Air Plan Approval; Texas; Interstate Visibility Transport, 68021-68026 [2020-22846]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 208 (Tuesday, October 27, 2020)]
[Proposed Rules]
[Pages 68021-68026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22846]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0611; FRL-10015-44-Region 6]


Air Plan Approval; Texas; Interstate Visibility Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to disapprove 
elements of two State Implementation Plan (SIP) submissions from the 
State of Texas for the 2012 PM2.5 National Ambient Air 
Quality Standard (NAAQS) and the 2015 Ozone NAAQS. These submittals 
address how the existing SIP provides for implementation, maintenance, 
and enforcement of the 2012 PM2.5 and 2015 Ozone NAAQS 
(infrastructure SIP or i-SIP). The i-SIP requirements are to ensure 
that the Texas SIP is adequate to meet the state's responsibilities 
under the CAA for these NAAQS. Specifically, this proposed disapproval 
addresses the interstate visibility transport requirements of the i-SIP 
for the 2012 PM2.5 and 2015 Ozone NAAQS under CAA section 
110(a)(2)(D)(i)(II). In addition to this proposed disapproval, however, 
we are proposing to find that the requirements of those i-SIP elements 
are met through the Federal Implementation Plans (FIPs) in place for 
the Texas Regional Haze program, and no further federal action is 
required.

DATES: Comments must be received on or before November 27, 2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0611, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Jennifer Huser, 214-665-
7347, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Jennifer Huser, EPA Region 6 Office, 
Regional Haze and SO2 Section, 214-665-7347, 
[email protected]. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office will be closed to the

[[Page 68022]]

public to reduce the risk of transmitting COVID-19. We encourage the 
public to submit comments via https://www.regulations.gov, as there 
will be a delay in processing mail and no courier or hand deliveries 
will be accepted. Please call or email the contact listed above if you 
need alternative access to material indexed but not provided in the 
docket.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

I. Background

    Whenever a new or revised National Ambient Air Quality Standard 
(NAAQS) is promulgated, the Clean Air Act (CAA) requires states to 
submit a plan for the implementation, maintenance, and enforcement of 
the standard, commonly referred to as infrastructure requirements. One 
of the elements of an infrastructure SIP is found within section 
110(a)(2)(D)(i)(II), often referred to as prong 4 or visibility 
transport. Prong 4 requires states to demonstrate that their SIP has 
adequate provisions in place to prohibit emissions from any source 
within a state from interfering with visibility protection measures of 
other states. In EPA's 2013 guidance for states regarding i-SIPs,\1\ 
EPA discussed its interpretation of prong 4 and its relationship to the 
Regional Haze program under CAA sections 169A and 169B. EPA suggested 
two options states may have to demonstrate that the requirements of 
prong 4 are met. One way in which prong 4 may be satisfied for any 
relevant NAAQS is through confirmation in its infrastructure SIP 
submission that it has an approved regional haze SIP that fully meets 
the requirements of 40 CFR 51.308 or 51.309. Alternatively, states may 
submit a demonstration in its infrastructure SIP submission that 
emissions within its jurisdiction do not interfere with other states' 
plans to protect visibility. The demonstration must show that the state 
has sufficient measures that have been approved into its SIP that 
prevent emissions within its jurisdiction from interfering with the 
visibility protection plans of other states.
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    \1\ Stephen D. Page, Director, Office of Air Quality Planning 
and Standards. ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and 
110(a)(2).'' Memorandum to EPA Air Division Directors, Regions 1 
through 10, September 13, 2013 (hereinafter ``2013 I-SIP 
Guidance'').
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A. Texas' Infrastructure SIP Submittals for 2012 PM2.5 and 
2015 Ozone NAAQS

    EPA has regulated particulate matter (PM) since 1971, when we 
published the first NAAQS for PM (36 FR 8186 (April 30, 1971)). Most 
recently, by notice dated January 15, 2013, following a periodic review 
of the NAAQS for fine particulate matter (PM2.5), EPA 
revised the primary annual PM2.5 NAAQS to 12.0 [micro]g/m\3\ 
and retained the secondary PM2.5 annual standard of 15 
[micro]g/m\3\ as well as the 24-hour PM2.5 primary and 
secondary standards of 35 [micro]g/m\3\ (2012 PM2.5 
NAAQS).\2\ The primary NAAQS is designed to protect human health, and 
the secondary NAAQS is designed to protect the public welfare. On 
December 1, 2015, the Chairman of the Texas Commission on Environmental 
Quality (TCEQ) submitted a SIP revision to address certain 2012 
PM2.5 NAAQS infrastructure SIP elements. On June 5, 2018, we 
approved all elements of the this i-SIP submission, except for the 
interstate visibility transport sub-element under CAA section 
110(a)(2)(D)(i)(II) upon which we took no action.\3\
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    \2\ 78 FR 3085 (Jan. 15, 2013).
    \3\ 83 FR 25920.
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    EPA has regulated ozone since 1971, when we published the first 
NAAQS for Photochemical Oxidants (36 FR 8186 (April 30, 1971)). Most 
recently, following a periodic review of the 2008 NAAQS for ozone, EPA 
revised the primary and secondary ozone NAAQS to 0.070 ppm.\4\ In 2015, 
the EPA promulgated a revision to the ozone NAAQS lowering the level of 
both the primary and secondary standards to 0.070 parts per million (80 
FR 65292 (October 2015)). On August 17, 2018, the Chairman of the TCEQ 
submitted a SIP revision to meet certain 2015 ozone NAAQS 
infrastructure requirements. On September 23, 2019, we approved certain 
elements of the 2015 ozone i-SIP submission, but did not act on the 
interstate visibility transport sub-element under CAA section 
110(a)(2)(D)(i)(II).\5\
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    \4\ 82 FR 65291 (Oct. 26, 2015). Additional information on the 
history of the NAAQS for ozone is available at https://www.epa.gov/ozone-pollution/table-historical-ozone-national-ambient-air-quality-standards-naaqs.
    \5\ See 84 FR 49663 (September 23, 2019).
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B. Regional Haze and Visibility Transport in Texas

    On March 31, 2009, Texas submitted a regional haze SIP (the 2009 
Regional Haze SIP) to the EPA that included reliance on Texas' 
participation in trading programs under the Clean Air Interstate Rule 
(CAIR) as an alternative to BART for sulfur dioxide (SO2) 
and nitrogen oxide (NOX) emissions from EGUs.\6\ This 
reliance was consistent with the EPA's regulations at the time that 
Texas developed its 2009 Regional Haze SIP.\7\ However, at the time 
that Texas submitted this SIP to the EPA, the D.C. Circuit had remanded 
CAIR (without vacatur).\8\ The court left CAIR and our CAIR FIPs in 
place in order to ``temporarily preserve the environmental values 
covered by CAIR'' until we could, by rulemaking, replace CAIR 
consistent with the court's opinion. The EPA promulgated the Cross-
State Air Pollution Rule (CSAPR) to replace CAIR in 2011 \9\ and 
revised it several times in 2011 and 2012.\10\ CSAPR established FIP 
requirements for sources in a number of states, including Texas, to 
address the states' interstate transport obligations under CAA section 
110(a)(2)(D)(i)(I). CSAPR addresses interstate transport of fine 
particulate matter and ozone by requiring affected EGUs in these states 
to participate in one or more of the CSAPR trading programs, which 
establish emissions budgets that apply to electric generating units' 
(EGUs') collective annual emissions of SO2 and 
NOX (to address PM2.5 transport), as well as 
EGUs' emissions of NOX during ozone season (to address ozone 
transport).\11\
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    \6\ CAIR required certain states, including Texas, to reduce 
emissions of SO2 and NOX that significantly 
contribute to downwind nonattainment of the 1997 NAAQS for fine 
particulate matter and ozone. See 70 FR 25152 (May 12, 2005).
    \7\ See 70 FR 39104 (July 6, 2005).
    \8\ See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), as 
modified, 550 F.3d 1176 (D.C. Cir. 2008).
    \9\ 76 FR 48207 (Aug. 8, 2011).
    \10\ CSAPR was amended three times in 2011 and 2012 to add five 
states to the seasonal NOX program and to adjust certain 
state budgets. 76 FR 80760 (Dec. 27, 2011); 77 FR 10324 (Feb. 21, 
2012); 77 FR 34830 (June 12, 2012).
    \11\ The ozone season for CSAPR purposes is May 1 through 
September 30.
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    Following issuance of CSAPR, EPA determined that CSAPR would 
achieve greater reasonable progress towards improving visibility than 
would source-specific BART in CSAPR states (a determination often 
referred to as ``CSAPR Better-than-BART'').\12\ In the same action, we 
revised the Regional Haze Rule to allow states whose sources 
participate in the CSAPR trading programs to rely on such participation 
in lieu of requiring BART-eligible EGUs in the state to install BART 
controls as to the relevant pollutant.
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    \12\ 77 FR 33641 (June 7, 2012). This determination was upheld 
by the D.C. Circuit. See Util. Air Regulatory Grp. v. EPA, 885 F.3d 
714 (D.C. Cir. 2018).
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    In the same action that EPA determined that states could rely on 
CSAPR to address the BART requirements for EGUs, EPA issued a limited 
disapproval of a number of states' regional haze SIPs, including the 
2009 Regional Haze SIP submittal from Texas, due to the states' 
reliance on

[[Page 68023]]

CAIR, which had been replaced by CSAPR.\13\ The EPA did not immediately 
promulgate a FIP to address those aspects of the 2009 Regional Haze SIP 
submittal subject to the limited disapproval in order to allow more 
time for the EPA to assess the remaining elements of the 2009 Texas SIP 
submittal.
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    \13\ 77 FR 33641.
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    In December 2014, we proposed an action to address the remaining 
regional haze obligations for Texas.\14\ In that action, we proposed, 
among other things, to rely on our CSAPR FIP requiring Texas sources' 
participation in the CSAPR trading programs to satisfy the 
NOX and SO2 BART requirements for Texas' BART-
eligible EGUs; we also proposed to approve the portions of the 2009 
Regional Haze SIP addressing PM BART requirements for the state's EGUs. 
Before that rule was finalized, however, the D.C. Circuit issued a 
decision on a number of challenges to CSAPR, denying most claims, but 
remanding the CSAPR SO2 and/or seasonal NOX 
emissions budgets of several states to the EPA for reconsideration, 
including the Phase 2 SO2 and seasonal NOX 
budgets for Texas.\15\ Due to the uncertainty arising from the remand 
of Texas' CSAPR budgets, we did not finalize our December 2014 proposal 
to rely on CSAPR to satisfy the SO2 and NOX BART 
requirements for Texas EGUs.\16\ Additionally, because our proposed 
action on the PM BART provisions for EGUs was dependent on how 
SO2 and NOX BART were satisfied, we did not take 
final action on the PM BART elements of the 2009 Texas' Regional Haze 
SIP.\17\ In January 2016, we finalized action on the remaining aspects 
of the December 2014 proposal.\18\ This final action disapproved, among 
other things, Texas' Reasonable Progress Goals for the Big Bend and 
Guadalupe Mountains Class I areas in Texas, Texas' reasonable progress 
analysis and Texas' long-term strategy. EPA promulgated a FIP 
establishing a new long-term strategy that consisted of SO2 
emission limits for 15 coal-fired EGUs at eight power plants. That 
rulemaking was judicially challenged, however, and in July 2016, the 
Fifth Circuit granted the petitioners' motion to stay the rule pending 
review.\19\ On March 22, 2017, following the submittal of a request by 
the EPA for a voluntary remand of the parts of the rule under 
challenge, the Fifth Circuit Court of Appeals remanded the rule in its 
entirety.\20\
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    \14\ 79 FR 74818 (Dec. 16, 2014).
    \15\ EME Homer City Generation, L.P. v. EPA (EME Homer City II), 
795 F.3d 118, 132 (D.C. Cir. 2015).
    \16\ See 81 FR 296, 301-02 (Jan. 5, 2016).
    \17\ Id.
    \18\ 81 FR 296 (Jan. 5, 2016).
    \19\ Texas v. EPA, 829 F.3d 405 (5th Cir. 2016).
    \20\ Order, Texas v. EPA, 16-60118 (5th Cir. Mar. 22, 2017).
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    On October 26, 2016, the EPA finalized an update to CSAPR to 
address the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR 
Update).\21\ The EPA also responded to the D.C. Circuit's remand in EME 
Homer City II of certain CSAPR seasonal NOX budgets in that 
action. As to Texas, the EPA withdrew Texas' seasonal NOX 
budget finalized in CSAPR to address the 1997 ozone NAAQS. However, in 
that same action, the EPA promulgated a FIP with a revised seasonal 
NOX budget for Texas to address transport requirements under 
the 2008 ozone NAAQS.\22\ Accordingly, Texas sources remain subject to 
CSAPR seasonal NOX requirements.
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    \21\ 81 FR 74504 (Oct. 26, 2016).
    \22\ Id. 74524-25.
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    On November 10, 2016, in response to the D.C. Circuit's remand of 
Texas' CSAPR SO2 budget, we proposed to withdraw the FIP 
provisions that required EGUs in Texas to participate in the CSAPR 
trading programs for annual emissions of SO2 and 
NOX.\23\ We also proposed to reaffirm the EPA's 2012 
analytical demonstration that CSAPR provides greater reasonable 
progress than BART, despite changes in CSAPR's geographic scope to 
address the EME Homer City II remand, including removal of Texas' EGUs 
from the CSAPR trading program for SO2 emissions. On 
September 29, 2017, we finalized the withdrawal of the FIP provisions 
for annual emissions of SO2 and NOX for EGUs in 
Texas \24\ and affirmed our proposed finding that the EPA's 2012 
analytical demonstration remains valid and that participation in the 
CSAPR trading programs as they now exist meets the Regional Haze Rule's 
criteria for an alternative to BART. (We refer to this as the ``2017 
CSAPR Better-than-BART affirmation finding'' throughout this proposed 
rule.) As discussed in Section I.D below, certain environmental 
organizations filed a petition for reconsideration of this finding in 
November 2017.
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    \23\ 81 FR 78954 (Nov. 10, 2016).
    \24\ 82 FR 45481 (Sept. 29, 2017). As explained above, Texas 
sources continue to be subject to the CSAPR Update FIP, under which 
they participate in a CSAPR trading program for ozone season 
NOX.
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    On October 17, 2017, we finalized our January 2017 proposed 
determination that Texas' participation in CSAPR's trading program for 
ozone-season NOX qualifies as an alternative to source-
specific NOX BART. We determined that the SO2 
BART requirements for all BART-eligible coal-fired units and a number 
of BART-eligible gas- or gas/fuel oil-fired units are satisfied by a 
BART alternative for SO2--specifically, a new intrastate 
trading program that we established addressing emissions of 
SO2 from certain EGUs in Texas. The remaining BART-eligible 
EGUs not covered by the SO2 BART alternative were previously 
determined to be not subject to BART based on screening methods using 
model plants and CALPUFF \25\ modeling as described in our proposed 
rule and BART Screening technical support document (TSD).\26\ Finally, 
because both NOX and SO2 were now being addressed 
by a BART alternative, we approved the 2009 Regional Haze SIP's 
determination, based on a pollutant-specific screening analysis, that 
Texas' EGUs are not subject to BART for PM. With respect to interstate 
visibility transport obligations, we determined that the BART 
alternative to address SO2 and Texas sources' participation 
in CSAPR's trading program for ozone-season NOX to address 
NOX BART at Texas' EGUs fully addresses Texas' obligations 
for six NAAQS.
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    \25\ CALPUFF (California Puff Model) is a multi-layer, multi-
species non-steady-state puff dispersion modeling system that 
simulates the effects of time- and space-varying meteorological 
conditions on pollutant transport, transformation, and removal. 
CALPUFF is intended for use in assessing pollutant impacts at 
distances greater than 50 kilometers to several hundreds of 
kilometers. It includes algorithms for calculating visibility 
effects from long range transport of pollutants and their impacts on 
Federal Class I areas. EPA previously approved the use of the 
CALPUFF model in BART related analyses. See Regional Haze 
Regulations and Guidelines for Best Available Retrofit Technology 
(BART) Determinations; Final Rule; 70 FR 39104 (July 6, 2005). For 
instructions on how to download the appropriate model code and 
documentation that are available from Exponent (Model Developer/
Owner) at no cost for download, see EPA's website: https://www.epa.gov/scram/air-quality-dispersion-modeling-preferred-and-recommended-models#calpuff.
    \26\ See document at docket identification number EPA-R06-OAR-
0611-0005.
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    In June 2020, we affirmed our finding that Texas' participation in 
CSAPR to satisfy NOX BART and our SO2 intrastate 
trading program, as amended, fully address Texas' interstate visibility 
transport obligations for the following six NAAQS: (1) 1997 8-hour 
ozone; (2) 1997 PM2.5 (annual and 24 hour); (3) 2006 
PM2.5 (24-hour); (4) 2008 8-hour ozone; (5) 2010 1-hour 
NO2; and (6) 2010 1-hour SO2.\27\ We determined 
in the October 2017 FIP that the regional haze measures in place for 
Texas are

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adequate to ensure that emissions from the State do not interfere with 
measures to protect visibility in nearby states, because the emission 
reductions are consistent with the level of emissions reductions relied 
upon by other states during interstate consultation under 40 CFR 
51.308(d)(3)(i)-(iii) and when setting their reasonable progress 
goals.\28\ As discussed in our August 2018 affirmation proposal, the 
2009 Texas Regional Haze SIP relied on participation in CAIR to meet 
SO2 and NOX BART requirements for Texas EGUs. 
Under CAIR, Texas EGU sources were projected to emit approximately 
350,000 tons of SO2 annually.\29\ These are the 2018 EGU 
emission projections used by CENRAP for Texas that other states relied 
on in their regional haze SIPs for the first planning period.\30\ While 
CAIR is no longer in operation, and therefore cannot be relied upon to 
satisfy BART requirements, the emissions projections based on CAIR used 
in interstate consultation remain valid as benchmarks for assessing 
states' impacts on other states' Class I areas. As we explained in our 
June 2020 final affirmation of the Texas BART alternative FIP for 
SO2, annual SO2 emissions for sources covered by 
the Texas SO2 Trading Program will be constrained by the 
annual budgets and an assurance level \31\ of 255,083 tons. Including 
an estimated 35,000 tons per year of emissions from units not covered 
by the Texas SO2 Trading Program yields 290,083 tons of 
SO2, which is well below the 350,000-ton emissions 
projection for 2018 for Texas sources under CAIR or the 317,100-ton 
emissions level assumed for Texas sources under CSAPR participation in 
the BART alternative sensitivity analysis utilized for the 2012 CSAPR 
Better-than-BART determination. Additionally, the October 2017 FIP 
relies on CSAPR for ozone season NOX as an alternative to 
EGU BART for NOX. The ozone season NOX emission 
reductions achieved by CSAPR exceed the emission reductions that would 
have been realized from Texas EGUs under CAIR and that other states 
relied upon during interstate consultation for the first planning 
period.\32\ Because the revisions to the Texas SO2 Trading 
Program ensure emission reductions consistent with and below the 
emission levels relied upon by other states during interstate 
consultation, we determined that the BART alternative for 
SO2 in the October 2017 FIP, as amended by the June 2020 
affirmation, as well as Texas' EGUs' continuing participation in the 
CSAPR Update for ozone season NOX, result in emission 
reductions adequate to satisfy the requirements of CAA section 
110(a)(2)(D)(i)(II) with respect to interstate visibility transport for 
the six identified NAAQS.
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    \27\ See final rule at 85 FR 49170, at 49187 (August 12, 2020); 
see also supplemental proposed rule at 84 FR 61850 (November 14, 
2019) and affirmation proposed rule at 83 FR 43586 (August 27, 
2018).
    \28\ See 2009 Texas Regional Haze SIP, section 4.3 titled 
``Consultations On Class I Areas In Other States.'' The submittal 
can be found at www.regulations.gov, Docket ID EPA-R06-OAR-2016-
0611, Document ID EPA-R06-OAR-2016-0611-0002.
    \29\ See section 10 of the 2009 Texas Regional Haze SIP. Table 
10-7 shows that under CAIR, the 2018 emission from Texas EGUs were 
projected to be approximately 350,000 tons SO2. The SIP 
submittal can be found in www.regulations.gov, Docket ID EPA-R06-
OAR-2016-0611, Document ID EPA-R06-OAR-2016-0611-0002.
    \30\ To develop its 2009 Regional Haze SIP, TCEQ worked through 
its regional planning organization, the Central Regional Air 
Planning Association (CENRAP), to develop strategies to address 
regional haze, which at that time were based on emissions reductions 
from CAIR. To help states in establishing reasonable progress goals 
for improving visibility in Class I areas, the CENRAP modeled future 
visibility conditions based on the mutually agreed emissions 
reductions from each state. The CENRAP states then relied on this 
modeling in setting their respective reasonable progress goals.
    \31\ An assurance level is the total level of annual emissions 
above which units in the program would be penalized with a higher 
allowance surrender ratio (i.e., a three-to-one rate) than the one-
to-one ratio that applies to emissions below the assurance level.
    \32\ Under CAIR, Texas had an annual 2009 CAIR Phase 1 budget of 
181,017 tons of NOX and an annual 2015 CAIR Phase 2 
budget of 150,845 tons of NOX. See Section 11, Table 11-
15 of the 2009 Texas Regional Haze SIP. The SIP submittal can be 
found at www.regulations.gov, Docket ID EPA-R06-OAR-2016-0611, 
document ID EPA-R06-OAR-2016-0611-0002. The 2018 EGU emission 
projections for NOX used by CENRAP for Texas, which other 
states potentially impacted by emissions from Texas sources agreed 
upon during interstate consultation and relied on in their regional 
haze SIPs, were approximately 160,000 tons. In contrast, under the 
CSAPR ozone season NOX trading program, Texas' 2017 
NOX ozone season budget is 52,301 tons of NOX. 
See 81 FR 74504, 74508 (Oct. 26, 2016). In 2018, Texas reported to 
CAMD, for all sources in Texas, approximately 107,000 tons of NOx 
emissions, and approximately 96,000 tons in 2019, well below the 
160,000-ton emissions projection for 2018 assumed for Texas sources 
under CAIR and used in interstate consultation.
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II. Texas Infrastructure SIP Submittals

    On December 1, 2015, TCEQ submitted a SIP revision to address the 
infrastructure and transport requirements for the 2012 PM2.5 
NAAQS. In its evaluation, TCEQ asserted that its March 19, 2009 
regional haze SIP met all of the requirements for approval.
    On August 17, 2018, TCEQ submitted a SIP revision to address the 
CAA section 110(a)(1) and 110(a)(2) infrastructure and transport 
requirements for the 2015 ozone NAAQS. In its evaluation, TCEQ 
acknowledged that it does not have a SIP-approved regional haze program 
but asserted that EPA's October 17, 2017 FIP to address best available 
retrofit technology (BART) requirements for Texas EGUs sufficiently 
meets the requirements for visibility transport. In that October 17, 
2017 action, EPA included a disapproval of Texas' interstate visibility 
transport SIP submittals for the 1997 eight-hour ozone, 1997 
PM2.5 (annual and 24-hour), 2006 PM2.5 (24-hour), 
2008 eight-hour ozone, 2010 one-hour nitrogen dioxide, and 2010 one-
hour SO2 NAAQS (82 FR 48324). However, EPA also made a 
finding that the BART alternatives adopted in the FIP meet the 
interstate visibility transport requirements for these NAAQS under CAA 
section 110(a)(2)(D)(i)(II).
    Texas relied on the following points to support its conclusion that 
Texas meets the visibility transport provision for the 2015 ozone 
NAAQS: (1) EPA's finding that the October 2017 BART FIP meets the 
visibility transport provision for these other NAAQS; (2) the modeling 
analysis in the State's interstate transport SIP revision (as to 
``prongs 1 and 2'' under section 110(a)(2)(D)(i)(I)) purportedly 
demonstrating that Texas does not significantly contribute to 
nonattainment or maintenance in another state for the 2015 ozone NAAQS; 
(3) the fact that the EPA has not established a separate visibility 
standard for ozone; and (4) Texas' inclusion in the Cross-State Air 
Pollution Rule (CSAPR) Update ozone season NOX trading 
program.

III. The EPA's Evaluation

    Our 2013 infrastructure SIP guidance addresses the requirements for 
prong 4 and lays out two ways in which a state's infrastructure SIP 
submittal may satisfy these requirements.\33\ One way is through a 
state's confirmation in its infrastructure SIP submittal that it has a 
fully approved regional haze SIP in place. As previously discussed, EPA 
promulgated a limited disapproval of the 2009 Texas Regional Haze SIP 
in 2012 because the visibility improvement plan relied on CAIR emission 
reductions to satisfy BART requirements for EGUs for SO2 and 
NOX emissions.\34\ Texas has not submitted a SIP revision to 
address this deficiency and remove reliance on CAIR for Regional Haze. 
The 2009 Texas Regional Haze SIP cannot be relied upon to meet its 
interstate visibility transport obligations for the 2012 PM and the 
2015 ozone NAAQS.
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    \33\ See 2013 I-SIP Guidance at 32-35.
    \34\ 77 FR 33641.
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    In the absence of a fully approved Regional Haze SIP, the second 
method provided by the guidance to meet these

[[Page 68025]]

requirements is a demonstration that emissions within a state's 
jurisdiction do not interfere with other states' plans to protect 
visibility. EPA interprets prong 4 to be pollutant-specific such that 
the state need only address the potential for interference with 
visibility protection caused by the pollutant (including precursors) to 
which the new or revised NAAQS applies.\35\ According to the guidance, 
such a demonstration for the first planning period should establish or 
identify the measures in the approved SIP that limit visibility-
impairing pollutants and ensure that the resulting reductions conform 
with any mutually agreed emission reductions under the relevant 
regional haze regional planning organization (RPO) process.\36\ As 
explained below, the TCEQ did not make such a demonstration in their 
infrastructure SIPs.
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    \35\ See 2013 I-SIP Guidance at 33.
    \36\ See 2013 I-SIP Guidance at 34. See also 76 FR 22036 (April 
20, 2011) (containing EPA's approval of the visibility requirement 
of 110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did 
not rely on the Colorado Regional Haze SIP).
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A. Analysis of Texas' 2015 Prong 4 Submittal for the 2012 PM2.5 NAAQS

    The 2015 i-SIP submittal for the 2012 PM2.5 NAAQS relied 
on Texas' 2009 Regional Haze SIP submittal. As explained above, the 
prong 4 requirements are pollutant specific. The portions of Texas' 
2009 Regional Haze SIP that address PM BART have been approved, but 
portions of the SIP that address PM and PM precursor emissions have not 
been approved and thus cannot be relied upon to satisfy the prong 4 
requirements. Some PM emissions are emitted directly from sources, but 
PM can also form in the atmosphere as a result of complex reactions of 
other pollutants such as SO2 and NOX, which are 
visibility impairing pollutants themselves and are required to be 
addressed under regional haze. The 2015 i-SIP submittal does not 
provide any additional information to demonstrate that the measures in 
the SIP are sufficient to prohibit emissions from sources within Texas 
from interfering with measures that have been developed by other states 
to protect visibility. EPA cannot approve the interstate visibility 
transport portion of this i-SIP submittal without additional analysis 
that demonstrates that there are SIP-approved measures that prevent 
emissions within its jurisdiction from interfering with the visibility 
protection plans of other states. We therefore propose to disapprove 
the interstate visibility transport portion of the 2015 Texas i-SIP 
submittal for the 2012 PM2.5 NAAQS.

B. Analysis of Texas' 2018 Prong 4 Submittal for the 2015 Ozone NAAQS

    In Texas's 2018 i-SIP submittal for the 2015 Ozone NAAQS, TCEQ 
acknowledges the limited disapproval of its 2009 Regional Haze SIP 
submittal but explains that EPA's October 17, 2017 FIP to address BART 
requirements for Texas EGUs sufficiently meets the requirements for 
interstate visibility transport for the 2015 ozone NAAQS. However, the 
BART-alternative emission limitations in the FIP are not part of the 
approved SIP and thus cannot be relied upon by the State to address 
visibility transport requirements. Infrastructure SIPs are intended to 
be a means by which both states and the EPA can ensure that the state 
has sufficient measures in their SIP to meet the requirements in CAA 
section 110(a) for newly promulgated NAAQS. The Act requires that the 
state submit implementation plans that ``contain'' the listed 
requirements under section 110(a)(2)(D). As such, states cannot rely 
upon measures in FIPs to meet these requirements.\37\
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    \37\ See also id. at 34 (``A number of air agencies do not have 
fully approved regional haze SIPs in place and instead have FIPs in 
place, which cannot be relied upon to satisfy prong 4.'').
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    Texas points to its 2015 ozone NAAQS i-SIP submittal that purports 
to find that Texas emissions do not significantly contribute to 
nonattainment or interfere with maintenance in another state under 
section 110(a)(2)(D)(i)(I). The analysis in that SIP submittal focuses 
on the potential impact of ozone-precursor emissions at certain ozone 
monitor locations in other states as related to the attainment and 
maintenance of the ozone NAAQS and does not provide an analysis of 
visibility impacts at Class I areas due to emissions of ozone 
precursors as visibility pollutants.\38\ This basis for approval is 
inadequate.
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    \38\ See id. at 33 (``The EPA interprets [prong 4] to be 
pollutant-specific, such that the infrastructure SIP submission need 
only address the potential for interference with protection of 
visibility caused by the pollutant (including precursors) to which 
the new or revised NAAQS applies.'')
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    Texas stated that the EPA has not established a separate visibility 
transport standard for ozone because ozone does not directly impair 
visibility or substantially produce or contribute to the production of 
the secondary air contaminants that cause visibility impairment or 
regional haze. The visibility transport requirement found in CAA 
section 110(a)(2)(D)(i)(I) applies to all pollutants (including 
precursors) for which EPA has promulgated a NAAQS. As such, Texas is 
required to demonstrate to EPA that it has approved measures in its 
SIPs that ensure that ozone-precursor emissions within its jurisdiction 
do not interfere with other states' visibility protection plans. While 
it is true that ozone itself does not directly impair visibility or 
contribute to the production of secondary air contaminants that cause 
visibility impairment, ozone precursors (NOX and in some 
cases volatile organic compounds (VOCs)) do contribute to visibility 
impairment.
    Texas also points to the fact that they are included in the CSAPR 
Update for ozone season NOX.\39\ However, as described 
above, this is currently implemented as a FIP in Texas, both as to 
interstate ozone transport (for the 2008 ozone NAAQS) under section 
110(a)(2)(D)(i)(I) and as a BART alternative. Texas has not used its 
SIP planning authority to submit a SIP revision to establish reliance 
on this CSAPR program to address regional haze requirements. Therefore, 
because the Texas Regional Haze SIP is not fully approved and Texas has 
not provided a demonstration that shows that its SIP contains measures 
that are sufficient to prevent emissions within its jurisdiction from 
interfering with the visibility protection measures of other states, we 
propose to disapprove the 2018 i-SIP submittal addressing interstate 
visibility transport for the 2015 Ozone NAAQS.
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    \39\ 81 FR 74504 (October 26, 2016).
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C. EPA's Proposed Finding That Prong 4 Obligations Are Satisfied

    In October 2017, EPA promulgated a BART FIP, as amended and 
affirmed in June 2020. In that FIP, EPA has established emission 
limitations under the Texas SO2 Trading Program--including 
the assurance provisions. As explained in section I.B. of this proposed 
rule, these emission limitations that were established in the FIP 
result in SO2 emission levels that are lower than the levels 
that were projected for Texas during the Regional Haze consultation 
process. Thus, the Texas SO2 emission levels achieved by the 
FIP's emission limitations \40\ are lower than the levels that states 
relied on in developing their Regional Haze

[[Page 68026]]

SIPs. Additionally, this FIP relies on CSAPR as an alternative to EGU 
BART for NOX, which exceeds the emissions reductions relied 
upon by other states during consultation. Consistent with our previous 
action (detailed above) to disapprove Texas' interstate visibility 
transport obligations for the following six NAAQS: (1) 1997 8-hour 
ozone; (2) 1997 PM2.5 (annual and 24 hour); (3) 2006 
PM2.5 (24-hour); (4) 2008 8-hour ozone; (5) 2010 1-hour 
NO2; and (6) 2010 1-hour SO2, and finding that 
the FIP addresses these requirements, we continue to find that the 
existing FIP is adequate to ensure that emissions from Texas do not 
interfere with measures to protect visibility in nearby states with 
respect to the 2012 PM2.5 NAAQS and the 2015 Ozone NAAQS.
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    \40\ The Act defines an emissions limitation as a requirement 
established by the State or the Administrator which limits the 
quantity, rate, or concentration of emissions of air pollutants on a 
continuous basis, including any requirement relating to the 
operation or maintenance of a source to assure continuous emission 
reduction, and any design, equipment, work practice or operational 
standard promulgated under Chapter 85 of Title 42. Trading programs 
like the ones in the FIPs that fulfill Texas' regional haze 
requirements fall within the Act's definition of emissions 
limitations.
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    Texas' obligations under prong 4 are being addressed through the 
October 2017 BART FIP, as amended and affirmed in June 2020 for the 
first planning period. This ensures that emissions from sources within 
Texas are not interfering with measures required to be included in 
other air agencies' plans to protect visibility. Under EPA's 2013 
guidance, this is sufficient to satisfy prong 4 requirements for the 
first planning period. See Guidance at 33. Thus, there are no 
additional practical consequences from this disapproval for the state, 
the sources within its jurisdiction, or the EPA. See Guidance at 34-35. 
EPA finds its prong 4 obligations for the 2012 PM2.5 and the 
2015 ozone NAAQS are satisfied.

IV. Proposed Action

    We are proposing to disapprove the interstate visibility transport 
elements of two SIP submissions from the State of Texas: One for the 
2012 PM2.5 NAAQS and the other for 2015 Ozone NAAQS. We are 
simultaneously exercising our authority under section 110(c) of the 
Act, and we are proposing to find that the prong 4 requirements that 
were intended to be addressed by those infrastructure SIPs are met 
through the BART-alternative FIP already in place for the Texas 
Regional Haze program, and no further action is required.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely proposes to disapprove a SIP submission as not meeting 
the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission as not meeting the CAA.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. This action merely proposes to disapprove a SIP 
submission as not meeting the CAA.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Visibility transport.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 9, 2020.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2020-22846 Filed 10-26-20; 8:45 am]
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