). EPA is not proposing to address that
determination through this action, and EPA is not addressing or
revisiting the larger reaffirmation of the BART-alternative analysis
for CSAPR at issue in that separate action taken in September 2017.
EPA intends to take action at a later date responding to the
petition for reconsideration in that matter.
\20\ See ``Texas EGU SO2 emissions, 2014-2018.xlsx'',
available in the docket for this action. Sandow Station units 5A and
5B have been permanently retired. AEP has announced retirement of
Oklaunion by September 2020. Gibbons Creek is currently not
operating although it has not been officially retired.
\21\ See ``Sensitivity Analysis Accounting for Increases--EPA-
HQ-OAR-2011-0729-0323'' available in the docket for this action.
\22\ https://www.ercot.com/content/wcm/lists/144927/2018_LTSA_Report.pdf.
[[Page 61854]]
Table 1--Recent SO2 Emissions Trends in Texas
[Tons]
----------------------------------------------------------------------------------------------------------------
2014 2015 2016 2017 2018
----------------------------------------------------------------------------------------------------------------
Texas total EGU emissions....... 343,425 260,138 245,799 275,993 211,025
Participating sources' emissions 309,296 236,754 218,291 245,870 179,628
Non-participating sources' 34,129 23,384 27,509 30,124 31,397
emissions......................
----------------------------------------------------------------------------------------------------------------
EPA also notes that the addition of an assurance level guaranteeing
that SO2 emissions can be expected to remain below a certain
level each year has the effect of also addressing a number of other
specific concerns about the Texas SO2 Trading Program raised
by commenters. In particular, to the extent that commenters claimed the
program would be inadequately stringent due to the allowance allocation
methodology, including allocations to retired units, or due to the
Supplemental Allowance Pool or allowance banking, these concerns are
effectively rendered moot by the addition of the assurance level. This
is because when a mass-based trading program includes a ``cap'' on
overall annual emissions, as the Texas SO2 Trading Program
would with the addition of the proposed assurance provisions, that
overall ``cap'' on emissions set by the program (here, the assurance
level) effectively determines the stringency of the program in each
year. How allowances to emit are allocated annually within that overall
cap, and whether allowances may be banked across years by certain
market participants, will not impact the annual stringency of the
program as a whole. Allocations to retired units and the availability
of banking are important to ensure market stability, avoid perverse
incentives, and potentially aid in sources' operational planning.\23\
With the addition of an assurance level, the potential risk of an undue
relaxation of the annual stringency in the program is minimized,
because sources will remain strongly incentivized to keep annual
emissions below the level at which the three-for-one surrender penalty
is imposed. The effectiveness of assurance levels in guaranteeing the
stringency of trading programs has been borne out in CSAPR, where no
state's sources' emissions have exceeded a state's assurance level to-
date.\24\
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\23\ See CSAPR Update Final Rule, 81 FR 74506, 74559, 74566
(Oct. 26, 2016) (discussing rationales for these features in the
context of the CSAPR Update ozone season NOX trading
program).
\24\ See 2017 and 2018 CSAPR Budgets Emissions and Assurance
Levels Spreadsheets, available at U.S. EPA, CSAPR Assurance
Provision, https://www.epa.gov/csapr/csapr-assurance-provision.
Copies of the spreadsheets, fact sheet, and web page are also
provided in the docket for this action.
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EPA requests comment on its proposal to add assurance provisions to
the Texas SO2 Trading Program. EPA also requests comment on
its proposal to set the assurance level at 255,081 tons. The specific
mechanics for the addition of this feature to the program are discussed
in more detail below.
EPA proposes to make the assurance level effective beginning with
the 2021 compliance period and for each period thereafter. The proposed
assurance provisions would be implemented through the addition of new
provisions at multiple locations in the Texas SO2 Trading
Program regulations at 40 CFR part 97, subpart FFFFF (40 CFR 97.901
through 97.935). In Sec. 97.902, new definitions of several terms used
in the assurance provisions (``assurance account,'' ``common designated
representative,'' ``common designated representative's assurance
level,'' and ``common designated representative's share'') would be
added. New Sec. 97.906(c)(2) and (c)(3)(ii) would set forth the
central requirement of the assurance provisions--namely, that if
SO2 emissions from all covered sources in 2021 or any
subsequent year collectively exceed the program's assurance level, then
the owners and operators of the groups of sources determined to be
responsible for the collective exceedance would be required to
surrender allowances totaling twice the amount of the exceedance by a
specified deadline, in addition to the allowances surrendered to
account for the sources' total emissions. New Sec. 97.910(b) and (c)
would establish the variability limit that would be added to the
trading program budget to determine the amount of the assurance level.
New Sec. 97.920(b) would provide for the establishment of assurance
accounts, when appropriate, to hold the additional allowances to be
surrendered. New Sec. 97.925 would set forth additional procedures for
EPA's administration of and sources' compliance with the assurance
provisions.
Besides the addition of the new provisions just described, in
Sec. Sec. 97.906 and 97.920, several existing paragraphs would be
renumbered and internal cross-references would be updated to reflect
the added and renumbered paragraphs. Finally, revisions would be made
to existing language at Sec. Sec. 97.902 (definitions of ``general
account'' and ``Texas SO2 Trading Program allowance
deduction''), 97.906(b)(2), 97.913(c), 97.926(b), 97.928(b), and
renumbered 97.906(c)(4)(ii) to integrate the new assurance provisions
with various existing provisions of the Texas program regulations.
The language of the proposed revisions to the Texas SO2
Trading Program regulations would generally parallel the analogous
language from the CSAPR regulations at 40 CFR part 97, subparts AAAAA
through EEEEE, streamlined to reflect the Texas program's narrower
applicability (i.e., specific units located only in Texas, excluding
any new units built either in Texas or in Indian country within Texas'
borders). The only substantive differences from the analogous CSAPR
assurance provisions concern the approach used to impute allocation
amounts--for use in apportioning responsibility for any collective
exceedance of the assurance level--to any units that do not receive
actual allowance allocations from the trading program budget. Under
CSAPR, the only units potentially in this situation are new units that
do not receive allowance allocations from the CSAPR new unit set-
asides, and the CSAPR regulations include a methodology for computing
unit-specific imputed allocation amounts based on several data elements
relating to the new units' design and potential operation.\25\ In
contrast, under the Texas SO2 Trading Program, the only
units potentially in this situation would be existing units that have
ceased operation for an extended period, thereby losing their
allocations from the trading budget under Sec. 97.911(a), and that
subsequently resume operation.\26\
[[Page 61855]]
Because the Texas SO2 Trading Program regulations already
identify the unit-specific allowance allocations that these units would
formerly have received from the trading budget, the proposed Texas
SO2 Trading Program assurance provisions would use these
previously established amounts for purposes of assurance provision
calculations instead of requiring new imputed allocation amounts to be
computed according to the more complex methodology in the CSAPR
assurance provisions. The simpler approach proposed for the Texas
SO2 Trading Program assurance provisions appears at
paragraph (2) of the proposed new definition of ``common designated
representative's assurance level'' in Sec. 97.902.
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\25\ See, e.g., paragraph (3) of the definition of ``common
designated representative's share'' at 40 CFR 97.702.
\26\ Although the owners and operators of a unit in this
situation might receive an allocation of allowances from the
Supplemental Allowance Pool under Sec. 97.912 based in part on the
unit's emissions following resumption of operations, under the Texas
program assurance provisions as proposed, any allocations of
allowances from the Supplemental Allowance Pool would not be
considered when apportioning responsibility for a collective
exceedance of the assurance level.
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The simpler approach we are proposing for determining any imputed
allocation amounts allows for some additional simplifications elsewhere
in the proposed Texas SO2 Trading Program assurance
provisions. The CSAPR assurance provisions include regulatory text
addressing the submission of data required to compute the imputed
allocation amounts and the consequences of appeals relating to EPA's
use of the data; the CSAPR provisions also call for issuance of an
initial notice in advance of the required data submissions. Because
under the proposed Texas SO2 Trading Program assurance
provisions the specific imputed allocation amounts would already be
stated in the regulations, analogous provisions addressing data
submissions and appeals are unnecessary and the contents of the initial
notice can be consolidated into a later notice. Consequently, the
corresponding paragraphs of the proposed Texas SO2 Trading
Program assurance provisions at proposed new Sec. 97.925(b)(1)(ii),
(b)(2)(i), and (b)(6)(ii) would contain no regulatory language and
instead appear as ``reserved.''
2. Revision of Supplemental Allowance Pool Allocation Provisions
Section 97.912 of the existing Texas SO2 Trading Program
regulations establishes how allowances are allocated from the
Supplemental Allowance Pool to sources (collections of participating
units at a facility) that have reported total emissions for that
control period exceeding the total amounts of allowances allocated to
the participating units at the source for that control period (before
any allocation from the Supplemental Allowance Pool). While all other
sources required to participate in the trading program have flexibility
to transfer allowances among multiple participating units under the
same owner/operator when planning operations, Coleto Creek consists of
only one coal-fired unit, and at the time of our October 2017 FIP, was
the only coal-fired unit in Texas owned and operated by Dynegy. To
provide this source additional flexibility, under the current program,
Coleto Creek is allocated its maximum supplemental allocation from the
Supplemental Allowance Pool as long as there are sufficient allowances
in the Supplemental Allowance Pool available for allocation, and its
actual allocation will not be reduced in proportion with any reductions
made to the supplemental allocations to other sources. In our August
2018 proposal, we noted that Dynegy has merged with Vistra, which owns
other units that are subject to the trading program. In the August 2018
proposal, we solicited comment on eliminating this additional
flexibility for Coleto Creek in light of the recent change in
ownership, and we received no adverse comments on such a change. In
this SNPRM, we propose to make this change to the regulations.
Some commenters on the August 2018 proposal supported an analogous
further change to the methodology for allocating allowances from the
Supplemental Allowance Pool. These commenters observed that any owner
with multiple sources has the ability to use surplus allowances
allocated to one source to cover emissions from its other sources that
exceed those other sources' base allowance allocations. Based on this
observation, the commenters expressed the view that it would be more
equitable to make allocations from the Supplemental Allowance Pool in
proportion to each owner's total emissions in excess of the owner's
total base allowance allocations instead of in proportion to each
individual source's emissions in excess of the individual source's base
allowance allocation. EPA agrees that this change would be equitable
and notes that it would also be consistent with the rationale for
eliminating the special flexibility in the existing regulations for
Coleto Creek. Accordingly, EPA proposes to amend the Supplemental
Allowance Pool allocation provisions to reflect this further change in
the allocation methodology.
The proposed modifications to the methodology for allocating
allowances from the Supplemental Allowance Pool would be implemented
through several revisions to Sec. Sec. 97.911 and 97.912. In Sec.
97.912, paragraph (a) would be edited to limit applicability of the
current allocation methodology to the 2019 and 2020 control periods,
and a new paragraph (b) would be added setting forth the revised
allocation methodology proposed for the control periods in 2021 and
subsequent years. Two existing paragraphs of the section would be
renumbered to accommodate the new paragraph (b), and internal cross-
references would be updated to reflect the renumbering and to integrate
the provisions of the revised allocation methodology with other
existing provisions.
Proposed new Sec. 97.912(b)(1) of the revised allocation
methodology sets forth a procedure for assigning units into groups
under common ownership called ``affiliated ownership groups.'' Under
the proposed procedure, the group assignments would remain constant
unless and until revised by EPA to reflect an ownership transfer. The
proposed initial group assignments for all covered units are specified
in a proposed new column that would be added to the existing allowance
allocation table in Sec. 97.911(a)(1).
Finally, consistent with the existing language in renumbered Sec.
97.912(d) capping the number of allowances that can be allocated from
the Supplemental Allowance Pool for any given control period, non-
substantive revisions to Sec. Sec. 97.911(a)(2) and (c)(5) would
clarify that allowances from the trading budget that are transferred to
the Supplemental Allowance Pool are not necessarily ``allocated under''
Sec. 97.912, but instead are made available for ``potential allocation
in accordance with'' Sec. 97.912.
EPA requests comment on the proposed revisions to the Supplemental
Allowance Pool allocation provisions.
3. Termination of Opt-In Provisions
Under Sec. 97.904(b) of the existing Texas SO2 Trading
Program regulations, the EPA provided an opportunity for any other unit
in the State of Texas that was previously subject to the CSAPR
SO2 Group 2 Trading Program and would have received an
allowance allocation under that program to opt into the Texas
SO2 Trading Program. Under Sec. 97.911(b), a unit that opts
into the Texas SO2 Trading Program would receive the same
allowance allocation that it would have received under the CSAPR
SO2 Group 2 Trading Program. These allowance allocations
would be in addition to the allocations to other units from the Texas
SO2 Trading Program budget and would therefore increase the
total number of allowances available under the program. As of the date
of this supplemental proposal, no source has notified EPA of intent to
opt into the Texas SO2 Trading Program.
[[Page 61856]]
A commenter on the August 2018 proposal asserted that the opt-in
provision weakened the functional equivalence of the Texas
SO2 Trading Program to CSAPR. The commenter cited EPA's
determination not to include opt-in provisions in the CSAPR trading
programs on the basis that opt-in provisions would undermine
achievement of the CSAPR program's emission reduction objectives. The
commenter also cited EPA's discussion of the reasons for this
determination, including the difficulty of distinguishing new emission
reductions from reductions that opt-in sources would have made anyway,
and the consequent likelihood that the amounts of allowances allocated
to the sources would exceed their starting emissions levels. The
allocations to the sources opting in would thus introduce ``extra''
allowances into the CSAPR trading programs, increasing the quantity of
allowances available to be traded to other sources and thereby
decreasing the programs' stringency.\27\ EPA believes that these
considerations about potentially introducing ``extra'' allowances also
apply to the current opt-in provisions in the Texas SO2
Trading Program. Therefore, consistent with this supplemental
proposal's overall objective of strengthening our finding that the
Texas SO2 Trading Program will result in SO2
emission levels from Texas EGUs that are similar to or less than the
emission levels from Texas EGUs that would have been realized from
participation in the SO2 trading program under CSAPR, EPA
proposes to terminate the opt-in provisions in the Texas SO2
Trading Program.
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\27\ See generally 76 FR at 48276.
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EPA requests comment on the proposed termination of the opt-in
provisions. EPA also solicits comment as to what other relevant
provisions in the Texas SO2 Trading Program may offset the
expressed concerns with the opt-in provisions.
The proposed termination of the opt-in provisions would be
implemented through revisions in three locations. In Sec.
97.904(b)(2), revised language would provide that the opportunity to
participate in the Texas SO2 Trading Program by opting in is
available only for the 2019 and 2020 control periods. Revisions to
Sec. Sec. 97.911(b) and 97.921(d) would similarly provide that
allowance allocations to opt-in units could be made and recorded only
for the 2019 and 2020 control periods.
4. Revision of Allowance Recordation Provisions
Under Sec. 97.921(a) of the existing Texas SO2 Trading
Program regulations, ``[t]he Administrator may delay recordation of
Texas SO2 Trading Program allowances for the specified
control periods if the State of Texas submits a SIP revision before the
recordation deadline.'' Similarly, under Sec. 97.921(b), ``[t]he
Administrator may delay recordation of the Texas SO2 Trading
Program allowances for the applicable control periods if the State of
Texas submits a SIP revision by May 1 of the year of the applicable
recordation deadline under this paragraph.'' In this SNPRM, we are
proposing to amend the language in the recordation provisions such that
the Administrator can delay recordation in the event that Texas submits
a SIP revision and EPA takes final action to approve it. These
revisions are necessary to ensure that the program remains fully
operational unless it is replaced by a SIP revision that is approved by
EPA as meeting the SO2 BART requirements for the covered
units.
The proposed amendment to condition any exceptions to scheduled
allowance recordation activities on EPA's approval, rather than Texas'
submission, of a SIP revision would be implemented through revisions to
three paragraphs of Sec. 97.921. In Sec. 97.921(a), the existing
language providing for a possible delay of recordation activities
scheduled for November 1, 2018, would be deleted without replacement;
the language is moot because the recordation date has already passed.
In Sec. 97.921(b), which governs future recordation of allowances
allocated from the trading budget under Sec. 97.911(a), the existing
language would be revised to provide that future recordation activities
will take place as scheduled unless provided otherwise in EPA's
approval of a SIP revision replacing the provisions of subpart FFFFF.
The same revised condition would also be added to Sec. 97.921(c),
which governs future recordation of allowances allocated from the
Supplemental Allowance Pool under Sec. 97.912.
EPA requests comment on the proposed revisions to the allowance
recordation provisions.
B. Interstate Visibility Transport
In our August 2018 proposal, we proposed to affirm that Texas'
participation in CSAPR to satisfy NOx BART and the Texas SO2
Trading Program fully addresses 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.\28\ The basis of this proposed
affirmation was our determination in the October 2017 FIP that the
regional haze measures in place for Texas are 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 consultation and when setting their reasonable progress
goals. As discussed in our August 2018 proposal, the 2009 Texas
Regional Haze SIP relied on CAIR to meet SO2 and
NOX BART requirements for EGUs. Under CAIR, Texas EGU
sources were projected to emit approximately 350,000 tons of
SO2 annually. In today's SNPRM, EPA proposes to make four
revisions to strengthen the Texas SO2 Trading Program and
increase its consistency with CSAPR, including the addition of an
assurance level consistent with the 2012 CSAPR demonstration. As
discussed elsewhere in this SNPRM, Texas EGU annual SO2
emissions for sources covered by the trading program would be
constrained by the assurance level of 255,081 tons. Including an
estimated 35,000 tons per year of emissions from units not covered by
the Texas SO2 Trading Program yields 290,081 tons of
SO2, well below the 350,000-ton emissions projection for
Texas sources under CAIR or the 317,100-ton emissions benchmark for
Texas sources under CSAPR discussed in section III.A.1. Additionally,
the October 2017 FIP relies on CSAPR as an alternative to EGU BART for
NOX, which exceeds the NOX emission reductions
from Texas relied upon by other states during consultation. Because the
proposed revisions to the Texas SO2 Trading Program in this
SNPRM would make the program consistent with or below those emission
levels relied upon by other states during consultation, we believe
these revisions provide further support for our earlier finding that
the BART alternatives in the October 2017 FIP result in emission
reductions adequate to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to visibility for the six identified
NAAQS. We invite comment on how the proposed revisions in this SNPRM
impact our August 2018 proposal to affirm our October 2017
determination regarding Texas' visibility transport
[[Page 61857]]
obligations with respect to the NAAQS identified above.
---------------------------------------------------------------------------
\28\ 83 FR at 43593, 43604, and 43605.
---------------------------------------------------------------------------
IV. Supplemental Proposed Action
In this SNPRM, EPA proposes to make four sets of amendments to the
Texas SO2 Trading Program: (1) The addition of assurance-
level provisions; (2) revisions to the Supplemental Allowance Pool
allocation provisions; (3) termination of the opt-in provisions; and
(4) revision of the allowance recordation provisions. The proposed
changes to the Texas SO2 Trading Program would be
implemented through revisions to the existing regulations at 40 CFR
part 97, subpart FFFFF. A redline/strike-out document showing subpart
FFFFF with the proposed revisions has been added to the docket for this
proposed action.
In this proposed action we are only soliciting comment on the four
proposed revisions to the Texas SO2 Trading Program, and how
those proposed changes impact our August 2018 proposal to affirm that
(1) the Texas SO2 Trading Program will result in
SO2 emission levels from Texas EGUs that are similar to or
less than the emission levels from Texas EGUs that would have been
realized from participation in the SO2 trading program under
CSAPR, and (2) Texas' interstate visibility transport obligations with
respect to six NAAQS (listed in the preceding section) are satisfied.
The EPA is not reopening the comment period on any other aspect of the
August 2018 proposal. The EPA will not respond to comments received
during the reopened comment period outside the above-defined scope. We
will respond to all comments received on this SNPRM and our August 2018
proposal to affirm our October 2017 FIP in a single final rulemaking.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Overview, Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This proposed action is not an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866.
C. Paperwork Reduction Act
This proposed action does not impose any new information collection
burden under the PRA. OMB has previously approved the information
collection activities for the Texas SO2 Trading Program as
part of the most recent information collection request renewal for the
CSAPR trading programs and has assigned OMB control number 2060-0667.
This proposed action would not change any information collection
requirements for any entity affected underthe Texas SO2
Trading Program.
D. Regulatory Flexibility Act
I certify that this proposed action will not have a significant
impact on a substantial number of small entities. In making this
determination, the impact of concern is any significant adverse
economic impact on small entities. An agency may certify that a rule
will not have a significant economic impact on a substantial number of
small entities if the rule relieves regulatory burden, has no net
burden or otherwise has a positive economic effect on the small
entities subject to the rule. This proposed rule does not impose any
requirements or create impacts on small entities. This proposed action
to modify a FIP action previously issued under Section 110 of the CAA
will not create any new requirement with which small entities must
comply. Accordingly, it affords no opportunity for the EPA to fashion
for small entities less burdensome compliance or reporting requirements
or timetables or exemptions from all or part of the rule. The fact that
the CAA prescribes that various consequences (e.g., emission
limitations) may or will flow from this action does not mean that the
EPA either can or must conduct a regulatory flexibility analysis for
this action. We have therefore concluded that this proposed action will
have no net regulatory burden for all directly regulated small
entities.
E. Unfunded Mandates Reform Act (UMRA)
This proposed action does not contain an unfunded mandate of $100
million or more as described in UMRA, 2 U. S. C. 1531-1538, and does
not significantly or uniquely affect small governments.
F. Executive Order 13132: Federalism
This proposed 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.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed rule does not have tribal implications, as specified
in Executive Order 13175. It will not have substantial direct effects
on tribal governments. Thus, Executive Order 13175 does not apply to
this rule.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks \29\ applies to any rule that: (1) Is
determined to be economically significant as defined under Executive
Order 12866; and (2) concerns an environmental health or safety risk
that we have reason to believe may have a disproportionate effect on
children. EPA interprets E.O. 13045 as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under Section 5-501 of the E.O. has the potential to
influence the regulation. This proposed action is not subject to
Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866, and because the EPA does not believe
the environmental health or safety risks addressed by this proposed
action present a disproportionate risk to children. This proposed
action is not subject to E.O. 13045 because it implements specific
standards established by Congress in statutes. However, to the extent
this proposed rule will limit emissions of SO2, the proposed
rule will have a beneficial effect on children's health by reducing air
pollution.
---------------------------------------------------------------------------
\29\ 62 FR 19885 (Apr. 23, 1997).
---------------------------------------------------------------------------
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355 (May 22, 2001)), because it is not a significant regulatory
action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This proposed action does not involve technical standards.
[[Page 61858]]
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this proposed action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994). We have determined that this proposed rule will not
have disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The proposed rule limits emissions of SO2
from certain facilities in Texas.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxides, Visibility, Interstate transport of pollution, Regional haze,
Best available retrofit technology.
40 CFR Part 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen dioxide,
Reporting and recordkeeping requirements, Sulfur dioxides.
Dated: November 1, 2019.
David Gray,
Acting Regional Administrator, Region 6.
For the reasons stated in the preamble, Part 97 of chapter I of
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 97--FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2
TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2
TRADING PROGRAM
0
1. The authority citation for Part 97 is revised to read as follows:
Authority: 42 U. S. C. 7401, 7403, 7410, 7426, 7491, 7601, and
7651, et seq.
Subpart FFFFF--TEXAS SO2 TRADING PROGRAM
0
2. Section 97.902 is amended by:
0
a. In the definitions of ``Acid Rain Program'', ``Allowance Management
System'', and ``Allowance Management System account'', capitalizing the
first three words;
0
b. Adding in alphabetical order a definition of ``Assurance account'';
0
c. In the definition of ``authorized account representative'',
capitalizing the word ``trading'' the first time it appears;
0
d. Adding in alphabetical order definitions of ``Common designated
representative'', ``Common designated representative's assurance
level'', and ``Common designated representative's share''; and
0
e. Revising the definitions of ``General account'' and ``Texas
SO2 Trading Program allowance deduction''.
The additions and revisions read as follows:
Sec. 97.902 Definitions.
* * * * *
Assurance account means an Allowance Management System account,
established by the Administrator under Sec. 97.925(b)(3) for certain
owners and operators of a group of one or more Texas SO2
Trading Program sources and units, in which are held Texas
SO2 Trading Program allowances available for use for a
control period in a given year in complying with the Texas
SO2 Trading Program assurance provisions in accordance with
Sec. Sec. 97.906 and 97.925.
* * * * *
Common designated representative means, with regard to a control
period in a given year, a designated representative where, as of April
1 immediately after the allowance transfer deadline for such control
period, the same natural person is authorized under Sec. Sec.
97.913(a) and 97.915(a) as the designated representative for a group of
one or more Texas SO2 Trading Program sources and units.
Common designated representative's assurance level means, with
regard to a specific common designated representative and control
period in a given year for which the State assurance level is exceeded
as described in Sec. 97.906(c)(2)(iii):
(1) The amount (rounded to the nearest allowance) equal to the sum
of the total amount of Texas SO2 Trading Program allowances
allocated for such control period under Sec. 97.911, or deemed to have
been allocated under paragraph (2) of this definition, to the group of
one or more Texas SO2 Trading Program units having the
common designated representative for such control period multiplied by
the sum for such control period of the Texas SO2 Trading
Program budget under Sec. 97.910(a)(1) and the variability limit under
Sec. 97.910(b) and divided by the sum of the total amount of Texas
SO2 Trading Program allowances allocated for such control
period under Sec. 97.911, or deemed to have been allocated under
paragraph (2) of this definition, to all Texas SO2 Trading
Program units;
(2) Provided that, in the case of a Texas SO2 Trading
Program unit that operates during, but has no amount of Texas
SO2 Trading Program allowances allocated under Sec. 97.911
for, such control period, the unit shall be treated, solely for
purposes of this definition, as being allocated the amount of Texas
SO2 Trading Program allowances shown for the unit in Sec.
97.911(a)(1).
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and the total amount of SO2 emissions from all
Texas SO2 Trading Program units during such control period,
the total tonnage of SO2 emissions during such control
period from the group of one or more Texas SO2 Trading
Program units having the common designated representative for such
control period.
* * * * *
General account means an Allowance Management System account,
established under this subpart, that is not a compliance account or an
assurance account.
* * * * *
Texas SO2 Trading Program allowance deduction or deduct Texas SO2
Trading Program allowances means the permanent withdrawal of Texas
SO2 Trading Program allowances by the Administrator from a
compliance account (e.g., in order to account for compliance with the
Texas SO2 Trading Program emissions limitation) or from an
assurance account (e.g., in order to account for compliance with the
assurance provisions under Sec. Sec. 97.906 and 97.925).
* * * * *
Sec. 97.904 [Amended]
0
3. Section 97.904 is amended in paragraph (b)(2) by removing the text
``Program, provided'' and adding in its place the text ``Program for
the control periods in years before 2021, provided''.
0
4. Section 97.906 is amended by:
0
a. In paragraph (b)(2), adding after the text ``emissions limitation''
the text ``and assurance provisions'';
0
b. Redesignating paragraphs (c)(2) through (6) as paragraphs (c)(3)
through (7) and adding a new paragraph (c)(2);
0
c. Redesignating the text of newly redesignated paragraph (c)(3) after
the paragraph heading as paragraph (c)(3)(i) and adding a new paragraph
(c)(3)(ii);
[[Page 61859]]
0
d. In newly redesignated paragraph (c)(4)(ii), removing the text
``paragraph (c)(1)(ii)(A)'' and adding in its place the text
``paragraphs (c)(1)(ii)(A) and (c)(2)(i) through (iii)''.
The additions read as follows:
Sec. 97.906 General provisions.
* * * * *
(c) * * *
(2) Texas SO2 Trading Program assurance provisions. (i) If total
SO2 emissions during a control period in a given year from
all Texas SO2 Trading Program units at Texas SO2
Trading Program sources exceed the State assurance level, then the
owners and operators of such sources and units in each group of one or
more sources and units having a common designated representative for
such control period, where the common designated representative's share
of such SO2 emissions during such control period exceeds the
common designated representative's assurance level for such control
period, shall hold (in the assurance account established for the owners
and operators of such group) Texas SO2 Trading Program
allowances available for deduction for such control period under Sec.
97.925(a) in an amount equal to two times the product (rounded to the
nearest whole number), as determined by the Administrator in accordance
with Sec. 97.925(b), of multiplying--
(A) The quotient of the amount by which the common designated
representative's share of such SO2 emissions exceeds the
common designated representative's assurance level divided by the sum
of the amounts, determined for all common designated representatives
for such sources and units for such control period, by which each
common designated representative's share of such SO2
emissions exceeds the respective common designated representative's
assurance level; and
(B) The amount by which total SO2 emissions from all
Texas SO2 Trading Program units at Texas SO2
Trading Program sources for such control period exceed the State
assurance level.
(ii) The owners and operators shall hold the Texas SO2
Trading Program allowances required under paragraph (c)(2)(i) of this
section, as of midnight of November 1 (if it is a business day), or
midnight of the first business day thereafter (if November 1 is not a
business day), immediately after the year of such control period.
(iii) Total SO2 emissions from all Texas SO2
Trading Program units at Texas SO2 Trading Program sources
during a control period in a given year exceed the State assurance
level if such total SO2 emissions exceed the sum, for such
control period, of the Texas SO2 Trading Program budget
under Sec. 97.910(a)(1) and the variability limit under Sec.
97.910(b).
(iv) It shall not be a violation of this subpart or of the Clean
Air Act if total SO2 emissions from all Texas SO2
Trading Program units at Texas SO2 Trading Program sources
during a control period exceed the State assurance level or if a common
designated representative's share of total SO2 emissions
from the Texas SO2 Trading Program units at Texas
SO2 Trading Program sources during a control period exceeds
the common designated representative's assurance level.
(v) To the extent the owners and operators fail to hold Texas
SO2 Trading Program allowances for a control period in a
given year in accordance with paragraphs (c)(2)(i) through (iii) of
this section,
(A) The owners and operators shall pay any fine, penalty, or
assessment or comply with any other remedy imposed under the Clean Air
Act; and
(B) Each Texas SO2 Trading Program allowance that the
owners and operators fail to hold for such control period in accordance
with paragraphs (c)(2)(i) through (iii) of this section and each day of
such control period shall constitute a separate violation of this
subpart and the Clean Air Act.
(3) * * *
(ii) A Texas SO2 Trading Program unit shall be subject
to the requirements under paragraph (c)(2) of this section for the
control period starting on January 1, 2021 and for each control period
thereafter.
* * * * *
0
5. Section 97.910 is amended by:
0
a. Revising the section heading; and
0
b. Adding paragraphs (b) and (c).
The revision and additions read as follows:
Sec. 97.910 Texas SO2 Trading Program budget, Supplemental Allowance
Pool budget, and variability limit.
* * * * *
(b) The variability limit for the Texas SO2 Trading
Program budget for the control periods in 2021 and thereafter is 16,688
tons.
(c) The Texas SO2 Trading Program budget in paragraph
(a)(1) of this section does not include any tons in the Supplemental
Allowance Pool budget in paragraph (a)(2) of this section or the
variability limit in paragraph (b) of this section.
0
6. Section 97.911 is amended by:
0
a. Revising paragraph (a)(1);
0
b. In paragraph (a)(2), removing the text ``allocated under the Texas
Supplemental Allowance Pool under 40 CFR 97.912.'' and adding in its
place the text ``transferred to the Texas Supplemental Allowance Pool
for potential allocation in accordance with Sec. 97.912.'';
0
c. In paragraph (b)(1), removing the text ``SO2 allocation''
and adding in its place the text ``allocation'', and adding after the
text ``each year'' the text ``before 2021''; and
0
d. In paragraph (c)(5), removing the text ``under 40 CFR 97.912.'' and
adding in its place the text ``for potential allocation in accordance
with Sec. 97.912.''.
The revision reads as follows:
Sec. 97.911 Texas SO2 Trading Program allowance allocations.
(a)(1) Except as provided in paragraph (a)(2) of this section,
Texas SO2 Trading Program allowances from the Texas
SO2 Trading Program budget will be allocated, for the
control periods in 2019 and each year thereafter, as provided in Table
1 to this paragraph (a)(1):
Table 1 to Paragraph (a)(1)--Texas SO2 Trading Program Allocations
----------------------------------------------------------------------------------------------------------------
Texas SO2
trading
Texas SO2 trading program units ORIS code program Affiliated ownership group
allocation
(tons)
----------------------------------------------------------------------------------------------------------------
Big Brown Unit 1........................... 3497 8,473 Vistra Energy.
Big Brown Unit 2........................... 3497 8,559 Vistra Energy.
Coleto Creek Unit 1........................ 6178 9,057 Vistra Energy.
Fayette/Sam Seymour Unit 1................. 6179 7,979 Lower Colorado River Authority/City
of Austin.
Fayette/Sam Seymour Unit 2................. 6179 8,019 Lower Colorado River Authority/City
of Austin.
[[Page 61860]]
Graham Unit 2.............................. 3490 226 Vistra Energy.
H W Pirkey Power Plant Unit 1.............. 7902 8,882 American Electric Power.
Harrington Unit 061B....................... 6193 5,361 Xcel Energy.
Harrington Unit 062B....................... 6193 5,255 Xcel Energy.
Harrington Unit 063B....................... 6193 5,055 Xcel Energy.
JT Deely Unit 1............................ 6181 6,170 City of San Antonio.
JT Deely Unit 2............................ 6181 6,082 City of San Antonio.
Limestone Unit 1........................... 298 12,081 NRG Energy.
Limestone Unit 2........................... 298 12,293 NRG Energy.
Martin Lake Unit 1......................... 6146 12,024 Vistra Energy.
Martin Lake Unit 2......................... 6146 11,580 Vistra Energy.
Martin Lake Unit 3......................... 6146 12,236 Vistra Energy.
Monticello Unit 1.......................... 6147 8,598 Vistra Energy.
Monticello Unit 2.......................... 6147 8,795 Vistra Energy.
Monticello Unit 3.......................... 6147 12,216 Vistra Energy.
Newman Unit 2.............................. 3456 1 El Paso Electric.
Newman Unit 3.............................. 3456 1 El Paso Electric.
Newman Unit 4.............................. 3456 2 El Paso Electric.
Sandow Unit 4.............................. 6648 8,370 Vistra Energy.
Sommers Unit 1............................. 3611 55 City of San Antonio.
Sommers Unit 2............................. 3611 7 City of San Antonio.
Stryker Unit ST2........................... 3504 145 Vistra Energy.
Tolk Station Unit 171B..................... 6194 6,900 Xcel Energy.
Tolk Station Unit 172B..................... 6194 7,062 Xcel Energy.
WA Parish Unit WAP4........................ 3470 3 NRG Energy.
WA Parish Unit WAP5........................ 3470 9,580 NRG Energy.
WA Parish Unit WAP6........................ 3470 8,900 NRG Energy.
WA Parish Unit WAP7........................ 3470 7,653 NRG Energy.
Welsh Power Plant Unit 1................... 6139 6,496 American Electric Power.
Welsh Power Plant Unit 2................... 6139 7,050 American Electric Power.
Welsh Power Plant Unit 3................... 6139 7,208 American Electric Power.
Wilkes Unit 1.............................. 3478 14 American Electric Power.
Wilkes Unit 2.............................. 3478 2 American Electric Power.
Wilkes Unit 3.............................. 3478 3 American Electric Power.
----------------------------------------------------------------------------------------------------------------
* * * * *
0
7. Section 97.912 is amended by:
0
a. In paragraph (a) introductory text, removing the text ``each control
period in 2019 and thereafter,'' and adding in its place the text ``the
control periods in 2019 and 2020,'';
0
b. In paragraph (a)(1), removing the text ``each subsequent February
15,'' and adding in its place the text ``February 15, 2021,'';
0
c. In paragraph (a)(3)(ii)(A), removing the text ``paragraph (b)'' and
adding in its place the text ``paragraph (d)'';
0
d. In paragraph (a)(3)(ii)(B), removing the text ``paragraph (b)''
wherever it appears and adding in its place the text ``paragraph (d)'';
0
e. In paragraph (a)(3)(iii), removing the text ``paragraph (b)'' and
adding in its place the text ``paragraph (d)'';
0
f. Redesignating paragraphs (a)(4) and (b) as paragraphs (c) and (d)
and adding a new paragraph (b); and
0
g. In newly redesignated paragraph (d), adding after the text
``paragraph (a)(3)(iii)'' the text ``or (b)(4)(ii)''.
The addition reads as follows:
Sec. 97.912 Texas SO2 Trading Program Supplemental Allowance Pool.
* * * * *
(b) For each control period in 2021 and thereafter, the
Administrator will allocate Texas SO2 Trading Program
allowances from the Texas SO2 Trading Program Supplemental
Allowance Pool as follows:
(1) For each control period, the Administrator will assign each
Texas SO2 Trading Program unit to an affiliated ownership
group reflecting the unit's ownership as of December 31 of the control
period. The affiliated ownership group assignments for each control
period will be as shown in Sec. 97.911(a)(1) except that the
Administrator will revise the assignments, based on the information
required to be submitted in accordance with Sec. 97.915(c) and any
other information available to the Administrator, as necessary to
reflect any ownership transfer resulting in a 50% or greater ownership
share of a unit being held by a new owner that the Administrator
determines is not affiliated with the previous holder of a 50% or
greater ownership share of the unit.
(2) No later than February 15, 2022 and each subsequent February
15, the Administrator will review all the quarterly SO2
emissions reports provided under Sec. 97.934(d) for each Texas
SO2 Trading Program unit for the previous control period.
The Administrator will identify each affiliated ownership group of
Texas SO2 Trading Program units as of December 31 of such
control period for which the total amount of emissions reported for the
units in the group for that control period exceeds the total amount of
allowances allocated to the units in the group for that control period
under Sec. 97.911.
(3) For each affiliated ownership group of Texas SO2
Trading Program units identified under paragraph (b)(2) of this
section, the Administrator will calculate the amount by which the total
amount of reported emissions for that control period exceeds the total
amount
[[Page 61861]]
of allowances allocated for that control period under Sec. 97.911.
(4)(i) The Administrator will allocate and record allowances from
the Supplemental Allowance Pool as follows:
(A) If the total for all such affiliated ownership groups of the
amounts calculated under paragraph (b)(3) of this section is less than
or equal to the total number of allowances in the Supplemental
Allowance Pool available for allocation under paragraph (d) of this
section, then the Administrator will allocate and record in the
compliance accounts for the sources at which the units in each such
group are located a total amount of allowances from the Supplemental
Allowance Pool equal to the amount calculated for the group under
paragraph (b)(3) of this section.
(B) If the total for all such affiliated ownership groups of the
amounts calculated under paragraph (b)(3) of this section is greater
than the total number of allowances in the Supplemental Allowance Pool
available for allocation under paragraph (d) of this section, then the
Administrator will calculate each such group's allocation of allowances
from the Supplemental Allowance Pool by dividing the amount calculated
under paragraph (b)(3) of this section for the group by the sum of the
amounts calculated under paragraph (b)(3) of this section for all such
groups, then multiplying by the number of allowances in the
Supplemental Allowance Pool available for allocation under paragraph
(d) of this section and rounding to the nearest allowance. The
Administrator will then record the calculated allocations of allowances
in the applicable compliance accounts.
(C) When an affiliated ownership group receives an allocation of
allowances under paragraph (b)(4)(i)(A) or (B) of this section, each
unit in the group whose emissions during the control period for which
allowances are being allocated exceed the amount of allowances
allocated to the unit under Sec. 97.911 will receive a share of the
group's allocation. The Administrator will compute each such unit's
share by dividing the amount of the unit's emissions during the control
period exceeding the unit's allocation under Sec. 97.911 by the sum
for all such units of the amounts of the units' emissions during the
control period exceeding the units' allocations under Sec. 97.911,
then multiplying by the group's allocation under paragraph (b)(4)(i)(A)
or (B) of this section and rounding to the nearest allowance.
(ii) Any unallocated allowances remaining in the Supplemental
Allowance Pool after the allocations determined under paragraph
(b)(4)(i) of this section will be maintained in the Supplemental
Allowance Pool. These allowances will be available for allocation by
the Administrator in subsequent control periods to the extent
consistent with paragraph (d) of this section.
* * * * *
0
8. Section 97.913 is amended by revising paragraph (c) to read as
follows:
Sec. 97.913 Authorization of designated representative and alternate
designated representative.
* * * * *
(c) Except in this section, Sec. 97.902, and Sec. Sec. 97.914
through 97.918, whenever the term ``designated representative'' (as
distinguished from the term ``common designated representative'') is
used in this subpart, the term shall be construed to include the
designated representative or any alternate designated representative.
0
9. Section 97.920 is amended by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (b) through (d) as paragraphs (c) through
(e) and adding a new paragraph (b);
0
c. In newly redesignated paragraph (c)(2)(i) introductory text,
removing the text ``paragraph (b)(1)'' and adding in its place the text
``paragraph (c)(1)'';
0
d. In newly redesignated paragraph (c)(2)(ii), removing the text
``paragraph (b)(5)'' and adding in its place the text ``paragraph
(c)(5)'';
0
e. In newly redesignated paragraphs (c)(3)(i) and (ii), removing the
text ``paragraph (b)(1)'' and adding in its place the text ``paragraph
(c)(1)'';
0
f. In newly redesignated paragraph (c)(4)(i), removing the text
``paragraph (b)(1)'' wherever it appears and adding in its place the
text ``paragraph (c)(1)'';
0
g. In newly redesignated paragraph (c)(4)(ii), removing the text
``paragraph (b)(4)(i)'' and adding in its place text ``paragraph
(c)(4)(i)'';
0
h. In newly redesignated paragraph (c)(5)(iii) introductory text and
paragraph (c)(5)(iii)(C), removing the text ``paragraph (b)(5)(i)'' and
adding in its place the text ``paragraph (c)(5)(i)'';
0
i. In newly redesignated paragraph (c)(5)(iii)(D), removing the text
``97.920(b)(5)(iv)'' and adding in its place the text
``97.920(c)(5)(iv)'';
0
j. In newly redesignated paragraph (c)(5)(iii)(E), removing the text
``97.920(b)(5)(iv),'' and adding in its place the text
``97.920(c)(5)(iv),'', and removing the text ``97.920(b)(5)'' and
adding in its place the text ``97.920(c)(5)'';
0
k. In newly redesignated paragraph (c)(5)(iv), removing the text
``paragraph (b)(5)(iii)'' and adding in its place the text ``paragraph
(c)(5)(iii)'';
0
l. In newly redesignated paragraph (c)(5)(v), removing the text
``paragraph (b)(5)(iii)(D)'' and adding in its place the text
``paragraph (c)(5)(iii)(D)'', and removing the text ``paragraph
(b)(5)(iv)'' and adding in its place the text ``paragraph (c)(5)(iv)'';
0
m. In newly redesignated paragraph (d), removing the text ``paragraphs
(a) and (b)'' and adding in its place the text ``paragraphs (a), (b),
and (c)''; and
0
n. In newly redesignated paragraph (e), removing the text ``paragraphs
(b)(2)(ii) and (b)(5)'' and adding in its place the text ``paragraphs
(c)(2)(ii) and (c)(5)''.
The revision and addition read as follows:
Sec. 97.920 Establishment of compliance accounts, assurance
accounts, and general accounts.
* * * * *
(b) Assurance accounts. The Administrator will establish assurance
accounts for certain owners and operators and States in accordance with
Sec. 97.925(b)(3).
* * * * *
0
10. Section 97.921 is amended by:
0
a. In paragraph (a), removing the second sentence;
0
b. Revising paragraphs (b) and (c); and
0
c. In paragraph (d), removing the text ``July 1 of each year
thereafter,'' and adding in its place the text ``July 1, 2020,''.
The revision reads as follows:
Sec. 97.921 Recordation of Texas SO2 Trading Program allowance
allocations.
* * * * *
(b) By July 1, 2019, the Administrator will record in each Texas
SO2 Trading Program source's compliance account the Texas
SO2 Trading Program allowances allocated to the Texas
SO2 Trading Program units at the source in accordance with
Sec. 97.911(a) for the control period in the fourth year after the
year of the applicable recordation deadline under this paragraph,
unless provided otherwise in the Administrator's approval of a SIP
revision replacing the provisions of this subpart.
(c) By February 15, 2020, and February 15 of each year thereafter,
the Administrator will record in each Texas SO2 Trading
Program source's compliance account the allowances allocated from the
Texas SO2 Trading Program Supplemental Allowance Pool in
accordance with Sec. 97.912 for the control period in the year of the
applicable recordation deadline under this paragraph, unless provided
otherwise in the Administrator's
[[Page 61862]]
approval of a SIP revision replacing the provisions of this subpart.
* * * * *
0
11. Section 97.925 is added to read as follows:
Sec. 97.925 Compliance with Texas SO2 Trading Program assurance
provisions.
(a) Availability for deduction. Texas SO2 Trading
Program allowances are available to be deducted for compliance with the
Texas SO2 Trading Program assurance provisions for a control
period in a given year by the owners and operators of a group of one or
more Texas SO2 Trading Program sources and units only if the
Texas SO2 Trading Program allowances:
(1) Were allocated for a control period in a prior year or the
control period in the given year or in the immediately following year;
and
(2) Are held in the assurance account, established by the
Administrator for such owners and operators of such group of Texas
SO2 Trading Program sources and units under paragraph (b)(3)
of this section, as of the deadline established in paragraph (b)(4) of
this section.
(b) Deductions for compliance. The Administrator will deduct Texas
SO2 Trading Program allowances available under paragraph (a)
of this section for compliance with the Texas SO2 Trading
Program assurance provisions for a control period in a given year in
accordance with the following procedures:
(1) By June 1, 2022 and June 1 of each year thereafter, the
Administrator will:
(i) Calculate the total SO2 emissions from all Texas
SO2 Trading Program units at Texas SO2 Trading
Program sources during the control period in the year before the year
of this calculation deadline and the amount, if any, by which such
total SO2 emissions exceed the State assurance level as
described in Sec. 97.906(c)(2)(iii).
(ii) [Reserved]
(2) If the calculations under paragraph (b)(1)(i) of this section
indicate that the total SO2 emissions from all Texas
SO2 Trading Program units at Texas SO2 Trading
Program sources during such control period exceed the State assurance
level as described in Sec. 97.906(c)(2)(iii):
(i) [Reserved]
(ii) By August 1 immediately after the deadline for the
calculations under paragraph (b)(1)(i) of this section, the
Administrator will calculate, for such control period and each common
designated representative for such control period for a group of one or
more Texas SO2 Trading Program sources and units, the common
designated representative's share of the total SO2 emissions
from all Texas SO2 Trading Program units at Texas
SO2 Trading Program sources, the common designated
representative's assurance level, and the amount (if any) of Texas
SO2 Trading Program allowances that the owners and operators
of such group of sources and units must hold in accordance with the
calculation formula in Sec. 97.906(c)(2)(i). By each such August 1,
the Administrator will promulgate a notice of data availability of the
results of the calculations under this paragraph and paragraph
(b)(1)(i) of this section, including separate calculations of the
SO2 emissions from each Texas SO2 Trading Program
source.
(iii) The Administrator will provide an opportunity for submission
of objections to the calculations referenced by the notice of data
availability required in paragraph (b)(2)(ii) of this section.
(A) Objections shall be submitted by the deadline specified in such
notice and shall be limited to addressing whether the calculations
referenced in the notice required under paragraph (b)(2)(ii) of this
section are in accordance with Sec. 97.906(c)(2)(iii), Sec. Sec.
97.906(b) and 97.930 through 97.935, the definitions of ``common
designated representative'', ``common designated representative's
assurance level'', and ``common designated representative's share'' in
Sec. 97.902, and the calculation formula in Sec. 97.906(c)(2)(i).
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(iii)(A) of this section. By October 1
immediately after the promulgation of such notice, the Administrator
will promulgate a notice of data availability of the calculations
incorporating any adjustments that the Administrator determines to be
necessary and the reasons for accepting or rejecting any objections
submitted in accordance with paragraph (b)(2)(iii)(A) of this section.
(3) The Administrator will establish one assurance account for each
set of owners and operators referenced, in the notice of data
availability required under paragraph (b)(2)(iii)(B) of this section,
as all of the owners and operators of a group of Texas SO2
Trading Program sources and units having a common designated
representative for such control period and as being required to hold
Texas SO2 Trading Program allowances.
(4)(i) As of midnight of November 1 immediately after the
promulgation of each notice of data availability required in paragraph
(b)(2)(iii)(B) of this section, the owners and operators described in
paragraph (b)(3) of this section shall hold in the assurance account
established for them and for the appropriate Texas SO2
Trading Program sources and Texas SO2 Trading Program units
under paragraph (b)(3) of this section a total amount of Texas
SO2 Trading Program allowances, available for deduction
under paragraph (a) of this section, equal to the amount such owners
and operators are required to hold with regard to such sources and
units as calculated by the Administrator and referenced in such notice.
(ii) Notwithstanding the allowance-holding deadline specified in
paragraph (b)(4)(i) of this section, if November 1 is not a business
day, then such allowance-holding deadline shall be midnight of the
first business day thereafter.
(5) After November 1 (or the date described in paragraph (b)(4)(ii)
of this section) immediately after the promulgation of each notice of
data availability required in paragraph (b)(2)(iii)(B) of this section
and after the recordation, in accordance with Sec. 97.923, of Texas
SO2 Trading Program allowance transfers submitted by
midnight of such date, the Administrator will determine whether the
owners and operators described in paragraph (b)(3) of this section
hold, in the assurance account for the appropriate Texas SO2
Trading Program sources and Texas SO2 Trading Program units
established under paragraph (b)(3) of this section, the amount of Texas
SO2 Trading Program allowances available under paragraph (a)
of this section that the owners and operators are required to hold with
regard to such sources and units as calculated by the Administrator and
referenced in the notice required in paragraph (b)(2)(iii)(B) of this
section.
(6) Notwithstanding any other provision of this subpart and any
revision, made by or submitted to the Administrator after the
promulgation of the notice of data availability required in paragraph
(b)(2)(iii)(B) of this section for a control period in a given year, of
any data used in making the calculations referenced in such notice, the
amounts of Texas SO2 Trading Program allowances that the
owners and operators are required to hold in accordance with Sec.
97.906(c)(2)(i) for such control period shall continue to be such
amounts as calculated by the Administrator and referenced in such
notice required in paragraph (b)(2)(iii)(B) of this section, except as
follows:
(i) If any such data are revised by the Administrator as a result
of a decision in or settlement of litigation concerning such data on
appeal under part 78 of
[[Page 61863]]
this chapter of such notice, or on appeal under section 307 of the
Clean Air Act of a decision rendered under part 78 of this chapter on
appeal of such notice, then the Administrator will use the data as so
revised to recalculate the amounts of Texas SO2 Trading
Program allowances that owners and operators are required to hold in
accordance with the calculation formula in Sec. 97.906(c)(2)(i) for
such control period with regard to the Texas SO2 Trading
Program sources and Texas SO2 Trading Program units
involved, provided that such litigation under part 78 of this chapter,
or the proceeding under part 78 of this chapter that resulted in the
decision appealed in such litigation under section 307 of the Clean Air
Act, was initiated no later than 30 days after promulgation of such
notice required in paragraph (b)(2)(iii)(B) of this section.
(ii) [Reserved]
(iii) If the revised data are used to recalculate, in accordance
with paragraph (b)(6)(i) of this section, the amount of Texas
SO2 Trading Program allowances that the owners and operators
are required to hold for such control period with regard to the Texas
SO2 Trading Program sources and Texas SO2 Trading
Program units involved--
(A) Where the amount of Texas SO2 Trading Program
allowances that the owners and operators are required to hold increases
as a result of the use of all such revised data, the Administrator will
establish a new, reasonable deadline on which the owners and operators
shall hold the additional amount of Texas SO2 Trading
Program allowances in the assurance account established by the
Administrator for the appropriate Texas SO2 Trading Program
sources and Texas SO2 Trading Program units under paragraph
(b)(3) of this section. The owners' and operators' failure to hold such
additional amount, as required, before the new deadline shall not be a
violation of the Clean Air Act. The owners' and operators' failure to
hold such additional amount, as required, as of the new deadline shall
be a violation of the Clean Air Act. Each Texas SO2 Trading
Program allowance that the owners and operators fail to hold as
required as of the new deadline, and each day in such control period,
shall be a separate violation of the Clean Air Act.
(B) For the owners and operators for which the amount of Texas
SO2 Trading Program allowances required to be held decreases
as a result of the use of all such revised data, the Administrator will
record, in all accounts from which Texas SO2 Trading Program
allowances were transferred by such owners and operators for such
control period to the assurance account established by the
Administrator for the appropriate Texas SO2 Trading Program
sources and Texas SO2 Trading Program units under paragraph
(b)(3) of this section, a total amount of the Texas SO2
Trading Program allowances held in such assurance account equal to the
amount of the decrease. If Texas SO2 Trading Program
allowances were transferred to such assurance account from more than
one account, the amount of Texas SO2 Trading Program
allowances recorded in each such transferor account will be in
proportion to the percentage of the total amount of Texas
SO2 Trading Program allowances transferred to such assurance
account for such control period from such transferor account.
(C) Each Texas SO2 Trading Program allowance held under
paragraph (b)(6)(iii)(A) of this section as a result of recalculation
of requirements under the Texas SO2 Trading Program
assurance provisions for such control period must be a Texas
SO2 Trading Program allowance allocated for a control period
in a year before or the year immediately following, or in the same year
as, the year of such control period.
Sec. 97.926 [Amended]
0
12. Amend Sec. 97.926 paragraph (b) by adding after the text ``Sec.
97.924,'' the text ``Sec. 97.925,''.
Sec. 97.928 [Amended]
0
13. Amend Sec. 97.928 paragraph (b) by removing the text ``a
compliance account,'' and adding in its place the text ``a compliance
account or an assurance account,''.
Sec. 97.931 [Amended]
0
14. Amend Sec. 97.931 paragraph (d)(3) introductory text by removing
after the text ``is replaced by'' the text ``with''.
[FR Doc. 2019-24286 Filed 11-13-19; 8:45 am]
BILLING CODE 6560-50-P
