Air Plan Disapproval; Texas; Control of Air Pollution From Visible Emissions and Particulate Matter, 71237-71249 [2024-19600]
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Federal Register / Vol. 89, No. 170 / Tuesday, September 3, 2024 / Proposed Rules
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 27, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024–19599 Filed 8–30–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2021–0029; FRL–12218–
01–R6]
Air Plan Disapproval; Texas; Control of
Air Pollution From Visible Emissions
and Particulate Matter
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA, the Act), the
Environmental Protection Agency (EPA)
is proposing to disapprove a revision to
the Texas State Implementation Plan
(SIP) submitted by the State of Texas
through the Texas Commission on
Environmental Quality (TCEQ) on
August 20, 2020. The SIP submittal
addresses emissions during planned
Maintenance, Startup and Shutdown
(MSS) activities for certain Electric
Generating Units (EGUs) and includes
requirements intended to address
visible emissions (opacity) and
Particulate Matter (PM) emissions
during planned MSS activities The
requirements are included in eight
Agreed Orders (AOs) issued by TCEQ to
the affected EGUs and provided in the
SIP revision. EPA is proposing to
determine that the requirements
contained in these AOs do not meet the
CAA requirements that emission
limitations must be practically
enforceable and must apply on a
continuous basis. We are taking this
action in accordance with section 110 of
the Act.
DATES: Comments must be received on
or before October 3, 2024.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2021–0029 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
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SUMMARY:
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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 Mr. Michael Feldman, (214)
665–9793, Feldman.Michael@epa.gov.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at the EPA Region 6 Office, 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).
Mr.
Michael Feldman, Regional Haze and
SO2 Section, EPA Region 6 Office, 1201
Elm Street, Suite 500, Dallas, Texas
75270, (214) 665–9793,
Feldman.Michael@epa.gov. We
encourage the public to submit
comments via https://
www.regulations.gov. Please call or
email the contact listed above if you
need alternative access to material
indexed but not provided in the docket.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means the EPA.
Table of Contents
I. Background
A. Texas Chapter 111—Control of Air
Pollution From Visible Emissions and
Particulate Matter
B. August 20, 2020 SIP Submittal
II. Applicability of Opacity and PM
Limitations in 30 TAC 111
III. Evaluation of Emission Limitations in the
SIP Revision
A. SIP Requirements for Emissions
Limitations
B. Environ. Comm. Fl. Elec. Power v. EPA,
94 F.4th 77 (D.C. Cir. 2024)
IV. Evaluation of Alternative Emission Limits
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A. EPA Recommendations for
Development of Alternative Emission
Limitations
B. EPA’s Evaluation
V. Proposed Action
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
I. Background
A. Texas Chapter 111—Control of Air
Pollution From Visible Emissions and
Particulate Matter
Texas promulgated rules for the
control of visible emissions (opacity)
and particulate matter emissions for
inclusion in its SIP on January 28, 1972,
and EPA first approved those rules into
the SIP on May 31, 1972 (37 FR 10895)
at 40 CFR 52.2270(b). In the original
codification, Texas’ rules concerning
visible emissions and emission
restrictions for particulate matter
emissions were contained in TACB
Regulation I—Control of Smoke, Visible
Emissions and Particulate Matter, Rule
103.1 and 105.31. In developing these
original rules, the state has noted that it
relied in part on the findings of a study
conducted by the Radian Corporation
(Radian Report) 1 on behalf of the Texas
Air Control Board (TACB),2 a
predecessor state agency to the TCEQ.
The Radian Report provided
information on the steady-state
performance of electrostatic precipitator
(ESPs) that the state used as part of
establishing the Opacity and PM
restrictions in TACB Regulation I. The
control and performance efficiencies
documented in the Radian Report for
visible emissions and particulate matter
for coal fired EGUs equipped with ESPs
did not consider startup and shutdown
periods when the EGU boiler exhaust
gas is below the minimum temperature
required to ensure the effective and safe
operation of an ESP as a control device
for particulate matter emissions and
opacity.3
1 Radian Corporation, Technical Basis for Texas
Air Control Board Particulate Regulations, Delbert
Max Ottmers, Jr and Ben R. Breed, August 20, 1971
(included in TCEQ’s SIP submittal in the Docket for
this proposed rulemaking).
2 The Texas Air Control Board, abolished by
Texas S.B. 2, 72nd Leg., 1st C.S., effective
September 1, 1993, duties transferred to the Texas
Natural Resource Conservation Commission which
was formed from a merger with other state agencies
including the Texas Water Commission and which
was later renamed the Texas Commission on
Environmental Quality, Agency 582.
3 TCEQ’s SIP submittal identifies additional
studies conducted by the EPA and predecessor
agencies as early as 1970 on ESP design and
operation (available in the docket for this action):
An Electrostatic Precipitator Systems Study: Final
Report to The National Air Pollution Control
Administration, Southern Research Institute,
Contract CPA 22–69–73, October 30, 1970; Effects
of Transient Operating Conditions on Steam-
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Since the original EPA approval of
Rules 103.1 and 105.31 in 1972, there
have been several subsequent state rule
revision actions and EPA-approved SIP
revisions which renumbered and
recodified Rules 103.1 and 105.31 to
what they are today—namely, 30 TAC
111.111 (for opacity) and 30 TAC
111.153(b) (for particulate matter) of the
EPA-approved SIP. See 74 FR 19144
(April 28, 2009). However, none of the
subsequent rulemakings and SIP
revisions were substantive in nature and
the record for those actions do not
suggest a change to the original scope
and application of Rules 103.1 and
105.31.
In 2009, Texas recodified Regulation
I, Rules 103.1 and 105.31, in a new
location, 30 TAC 111.111 (Approved by
EPA. April 28, 2009 (74 FR 19144)
effective May 28, 2009, Regulations.gov
docket ID NO. EPA–R06–OAR–2005–
TX–0028). Despite the changed
numbering, the requirements in the
rules remain the same. For opacity, 30
TAC 111.111 requires that the affected
sources ‘‘shall not exceed 30 percent
averaged over a six-minute period’’ (for
any source on which construction or
operation was begun on or before
January 31, 1972), and ‘‘shall not exceed
20 percent averaged over a six-minute
period for any source on which
construction was begun after January 31,
1972.’’ 4 For particulate matter, 30 TAC
111.153(b) requires that no affected
source ‘‘may cause, suffer, allow, or
permit emissions of particulate matter
from any solid fossil fuel-fired steam
generator to exceed 0.3 pound of total
suspended particulate per million BTU
heat input, averaged over a two-hour
period.’’ 5
On October 30, 2014, EPA received a
petition from the Environmental
Electric Generator Emissions, EPA–600/2–75–022,
August 1975; Controlling Particulate Emissions
from Coal-Fired Boilers, EPA–600/8–79–016, June
1979.
4 See section 111.111 Requirements for Specified
Sources, https://texreg.sos.state.tx.us/public/
readtac$ext.TacPage?sl=R&app=9&p_dir=&p_
rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=30&
pt=1&ch=111&rl=111, also https://www.epa.gov/
sips-tx/current-texas-sip-approvedregulations#1A1.
5 See section 111.153 Emission Limits for Steam
Generators, https://texreg.sos.state.tx.us/public/
readtac$ext.TacPage?sl=R&app=9&p_dir=&p_
rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&
ti=30&pt=1&ch=111&rl=153. See also https://
www.epa.gov/sips-tx/current-texas-sip-approvedregulations#1A1. Also, during the state comment
period (as TCEQ was adopting this source-specific
SIP revision) TCEQ responded to EPA’s request for
clarification and confirmed that the coal-fired EGUs
covered by these AOs are ‘‘solid fossil fuel-fired
steam generator units’’ as the term is used in 30
TAC § 111.153(b), and the AOs apply specifically to
a subset of solid fossil fuel-fired steam generators
that use coal as fuel (i.e., those EGUs that use ESPs
as a control device).
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Integrity Project and Sierra Club
(Petitioners) requesting that the EPA
object to the title V operating permit
issued by the TCEQ to the Southwestern
Electric Power Company (SWEPCO)
H.W. Pirkey power plant.6 Petitioners
claimed, among other issues, that the
2014 proposed title V permit created
‘‘improper exemptions’’ from the 20
percent opacity limit in Texas’s SIP at
30 TAC 111.111(a)(1)(B) and the 0.3 lb/
MMBtu PM limit in Texas’s SIP at 30
TAC 111.153(b) specifically during
planned MSS periods. On May 18, 2015
(after a March 2015 Notice of Intent)
Petitioners filed a Complaint, seeking an
order declaring that the EPA
Administrator must grant or deny the
2014 petition and requiring the
Administrator to do so. On December 2,
2015, TCEQ submitted to EPA an
interpretive letter asserting that the
opacity and PM emission limitations in
the state’s rules, adopted in the early
1970’s, were based on the use of ESPs
during normal/stable operations and
thus did not apply during periods of
planned maintenance, startup and
shutdown activities. (30 TAC 111.111
and 30 TAC 111.153(b)).7
On February 3, 2016, EPA issued an
order granting portions of the 2014
petition, objecting to the title V permit
for the Pirkey power plant (Petition
Number VI–2014–01) which indicated
that the Pirkey power plant permit and
permit record were unclear as to
whether TCEQ’s rules created an
exemption from the opacity and PM
limits in Chapter 111. EPA found that
the Petitioners demonstrated that the
title V permit and permit record were
unclear regarding whether the SIP
opacity and PM limits applicable to the
source apply during periods of planned
MSS, as required. Therefore, the EPA
directed TCEQ to revise the title V
permit to ‘‘ensure that it requires that
the opacity and PM limits of 30 T.A.C.
§§ 111.111(a)(1)(B) and 111.153(b) apply
during periods of planned MSS.’’ 8
6 October 30, 2014, Environmental Integrity
Project (EIP) and Sierra Club filed a petition for
objection to Southwestern Electric Power
Company’s (SWEPCO) Title V permit for the H.W.
Pirkey power plant.
7 See letter, from Steve Hagle, Deputy Director,
Office of Air, TCEQ to Gina McCarthy,
Administrator, EPA, dated December 2, 2015
(setting forth TCEQ’s interpretation that the opacity
and PM emission limitations in 30 TAC 111.111
and 30 TAC 111.153(b) never applied to periods of
planned MSS activities at coal-fired EGUs equipped
with ESPs as a control device). In their interpretive
letter, TCEQ notes that courts give deference to a
state’s interpretation of its own regulations, citing
to Florida Power & Light Co. v. Costle, 650 F.2d
579,588 (5th Cir. 1981) (‘‘Moreover, it must be
emphasized that EPA is to be accorded no
discretion in interpreting state law’’).
8 Order Granting In Part and Denying in Part
Petition for Objection to Permit, (February 3, 2016).
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Subsequent to the order, in 2016, EPA
and TCEQ met to discuss the Pirkey
Petition, the MSS issues raised, and a
path forward to address issues raised as
they relate to MSS.
In a March 13, 2017 letter from EPA
to the TCEQ,9 and in light of the
petitions received and in an effort to
resolve issues, EPA and TCEQ reached
an agreement on a path forward by
which TCEQ agreed to amend
provisions applying to excess emissions
during periods of startup and
shutdown.10 Specifically, TCEQ agreed
to develop and issue AOs for the eight
affected coal-fired EGUs equipped with
ESPs. These AOs would include
enforceable opacity and particulate
matter emission limitations that would
apply during planned MSS activities.
Once adopted, the state indicated that it
would submit the AOs as part of a SIP
revision to the EPA for approval as
source-specific SIP provisions of the
Texas SIP. Upon receipt of the proposed
SIP revision, the EPA indicated that it
would evaluate the SIP submission and
proceed to initiate rulemaking as
required by Section 110 of the CAA. If
the revision complied with the CAA and
were approved by EPA, the AOs would
be incorporated into the Texas SIP as
source-specific requirements found at
40 CFR 52.2270(d).
As a result of the 2016 meeting and
letter exchange, TCEQ submitted the
August 2020 SIP submittal. In the
submittal, Texas reiterated its
interpretation that the opacity and PM
emission restrictions for coal-fired EGUs
equipped with ESPs established in TAC
Rule 103.1 and Rule 105.31 were
promulgated by the state on the premise
that its rules were based on normal
(steady state) or routine operations of
ESPs, and therefore were not applicable
during periods of planned MSS at such
sources.11
9 Letter from Guy Donaldson, Associate Director,
Air Branch, Air and Radiation Division, EPA to
Steve Hagle, Deputy Director, Office of Air, TCEQ,
dated March 13, 2017. Included in the docket for
this action.
10 See March 13, 2017 letter from Guy Donaldson,
Associate Director, Air Branch, Air and Radiation
Division, EPA to Steve Hagle, Deputy Director,
Office of Air, TCEQ referencing EPA’s 2015 SIP call
and SSM Policy published at 80 FR 33840 (June 12,
2015).
11 Texas further supported its conclusion by
referencing the State’s simultaneous adoption of
general rules that implemented a separate air
control strategy for emissions during MSS activities.
See (TACB) General Rules 8 and 12.2, adopted on
January 26, 1972, and effective on March 5, 1972
(the same dates as TACB Rules 103.1 and 105.31
discussed above). TACB General Rule 8 required
sources to provide the State a 10-day advanced
notification of excessive emissions from planned
MSS activities while General Rule 12.2 provided
sources a discretionary exemption from having to
meet allowable emission limits in other rules, such
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B. August 20, 2020 SIP Submittal
The August 20, 2020 submittal is
intended to address emissions from
certain sources during planned MSS
events. The state adopted and submitted
for inclusion in its SIP, AOs for eight
coal-fired power plants (comprised of
thirteen EGUs) 12 equipped with ESPs as
the PM control device. The state
developed the AOs to impose
requirements for visible emissions and
particulate matter during identified
periods of planned MSS activities.
Although the August 20, 2020 submittal
references 30 TAC Chapter 111,
specifically 30 TAC 111.111 and 30
TAC 111.153(b), it does not revise the
existing language of those two
provisions. Instead, the state included
the AOs in the submittal to establish
source-specific alternative opacity and
PM requirements to apply during
periods of planned MSS activities.
These requirements include both
operational limits on the duration and
frequency of planned MSS periods and
additional requirements that the state
characterizes as work practices. The
state asserts that these provisions of the
AOs are the same as the opacity and PM
operational limitations and work
practices already contained in the
permits addressing emissions during
planned MSS activities.13 For all other
periods of operation, the affected
sources would remain required to
comply with the existing emission
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limitations set forth in 30 TAC 111.111
and 30 TAC 111.253(b) of the Texas SIP.
The state, through the submittal, seeks
to include the eight source-specific AOs
into the Texas SIP through
incorporation by reference into 40 CFR
52.2770(d), together with a notation in
40 CFR 52.2270(c) to the effect that the
requirements of 30 TAC 111.111(a)(1)
and 30 TAC 111.153(b) apply to all
affected sources during all periods of
operation, with the exception of the
sources covered by the eight AOs that
would be incorporated into 40 CFR
52.2270(d).
The eight affected sources, which are
all EGUs, and their county of location
are listed in Table 1 below.14
TABLE 1—THE AFFECTED POWER PLANTS, AGREED ORDER NUMBER, AND THE TEXAS COUNTY
Agreed order
No.
Affected power plants per August 20, 2020 SIP submittal
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Southwestern Electric Power Company (SWEPCO) H.W. Pirkey Power Plant (See FN 14) ......
Lower Colorado River Authority (LCRA) Sam Seymour Fayette Power Project ..........................
Luminant Generation Company, LLC Martin Lake Steam Electric Station ..................................
NRG Texas Power, LLC Limestone Electric Generating Station .................................................
San Miguel Electric Cooperative, Inc. San Miguel Electric Plant .................................................
Southwestern Public Service Company (SPS) Harrington Station in Potter County ...................
Texas Municipal Power Agency (TMPA) Gibbons Creek Steam Electric Station (See FN 14) ...
Public Service Company of Oklahoma (PSCO) Oklaunion Power Station (See FN 14) .............
2020–0078
2020–0077
2020–0076
2020–0075
2020–0074
2020–0073
2020–0178
2020–0072
Texas county
Harrison.
Fayette.
Rusk.
Limestone.
Atascosa.
Potter.
Grimes.
Wilbarger.
As stated earlier, if approved, this SIP
revision would amend the SIP to
provide that the sources subject to the
8 AOs in this SIP revision are required
to comply with the stated visible
(opacity) and PM emissions restrictions
of 30 TAC 111.111 and 30 TAC
111.153(b) during all periods of
operation except periods of MSS during
which time the requirements of the AOs
would apply. Any other sources subject
to 30 TAC 111.111 and 30 TAC
111.153(b), not addressed with AOs in
this SIP revision, would be required to
comply with 30 TAC 111.111 and 30
TAC 111.153(b) at all times including
during periods of MSS.
Each of the AOs is comprised of two
main sections titled Stipulation and
Ordering Provisions. The Stipulation
section of the AOs describes the State
air agency’s authority for regulating the
quality of the State’s air and preparing
and developing a general,
comprehensive plan for the control of
the State’s air pollution. It also explains
that under 42 U.S.C. 7410, Texas is
required to submit SIP revisions to EPA
for review and approval and that such
SIP revisions cannot interfere with any
applicable provision concerning
attainment or any other applicable
requirement of the CAA. The Ordering
Provisions section of the AOs state that
emissions from the boiler(s), during
each planned MSS, shall comply with
the opacity limit in 30 TAC
§ 111.111(a)(1) and the PM limit in 30
TAC § 111.153(b), or the requirements
listed in detail and tailored for planned
MSS activities. Each of the AOs is
signed by the responsible corporate
official and TCEQ representatives.
II. Applicability of Opacity and PM
Limitations in 30 TAC 111
as Rules 103.1 and 105.31, during reported periods
of planned MSS activities.
12 As of the date of this notice: Texas Municipal
Power Agency (TMPA) Gibbons Creek Steam
Electric Station shut down and surrendered their
permits in 2021; Public Service Company of
Oklahoma (PSCO) Oklaunion Power Station was
sold and converted to natural gas in 2022. The
permit was amended to authorize the conversion;
and Southwestern Electric Power Company
(SWEPCO) H.W. Pirkey Power Plant ceased burning
coal and ceased operation in March 2023, however
they have not surrendered or submitted
amendments to permits. It is unclear whether or not
this facility will resume operations. TCEQ is
currently undergoing actions to formally withdraw
the consideration of the Gibbons Creek and
Oklaunion AOs from their SIP submittal.
13 Between 2013 and 2016, these Texas EGUs
were issued amended title V/PSD permits to
authorize the existing planned MSS activities and
associated emissions. TCEQ states in the SIP
submittal that, ‘‘although these planned MSS
activities and emissions occurred after facilities
began operation, they had not necessarily been fully
authorized in an NSR permit prior to these permit
amendments.’’ TCEQ goes on to explain that these
are existing emissions and the permit amendments
did not involve any physical modifications or
changes in method of operation.
14 Since the August 20, 2020 submittal, we note
that some of these eight affected power plants with
coal-fired EGUs have either shutdown/no longer
operating or have converted to natural gas as fuel
for power generation. As of the date of this
proposal, Texas has not provided a written request
to withdraw these portions of the August 2020 SIP
revision. However, TCEQ informed EPA that they
do plan to submit a request after undergoing the
necessary state administrative processes.
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As an initial matter, we acknowledge
TCEQ’s interpretation of its regulations
is that the existing SIP approved
limitations on opacity and PM
contained in 30 TAC 111.111(a)(1) and
30 TAC 111.153(b) do not apply to the
sources subject to this SIP revision
during periods of planned MSS.
However, as written, these rules do not
contain exemptions or any other textual
indication that they do not apply during
periods of MSS. We do note that the
ESPs that are the existing control
measures for PM on these sources have
technical constraints that prohibit safe
and effective operations until sufficient
temperatures are reached therefore it is
highly improbable that these sources
could have met the limitations required
by the rules during MSS as historically
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configured, over the past fifty years.
Texas has employed a number of
approaches over the years to address
emissions from these sources during
MSS events, including discretionary
exemptions, affirmative defenses,
amending the facility permits to
authorize the emissions during MSS
events, and now the 2020 SIP
submission. While the state’s
approaches (and explanations) have
changed over time, we are not aware of
any instance that Texas has taken an
explicit action to require companies to
meet the requirements set forth in 30
TAC 111.111(a)(1) or 30 TAC 111.153(b)
during periods of MSS. In particular,
Texas has not taken an enforcement
action against these sources for failure
to comply with the 30 TAC 111 limits
during MSS and that called for any of
these sources to upgrade their controls
to comply with the limits in the future.
EPA has never taken enforcement action
with respect to the limitations in 30
TAC 111.111(a)(1) and 30 TAC
111.153(b) for emissions during MSS
periods. In the 2020 submission, TCEQ
states that these existing SIP approved
rules do not apply to emissions during
MSS periods but that it now intends to
address such emissions through the
eight new source specific AOs.
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III. Evaluation of Emission Limitations
in the SIP Revision
A. SIP Requirements for Emissions
Limitations
CAA section 302(k) provides, in
relevant part, that ‘‘the terms ‘emission
limitation’ and ‘emission standard’
mean 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
this chapter.’’ Further, CAA Section
110(a)(2)(A) requires that SIPs include
‘‘enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements of this
chapter.’’ In light of these two
provisions, EPA’s position is, and has
been, that emissions limitations
contained in SIPs must be continuous.
Because emission limitations must be
continuous, they cannot include gaps or
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periods during which sources are not
required to limit their emissions and
thus, for example, cannot include
exemptions for emissions during
periods of operation such as MSS.
While emission limits need to be
continuous, EPA also believes that SIP
emission limitations: (i) do not need to
be numerical in format; (ii) do not have
to apply the same limitation (e.g.,
numerical level) at all times; and (iii)
may be composed of a combination of
numerical limitations, specific
technological control requirements and/
or work practice requirements, with
each component of the emission
limitation applicable during a defined
mode of source operation.
B. Environ. Comm. Fl. Elec. Power v.
EPA, 94 F.4th 77 (D.C. Cir. 2024)
As noted, the SIP submission at issue
in this action raises issues related to
emissions during MSS. The term MSS
has considerable overlap with the
events EPA refers to as startup,
shutdown, and malfunction (SSM).15
Issues associated with SSM are
discussed at length in a SIP Call that
EPA issued to states in 2015 (the 2015
SSM SIP Action).16 A number of parties
challenged the 2015 SSM SIP Action on
various grounds. On March 1, 2024, the
D.C. Circuit Court of Appeals issued a
decision in Environ. Comm. Fl. Elec.
Power v. EPA, 94 F.4th 77. The case was
a consolidated set of petitions for review
of the 2015 SSM SIP Action. The Court
granted the petitions in part, vacating
the 2015 SSM SIP Action with respect
to specific SIP provisions that the EPA
identified as automatic exemptions,
director’s discretion provisions, and
affirmative defenses that are
functionally exemptions, and denied the
petitions as to other provisions that the
EPA identified as overbroad
enforcement discretion provisions or
affirmative defense provisions that
would preclude or limit a court from
imposing relief in the case of violations.
Specific to this action, EPA notes that
the Court vacated the 2015 SSM SIP
Action with respect to SIP provisions
that contain automatic exemptions for
emissions during SSM events, and that
EPA had considered automatic
exemptions for emissions during other
modes of operation such as maintenance
to pose the same legal deficiency. In the
2015 SSM SIP Action, EPA found that
15 The term SSM refers to startup, shutdown or
malfunction at a source. It does not include periods
of maintenance at such a source. An SSM event is
a period of startup, shutdown or malfunction
during which there may be exceedances of the
applicable emission limitations and thus excess
emissions. Id. at 33843.
16 See 80 FR 33840 (June 15, 2015).
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certain SIP provisions were inconsistent
with CAA 110(a)(2)(A) and 302(k). CAA
110(a)(2)(A) requires SIPs to ‘‘include
enforceable emission limitations and
other control measures, means, or
techniques . . . as may be necessary or
appropriate to meet the applicable
requirements of this chapter.’’ Because
the automatic exemption provisions
excluded applicability of emission
limitations during SSM periods, the
emission limitations at issue no longer
operated on a ‘‘continuous basis’’ as
required by CAA 302(k).
Significantly, the Court vacated the
2015 SSM SIP Action as to automatic
exemptions, because the Agency did not
first determine that the particular SIP
provisions at issue were ‘‘emissions
limitations’’ as defined by CAA 302(k),
or that it was ‘‘necessary or appropriate’’
that these provisions be such an
emission limitation under CAA section
110(a)(2)(A). The court’s opinion stated
that while emission limitations must be
continuous, SIPs can contain ‘‘other
control measures, means, or techniques’’
per CAA 110(a)(2)(A), and such other
measures, means, or techniques do not
need to meet the CAA’s definition of an
‘‘emission limitation,’’ including the
requirement that it apply on a
continuous basis. The Court therefore
took issue with EPA’s SIP call for SIP
provisions with automatic SSM
exemptions, on the basis that ‘‘EPA’s
rationale breaks down if the measure
need not qualify as an ‘emission
limitation’ in the first place,’’ and
therefore such measure would need not
meet the continuity requirement.17
In light of the court’s decision, EPA is
evaluating the nature of the SIP
provisions at issue in this action. Based
on the language of the existing SIP
provisions and the SIP submission at
issue in this action, EPA finds that 30
TAC 111.111(a)(1) and 30 TAC
111.153(b) are emissions limitations as
contemplated under 110(a)(2)(A) and
302(k), and thus are required to be
continuous. Texas, in its submittal,
confirms that it adopted the AOs for
these eight sources to ensure that the
SIP provisions are emission limitations
that apply continuously. From the SIP
submission in the Executive Summary,
‘‘[t]he proposed SIP revision would
make certain operational limits and
work practices for periods of planned
MSS at the listed EGUs federally
enforceable so that emission limitations
apply on a continuous basis (at all times
of operation) (see FCAA,
§ 110(a)(2)(A)—SIP must contain
emission limits, measures, etc. and
17 Environ. Comm. Fl. Elec. Power v. EPA, 94
F.4th 77, 99 (D.C. Cir. 2024).
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§ 302(k)—emission limits apply on a
continuous basis to assure continuous
emission reduction). The SIP revision,
through the AOs, would establish a SIP
limitation for those periods when the
SIP limits for PM and opacity contained
in § 111.111 and § 111.153 do not apply
due to the technical limitations of the
ESPs at the power plants that will be
subject to the AOs.’’ Thus, TCEQ
indicated that it specifically submitted
the SIP revision with the AOs to ensure
that the emission limitations apply on a
continuous basis, including during MSS
periods. EPA agrees that these SIP limits
for PM and opacity are emissions
limitations that must be continuous
under CAA § 302(k). We also note that
the state originally submitted these rules
as part of the initial Texas SIP intended
to provide for the attainment and
maintenance of the NAAQS, and EPA
originally approved them for this
purpose (See 37 FR 10896), further
confirming that these specific rules
should be considered emission
limitations and ‘‘necessary and
appropriate to meet the requirements of
this chapter,’’ in this case attainment
and maintenance of the NAAQS.
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IV. Evaluation of Alternative Emission
Limits
A. EPA Recommendations for
Development of Alternative Emission
Limitations
As previously discussed, Texas has
identified 30 TAC 111.111(a)(1) and 30
TAC 111.153(b) as emission limitations,
and EPA agrees with this description.
Accordingly, the rules must be
continuous and cannot have
exemptions. The state indicated that it
specifically submitted the SIP revision
with the AOs to ensure that the
emission limitations apply on a
continuous basis, including during MSS
periods.
The revision submitted by Texas takes
the form of new Alternative Emission
Limitations (AELs) intended to apply
during MSS periods. The EPA interprets
the CAA (80 FR 33913, June 12, 2015)
to allow SIP provisions to include AELs
that apply to sources during specific
modes of operation during which the
source cannot meet an otherwise
applicable emission limitation, such as
may be the case during MSS periods. An
AEL, whether a numerical limitation,
technological control requirement, or
work practice requirement, would apply
during a specific mode of operation as
a component of the continuously
applicable emission limitation. All
components of the resulting emission
limitation must meet the substantive
requirements applicable to the type of
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SIP provision at issue, must meet the
applicable level of stringency for that
type of emission limitation, and must be
legally and practically enforceable.18
EPA has longstanding guidance for
AELs, which it reiterated and restated in
the 2015 SSM SIP Action. For the AELs
to be approvable (i.e., meet CAA
requirements), alternative requirements
applicable to the source during MSS
should be narrowly tailored and take
into account considerations such as the
technological limitations of the specific
source category and the control
technology that is feasible during
startup and shutdown.19 As articulated
in the 2015 SSM SIP Action, the EPA
recommends giving consideration to the
following seven specific criteria for
states when developing AELs in SIP
provisions that apply during modes of
operation such as MSS: 20 (1) The
revision is limited to specific, narrowly
defined source categories using specific
control strategies; (2) Use of the
otherwise applicable control strategy for
this source category is technically
infeasible during specific modes of
operation such as startup or shutdown;
(3) The AEL requires that the frequency
and duration of operation in MSS mode
are minimized to the greatest extent
practicable; (4) As part of its
justification of the SIP revision, the state
analyzes the potential worst-case
emissions that could occur during MSS
based on the applicable AEL; (5) The
AEL requires that all possible steps are
taken to minimize the impact of
emissions during MSS on ambient air
quality; (6) The AEL requires that, at all
times, the facility is operated in a
manner consistent with good practice
for minimizing emissions and the
source uses best efforts regarding
planning, design, and operating
procedures; and (7) The AEL requires
that the owner or operator’s actions
during MSS periods are documented by
properly signed, contemporaneous
operating logs or other relevant
evidence.
We also note that AELs applicable
during modes of operation such as
startup and shutdown cannot allow an
inappropriately high level of emissions
or an effectively unlimited or
uncontrolled level of emissions, as those
would constitute impermissible de facto
exemptions for emissions during certain
modes of operation.21 EPA notes that in
order to be continuous, an emission
limitation cannot have periods during
which a source’s emissions are
18 80
FR at 33913.
19 Id.
20 June
21 June
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12, 2015 (80 FR 33980).
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71241
uncontrolled, and this would include
modes of operation during which the
ostensible method of controlling
emissions merely consists of imposing a
time limit, i.e., an exemption allowing
effectively uncontrolled emissions for a
shorter period of time remains an
exemption.
B. EPA’s Evaluation
After reviewing the information in the
Texas SIP submittal, EPA has identified
the following concerns:
1. No Limit on Frequency of Startup or
Shutdown Events
The requirements in the AOs limit the
duration of a normal (as opposed to an
extended) planned startup or shutdown
to a number of hours per event (48
hours for all units with the exception of
Martin Lake units which are limited to
24 hours per normal startups) but
provides no limit on the frequency of
these events. During these times, the
only requirements that apply are the
work standards concerning placing the
ESP in service as soon as practicable
during startup or keeping the ESP in
service as late as practicable during
shutdown. There is no requirement for
the sources to limit emissions during
such events in any other way. PM
emissions during these events can be
much higher than normal emissions and
there is no limitation on the number of
times during the year a boiler can go
through a planned startup or shutdown.
The SIP provides no discussion on the
historical frequency of these events or
why there is no limitation on the total
number of hours a year, or times per
year, these events may occur.22 This is
of particular concern as utilization of
coal-fired power generation has become
more variable and planned startup and
shutdown events may occur more
frequently.23 In EPA’s view, the
approach adopted by the state in the SIP
revision would in effect constitute
exemptions from the opacity and PM
22 We note however, the total amount of
incremental time that extended startups or
shutdowns exceed the duration of a normal startup
or shutdown is limited to a number of hours per
year, providing some limitation on the frequency
and duration of these extended events.
23 National Emission Standards for Hazardous Air
Pollutants: Coal- and Oil-Fired Electric Utility
Steam Generating Units Review of the Residual Risk
and Technology Review, 89 FR 38534 (May 7,
2024), ‘‘While coal-fired EGUs have historically
provided baseload generation, they are being
dispatched much more as load following generating
sources due to the shift to more available and
cheaper natural gas and renewable generation. As
such, traditional generation assets—such as coalfired EGUs—will likely continue to have more
startup and shutdown periods, more periods of
transient operation as load following units, and
increased operation at minimum levels, all of which
can produce higher PM emission rates.’’
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limits in the existing rules, by creating
periods of time during which the
emissions from these sources would be
otherwise uncontrolled. The form of
work practices that the state has
imposed, e.g., that the source operates
the ESP in accordance with
manufacturer’s instructions, does not
effectively reduce emissions during
such periods.
2. Consideration of Additional Steps
and Practices To Minimize Emissions
With respect to factors 5 and 6, AELs
should require that all possible steps are
taken to minimize the impact of
emissions during modes of operation
such as MSS on ambient air quality and
to require that, at all times, the facility
is operated in a manner consistent with
good practice for minimizing emissions
and the source uses best efforts
regarding planning, design, and
operating procedures. We propose to
find that the Texas SIP submittal and
AOs do not address the feasibility or
availability of any specific measures to
minimize emissions during startup or
shutdown. The only requirement is a
work practice that consists of placing
the ESP into service as soon as
practicable or remove the ESP from
service as late as possible. Nothing in
the August 20, 2020 submittal indicates
that technological or economic
limitations prevent affected sources
from using additional measures to limit
emissions during planned MSS events
that would address requirements to
minimize emissions during such
periods and be practically enforceable.
This omission is particularly
concerning, when planned MSS is an
intentional, predictable event and
within the control of the source.
Because of the predictability of these
events, alternative means of limiting
emissions appear to be available such as
use of natural gas or other cleaner
burning fuels as auxiliary fuel to the
maximum extent possible during startup
operations until the required operating
temperatures of the ESP are met and the
ESP can be engaged. In addition, the
submittal contains no analysis
indicating that the use of another
control device for PM emissions (for
example, fabric filter baghouse) is not
feasible, either.
Furthermore, to the extent that these
sources already do utilize fuel oil or
natural gas in the start-up process, there
is no discussion in the SIP submission
or requirement in the AOs that
addresses the use of alternative fuels
during startup and when coal
combustion can begin with respect to
operation of the ESPs. PM emissions are
likely highest when coal is introduced
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into the boiler but the ESP has not yet
been engaged. Utilizing natural gas (or
fuel oil when natural gas is not an
available fuel) to the maximum extent
possible to bring equipment to
temperature would serve to minimize
emissions during startup and could
allow for ESPs to reach necessary
conditions for operation at the time coal
is introduced into the boilers. In fact,
EPA’s Mercury and Air Toxics
Standards (MATS) rule for power plants
published February 16, 2012, and
amended on May 7, 2024, contains
additional requirements for particulate
control for these units. Specific to
periods of startup and shutdown, the
MATS requirements include work
practice standards that requires sources
to have sufficient clean fuel capacity to
startup and warm the facility to the
point where the primary PM controls
(e.g., ESPs) can be brought online at the
same time as the addition of the coal to
the EGU.
3. Enforceability of the AELs
Clean Air Act Section 110(a)(2)(A)
requires that SIPs include enforceable
emission limits. As discussed
previously, Texas stated that the AELs
are designed to provide continuously
effective limits on PM and opacity
through all modes of operation, with
chapter 111 requirements to apply
during routine operations and the AELs
to apply during MSS periods. SIP
provisions, including emission
limitations under Section 110(a)(2)(A),
must be both legally and practically
enforceable.
One EPA concern with the state’s
approach in the AOs is that it does not
provide for adequate monitoring,
recordkeeping and reporting. The
monitoring and recordkeeping
requirements in the AOs are not
sufficient to ensure that all the data
necessary for demonstrating compliance
is recorded and available for review.
The AOs require recordkeeping to
identify periods of planned MSS, the
opacity measured by the continuous
opacity monitoring system (COMS) for
the duration of the planned MSS
activities, and the work practices
followed during the planned MSS
activities. However, they do not
specifically identify and require
recordkeeping of the parameters used to
identify when startup or shutdown
periods end or begin, such as
temperature, unit load or ESP operating
parameters, nor do they specifically
require recordkeeping of the parameters
monitored (e.g. air heater outlet
temperature, drum metal temperature,
when solid fuel is burned) to determine
when the ESP should be placed into or
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removed from service during these MSS
periods. These specific records are
necessary to determine compliance with
the definitions of when startup and
shutdown periods begin or end and
compliance with the AO requirements
on timing of when the ESPs are placed
into or removed from service. In
addition, the AOs only require facilities
to provide records upon request by the
TCEQ or any other air pollution control
agency with jurisdiction. The AOs do
not require sources to make any other
periodic report related to compliance
with the AO provisions. EPA cannot
determine the enforceability of these
rules due to these monitoring,
recordkeeping, and reporting gaps.
Thus, we are proposing disapproval and
taking comment on whether there is
other relevant information or analysis
that would show that these limits are
enforceable notwithstanding the lack of
monitoring, recordkeeping, and
reporting in the AOs.
EPA also proposes to find that the
state’s conditions in the AOs are too
subjective to provide for practical
enforceability. The AELs must be
accompanied by appropriate methods
and conditions to determine compliance
that are fully enforceable (specifying
clear, unambiguous, and measurable
requirements for which compliance can
be practicably determined) and
replicable (the procedures for
determining compliance which are
sufficiently specific and non-subjective
so that two independent entities
applying the procedures would obtain
the same result). Moreover, the work
practices that apply during MSS events
must be practically enforceable and it
must be clear when the units are in MSS
mode, and thus not subject to the
otherwise applicable numerical limits
specified in TAC Ch. 111.
a. Work Practices
The AOs contained in Texas’
submittal all include a requirement that
the sources must comply with the boiler
and ESP manufacturer’s operating
procedures or the owner/operator’s
written Standard Operating Procedures
(SOP) manual and to operate in a
manner consistent with those
procedures to minimize opacity.24 It is
unclear what procedures should be
followed if requirements in the SOP are
inconsistent with the manufacturer’s
operating procedures. It is likely that the
lengthy operating experience at these
units has resulted in the refinement of
operating procedures over the many
24 As a reminder, several of these sources, as of
the time of this notice, have ceased operation. See
FN 14.
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years since the manufacturers designed
the equipment and developed their
recommended operating procedures.
Furthermore, as the owner/operator’s
SOP can be modified over time, the
required work practices cannot be
considered permanent and enforceable.
For a measure to be relied on as an
emission limitation, it must be
permanent which means it cannot be
revised absent following the SIP
revision process. Thus, the AOs need to
contain more specific conditions to
identify what steps must be followed to
engage and operate the ESPs during
these events.
As summarized in Table 2, the AOs
vary in the specificity and conditions
for when the ESPs should be placed into
service. The Oklaunion AO specifies
that the ESP should be placed into
service during planned startups ‘‘once
the outlet gas temperature to the ESP is
greater than 300 °F.’’ This is a clear,
unambiguous and measurable
requirement and compliance can be
verified by reviewing the outlet gas
temperature and when the ESP is
brought online. The AOs for the other
seven facilities lack this level of
specificity and are not practically
enforceable because they require the
ESP to be placed into service ‘‘as soon
as practical.’’ For Gibbons Creek, Sam
Seymour, Limestone and San Miguel,
the ESP is to be placed into service as
soon as practical after the air heater
outlet temperature is within a specified
100 degree F range. It is unclear why a
range is specified rather than a
minimum temperature or if there are
other measurable parameters, such as
flow rate or drum metal temperature,
that are being evaluated to determine
when it would be ‘‘practical’’ to place
the ESP into service. Similarly, the AO
for Harrington specifies that the ESP be
placed into service as soon as practical
after solid fuel is being burned. It is
unclear what other measurable
parameters, such as ESP inlet
temperature, is being evaluated to
determine when it would be ‘‘practical’’
to place the ESP into service. Finally,
for Martin Lake and Pirkey, there is no
additional specification for when the
ESP is placed into service other than ‘‘as
soon as practical.’’
71243
The AOs also vary in the specificity
and conditions for when the ESPs
should be removed from service. For
Harrington, the AO specifies that the
ESP should be kept in service while the
unit is burning solid fuel. For Sam
Seymour, San Miguel, Oklaunion and
Pirkey, the AOs provide no specificity
to the conditions that determine when
the ESP should be removed from service
and only require that the ESP be
removed from service ‘‘as late as
possible.’’ For Gibbons Creek,
Limestone and Martin Lake, the ESP is
to be removed from service as late as
possible after the air heater outlet
temperature is within a large, specified
temperature range. It is unclear why a
range is specified rather than a
minimum temperature or if there are
other measurable parameters, such as
flow rate or drum metal temperature,
that are being evaluated to determine
when the ESP should be removed from
service. The AOs for these facilities lack
specificity and are not practically
enforceable.
TABLE 2—SUMMARY OF REQUIREMENTS FOR PLACING ESP INTO AND REMOVING ESP FROM SERVICE
Facility
Requirements
Gibbons Creek .....................................
placing the ESP into service as soon as practical during planned startups or removing the ESP from
service as late as possible during planned shutdowns, once the air heater outlet temperature is between 200 and 300 degrees F, but not longer than the durations during startups identified in Paragraph 12.A.
When solid fuel is being burned, place the ESP into service as soon as practical during planned
startups, but not longer than the durations identified in Paragraph 12.A. and keep the ESP in service
while the unit is burning solid fuel.
placing the ESP into service as soon as practical during planned startups once the ESP inlet temperature (air heater outlet temperature) is between 150 and 250 degrees F and removing the ESP from
service as late as possible during planned shutdowns, but not longer than the durations identified in
Paragraph 12.A.
placing the ESP into service as soon as practical during planned startups or removing the ESP from
service as late as possible during planned shutdowns, once the air heater outlet temperature is between 200 and 300 degrees F, but not longer than the durations identified in Paragraph 12.A.1.
placing the Boilers into service as soon as practical during planned startups, but not longer than the durations identified in Paragraph 12.A.1. During shutdown, Luminant will operate in a manner consistent
with the Procedures to minimize opacity by removing the ESP from service as late as possible during
planned shutdowns, once the air heater outlet temperature is between 180 and 260 degrees F, but
not longer than the durations identified in Paragraph 12.A.2.
placing the ESP into service as soon as practical during planned startups once the prime inlet air heater is between 250 and 350 degrees F and removing the ESP from service as late as possible during
planned shutdowns, but not longer than the durations identified in Paragraph 12.A.
placing the ESP into service during planned startups once the outlet gas temperature to the ESP is
greater than 300 °F, or removing the ESP from service as late as possible during planned shutdowns.
placing the ESP into service as soon as practical during planned startups or removing the ESP from
service as late as possible during planned shutdowns.
Harrington .............................................
Sam Seymour .......................................
Limestone .............................................
Martin Lake ...........................................
San Miguel ...........................................
Oklaunion .............................................
Pirkey ....................................................
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b. Duration of Startup
The AO requirements for these
facilities provide definitions for when
the startup period ends that lack
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specificity such that it is not clear when
the units are in startup mode and when
they should be complying with the
otherwise applicable numerical
emission limitations in TAC Chapter
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111. The definitions for when startup
ends lack clear, unambiguous and
measurable requirements by which
compliance could be practicably
determined.
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TABLE 3—STARTUP DURATIONS AND DEFINITIONS IN AOS
Facility
Duration of
normal startup
Extended startup
limitation
Startup begins
Startup ends
Gibbons Creek ..
2,880 minutes ...
600 hr/yr ...........
forced draft fans start ..................
Harrington ..........
Sam Seymour ....
48 hours ............
48 hours ............
300 hr/yr ...........
600 hr/yr ...........
Fans placed into service ..............
fuel oil igniters are started ...........
Limestone ..........
2,880 minutes ...
600 hr/yr ...........
forced draft fans start ..................
Martin Lake ........
24 hours ............
induced draft fans start operation
San Miguel ........
2,880 minutes ...
900 hr/yr (combined on 3
units).
600 hr/yr ...........
Oklaunion ..........
2,880 minutes ...
18,000 minutes
fans are placed in service ...........
Pirkey .................
2,880 minutes ...
18,000 minutes
fans are placed in service ...........
boiler reaches the lowest sustainable load (LSL)
and maintains that load (or greater load) for 60
consecutive minutes and ESP operations have
been optimized.
unit reaches a sustained load of 150 megawatts.
Boiler is released to the LCRA Generation Desk
for automatic dispatch.
utility boiler reaches 400 megawatts (MW) and
maintains that load (or greater load) for 60 consecutive minutes and ESP operations have
been fully optimized.
Boiler reaches stable load and the electrostatic
precipitator (ESP) operation has been fully optimized.
lowest sustainable load (LSL) and maintains that
load (or greater load) for 60 consecutive minutes and ESP operations have been fully optimized.
lowest sustainable load on lignite for at least 60
consecutive minutes while coal is being fired.
lowest sustainable load on lignite for at least 60
consecutive minutes while coal is being fired.
The AOs for Gibbons Creek and San
Miguel define the end of startup as
when the ‘‘boiler reaches the lowest
sustainable load (LSL) and maintains
that load (or greater load) for 60
consecutive minutes and ESP operations
have been optimized.’’ The AO for
Martin Lake defines the end of startup
as when the ‘‘[b]oiler reaches stable load
and the electrostatic precipitator (ESP)
operation has been fully optimized.’’
However, what constitutes the LSL or
stable load is not specified in the
requirements. In addition, the startup
event does not end until the ESP
operations have been optimized, but
there is no additional specificity to
determine when the ESP would be
considered optimized. One can imagine
that ESP operations with emissions
above the Chapter 111 numerical levels
would be considered non-optimized.
For Martin Lake, the AO also fails to
identify what constitutes a stable load
so it is unclear what duration of
operation at that load level is
considered stable, such that the startup
would be deemed to have ended.
induced draft fans start operation
Similarly, the AOs for Oklaunion and
Pirkey define the end of startup as
‘‘lowest sustainable load (LSL) on
lignite for at least 60 consecutive
minutes while coal is being fired’’ but
do not define the LSL. We also note that
it is not clear how the LSL ‘‘on lignite’’
applies to the Oklaunion unit that has
historically burned subbituminous coal.
While the AO for Harrington does
define the necessary load level (150
MW) it also does not identify what
duration of operation at that load level
is to be considered ‘‘sustained.’’ The AO
for Limestone specifies both the load
level (400 MW) and the duration (60
minutes) but also requires that the ESP
operations are ‘‘fully optimized’’ before
the startup event is considered ended.
The AO for Sam Seymour defines the
end of startup as when the ‘‘the boiler
is released to the LCRA generation desk
for automatic dispatch.’’ The AO
provides no additional details to
identify the conditions such as
sustained load to identify when the
boiler would be released for dispatch to
demonstrate that this condition is
consistent with the goal of minimizing
the duration of the event and startup
emissions. In addition, while all other
AOs define the beginning of startup as
when the fans are placed into service,
the AO for Sam Seymour defines the
beginning of startup when the fuel oil
igniters are placed in service. It is not
clear what limits the source is required
to meet when the fans are brought
online before the igniters are placed into
service.
c. Duration of Shutdown
The AO requirements for these
facilities provide definitions for when
the shutdown period begins that lack
specificity such that it is not clear when
the units are in shutdown mode or
when they should be complying with
the otherwise applicable numerical
emission limitations in TAC Chapter
111. The definitions for when shutdown
begins lack clear, unambiguous and
measurable requirements by which
compliance could be practicably
determined.
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TABLE 4—SHUTDOWN DURATIONS AND DEFINITIONS IN AOS
Facility
Duration of normal
shutdown
Extended
shutdown limitation
Shutdown begins
Shutdown ends
Gibbons Creek .......
600 minutes ..........
600 hr/yr ...............
load drops below LSL following dispatch request for a shutdown.
Harrington ..............
36 hours ...............
...............................
when the generator breaker is opened
or at the point of main fuel no
longer being fired in the boiler,
whichever is earlier..
When the boiler water circulating
pump manifold temperature reaches
180 degrees Fahrenheit (F).
when the generator breaker is open
and main fuel is no longer being
fired in the boiler.
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TABLE 4—SHUTDOWN DURATIONS AND DEFINITIONS IN AOS—Continued
Facility
Duration of normal
shutdown
Extended
shutdown limitation
Shutdown begins
Shutdown ends
Sam Seymour ........
12 hours ...............
600 hr/yr ...............
when the LCRA Generation Desk releases control of the boiler to the
plant for the purpose of a shutdown.
Limestone ..............
2,880 minutes .......
600 hr/yr ...............
temperature has been reached that allows personnel to enter the structure and conduct maintenance activities.
when the drum metal temperature
reaches 200 degrees F.
Martin Lake ............
24 hours ...............
San Miguel .............
2,880 minutes .......
Oklaunion ...............
2,880 minutes .......
...............................
Pirkey .....................
2,880 minutes .......
...............................
when load drops below the lowest
sustainable load (LSL) following dispatch request for a shutdown.
900 hr/yr (comwhen the ESP is partially or combined on 3 units).
pletely de-energized due to reaching its minimum operating temperature.
600 hr/yr ............... load drops below the LSL following
the permit holder’s request to dispatch for a shutdown.
The duration of shutdown events are
limited in the AOs to a specific amount
of time, however, the time periods vary
between the facilities from 10 hours to
48 hours. There is no discussion as to
how the duration of the allowed
shutdown period was determined nor
justification for how a shutdown period
lasting up to 48 hours is consistent with
the goal of minimizing the duration of
the event and associated emissions.
The AOs for Gibbons Creek,
Limestone and San Miguel define the
start of a shutdown as when the ‘‘load
drops below LSL following dispatch
request for a shutdown’’ and the AOs for
Oklaunion and Pirkey define the start of
a shutdown as when the boiler ‘‘has
dropped below the lowest sustainable
load for at least 30 consecutive
minutes.’’ However, what constitutes
the LSL is not specified in the
requirements. For Martin Lake, the AO
defines the start of shutdown as ‘‘when
the ESP is partially or completely deenergized due to reaching its minimum
operating temperature’’ but does not
identify the minimum operating
temperature. For Sam Seymour, the AO
defines shutdown as beginning when
the LCRA Generation Desk releases
control of the boiler to the plant for the
purpose of a shutdown but provides no
additional details to identify the
conditions such as sustained load to
identify when the boiler would be
released for shutdown. For Harrington,
the AO defines shutdown as beginning
when the generator breaker is opened or
at the point of main fuel no longer being
fired in the boiler, whichever is earlier,
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when the Boiler has dropped
the lowest sustainable load
least 30 consecutive minutes.
when the Boiler has dropped
the lowest sustainable load
least 30 consecutive minutes.
below
for at
when a temperature has been
reached that allows personnel to
enter the structure and conduct
maintenance activities.
ends when the average lower drum
metal temperature reaches 200 degrees Fahrenheit (F) or when the
induced draft fans are removed
from service by the plant operators.
24 hours after combustion has
ceased.
below
for at
24 hours
ceased.
after
combustion
has
d. EPA’s Conclusion on the
Enforceability of AELs
In sum, to be legally and practically
enforceable, the AOs should contain
enforceable limitations on the duration
of start-up and shutdown emissions and
clearly define the moment when the
requirements switch from compliance
with the alternative emission limitations
for such modes of operation in the AOs
to compliance with 30 TAC
111.111(a)(1) and 30 TAC 111.153(b).
These AO restrictions as written,
however, are not practically enforceable.
Instead, the AOs, due to various
ambiguities as discussed above, are
unclear as to the procedures an operator
must follow to be in compliance and at
what point in the startup or shutdown
process, the facility must switch from
compliance with the AO to compliance
with 30 TAC 111.111(a)(1) and 30 TAC
111.153(b) as required for routine
operation.
offline maintenance activities, such as
boiler general maintenance, de-slagging,
combustion optimization, and flue gas
conditioning.25 However, unlike the
provisions for startup and shutdown,
the AOs do not include any work
practices that the sources are required to
apply during these periods. For these
activities, the AOs ‘‘authorize’’ periods
of opacity greater than 20% for a
number of hours per year (e.g., 535 hrs/
year for each unit at Martin Lake). The
only ostensible requirement during
maintenance periods appears to be that
the source operate the boiler and its ESP
in accordance with good air pollution
control practices, safe operating
practices, and protection of the facility
and associated air pollution control
equipment. The generic general duty
that an owner or operator shall operate
a source consistent with safety and good
air pollution control practices for
minimizing emissions is not sufficient
to identify what these specific practices
might be across the range of
maintenance activities to which the AOs
apply, and thus such general duty
clauses are not practically enforceable
as a limitation on emissions during
these activities.26 The AOs and SIP
submission contain no discussion of the
potential emissions from these
activities, or consideration of other
forms of alternative emission limitations
4. Planned Offline and Online
Maintenance Activities
In addition to the work practices and
operational limits for planned startup
and shutdown, the AOs contain
provisions specific to planned online or
25 For example, See AO for Martin Lake,
provision 12.C.1–8.
26 See 80 FR at 33,889–890, 33,893, and 33,903–
904 for additional rationale describing why general
duty clauses cannot operate on their own to fill
exemptions in otherwise applicable emission
limitations.
but provides no additional details to
identify the conditions when the
breaker is to be opened. In sum, to be
legally and practically enforceable, the
AOs should clearly define the moment
when the requirements switch from
compliance with 30 TAC 111.111(a)(1)
and 30 TAC 111.153(b) to compliance
with the alternative emission limitations
that apply during shutdown in the AOs.
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such as alternative numerical opacity
limits that could potentially apply
during these maintenance periods that
would provide for a quantifiable and
more practically enforceable limitation.
Furthermore, EPA notes that the AOs
contain no limitations as to the duration
or frequency of individual events, the
result being that it is possible that no
opacity limitation could apply for a
period of several hundred hours.
As stated in EPA’s June 12, 2015 SSM
policy, states may not create SIP
provisions that contain automatic or
discretionary exemptions from
otherwise applicable emission
limitations during periods such as
‘‘maintenance,’’ ‘‘load change,’’ ‘‘soot
blowing,’’ ‘‘on-line operating changes’’
or other similar normal modes of
operation. Like startup and shutdown,
the EPA considers all of these to be
modes of normal operation at a source,
for which the source can be designed,
operated and maintained in order to
meet applicable emission limitations
and during which the source should be
expected to control and minimize
emissions. Excess emissions that occur
during planned and predicted periods
should be treated as violations of
applicable emission limitations.
Accordingly, exemptions for emissions
during these periods of normal source
operation are not consistent with CAA
requirements.
It may be appropriate for an air
agency to establish an alternative
numerical limitation or other form of
control measure that applies during
these modes of source operation, as for
startup and shutdown events, but any
such alternative emission limitation
should be developed using the same
criteria that the EPA recommends for
alternative emission limitations
applicable during startup and
shutdown. Similarly, any SIP provision
that includes an emission limitation for
sources that includes alternative
emission limitations applicable to
modes of operation such as
‘‘maintenance,’’ ‘‘load change,’’ ‘‘soot
blowing’’ or ‘‘on-line operating
changes’’ must also meet the applicable
level of stringency for that type of
emission limitation and be practically
and legally enforceable.27 So EPA finds
that the general duty provisions that
apply during Maintenance activities in
the AOs are not practically enforceable
and thus cannot be approved.
27 See
80 FR at 33978.
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V. Proposed Action
For the reasons discussed in this
notice, the EPA is proposing to
disapprove a revision to the Texas SIP
submitted by TCEQ on August 20, 2020
(concerning opacity and PM emissions
during planned MSS activities for
certain EGU sources equipped with
ESPs as the PM control device). These
EGUs are the Southwestern Electric
Power Company (SWEPCO) H.W. Pirkey
Power Plant; the Lower Colorado River
Authority (LCRA) Sam Seymour Fayette
Power Project; the Luminant Generation
Company, LLC Martin Lake Steam
Electric Station; the NRG Texas Power,
LLC Limestone Electric Generating
Station; the San Miguel Electric
Cooperative, Inc. San Miguel Plant; the
Southwestern Public Service Company
(SPS) Harrington Station; the Texas
Municipal Power Agency (TMPA)
Gibbons Creek Steam Electric Station;
and the Public Service Company of
Oklahoma (PSCO) Oklaunion Power
Station.
The effect of this disapproval, if
finalized, is that the Agreed Orders will
not be incorporated into the SIP. There
will be no sanctions or FIP clocks
started by this action if finalized.
VI. Environmental Justice
Considerations
Information on Executive Order 12898
(Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations, 59 FR 7629, February 16,
1994) and how EPA defines
environmental justice (EJ) can be found
in the section, below, titled ‘‘VII.
Statutory and Executive Order
Reviews.’’ For informational and
transparency purposes only, the EPA is
including additional analysis of
environmental justice associated with
this proposed action for the purpose of
providing information to the public.
EPA conducted screening analyses
using EJSCREEN, an environmental
justice mapping and screening tool that
provides EPA with a nationally
consistent dataset and approach for
combining various environmental and
demographic indicators.28 The
EJSCREEN tool presents these indicators
at a Census block group (CBG) level or
a larger user-specified ‘‘buffer’’ area that
covers multiple CBGs.29 An individual
CBG is a cluster of contiguous blocks
28 The EJSCREEN tool is available at https://
www.epa.gov/ejscreen.
29 See https://www.census.gov/programs-surveys/
geography/about/glossary.html.
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within the same census tract and
generally contains between 600 and
3,000 people. EJSCREEN is not a tool for
performing in-depth risk analysis, but is
instead a screening tool that provides an
initial representation of indicators
related to environmental justice and is
subject to uncertainty in some
underlying data (e.g., some
environmental indicators are based on
monitoring data which are not
uniformly available; others are based on
self-reported data).30 To help mitigate
this uncertainty, we have summarized
EJSCREEN data within larger ‘‘buffer’’
areas covering multiple block groups
and representing the average resident
within the buffer areas surrounding the
sources. We present EJSCREEN
environmental indicators to help screen
for locations where residents may
experience a higher overall pollution
burden than would be expected for a
block group with the same total
population. These indicators of overall
pollution burden include estimates of
ambient particulate matter (PM2.5),
ozone, nitrogen dioxide, and diesel
particulate matter concentration, a score
for traffic proximity and volume,
percentage of pre-1960 housing units
(lead paint indicator), and scores for
proximity to Superfund sites, risk
management plan (RMP) sites, and
hazardous waste facilities.31 EJSCREEN
also provides information on
demographic indicators, including
percent low-income, unemployment,
communities of color, linguistic
isolation, and education.
The EPA prepared EJSCREEN reports
covering a buffer area of approximately
6-mile radius around each affected EGU.
Tables 5 and 6 present a summary of
results from the EPA’s screening-level
analysis for the areas surrounding the
affected EGUs in Texas compared to the
U.S. as a whole. The full, detailed
EJSCREEN report is provided in the
docket for this rulemaking.
30 In addition, EJSCREEN relies on the five-year
block group estimates from the U.S. Census
American Community Survey. The advantage of
using five-year over single-year estimates is
increased statistical reliability of the data (i.e.,
lower sampling error), particularly for small
geographic areas and population groups. For more
information, see https://www.census.gov/content/
dam/Census/library/publications/2020/acs/acs_
general_handbook_2020.pdf.
31 For additional information on provides details
on the data and methods used to create the
indicators and indexes in EJSCREEN, see
‘‘EJSCREEN Environmental Justice Mapping and
Screening Tool: EJSCREEN Technical
Documentation’’ at https://www.epa.gov/ejscreen/
technical-information-and-data-downloads.
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TABLE 5—EJSCREEN ANALYSIS SUMMARY FOR AFFECTED EGU FACILITIES PART 1
Values for buffer areas (radius) for each affected EGU and the U.S.
(percentile within U.S. where indicated)
Variables
Pollution Burden Indicators:
Particulate matter (PM2.5), annual average ...................................................
Ozone, annual average of the top ten 8-hour daily maximums ....................
Nitrogen dioxide, annual average ..................................................................
Diesel particulate matter ................................................................................
Toxic releases to air score * ..........................................................................
Traffic proximity and volume score * ..............................................................
Lead paint (percentage pre-1960 housing) ...................................................
Superfund proximity score * ...........................................................................
RMP proximity score * ....................................................................................
Hazardous waste proximity score * ................................................................
Underground storage tank proximity score * .................................................
Wastewater discharge score * .......................................................................
Drinking water noncompliance, points ...........................................................
Fayette
Gibbons Creek
Harrington
Pirkey
U.S.
8.32 μg/m3
(56%ile)
61.1 ppb
(53%ile)
4.9 ppb
(22%ile)
0.0603 μg/m3
(12%ile)
74
(21%ile)
27,000
(8%ile)
0.26%
(54%ile)
0
(0%ile)
0.12
(36%ile)
0
(0%ile)
0.073
(32%ile)
2,400
(80%ile)
8.5
(92%ile)
8.38 μg/m3
(58%ile)
63.1 ppb
(63%ile)
4.3 ppb
(17%ile)
0.0553 μg/m3
(10%ile)
82
(22%ile)
12,000
(5%ile)
0.037%
(23%ile)
0
(0%ile)
0.012
(28%ile)
0
(0%ile)
0.022
(29%ile)
64
(51%ile)
0.15
(74%ile)
5.91 μg/m3
(5%ile)
59.6 ppb
(46%ile)
7.7 ppb
(51%ile)
0.172 μg/m3
(55%ile)
260
(36%ile)
520,000
(40%ile)
0.44%
(70%ile)
0.015
(56%ile)
1.4
(87%ile)
0.45
(32%ile)
0.82
(49%ile)
0.57
(19%ile)
0.97
(77%ile)
8.89 μg/m3
(72%ile)
56.3 ppb
(29%ile)
3.7 ppb
(11%ile)
0.105 μg/m3
(30%ile)
10000
(93%ile)
110,000
(18%ile)
0.17%
(45%ile)
0.0065
(56%ile)
0.19
(43%ile)
0.096
(17%ile)
0.27
(39%ile)
31
(45%ile)
0.87
(77%ile)
8.45 μg/m3
(—)
61.8 ppb
(—)
7.8 ppb
(—)
0.191 μg/m3
(—)
4,600
(—)
1,700,000
(—)
0.3%
(—)
0.39
(—)
0.57
(—)
3.5
(—)
3.6
(—)
700,000
(—)
2.2
(—)
15%
(30%ile)
15%
(27%ile)
2%
(36%ile)
0%
(0%ile)
4%
(30%ile)
3%
(34%ile)
31%
(89%ile)
19%
(36%ile)
17%
(32%ile)
3%
(44%ile)
2%
(62%ile)
10%
(58%ile)
3%
(34%ile)
17%
(54%ile)
72%
(79%ile)
55%
(86%ile)
4%
(51%ile)
10%
(85%ile)
35%
(94%ile)
7%
(70%ile)
11%
(29%ile)
26%
(44%ile)
29%
(53%ile)
4%
(56%ile)
7%
(79%ile)
12%
(64%ile)
6%
(62%ile)
11%
(27%ile)
40%
(—)
30%
(—)
6%
(—)
5%
(—)
11%
(—)
5%
(—)
18%
(—)
Demographic Indicators:
People of color population .............................................................................
Low-income population ..................................................................................
Unemployment rate ........................................................................................
Linguistically isolated population ...................................................................
Population with less than high school education ..........................................
Population under 5 years of age ...................................................................
Population over 64 years of age ...................................................................
* The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund proximity, RMP
proximity, and hazardous waste proximity indicators are all scores calculated by site or facility counts divided by distance in kilometers. The underground storage tank
proximity indicator is the weighted count within a 1,500-foot block group. The toxic releases to air indicator is the modeled toxicity-weighted concentration. The wastewater discharge indicator is the modeled toxicity-weighted concentrations divided by distance in meters.
TABLE 6—EJSCREEN ANALYSIS SUMMARY FOR AFFECTED EGU FACILITIES PART 2
Values for buffer areas (radius) for each affected EGU and the U.S.
(percentile within U.S. where indicated)
Variables
Pollution Burden Indicators:
Particulate matter (PM2.5), annual average ...................................................
Ozone, annual average of the top ten 8-hour daily maximums ....................
Nitrogen dioxide, annual average ..................................................................
Diesel particulate matter ................................................................................
Toxic releases to air score * ..........................................................................
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Traffic proximity and volume score * ..............................................................
Lead paint (percentage pre-1960 housing) ...................................................
Superfund proximity score * ...........................................................................
RMP proximity score * ....................................................................................
Hazardous waste proximity score * ................................................................
Underground storage tank proximity score * .................................................
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Limestone
Martin Lake
Oklaunion
San Miguel
U.S.
8.13 μg/m3
(49%ile)
61 ppb
(53%ile)
3.7 ppb
(11%ile)
0.0574 μg/m3
(11%ile)
320
(39%ile)
12,000
(5%ile)
0.061%
(29%ile)
0
(0%ile)
0.14
(39%ile)
0.058
(15%ile)
0.022
(29%ile)
8.8 μg/m3
(69%ile)
56.9 ppb
(32%ile)
3.2 ppb
(8%ile)
0.0572 μg/m3
(11%ile)
9400
(92%ile)
9,900
(4%ile)
0.12%
(38%ile)
0.014
(56%ile)
0.18
(42%ile)
0.055
(15%ile)
0.18
(36%ile)
6.94 μg/m3
(17%ile)
57.2 ppb
(33%ile)
3.6 ppb
(11%ile)
0.0496 μg/m3
(8%ile)
32
(14%ile)
59,000
(13%ile)
0.51%
(74%ile)
0
(0%ile)
0.32
(53%ile)
0
(0%ile)
0.11
(34%ile)
8.38 μg/m3
(58%ile)
61.7 ppb
(56%ile)
2.9 ppb
(6%ile)
0.0384 μg/m3
(4%ile)
92
(23%ile)
28,000
(8%ile)
0.08%
(32%ile)
0
(0%ile)
0.084
(30%ile)
0
(0%ile)
0.000039
(26%ile)
8.45 μg/m3
(—)
61.8 ppb
(—)
7.8 ppb
(—)
0.191 μg/m3
(—)
4,600
(—)
1,700,000
(—)
0.3%
(—)
0.39
(—)
0.57
(—)
3.5
(—)
3.6
(—)
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TABLE 6—EJSCREEN ANALYSIS SUMMARY FOR AFFECTED EGU FACILITIES PART 2—Continued
Values for buffer areas (radius) for each affected EGU and the U.S.
(percentile within U.S. where indicated)
Variables
Wastewater discharge score * .......................................................................
Drinking water noncompliance, points ...........................................................
Demographic Indicators:
People of color population .............................................................................
Low-income population ..................................................................................
Unemployment rate ........................................................................................
Linguistically isolated population ...................................................................
Population with less than high school education ..........................................
Population under 5 years of age ...................................................................
Population over 64 years of age ...................................................................
Limestone
Martin Lake
Oklaunion
San Miguel
U.S.
52
(50%ile)
2.7
(87%ile)
50
(49%ile)
9.9
(92%ile)
0.35
(18%ile)
2.2
(87%ile)
14
(38%ile)
0.86
(77%ile)
700,000
(—)
2.2
(—)
21%
(37%ile)
33%
(60%ile)
3%
(45%ile)
1%
(59%ile)
11%
(60%ile)
4%
(47%ile)
27%
(83%ile)
33%
(51%ile)
28%
(52%ile)
4%
(55%ile)
0%
(56%ile)
8%
(50%ile)
9%
(80%ile)
17%
(53%ile)
43%
(60%ile)
41%
(72%ile)
5%
(62%ile)
4%
(71%ile)
30%
(91%ile)
5%
(54%ile)
17%
(55%ile)
44%
(61%ile)
15%
(29%ile)
9%
(79%ile)
0%
(57%ile)
29%
(91%ile)
0%
(13%ile)
35%
(92%ile)
40%
(—)
30%
(—)
6%
(—)
5%
(—)
11%
(—)
5%
(—)
18%
(—)
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* See Table 5 footnote.
Communities in close proximity to
and/or downwind of these EGUs may be
subject to environmental impacts of
emissions. Short- and/or long-term
exposure to air pollution has been
associated with a wide range of human
health effects including increased
respiratory symptoms, hospitalization
for heart or lung diseases, and even
premature death.32 Emissions during
planned MSS may be higher than
emissions under normal steady-state
operations. The 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.
We therefore propose to determine
that this rulemaking action, if finalized
as proposed, will not have
disproportionately high or adverse
human health or environmental effects
on communities with environmental
justice concerns.
proposes to disapprove the SIP
submittal as not meeting applicable
requirements of the CAA.
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
VII. Statutory and Executive Order
Reviews
C. Regulatory Flexibility Act (RFA)
Under the Act, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the Act. Accordingly, this action
32 See https://www.epa.gov/air-qualitymanagement-process/managing-air-quality-humanhealth-environmental-and-economic#what
(accessed dated 02/05/2024).
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A. Executive Order 12866: Regulatory
Planning and Review, Executive Order
13563: Improving Regulation and
Regulatory Review, and Executive Order
14094: Modernizing Regulatory Review
This action is not a significant
regulatory action as defined in
Executive Order 12866 (58 FR 51735,
October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879,
April 11, 2023), and was therefore not
subject to a requirement for Executive
Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA (44 U.S.C. 3501 et seq.) because it
does not contain any information
collection activities.
This action is certified to not have a
significant economic impact on a
substantial number of small entities
under the RFA (5 U.S.C. 601 et seq.).
This action will not impose any
requirements on small entities.
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. This action imposes no
PO 00000
Frm 00060
Fmt 4702
Sfmt 4702
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 as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999). 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: Coordination
With Indian Tribal Governments
This proposed action has no tribal
implications as specified in E.O. 13175
(65 FR 67249, November 9, 2000). This
action will neither impose substantial
direct compliance costs on federally
recognized tribal governments, nor
preempt tribal law. This action will not
impose substantial direct compliance
costs on federally recognized tribal
governments because no actions will be
required of tribal governments. This
action will also not preempt tribal law
as it does not have applicable or related
tribal laws.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern environmental
health or safety risks that EPA has
reason to believe may
disproportionately affect children, per
the definitions of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. Therefore, this action
is not subject to Executive Order 13045
E:\FR\FM\03SEP1.SGM
03SEP1
Federal Register / Vol. 89, No. 170 / Tuesday, September 3, 2024 / Proposed Rules
because it merely proposes to
disapprove a SIP revision. Furthermore,
the EPA’s Policy on Children’s Health
does not apply to this action.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This 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.
I. National Technology Transfer and
Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs
the EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. This action is not subject to
the requirements of section 12(d) of the
NTTAA (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Population
lotter on DSK11XQN23PROD with PROPOSALS1
Executive Order 12898 (Federal
Actions To Address Environmental
VerDate Sep<11>2014
16:10 Aug 30, 2024
Jkt 262001
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The air agency did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA performed an
environmental justice analysis, as is
PO 00000
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Fmt 4702
Sfmt 9990
71249
described above in the section titled,
‘‘Environmental Justice
Considerations.’’ The analysis was done
for the purpose of providing additional
context and information about this
rulemaking to the public, not as a basis
of the action. Due to the nature of the
action being taken here, this action is
expected to have no impact on the air
quality of the affected area. In addition,
there is no information in the record
upon which this decision is based
inconsistent with the stated goal of E.O.
12898 of achieving environmental
justice for people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate
matter, Sulfur dioxide, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 27, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024–19600 Filed 8–30–24; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\03SEP1.SGM
03SEP1
]]>Agencies
[Federal Register Volume 89, Number 170 (Tuesday, September 3, 2024)]
[Proposed Rules]
[Pages 71237-71249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19600]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0029; FRL-12218-01-R6]
Air Plan Disapproval; Texas; Control of Air Pollution From
Visible Emissions and Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the
Environmental Protection Agency (EPA) is proposing to disapprove a
revision to the Texas State Implementation Plan (SIP) submitted by the
State of Texas through the Texas Commission on Environmental Quality
(TCEQ) on August 20, 2020. The SIP submittal addresses emissions during
planned Maintenance, Startup and Shutdown (MSS) activities for certain
Electric Generating Units (EGUs) and includes requirements intended to
address visible emissions (opacity) and Particulate Matter (PM)
emissions during planned MSS activities The requirements are included
in eight Agreed Orders (AOs) issued by TCEQ to the affected EGUs and
provided in the SIP revision. EPA is proposing to determine that the
requirements contained in these AOs do not meet the CAA requirements
that emission limitations must be practically enforceable and must
apply on a continuous basis. We are taking this action in accordance
with section 110 of the Act.
DATES: Comments must be received on or before October 3, 2024.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0029 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to 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
Mr. Michael Feldman, (214) 665-9793, [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 and in hard copy at the EPA
Region 6 Office, 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: Mr. Michael Feldman, Regional Haze and
SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite
500, Dallas, Texas 75270, (214) 665-9793, [email protected]. We
encourage the public to submit comments via https://www.regulations.gov. 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.
Table of Contents
I. Background
A. Texas Chapter 111--Control of Air Pollution From Visible
Emissions and Particulate Matter
B. August 20, 2020 SIP Submittal
II. Applicability of Opacity and PM Limitations in 30 TAC 111
III. Evaluation of Emission Limitations in the SIP Revision
A. SIP Requirements for Emissions Limitations
B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir.
2024)
IV. Evaluation of Alternative Emission Limits
A. EPA Recommendations for Development of Alternative Emission
Limitations
B. EPA's Evaluation
V. Proposed Action
VI. Environmental Justice Considerations
VII. Statutory and Executive Order Reviews
I. Background
A. Texas Chapter 111--Control of Air Pollution From Visible Emissions
and Particulate Matter
Texas promulgated rules for the control of visible emissions
(opacity) and particulate matter emissions for inclusion in its SIP on
January 28, 1972, and EPA first approved those rules into the SIP on
May 31, 1972 (37 FR 10895) at 40 CFR 52.2270(b). In the original
codification, Texas' rules concerning visible emissions and emission
restrictions for particulate matter emissions were contained in TACB
Regulation I--Control of Smoke, Visible Emissions and Particulate
Matter, Rule 103.1 and 105.31. In developing these original rules, the
state has noted that it relied in part on the findings of a study
conducted by the Radian Corporation (Radian Report) \1\ on behalf of
the Texas Air Control Board (TACB),\2\ a predecessor state agency to
the TCEQ. The Radian Report provided information on the steady-state
performance of electrostatic precipitator (ESPs) that the state used as
part of establishing the Opacity and PM restrictions in TACB Regulation
I. The control and performance efficiencies documented in the Radian
Report for visible emissions and particulate matter for coal fired EGUs
equipped with ESPs did not consider startup and shutdown periods when
the EGU boiler exhaust gas is below the minimum temperature required to
ensure the effective and safe operation of an ESP as a control device
for particulate matter emissions and opacity.\3\
---------------------------------------------------------------------------
\1\ Radian Corporation, Technical Basis for Texas Air Control
Board Particulate Regulations, Delbert Max Ottmers, Jr and Ben R.
Breed, August 20, 1971 (included in TCEQ's SIP submittal in the
Docket for this proposed rulemaking).
\2\ The Texas Air Control Board, abolished by Texas S.B. 2, 72nd
Leg., 1st C.S., effective September 1, 1993, duties transferred to
the Texas Natural Resource Conservation Commission which was formed
from a merger with other state agencies including the Texas Water
Commission and which was later renamed the Texas Commission on
Environmental Quality, Agency 582.
\3\ TCEQ's SIP submittal identifies additional studies conducted
by the EPA and predecessor agencies as early as 1970 on ESP design
and operation (available in the docket for this action): An
Electrostatic Precipitator Systems Study: Final Report to The
National Air Pollution Control Administration, Southern Research
Institute, Contract CPA 22-69-73, October 30, 1970; Effects of
Transient Operating Conditions on Steam-Electric Generator
Emissions, EPA-600/2-75-022, August 1975; Controlling Particulate
Emissions from Coal-Fired Boilers, EPA-600/8-79-016, June 1979.
---------------------------------------------------------------------------
[[Page 71238]]
Since the original EPA approval of Rules 103.1 and 105.31 in 1972,
there have been several subsequent state rule revision actions and EPA-
approved SIP revisions which renumbered and recodified Rules 103.1 and
105.31 to what they are today--namely, 30 TAC 111.111 (for opacity) and
30 TAC 111.153(b) (for particulate matter) of the EPA-approved SIP. See
74 FR 19144 (April 28, 2009). However, none of the subsequent
rulemakings and SIP revisions were substantive in nature and the record
for those actions do not suggest a change to the original scope and
application of Rules 103.1 and 105.31.
In 2009, Texas recodified Regulation I, Rules 103.1 and 105.31, in
a new location, 30 TAC 111.111 (Approved by EPA. April 28, 2009 (74 FR
19144) effective May 28, 2009, Regulations.gov docket ID NO. EPA-R06-
OAR-2005-TX-0028). Despite the changed numbering, the requirements in
the rules remain the same. For opacity, 30 TAC 111.111 requires that
the affected sources ``shall not exceed 30 percent averaged over a six-
minute period'' (for any source on which construction or operation was
begun on or before January 31, 1972), and ``shall not exceed 20 percent
averaged over a six-minute period for any source on which construction
was begun after January 31, 1972.'' \4\ For particulate matter, 30 TAC
111.153(b) requires that no affected source ``may cause, suffer, allow,
or permit emissions of particulate matter from any solid fossil fuel-
fired steam generator to exceed 0.3 pound of total suspended
particulate per million BTU heat input, averaged over a two-hour
period.'' \5\
---------------------------------------------------------------------------
\4\ See section 111.111 Requirements for Specified Sources,
https://texreg.sos.state.tx.us/public/
readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_
tac=&ti=30&pt=1&ch=111&rl=111, also https://www.epa.gov/sips-tx/current-texas-sip-approved-regulations#1A1.
\5\ See section 111.153 Emission Limits for Steam Generators,
https://texreg.sos.state.tx.us/public/
readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_
tac=&ti=30&pt=1&ch=111&rl=153. See also https://www.epa.gov/sips-tx/current-texas-sip-approved-regulations#1A1. Also, during the state
comment period (as TCEQ was adopting this source-specific SIP
revision) TCEQ responded to EPA's request for clarification and
confirmed that the coal-fired EGUs covered by these AOs are ``solid
fossil fuel-fired steam generator units'' as the term is used in 30
TAC Sec. 111.153(b), and the AOs apply specifically to a subset of
solid fossil fuel-fired steam generators that use coal as fuel
(i.e., those EGUs that use ESPs as a control device).
---------------------------------------------------------------------------
On October 30, 2014, EPA received a petition from the Environmental
Integrity Project and Sierra Club (Petitioners) requesting that the EPA
object to the title V operating permit issued by the TCEQ to the
Southwestern Electric Power Company (SWEPCO) H.W. Pirkey power
plant.\6\ Petitioners claimed, among other issues, that the 2014
proposed title V permit created ``improper exemptions'' from the 20
percent opacity limit in Texas's SIP at 30 TAC 111.111(a)(1)(B) and the
0.3 lb/MMBtu PM limit in Texas's SIP at 30 TAC 111.153(b) specifically
during planned MSS periods. On May 18, 2015 (after a March 2015 Notice
of Intent) Petitioners filed a Complaint, seeking an order declaring
that the EPA Administrator must grant or deny the 2014 petition and
requiring the Administrator to do so. On December 2, 2015, TCEQ
submitted to EPA an interpretive letter asserting that the opacity and
PM emission limitations in the state's rules, adopted in the early
1970's, were based on the use of ESPs during normal/stable operations
and thus did not apply during periods of planned maintenance, startup
and shutdown activities. (30 TAC 111.111 and 30 TAC 111.153(b)).\7\
---------------------------------------------------------------------------
\6\ October 30, 2014, Environmental Integrity Project (EIP) and
Sierra Club filed a petition for objection to Southwestern Electric
Power Company's (SWEPCO) Title V permit for the H.W. Pirkey power
plant.
\7\ See letter, from Steve Hagle, Deputy Director, Office of
Air, TCEQ to Gina McCarthy, Administrator, EPA, dated December 2,
2015 (setting forth TCEQ's interpretation that the opacity and PM
emission limitations in 30 TAC 111.111 and 30 TAC 111.153(b) never
applied to periods of planned MSS activities at coal-fired EGUs
equipped with ESPs as a control device). In their interpretive
letter, TCEQ notes that courts give deference to a state's
interpretation of its own regulations, citing to Florida Power &
Light Co. v. Costle, 650 F.2d 579,588 (5th Cir. 1981) (``Moreover,
it must be emphasized that EPA is to be accorded no discretion in
interpreting state law'').
---------------------------------------------------------------------------
On February 3, 2016, EPA issued an order granting portions of the
2014 petition, objecting to the title V permit for the Pirkey power
plant (Petition Number VI-2014-01) which indicated that the Pirkey
power plant permit and permit record were unclear as to whether TCEQ's
rules created an exemption from the opacity and PM limits in Chapter
111. EPA found that the Petitioners demonstrated that the title V
permit and permit record were unclear regarding whether the SIP opacity
and PM limits applicable to the source apply during periods of planned
MSS, as required. Therefore, the EPA directed TCEQ to revise the title
V permit to ``ensure that it requires that the opacity and PM limits of
30 T.A.C. Sec. Sec. 111.111(a)(1)(B) and 111.153(b) apply during
periods of planned MSS.'' \8\ Subsequent to the order, in 2016, EPA and
TCEQ met to discuss the Pirkey Petition, the MSS issues raised, and a
path forward to address issues raised as they relate to MSS.
---------------------------------------------------------------------------
\8\ Order Granting In Part and Denying in Part Petition for
Objection to Permit, (February 3, 2016).
---------------------------------------------------------------------------
In a March 13, 2017 letter from EPA to the TCEQ,\9\ and in light of
the petitions received and in an effort to resolve issues, EPA and TCEQ
reached an agreement on a path forward by which TCEQ agreed to amend
provisions applying to excess emissions during periods of startup and
shutdown.\10\ Specifically, TCEQ agreed to develop and issue AOs for
the eight affected coal-fired EGUs equipped with ESPs. These AOs would
include enforceable opacity and particulate matter emission limitations
that would apply during planned MSS activities. Once adopted, the state
indicated that it would submit the AOs as part of a SIP revision to the
EPA for approval as source-specific SIP provisions of the Texas SIP.
Upon receipt of the proposed SIP revision, the EPA indicated that it
would evaluate the SIP submission and proceed to initiate rulemaking as
required by Section 110 of the CAA. If the revision complied with the
CAA and were approved by EPA, the AOs would be incorporated into the
Texas SIP as source-specific requirements found at 40 CFR 52.2270(d).
---------------------------------------------------------------------------
\9\ Letter from Guy Donaldson, Associate Director, Air Branch,
Air and Radiation Division, EPA to Steve Hagle, Deputy Director,
Office of Air, TCEQ, dated March 13, 2017. Included in the docket
for this action.
\10\ See March 13, 2017 letter from Guy Donaldson, Associate
Director, Air Branch, Air and Radiation Division, EPA to Steve
Hagle, Deputy Director, Office of Air, TCEQ referencing EPA's 2015
SIP call and SSM Policy published at 80 FR 33840 (June 12, 2015).
---------------------------------------------------------------------------
As a result of the 2016 meeting and letter exchange, TCEQ submitted
the August 2020 SIP submittal. In the submittal, Texas reiterated its
interpretation that the opacity and PM emission restrictions for coal-
fired EGUs equipped with ESPs established in TAC Rule 103.1 and Rule
105.31 were promulgated by the state on the premise that its rules were
based on normal (steady state) or routine operations of ESPs, and
therefore were not applicable during periods of planned MSS at such
sources.\11\
---------------------------------------------------------------------------
\11\ Texas further supported its conclusion by referencing the
State's simultaneous adoption of general rules that implemented a
separate air control strategy for emissions during MSS activities.
See (TACB) General Rules 8 and 12.2, adopted on January 26, 1972,
and effective on March 5, 1972 (the same dates as TACB Rules 103.1
and 105.31 discussed above). TACB General Rule 8 required sources to
provide the State a 10-day advanced notification of excessive
emissions from planned MSS activities while General Rule 12.2
provided sources a discretionary exemption from having to meet
allowable emission limits in other rules, such as Rules 103.1 and
105.31, during reported periods of planned MSS activities.
---------------------------------------------------------------------------
[[Page 71239]]
B. August 20, 2020 SIP Submittal
The August 20, 2020 submittal is intended to address emissions from
certain sources during planned MSS events. The state adopted and
submitted for inclusion in its SIP, AOs for eight coal-fired power
plants (comprised of thirteen EGUs) \12\ equipped with ESPs as the PM
control device. The state developed the AOs to impose requirements for
visible emissions and particulate matter during identified periods of
planned MSS activities. Although the August 20, 2020 submittal
references 30 TAC Chapter 111, specifically 30 TAC 111.111 and 30 TAC
111.153(b), it does not revise the existing language of those two
provisions. Instead, the state included the AOs in the submittal to
establish source-specific alternative opacity and PM requirements to
apply during periods of planned MSS activities. These requirements
include both operational limits on the duration and frequency of
planned MSS periods and additional requirements that the state
characterizes as work practices. The state asserts that these
provisions of the AOs are the same as the opacity and PM operational
limitations and work practices already contained in the permits
addressing emissions during planned MSS activities.\13\ For all other
periods of operation, the affected sources would remain required to
comply with the existing emission limitations set forth in 30 TAC
111.111 and 30 TAC 111.253(b) of the Texas SIP.
---------------------------------------------------------------------------
\12\ As of the date of this notice: Texas Municipal Power Agency
(TMPA) Gibbons Creek Steam Electric Station shut down and
surrendered their permits in 2021; Public Service Company of
Oklahoma (PSCO) Oklaunion Power Station was sold and converted to
natural gas in 2022. The permit was amended to authorize the
conversion; and Southwestern Electric Power Company (SWEPCO) H.W.
Pirkey Power Plant ceased burning coal and ceased operation in March
2023, however they have not surrendered or submitted amendments to
permits. It is unclear whether or not this facility will resume
operations. TCEQ is currently undergoing actions to formally
withdraw the consideration of the Gibbons Creek and Oklaunion AOs
from their SIP submittal.
\13\ Between 2013 and 2016, these Texas EGUs were issued amended
title V/PSD permits to authorize the existing planned MSS activities
and associated emissions. TCEQ states in the SIP submittal that,
``although these planned MSS activities and emissions occurred after
facilities began operation, they had not necessarily been fully
authorized in an NSR permit prior to these permit amendments.'' TCEQ
goes on to explain that these are existing emissions and the permit
amendments did not involve any physical modifications or changes in
method of operation.
---------------------------------------------------------------------------
The state, through the submittal, seeks to include the eight
source-specific AOs into the Texas SIP through incorporation by
reference into 40 CFR 52.2770(d), together with a notation in 40 CFR
52.2270(c) to the effect that the requirements of 30 TAC 111.111(a)(1)
and 30 TAC 111.153(b) apply to all affected sources during all periods
of operation, with the exception of the sources covered by the eight
AOs that would be incorporated into 40 CFR 52.2270(d).
The eight affected sources, which are all EGUs, and their county of
location are listed in Table 1 below.\14\
---------------------------------------------------------------------------
\14\ Since the August 20, 2020 submittal, we note that some of
these eight affected power plants with coal-fired EGUs have either
shutdown/no longer operating or have converted to natural gas as
fuel for power generation. As of the date of this proposal, Texas
has not provided a written request to withdraw these portions of the
August 2020 SIP revision. However, TCEQ informed EPA that they do
plan to submit a request after undergoing the necessary state
administrative processes.
Table 1--The Affected Power Plants, Agreed Order Number, and the Texas
County
------------------------------------------------------------------------
Affected power plants per August Agreed order
20, 2020 SIP submittal No. Texas county
------------------------------------------------------------------------
Southwestern Electric Power Company 2020-0078 Harrison.
(SWEPCO) H.W. Pirkey Power Plant
(See FN 14).
Lower Colorado River Authority 2020-0077 Fayette.
(LCRA) Sam Seymour Fayette Power
Project.
Luminant Generation Company, LLC 2020-0076 Rusk.
Martin Lake Steam Electric Station.
NRG Texas Power, LLC Limestone 2020-0075 Limestone.
Electric Generating Station.
San Miguel Electric Cooperative, 2020-0074 Atascosa.
Inc. San Miguel Electric Plant.
Southwestern Public Service Company 2020-0073 Potter.
(SPS) Harrington Station in Potter
County.
Texas Municipal Power Agency (TMPA) 2020-0178 Grimes.
Gibbons Creek Steam Electric
Station (See FN 14).
Public Service Company of Oklahoma 2020-0072 Wilbarger.
(PSCO) Oklaunion Power Station
(See FN 14).
------------------------------------------------------------------------
As stated earlier, if approved, this SIP revision would amend the
SIP to provide that the sources subject to the 8 AOs in this SIP
revision are required to comply with the stated visible (opacity) and
PM emissions restrictions of 30 TAC 111.111 and 30 TAC 111.153(b)
during all periods of operation except periods of MSS during which time
the requirements of the AOs would apply. Any other sources subject to
30 TAC 111.111 and 30 TAC 111.153(b), not addressed with AOs in this
SIP revision, would be required to comply with 30 TAC 111.111 and 30
TAC 111.153(b) at all times including during periods of MSS.
Each of the AOs is comprised of two main sections titled
Stipulation and Ordering Provisions. The Stipulation section of the AOs
describes the State air agency's authority for regulating the quality
of the State's air and preparing and developing a general,
comprehensive plan for the control of the State's air pollution. It
also explains that under 42 U.S.C. 7410, Texas is required to submit
SIP revisions to EPA for review and approval and that such SIP
revisions cannot interfere with any applicable provision concerning
attainment or any other applicable requirement of the CAA. The Ordering
Provisions section of the AOs state that emissions from the boiler(s),
during each planned MSS, shall comply with the opacity limit in 30 TAC
Sec. 111.111(a)(1) and the PM limit in 30 TAC Sec. 111.153(b), or the
requirements listed in detail and tailored for planned MSS activities.
Each of the AOs is signed by the responsible corporate official and
TCEQ representatives.
II. Applicability of Opacity and PM Limitations in 30 TAC 111
As an initial matter, we acknowledge TCEQ's interpretation of its
regulations is that the existing SIP approved limitations on opacity
and PM contained in 30 TAC 111.111(a)(1) and 30 TAC 111.153(b) do not
apply to the sources subject to this SIP revision during periods of
planned MSS. However, as written, these rules do not contain exemptions
or any other textual indication that they do not apply during periods
of MSS. We do note that the ESPs that are the existing control measures
for PM on these sources have technical constraints that prohibit safe
and effective operations until sufficient temperatures are reached
therefore it is highly improbable that these sources could have met the
limitations required by the rules during MSS as historically
[[Page 71240]]
configured, over the past fifty years. Texas has employed a number of
approaches over the years to address emissions from these sources
during MSS events, including discretionary exemptions, affirmative
defenses, amending the facility permits to authorize the emissions
during MSS events, and now the 2020 SIP submission. While the state's
approaches (and explanations) have changed over time, we are not aware
of any instance that Texas has taken an explicit action to require
companies to meet the requirements set forth in 30 TAC 111.111(a)(1) or
30 TAC 111.153(b) during periods of MSS. In particular, Texas has not
taken an enforcement action against these sources for failure to comply
with the 30 TAC 111 limits during MSS and that called for any of these
sources to upgrade their controls to comply with the limits in the
future. EPA has never taken enforcement action with respect to the
limitations in 30 TAC 111.111(a)(1) and 30 TAC 111.153(b) for emissions
during MSS periods. In the 2020 submission, TCEQ states that these
existing SIP approved rules do not apply to emissions during MSS
periods but that it now intends to address such emissions through the
eight new source specific AOs.
III. Evaluation of Emission Limitations in the SIP Revision
A. SIP Requirements for Emissions Limitations
CAA section 302(k) provides, in relevant part, that ``the terms
`emission limitation' and `emission standard' mean 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 this chapter.'' Further, CAA Section 110(a)(2)(A)
requires that SIPs include ``enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this chapter.'' In
light of these two provisions, EPA's position is, and has been, that
emissions limitations contained in SIPs must be continuous. Because
emission limitations must be continuous, they cannot include gaps or
periods during which sources are not required to limit their emissions
and thus, for example, cannot include exemptions for emissions during
periods of operation such as MSS. While emission limits need to be
continuous, EPA also believes that SIP emission limitations: (i) do not
need to be numerical in format; (ii) do not have to apply the same
limitation (e.g., numerical level) at all times; and (iii) may be
composed of a combination of numerical limitations, specific
technological control requirements and/or work practice requirements,
with each component of the emission limitation applicable during a
defined mode of source operation.
B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)
As noted, the SIP submission at issue in this action raises issues
related to emissions during MSS. The term MSS has considerable overlap
with the events EPA refers to as startup, shutdown, and malfunction
(SSM).\15\ Issues associated with SSM are discussed at length in a SIP
Call that EPA issued to states in 2015 (the 2015 SSM SIP Action).\16\ A
number of parties challenged the 2015 SSM SIP Action on various
grounds. On March 1, 2024, the D.C. Circuit Court of Appeals issued a
decision in Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77. The
case was a consolidated set of petitions for review of the 2015 SSM SIP
Action. The Court granted the petitions in part, vacating the 2015 SSM
SIP Action with respect to specific SIP provisions that the EPA
identified as automatic exemptions, director's discretion provisions,
and affirmative defenses that are functionally exemptions, and denied
the petitions as to other provisions that the EPA identified as
overbroad enforcement discretion provisions or affirmative defense
provisions that would preclude or limit a court from imposing relief in
the case of violations.
---------------------------------------------------------------------------
\15\ The term SSM refers to startup, shutdown or malfunction at
a source. It does not include periods of maintenance at such a
source. An SSM event is a period of startup, shutdown or malfunction
during which there may be exceedances of the applicable emission
limitations and thus excess emissions. Id. at 33843.
\16\ See 80 FR 33840 (June 15, 2015).
---------------------------------------------------------------------------
Specific to this action, EPA notes that the Court vacated the 2015
SSM SIP Action with respect to SIP provisions that contain automatic
exemptions for emissions during SSM events, and that EPA had considered
automatic exemptions for emissions during other modes of operation such
as maintenance to pose the same legal deficiency. In the 2015 SSM SIP
Action, EPA found that certain SIP provisions were inconsistent with
CAA 110(a)(2)(A) and 302(k). CAA 110(a)(2)(A) requires SIPs to
``include enforceable emission limitations and other control measures,
means, or techniques . . . as may be necessary or appropriate to meet
the applicable requirements of this chapter.'' Because the automatic
exemption provisions excluded applicability of emission limitations
during SSM periods, the emission limitations at issue no longer
operated on a ``continuous basis'' as required by CAA 302(k).
Significantly, the Court vacated the 2015 SSM SIP Action as to
automatic exemptions, because the Agency did not first determine that
the particular SIP provisions at issue were ``emissions limitations''
as defined by CAA 302(k), or that it was ``necessary or appropriate''
that these provisions be such an emission limitation under CAA section
110(a)(2)(A). The court's opinion stated that while emission
limitations must be continuous, SIPs can contain ``other control
measures, means, or techniques'' per CAA 110(a)(2)(A), and such other
measures, means, or techniques do not need to meet the CAA's definition
of an ``emission limitation,'' including the requirement that it apply
on a continuous basis. The Court therefore took issue with EPA's SIP
call for SIP provisions with automatic SSM exemptions, on the basis
that ``EPA's rationale breaks down if the measure need not qualify as
an `emission limitation' in the first place,'' and therefore such
measure would need not meet the continuity requirement.\17\
---------------------------------------------------------------------------
\17\ Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 99
(D.C. Cir. 2024).
---------------------------------------------------------------------------
In light of the court's decision, EPA is evaluating the nature of
the SIP provisions at issue in this action. Based on the language of
the existing SIP provisions and the SIP submission at issue in this
action, EPA finds that 30 TAC 111.111(a)(1) and 30 TAC 111.153(b) are
emissions limitations as contemplated under 110(a)(2)(A) and 302(k),
and thus are required to be continuous. Texas, in its submittal,
confirms that it adopted the AOs for these eight sources to ensure that
the SIP provisions are emission limitations that apply continuously.
From the SIP submission in the Executive Summary, ``[t]he proposed SIP
revision would make certain operational limits and work practices for
periods of planned MSS at the listed EGUs federally enforceable so that
emission limitations apply on a continuous basis (at all times of
operation) (see FCAA, Sec. 110(a)(2)(A)--SIP must contain emission
limits, measures, etc. and
[[Page 71241]]
Sec. 302(k)--emission limits apply on a continuous basis to assure
continuous emission reduction). The SIP revision, through the AOs,
would establish a SIP limitation for those periods when the SIP limits
for PM and opacity contained in Sec. 111.111 and Sec. 111.153 do not
apply due to the technical limitations of the ESPs at the power plants
that will be subject to the AOs.'' Thus, TCEQ indicated that it
specifically submitted the SIP revision with the AOs to ensure that the
emission limitations apply on a continuous basis, including during MSS
periods. EPA agrees that these SIP limits for PM and opacity are
emissions limitations that must be continuous under CAA Sec. 302(k).
We also note that the state originally submitted these rules as part of
the initial Texas SIP intended to provide for the attainment and
maintenance of the NAAQS, and EPA originally approved them for this
purpose (See 37 FR 10896), further confirming that these specific rules
should be considered emission limitations and ``necessary and
appropriate to meet the requirements of this chapter,'' in this case
attainment and maintenance of the NAAQS.
IV. Evaluation of Alternative Emission Limits
A. EPA Recommendations for Development of Alternative Emission
Limitations
As previously discussed, Texas has identified 30 TAC 111.111(a)(1)
and 30 TAC 111.153(b) as emission limitations, and EPA agrees with this
description. Accordingly, the rules must be continuous and cannot have
exemptions. The state indicated that it specifically submitted the SIP
revision with the AOs to ensure that the emission limitations apply on
a continuous basis, including during MSS periods.
The revision submitted by Texas takes the form of new Alternative
Emission Limitations (AELs) intended to apply during MSS periods. The
EPA interprets the CAA (80 FR 33913, June 12, 2015) to allow SIP
provisions to include AELs that apply to sources during specific modes
of operation during which the source cannot meet an otherwise
applicable emission limitation, such as may be the case during MSS
periods. An AEL, whether a numerical limitation, technological control
requirement, or work practice requirement, would apply during a
specific mode of operation as a component of the continuously
applicable emission limitation. All components of the resulting
emission limitation must meet the substantive requirements applicable
to the type of SIP provision at issue, must meet the applicable level
of stringency for that type of emission limitation, and must be legally
and practically enforceable.\18\
---------------------------------------------------------------------------
\18\ 80 FR at 33913.
---------------------------------------------------------------------------
EPA has longstanding guidance for AELs, which it reiterated and
restated in the 2015 SSM SIP Action. For the AELs to be approvable
(i.e., meet CAA requirements), alternative requirements applicable to
the source during MSS should be narrowly tailored and take into account
considerations such as the technological limitations of the specific
source category and the control technology that is feasible during
startup and shutdown.\19\ As articulated in the 2015 SSM SIP Action,
the EPA recommends giving consideration to the following seven specific
criteria for states when developing AELs in SIP provisions that apply
during modes of operation such as MSS: \20\ (1) The revision is limited
to specific, narrowly defined source categories using specific control
strategies; (2) Use of the otherwise applicable control strategy for
this source category is technically infeasible during specific modes of
operation such as startup or shutdown; (3) The AEL requires that the
frequency and duration of operation in MSS mode are minimized to the
greatest extent practicable; (4) As part of its justification of the
SIP revision, the state analyzes the potential worst-case emissions
that could occur during MSS based on the applicable AEL; (5) The AEL
requires that all possible steps are taken to minimize the impact of
emissions during MSS on ambient air quality; (6) The AEL requires that,
at all times, the facility is operated in a manner consistent with good
practice for minimizing emissions and the source uses best efforts
regarding planning, design, and operating procedures; and (7) The AEL
requires that the owner or operator's actions during MSS periods are
documented by properly signed, contemporaneous operating logs or other
relevant evidence.
---------------------------------------------------------------------------
\19\ Id.
\20\ June 12, 2015 (80 FR 33980).
---------------------------------------------------------------------------
We also note that AELs applicable during modes of operation such as
startup and shutdown cannot allow an inappropriately high level of
emissions or an effectively unlimited or uncontrolled level of
emissions, as those would constitute impermissible de facto exemptions
for emissions during certain modes of operation.\21\ EPA notes that in
order to be continuous, an emission limitation cannot have periods
during which a source's emissions are uncontrolled, and this would
include modes of operation during which the ostensible method of
controlling emissions merely consists of imposing a time limit, i.e.,
an exemption allowing effectively uncontrolled emissions for a shorter
period of time remains an exemption.
---------------------------------------------------------------------------
\21\ June 12, 2015 (80 FR 33980).
---------------------------------------------------------------------------
B. EPA's Evaluation
After reviewing the information in the Texas SIP submittal, EPA has
identified the following concerns:
1. No Limit on Frequency of Startup or Shutdown Events
The requirements in the AOs limit the duration of a normal (as
opposed to an extended) planned startup or shutdown to a number of
hours per event (48 hours for all units with the exception of Martin
Lake units which are limited to 24 hours per normal startups) but
provides no limit on the frequency of these events. During these times,
the only requirements that apply are the work standards concerning
placing the ESP in service as soon as practicable during startup or
keeping the ESP in service as late as practicable during shutdown.
There is no requirement for the sources to limit emissions during such
events in any other way. PM emissions during these events can be much
higher than normal emissions and there is no limitation on the number
of times during the year a boiler can go through a planned startup or
shutdown. The SIP provides no discussion on the historical frequency of
these events or why there is no limitation on the total number of hours
a year, or times per year, these events may occur.\22\ This is of
particular concern as utilization of coal-fired power generation has
become more variable and planned startup and shutdown events may occur
more frequently.\23\ In EPA's view, the approach adopted by the state
in the SIP revision would in effect constitute exemptions from the
opacity and PM
[[Page 71242]]
limits in the existing rules, by creating periods of time during which
the emissions from these sources would be otherwise uncontrolled. The
form of work practices that the state has imposed, e.g., that the
source operates the ESP in accordance with manufacturer's instructions,
does not effectively reduce emissions during such periods.
---------------------------------------------------------------------------
\22\ We note however, the total amount of incremental time that
extended startups or shutdowns exceed the duration of a normal
startup or shutdown is limited to a number of hours per year,
providing some limitation on the frequency and duration of these
extended events.
\23\ National Emission Standards for Hazardous Air Pollutants:
Coal- and Oil-Fired Electric Utility Steam Generating Units Review
of the Residual Risk and Technology Review, 89 FR 38534 (May 7,
2024), ``While coal-fired EGUs have historically provided baseload
generation, they are being dispatched much more as load following
generating sources due to the shift to more available and cheaper
natural gas and renewable generation. As such, traditional
generation assets--such as coal-fired EGUs--will likely continue to
have more startup and shutdown periods, more periods of transient
operation as load following units, and increased operation at
minimum levels, all of which can produce higher PM emission rates.''
---------------------------------------------------------------------------
2. Consideration of Additional Steps and Practices To Minimize
Emissions
With respect to factors 5 and 6, AELs should require that all
possible steps are taken to minimize the impact of emissions during
modes of operation such as MSS on ambient air quality and to require
that, at all times, the facility is operated in a manner consistent
with good practice for minimizing emissions and the source uses best
efforts regarding planning, design, and operating procedures. We
propose to find that the Texas SIP submittal and AOs do not address the
feasibility or availability of any specific measures to minimize
emissions during startup or shutdown. The only requirement is a work
practice that consists of placing the ESP into service as soon as
practicable or remove the ESP from service as late as possible. Nothing
in the August 20, 2020 submittal indicates that technological or
economic limitations prevent affected sources from using additional
measures to limit emissions during planned MSS events that would
address requirements to minimize emissions during such periods and be
practically enforceable. This omission is particularly concerning, when
planned MSS is an intentional, predictable event and within the control
of the source. Because of the predictability of these events,
alternative means of limiting emissions appear to be available such as
use of natural gas or other cleaner burning fuels as auxiliary fuel to
the maximum extent possible during startup operations until the
required operating temperatures of the ESP are met and the ESP can be
engaged. In addition, the submittal contains no analysis indicating
that the use of another control device for PM emissions (for example,
fabric filter baghouse) is not feasible, either.
Furthermore, to the extent that these sources already do utilize
fuel oil or natural gas in the start-up process, there is no discussion
in the SIP submission or requirement in the AOs that addresses the use
of alternative fuels during startup and when coal combustion can begin
with respect to operation of the ESPs. PM emissions are likely highest
when coal is introduced into the boiler but the ESP has not yet been
engaged. Utilizing natural gas (or fuel oil when natural gas is not an
available fuel) to the maximum extent possible to bring equipment to
temperature would serve to minimize emissions during startup and could
allow for ESPs to reach necessary conditions for operation at the time
coal is introduced into the boilers. In fact, EPA's Mercury and Air
Toxics Standards (MATS) rule for power plants published February 16,
2012, and amended on May 7, 2024, contains additional requirements for
particulate control for these units. Specific to periods of startup and
shutdown, the MATS requirements include work practice standards that
requires sources to have sufficient clean fuel capacity to startup and
warm the facility to the point where the primary PM controls (e.g.,
ESPs) can be brought online at the same time as the addition of the
coal to the EGU.
3. Enforceability of the AELs
Clean Air Act Section 110(a)(2)(A) requires that SIPs include
enforceable emission limits. As discussed previously, Texas stated that
the AELs are designed to provide continuously effective limits on PM
and opacity through all modes of operation, with chapter 111
requirements to apply during routine operations and the AELs to apply
during MSS periods. SIP provisions, including emission limitations
under Section 110(a)(2)(A), must be both legally and practically
enforceable.
One EPA concern with the state's approach in the AOs is that it
does not provide for adequate monitoring, recordkeeping and reporting.
The monitoring and recordkeeping requirements in the AOs are not
sufficient to ensure that all the data necessary for demonstrating
compliance is recorded and available for review. The AOs require
recordkeeping to identify periods of planned MSS, the opacity measured
by the continuous opacity monitoring system (COMS) for the duration of
the planned MSS activities, and the work practices followed during the
planned MSS activities. However, they do not specifically identify and
require recordkeeping of the parameters used to identify when startup
or shutdown periods end or begin, such as temperature, unit load or ESP
operating parameters, nor do they specifically require recordkeeping of
the parameters monitored (e.g. air heater outlet temperature, drum
metal temperature, when solid fuel is burned) to determine when the ESP
should be placed into or removed from service during these MSS periods.
These specific records are necessary to determine compliance with the
definitions of when startup and shutdown periods begin or end and
compliance with the AO requirements on timing of when the ESPs are
placed into or removed from service. In addition, the AOs only require
facilities to provide records upon request by the TCEQ or any other air
pollution control agency with jurisdiction. The AOs do not require
sources to make any other periodic report related to compliance with
the AO provisions. EPA cannot determine the enforceability of these
rules due to these monitoring, recordkeeping, and reporting gaps. Thus,
we are proposing disapproval and taking comment on whether there is
other relevant information or analysis that would show that these
limits are enforceable notwithstanding the lack of monitoring,
recordkeeping, and reporting in the AOs.
EPA also proposes to find that the state's conditions in the AOs
are too subjective to provide for practical enforceability. The AELs
must be accompanied by appropriate methods and conditions to determine
compliance that are fully enforceable (specifying clear, unambiguous,
and measurable requirements for which compliance can be practicably
determined) and replicable (the procedures for determining compliance
which are sufficiently specific and non-subjective so that two
independent entities applying the procedures would obtain the same
result). Moreover, the work practices that apply during MSS events must
be practically enforceable and it must be clear when the units are in
MSS mode, and thus not subject to the otherwise applicable numerical
limits specified in TAC Ch. 111.
a. Work Practices
The AOs contained in Texas' submittal all include a requirement
that the sources must comply with the boiler and ESP manufacturer's
operating procedures or the owner/operator's written Standard Operating
Procedures (SOP) manual and to operate in a manner consistent with
those procedures to minimize opacity.\24\ It is unclear what procedures
should be followed if requirements in the SOP are inconsistent with the
manufacturer's operating procedures. It is likely that the lengthy
operating experience at these units has resulted in the refinement of
operating procedures over the many
[[Page 71243]]
years since the manufacturers designed the equipment and developed
their recommended operating procedures. Furthermore, as the owner/
operator's SOP can be modified over time, the required work practices
cannot be considered permanent and enforceable. For a measure to be
relied on as an emission limitation, it must be permanent which means
it cannot be revised absent following the SIP revision process. Thus,
the AOs need to contain more specific conditions to identify what steps
must be followed to engage and operate the ESPs during these events.
---------------------------------------------------------------------------
\24\ As a reminder, several of these sources, as of the time of
this notice, have ceased operation. See FN 14.
---------------------------------------------------------------------------
As summarized in Table 2, the AOs vary in the specificity and
conditions for when the ESPs should be placed into service. The
Oklaunion AO specifies that the ESP should be placed into service
during planned startups ``once the outlet gas temperature to the ESP is
greater than 300 [deg]F.'' This is a clear, unambiguous and measurable
requirement and compliance can be verified by reviewing the outlet gas
temperature and when the ESP is brought online. The AOs for the other
seven facilities lack this level of specificity and are not practically
enforceable because they require the ESP to be placed into service ``as
soon as practical.'' For Gibbons Creek, Sam Seymour, Limestone and San
Miguel, the ESP is to be placed into service as soon as practical after
the air heater outlet temperature is within a specified 100 degree F
range. It is unclear why a range is specified rather than a minimum
temperature or if there are other measurable parameters, such as flow
rate or drum metal temperature, that are being evaluated to determine
when it would be ``practical'' to place the ESP into service.
Similarly, the AO for Harrington specifies that the ESP be placed into
service as soon as practical after solid fuel is being burned. It is
unclear what other measurable parameters, such as ESP inlet
temperature, is being evaluated to determine when it would be
``practical'' to place the ESP into service. Finally, for Martin Lake
and Pirkey, there is no additional specification for when the ESP is
placed into service other than ``as soon as practical.''
The AOs also vary in the specificity and conditions for when the
ESPs should be removed from service. For Harrington, the AO specifies
that the ESP should be kept in service while the unit is burning solid
fuel. For Sam Seymour, San Miguel, Oklaunion and Pirkey, the AOs
provide no specificity to the conditions that determine when the ESP
should be removed from service and only require that the ESP be removed
from service ``as late as possible.'' For Gibbons Creek, Limestone and
Martin Lake, the ESP is to be removed from service as late as possible
after the air heater outlet temperature is within a large, specified
temperature range. It is unclear why a range is specified rather than a
minimum temperature or if there are other measurable parameters, such
as flow rate or drum metal temperature, that are being evaluated to
determine when the ESP should be removed from service. The AOs for
these facilities lack specificity and are not practically enforceable.
Table 2--Summary of Requirements for Placing ESP Into and Removing ESP
From Service
------------------------------------------------------------------------
Facility Requirements
------------------------------------------------------------------------
Gibbons Creek................ placing the ESP into service as soon as
practical during planned startups or
removing the ESP from service as late as
possible during planned shutdowns, once
the air heater outlet temperature is
between 200 and 300 degrees F, but not
longer than the durations during
startups identified in Paragraph 12.A.
Harrington................... When solid fuel is being burned, place
the ESP into service as soon as
practical during planned startups, but
not longer than the durations identified
in Paragraph 12.A. and keep the ESP in
service while the unit is burning solid
fuel.
Sam Seymour.................. placing the ESP into service as soon as
practical during planned startups once
the ESP inlet temperature (air heater
outlet temperature) is between 150 and
250 degrees F and removing the ESP from
service as late as possible during
planned shutdowns, but not longer than
the durations identified in Paragraph
12.A.
Limestone.................... placing the ESP into service as soon as
practical during planned startups or
removing the ESP from service as late as
possible during planned shutdowns, once
the air heater outlet temperature is
between 200 and 300 degrees F, but not
longer than the durations identified in
Paragraph 12.A.1.
Martin Lake.................. placing the Boilers into service as soon
as practical during planned startups,
but not longer than the durations
identified in Paragraph 12.A.1. During
shutdown, Luminant will operate in a
manner consistent with the Procedures to
minimize opacity by removing the ESP
from service as late as possible during
planned shutdowns, once the air heater
outlet temperature is between 180 and
260 degrees F, but not longer than the
durations identified in Paragraph
12.A.2.
San Miguel................... placing the ESP into service as soon as
practical during planned startups once
the prime inlet air heater is between
250 and 350 degrees F and removing the
ESP from service as late as possible
during planned shutdowns, but not longer
than the durations identified in
Paragraph 12.A.
Oklaunion.................... placing the ESP into service during
planned startups once the outlet gas
temperature to the ESP is greater than
300 [deg]F, or removing the ESP from
service as late as possible during
planned shutdowns.
Pirkey....................... placing the ESP into service as soon as
practical during planned startups or
removing the ESP from service as late as
possible during planned shutdowns.
------------------------------------------------------------------------
b. Duration of Startup
The AO requirements for these facilities provide definitions for
when the startup period ends that lack specificity such that it is not
clear when the units are in startup mode and when they should be
complying with the otherwise applicable numerical emission limitations
in TAC Chapter 111. The definitions for when startup ends lack clear,
unambiguous and measurable requirements by which compliance could be
practicably determined.
[[Page 71244]]
Table 3--Startup Durations and Definitions in AOs
----------------------------------------------------------------------------------------------------------------
Duration of normal Extended startup
Facility startup limitation Startup begins Startup ends
----------------------------------------------------------------------------------------------------------------
Gibbons Creek................... 2,880 minutes..... 600 hr/yr......... forced draft fans boiler reaches the
start. lowest
sustainable load
(LSL) and
maintains that
load (or greater
load) for 60
consecutive
minutes and ESP
operations have
been optimized.
Harrington...................... 48 hours.......... 300 hr/yr......... Fans placed into unit reaches a
service. sustained load of
150 megawatts.
Sam Seymour..................... 48 hours.......... 600 hr/yr......... fuel oil igniters Boiler is released
are started. to the LCRA
Generation Desk
for automatic
dispatch.
Limestone....................... 2,880 minutes..... 600 hr/yr......... forced draft fans utility boiler
start. reaches 400
megawatts (MW)
and maintains
that load (or
greater load) for
60 consecutive
minutes and ESP
operations have
been fully
optimized.
Martin Lake..................... 24 hours.......... 900 hr/yr induced draft fans Boiler reaches
(combined on 3 start operation. stable load and
units). the electrostatic
precipitator
(ESP) operation
has been fully
optimized.
San Miguel...................... 2,880 minutes..... 600 hr/yr......... induced draft fans lowest sustainable
start operation. load (LSL) and
maintains that
load (or greater
load) for 60
consecutive
minutes and ESP
operations have
been fully
optimized.
Oklaunion....................... 2,880 minutes..... 18,000 minutes.... fans are placed in lowest sustainable
service. load on lignite
for at least 60
consecutive
minutes while
coal is being
fired.
Pirkey.......................... 2,880 minutes..... 18,000 minutes.... fans are placed in lowest sustainable
service. load on lignite
for at least 60
consecutive
minutes while
coal is being
fired.
----------------------------------------------------------------------------------------------------------------
The AOs for Gibbons Creek and San Miguel define the end of startup
as when the ``boiler reaches the lowest sustainable load (LSL) and
maintains that load (or greater load) for 60 consecutive minutes and
ESP operations have been optimized.'' The AO for Martin Lake defines
the end of startup as when the ``[b]oiler reaches stable load and the
electrostatic precipitator (ESP) operation has been fully optimized.''
However, what constitutes the LSL or stable load is not specified in
the requirements. In addition, the startup event does not end until the
ESP operations have been optimized, but there is no additional
specificity to determine when the ESP would be considered optimized.
One can imagine that ESP operations with emissions above the Chapter
111 numerical levels would be considered non-optimized. For Martin
Lake, the AO also fails to identify what constitutes a stable load so
it is unclear what duration of operation at that load level is
considered stable, such that the startup would be deemed to have ended.
Similarly, the AOs for Oklaunion and Pirkey define the end of startup
as ``lowest sustainable load (LSL) on lignite for at least 60
consecutive minutes while coal is being fired'' but do not define the
LSL. We also note that it is not clear how the LSL ``on lignite''
applies to the Oklaunion unit that has historically burned
subbituminous coal. While the AO for Harrington does define the
necessary load level (150 MW) it also does not identify what duration
of operation at that load level is to be considered ``sustained.'' The
AO for Limestone specifies both the load level (400 MW) and the
duration (60 minutes) but also requires that the ESP operations are
``fully optimized'' before the startup event is considered ended. The
AO for Sam Seymour defines the end of startup as when the ``the boiler
is released to the LCRA generation desk for automatic dispatch.'' The
AO provides no additional details to identify the conditions such as
sustained load to identify when the boiler would be released for
dispatch to demonstrate that this condition is consistent with the goal
of minimizing the duration of the event and startup emissions. In
addition, while all other AOs define the beginning of startup as when
the fans are placed into service, the AO for Sam Seymour defines the
beginning of startup when the fuel oil igniters are placed in service.
It is not clear what limits the source is required to meet when the
fans are brought online before the igniters are placed into service.
c. Duration of Shutdown
The AO requirements for these facilities provide definitions for
when the shutdown period begins that lack specificity such that it is
not clear when the units are in shutdown mode or when they should be
complying with the otherwise applicable numerical emission limitations
in TAC Chapter 111. The definitions for when shutdown begins lack
clear, unambiguous and measurable requirements by which compliance
could be practicably determined.
Table 4--Shutdown Durations and Definitions in AOs
----------------------------------------------------------------------------------------------------------------
Duration of normal Extended shutdown
Facility shutdown limitation Shutdown begins Shutdown ends
----------------------------------------------------------------------------------------------------------------
Gibbons Creek................... 600 minutes....... 600 hr/yr......... load drops below When the boiler
LSL following water circulating
dispatch request pump manifold
for a shutdown. temperature
reaches 180
degrees
Fahrenheit (F).
Harrington...................... 36 hours.......... .................. when the generator when the generator
breaker is opened breaker is open
or at the point and main fuel is
of main fuel no no longer being
longer being fired in the
fired in the boiler.
boiler, whichever
is earlier..
[[Page 71245]]
Sam Seymour..................... 12 hours.......... 600 hr/yr......... when the LCRA temperature has
Generation Desk been reached that
releases control allows personnel
of the boiler to to enter the
the plant for the structure and
purpose of a conduct
shutdown. maintenance
activities.
Limestone....................... 2,880 minutes..... 600 hr/yr......... when load drops when the drum
below the lowest metal temperature
sustainable load reaches 200
(LSL) following degrees F.
dispatch request
for a shutdown.
Martin Lake..................... 24 hours.......... 900 hr/yr when the ESP is when a temperature
(combined on 3 partially or has been reached
units). completely de- that allows
energized due to personnel to
reaching its enter the
minimum operating structure and
temperature. conduct
maintenance
activities.
San Miguel...................... 2,880 minutes..... 600 hr/yr......... load drops below ends when the
the LSL following average lower
the permit drum metal
holder's request temperature
to dispatch for a reaches 200
shutdown. degrees
Fahrenheit (F) or
when the induced
draft fans are
removed from
service by the
plant operators.
Oklaunion....................... 2,880 minutes..... .................. when the Boiler 24 hours after
has dropped below combustion has
the lowest ceased.
sustainable load
for at least 30
consecutive
minutes.
Pirkey.......................... 2,880 minutes..... .................. when the Boiler 24 hours after
has dropped below combustion has
the lowest ceased.
sustainable load
for at least 30
consecutive
minutes.
----------------------------------------------------------------------------------------------------------------
The duration of shutdown events are limited in the AOs to a
specific amount of time, however, the time periods vary between the
facilities from 10 hours to 48 hours. There is no discussion as to how
the duration of the allowed shutdown period was determined nor
justification for how a shutdown period lasting up to 48 hours is
consistent with the goal of minimizing the duration of the event and
associated emissions.
The AOs for Gibbons Creek, Limestone and San Miguel define the
start of a shutdown as when the ``load drops below LSL following
dispatch request for a shutdown'' and the AOs for Oklaunion and Pirkey
define the start of a shutdown as when the boiler ``has dropped below
the lowest sustainable load for at least 30 consecutive minutes.''
However, what constitutes the LSL is not specified in the requirements.
For Martin Lake, the AO defines the start of shutdown as ``when the ESP
is partially or completely de-energized due to reaching its minimum
operating temperature'' but does not identify the minimum operating
temperature. For Sam Seymour, the AO defines shutdown as beginning when
the LCRA Generation Desk releases control of the boiler to the plant
for the purpose of a shutdown but provides no additional details to
identify the conditions such as sustained load to identify when the
boiler would be released for shutdown. For Harrington, the AO defines
shutdown as beginning when the generator breaker is opened or at the
point of main fuel no longer being fired in the boiler, whichever is
earlier, but provides no additional details to identify the conditions
when the breaker is to be opened. In sum, to be legally and practically
enforceable, the AOs should clearly define the moment when the
requirements switch from compliance with 30 TAC 111.111(a)(1) and 30
TAC 111.153(b) to compliance with the alternative emission limitations
that apply during shutdown in the AOs.
d. EPA's Conclusion on the Enforceability of AELs
In sum, to be legally and practically enforceable, the AOs should
contain enforceable limitations on the duration of start-up and
shutdown emissions and clearly define the moment when the requirements
switch from compliance with the alternative emission limitations for
such modes of operation in the AOs to compliance with 30 TAC
111.111(a)(1) and 30 TAC 111.153(b). These AO restrictions as written,
however, are not practically enforceable. Instead, the AOs, due to
various ambiguities as discussed above, are unclear as to the
procedures an operator must follow to be in compliance and at what
point in the startup or shutdown process, the facility must switch from
compliance with the AO to compliance with 30 TAC 111.111(a)(1) and 30
TAC 111.153(b) as required for routine operation.
4. Planned Offline and Online Maintenance Activities
In addition to the work practices and operational limits for
planned startup and shutdown, the AOs contain provisions specific to
planned online or offline maintenance activities, such as boiler
general maintenance, de-slagging, combustion optimization, and flue gas
conditioning.\25\ However, unlike the provisions for startup and
shutdown, the AOs do not include any work practices that the sources
are required to apply during these periods. For these activities, the
AOs ``authorize'' periods of opacity greater than 20% for a number of
hours per year (e.g., 535 hrs/year for each unit at Martin Lake). The
only ostensible requirement during maintenance periods appears to be
that the source operate the boiler and its ESP in accordance with good
air pollution control practices, safe operating practices, and
protection of the facility and associated air pollution control
equipment. The generic general duty that an owner or operator shall
operate a source consistent with safety and good air pollution control
practices for minimizing emissions is not sufficient to identify what
these specific practices might be across the range of maintenance
activities to which the AOs apply, and thus such general duty clauses
are not practically enforceable as a limitation on emissions during
these activities.\26\ The AOs and SIP submission contain no discussion
of the potential emissions from these activities, or consideration of
other forms of alternative emission limitations
[[Page 71246]]
such as alternative numerical opacity limits that could potentially
apply during these maintenance periods that would provide for a
quantifiable and more practically enforceable limitation. Furthermore,
EPA notes that the AOs contain no limitations as to the duration or
frequency of individual events, the result being that it is possible
that no opacity limitation could apply for a period of several hundred
hours.
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\25\ For example, See AO for Martin Lake, provision 12.C.1-8.
\26\ See 80 FR at 33,889-890, 33,893, and 33,903-904 for
additional rationale describing why general duty clauses cannot
operate on their own to fill exemptions in otherwise applicable
emission limitations.
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As stated in EPA's June 12, 2015 SSM policy, states may not create
SIP provisions that contain automatic or discretionary exemptions from
otherwise applicable emission limitations during periods such as
``maintenance,'' ``load change,'' ``soot blowing,'' ``on-line operating
changes'' or other similar normal modes of operation. Like startup and
shutdown, the EPA considers all of these to be modes of normal
operation at a source, for which the source can be designed, operated
and maintained in order to meet applicable emission limitations and
during which the source should be expected to control and minimize
emissions. Excess emissions that occur during planned and predicted
periods should be treated as violations of applicable emission
limitations. Accordingly, exemptions for emissions during these periods
of normal source operation are not consistent with CAA requirements.
It may be appropriate for an air agency to establish an alternative
numerical limitation or other form of control measure that applies
during these modes of source operation, as for startup and shutdown
events, but any such alternative emission limitation should be
developed using the same criteria that the EPA recommends for
alternative emission limitations applicable during startup and
shutdown. Similarly, any SIP provision that includes an emission
limitation for sources that includes alternative emission limitations
applicable to modes of operation such as ``maintenance,'' ``load
change,'' ``soot blowing'' or ``on-line operating changes'' must also
meet the applicable level of stringency for that type of emission
limitation and be practically and legally enforceable.\27\ So EPA finds
that the general duty provisions that apply during Maintenance
activities in the AOs are not practically enforceable and thus cannot
be approved.
---------------------------------------------------------------------------
\27\ See 80 FR at 33978.
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V. Proposed Action
For the reasons discussed in this notice, the EPA is proposing to
disapprove a revision to the Texas SIP submitted by TCEQ on August 20,
2020 (concerning opacity and PM emissions during planned MSS activities
for certain EGU sources equipped with ESPs as the PM control device).
These EGUs are the Southwestern Electric Power Company (SWEPCO) H.W.
Pirkey Power Plant; the Lower Colorado River Authority (LCRA) Sam
Seymour Fayette Power Project; the Luminant Generation Company, LLC
Martin Lake Steam Electric Station; the NRG Texas Power, LLC Limestone
Electric Generating Station; the San Miguel Electric Cooperative, Inc.
San Miguel Plant; the Southwestern Public Service Company (SPS)
Harrington Station; the Texas Municipal Power Agency (TMPA) Gibbons
Creek Steam Electric Station; and the Public Service Company of
Oklahoma (PSCO) Oklaunion Power Station.
The effect of this disapproval, if finalized, is that the Agreed
Orders will not be incorporated into the SIP. There will be no
sanctions or FIP clocks started by this action if finalized.
VI. Environmental Justice Considerations
Information on Executive Order 12898 (Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994) and how EPA defines
environmental justice (EJ) can be found in the section, below, titled
``VII. Statutory and Executive Order Reviews.'' For informational and
transparency purposes only, the EPA is including additional analysis of
environmental justice associated with this proposed action for the
purpose of providing information to the public.
EPA conducted screening analyses using EJSCREEN, an environmental
justice mapping and screening tool that provides EPA with a nationally
consistent dataset and approach for combining various environmental and
demographic indicators.\28\ The EJSCREEN tool presents these indicators
at a Census block group (CBG) level or a larger user-specified
``buffer'' area that covers multiple CBGs.\29\ An individual CBG is a
cluster of contiguous blocks within the same census tract and generally
contains between 600 and 3,000 people. EJSCREEN is not a tool for
performing in-depth risk analysis, but is instead a screening tool that
provides an initial representation of indicators related to
environmental justice and is subject to uncertainty in some underlying
data (e.g., some environmental indicators are based on monitoring data
which are not uniformly available; others are based on self-reported
data).\30\ To help mitigate this uncertainty, we have summarized
EJSCREEN data within larger ``buffer'' areas covering multiple block
groups and representing the average resident within the buffer areas
surrounding the sources. We present EJSCREEN environmental indicators
to help screen for locations where residents may experience a higher
overall pollution burden than would be expected for a block group with
the same total population. These indicators of overall pollution burden
include estimates of ambient particulate matter (PM2.5),
ozone, nitrogen dioxide, and diesel particulate matter concentration, a
score for traffic proximity and volume, percentage of pre-1960 housing
units (lead paint indicator), and scores for proximity to Superfund
sites, risk management plan (RMP) sites, and hazardous waste
facilities.\31\ EJSCREEN also provides information on demographic
indicators, including percent low-income, unemployment, communities of
color, linguistic isolation, and education.
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\28\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
\29\ See https://www.census.gov/programs-surveys/geography/about/glossary.html.
\30\ In addition, EJSCREEN relies on the five-year block group
estimates from the U.S. Census American Community Survey. The
advantage of using five-year over single-year estimates is increased
statistical reliability of the data (i.e., lower sampling error),
particularly for small geographic areas and population groups. For
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
\31\ For additional information on provides details on the data
and methods used to create the indicators and indexes in EJSCREEN,
see ``EJSCREEN Environmental Justice Mapping and Screening Tool:
EJSCREEN Technical Documentation'' at https://www.epa.gov/ejscreen/technical-information-and-data-downloads.
---------------------------------------------------------------------------
The EPA prepared EJSCREEN reports covering a buffer area of
approximately 6-mile radius around each affected EGU. Tables 5 and 6
present a summary of results from the EPA's screening-level analysis
for the areas surrounding the affected EGUs in Texas compared to the
U.S. as a whole. The full, detailed EJSCREEN report is provided in the
docket for this rulemaking.
[[Page 71247]]
Table 5--EJSCREEN Analysis Summary for Affected EGU Facilities Part 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Values for buffer areas (radius) for each affected EGU and the U.S. (percentile
within U.S. where indicated)
Variables ------------------------------------------------------------------------------------
Fayette Gibbons Creek Harrington Pirkey U.S.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollution Burden Indicators:
Particulate matter (PM2.5), annual average..................... 8.32 [mu]g/m\3\ 8.38 [mu]g/m\3\ 5.91 [mu]g/m\3\ 8.89 [mu]g/m\3\ 8.45 [mu]g/m\3\
(56%ile) (58%ile) (5%ile) (72%ile) (--)
Ozone, annual average of the top ten 8-hour daily maximums..... 61.1 ppb 63.1 ppb 59.6 ppb 56.3 ppb 61.8 ppb
(53%ile) (63%ile) (46%ile) (29%ile) (--)
Nitrogen dioxide, annual average............................... 4.9 ppb 4.3 ppb 7.7 ppb 3.7 ppb 7.8 ppb
(22%ile) (17%ile) (51%ile) (11%ile) (--)
Diesel particulate matter...................................... 0.0603 [mu]g/ 0.0553 [mu]g/ 0.172 [mu]g/ 0.105 [mu]g/ 0.191 [mu]g/
m\3\ m\3\ m\3\ m\3\ m\3\
(12%ile) (10%ile) (55%ile) (30%ile) (--)
Toxic releases to air score *.................................. 74 82 260 10000 4,600
(21%ile) (22%ile) (36%ile) (93%ile) (--)
Traffic proximity and volume score *........................... 27,000 12,000 520,000 110,000 1,700,000
(8%ile) (5%ile) (40%ile) (18%ile) (--)
Lead paint (percentage pre-1960 housing)....................... 0.26% 0.037% 0.44% 0.17% 0.3%
(54%ile) (23%ile) (70%ile) (45%ile) (--)
Superfund proximity score *.................................... 0 0 0.015 0.0065 0.39
(0%ile) (0%ile) (56%ile) (56%ile) (--)
RMP proximity score *.......................................... 0.12 0.012 1.4 0.19 0.57
(36%ile) (28%ile) (87%ile) (43%ile) (--)
Hazardous waste proximity score *.............................. 0 0 0.45 0.096 3.5
(0%ile) (0%ile) (32%ile) (17%ile) (--)
Underground storage tank proximity score *..................... 0.073 0.022 0.82 0.27 3.6
(32%ile) (29%ile) (49%ile) (39%ile) (--)
Wastewater discharge score *................................... 2,400 64 0.57 31 700,000
(80%ile) (51%ile) (19%ile) (45%ile) (--)
Drinking water noncompliance, points........................... 8.5 0.15 0.97 0.87 2.2
(92%ile) (74%ile) (77%ile) (77%ile) (--)
Demographic Indicators:
People of color population..................................... 15% 19% 72% 26% 40%
(30%ile) (36%ile) (79%ile) (44%ile) (--)
Low-income population.......................................... 15% 17% 55% 29% 30%
(27%ile) (32%ile) (86%ile) (53%ile) (--)
Unemployment rate.............................................. 2% 3% 4% 4% 6%
(36%ile) (44%ile) (51%ile) (56%ile) (--)
Linguistically isolated population............................. 0% 2% 10% 7% 5%
(0%ile) (62%ile) (85%ile) (79%ile) (--)
Population with less than high school education................ 4% 10% 35% 12% 11%
(30%ile) (58%ile) (94%ile) (64%ile) (--)
Population under 5 years of age................................ 3% 3% 7% 6% 5%
(34%ile) (34%ile) (70%ile) (62%ile) (--)
Population over 64 years of age................................ 31% 17% 11% 11% 18%
(89%ile) (54%ile) (29%ile) (27%ile) (--)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The traffic proximity and volume indicator is a score calculated by daily traffic count divided by distance in meters to the road. The Superfund
proximity, RMP proximity, and hazardous waste proximity indicators are all scores calculated by site or facility counts divided by distance in
kilometers. The underground storage tank proximity indicator is the weighted count within a 1,500-foot block group. The toxic releases to air
indicator is the modeled toxicity-weighted concentration. The wastewater discharge indicator is the modeled toxicity-weighted concentrations divided
by distance in meters.
Table 6--EJSCREEN Analysis Summary for Affected EGU Facilities Part 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Values for buffer areas (radius) for each affected EGU and the U.S. (percentile
within U.S. where indicated)
Variables ------------------------------------------------------------------------------------
Limestone Martin Lake Oklaunion San Miguel U.S.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollution Burden Indicators:
Particulate matter (PM2.5), annual average..................... 8.13 [mu]g/m\3\ 8.8 [mu]g/m\3\ 6.94 [mu]g/m\3\ 8.38 [mu]g/m\3\ 8.45 [mu]g/m\3\
(49%ile) (69%ile) (17%ile) (58%ile) (--)
Ozone, annual average of the top ten 8-hour daily maximums..... 61 ppb 56.9 ppb 57.2 ppb 61.7 ppb 61.8 ppb
(53%ile) (32%ile) (33%ile) (56%ile) (--)
Nitrogen dioxide, annual average............................... 3.7 ppb 3.2 ppb 3.6 ppb 2.9 ppb 7.8 ppb
(11%ile) (8%ile) (11%ile) (6%ile) (--)
Diesel particulate matter...................................... 0.0574 [mu]g/ 0.0572 [mu]g/ 0.0496 [mu]g/ 0.0384 [mu]g/ 0.191 [mu]g/
m\3\ m\3\ m\3\ m\3\ m\3\
(11%ile) (11%ile) (8%ile) (4%ile) (--)
Toxic releases to air score *.................................. 320 9400 32 92 4,600
(39%ile) (92%ile) (14%ile) (23%ile) (--)
Traffic proximity and volume score *........................... 12,000 9,900 59,000 28,000 1,700,000
(5%ile) (4%ile) (13%ile) (8%ile) (--)
Lead paint (percentage pre-1960 housing)....................... 0.061% 0.12% 0.51% 0.08% 0.3%
(29%ile) (38%ile) (74%ile) (32%ile) (--)
Superfund proximity score *.................................... 0 0.014 0 0 0.39
(0%ile) (56%ile) (0%ile) (0%ile) (--)
RMP proximity score *.......................................... 0.14 0.18 0.32 0.084 0.57
(39%ile) (42%ile) (53%ile) (30%ile) (--)
Hazardous waste proximity score *.............................. 0.058 0.055 0 0 3.5
(15%ile) (15%ile) (0%ile) (0%ile) (--)
Underground storage tank proximity score *..................... 0.022 0.18 0.11 0.000039 3.6
(29%ile) (36%ile) (34%ile) (26%ile) (--)
[[Page 71248]]
Wastewater discharge score *................................... 52 50 0.35 14 700,000
(50%ile) (49%ile) (18%ile) (38%ile) (--)
Drinking water noncompliance, points........................... 2.7 9.9 2.2 0.86 2.2
(87%ile) (92%ile) (87%ile) (77%ile) (--)
Demographic Indicators:
People of color population..................................... 21% 33% 43% 44% 40%
(37%ile) (51%ile) (60%ile) (61%ile) (--)
Low-income population.......................................... 33% 28% 41% 15% 30%
(60%ile) (52%ile) (72%ile) (29%ile) (--)
Unemployment rate.............................................. 3% 4% 5% 9% 6%
(45%ile) (55%ile) (62%ile) (79%ile) (--)
Linguistically isolated population............................. 1% 0% 4% 0% 5%
(59%ile) (56%ile) (71%ile) (57%ile) (--)
Population with less than high school education................ 11% 8% 30% 29% 11%
(60%ile) (50%ile) (91%ile) (91%ile) (--)
Population under 5 years of age................................ 4% 9% 5% 0% 5%
(47%ile) (80%ile) (54%ile) (13%ile) (--)
Population over 64 years of age................................ 27% 17% 17% 35% 18%
(83%ile) (53%ile) (55%ile) (92%ile) (--)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Table 5 footnote.
Communities in close proximity to and/or downwind of these EGUs may
be subject to environmental impacts of emissions. Short- and/or long-
term exposure to air pollution has been associated with a wide range of
human health effects including increased respiratory symptoms,
hospitalization for heart or lung diseases, and even premature
death.\32\ Emissions during planned MSS may be higher than emissions
under normal steady-state operations. The 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.
---------------------------------------------------------------------------
\32\ See https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what
(accessed dated 02/05/2024).
---------------------------------------------------------------------------
We therefore propose to determine that this rulemaking action, if
finalized as proposed, will not have disproportionately high or adverse
human health or environmental effects on communities with environmental
justice concerns.
VII. Statutory and Executive Order Reviews
Under the Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Act. Accordingly, this
action proposes to disapprove the SIP submittal as not meeting
applicable requirements of the CAA.
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review, and Executive
Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by
Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore
not subject to a requirement for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA (44 U.S.C. 3501 et seq.) because it does not contain any
information collection activities.
C. Regulatory Flexibility Act (RFA)
This action is certified to not have a significant economic impact
on a substantial number of small entities under the RFA (5 U.S.C. 601
et seq.). This action will not impose any requirements on small
entities.
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. This 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 as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). 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: Coordination With Indian Tribal Governments
This proposed action has no tribal implications as specified in
E.O. 13175 (65 FR 67249, November 9, 2000). This action will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. This action will not impose
substantial direct compliance costs on federally recognized tribal
governments because no actions will be required of tribal governments.
This action will also not preempt tribal law as it does not have
applicable or related tribal laws.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern environmental
health or safety risks that EPA has reason to believe may
disproportionately affect children, per the definitions of ``covered
regulatory action'' in section 2-202 of the Executive Order. Therefore,
this action is not subject to Executive Order 13045
[[Page 71249]]
because it merely proposes to disapprove a SIP revision. Furthermore,
the EPA's Policy on Children's Health does not apply to this action.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This 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.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. This
action is not subject to the requirements of section 12(d) of the NTTAA
(15 U.S.C. 272 note) because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA performed an environmental justice analysis, as is
described above in the section titled, ``Environmental Justice
Considerations.'' The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. Due to the nature of the action being
taken here, this action is expected to have no impact on the air
quality of the affected area. In addition, there is no information in
the record upon which this decision is based inconsistent with the
stated goal of E.O. 12898 of achieving environmental justice for people
of color, low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 27, 2024.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2024-19600 Filed 8-30-24; 8:45 am]
BILLING CODE 6560-50-P
