Proposed Rule2023-08732
Revision and Promulgation of Air Quality Implementation Plans; Texas; Regional Haze Federal Implementation Plan; Disapproval and Need for Error Correction; Denial of Reconsideration of Provisions Governing Alternative to Source-Specific Best Available Retrofit Technology (BART) Determinations
Primary source
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Published
May 4, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is proposing to withdraw the existing Texas Sulfur Dioxide (SO<INF>2</INF>) Trading Program provisions, which constitute the Federal implementation plan (FIP) the EPA previously promulgated to address SO<INF>2</INF> Best Available Retrofit Technology (BART) requirements for EGUs in Texas that are not adequately satisfied by the Texas Regional Haze State implementation plan (SIP). In its place, the EPA proposes a FIP that establishes SO<INF>2</INF> limits on 12 Electric Generating Units (EGUs) located at six Texas facilities to fulfill requirements of the Regional Haze Rule for the installation and operation of BART for SO<INF>2</INF>. Based on these proposed changes, we also propose to affirm the continued validity of participation in the Cross-State Air Pollution Rule (CSAPR) trading programs as a BART alternative. Therefore, the EPA is proposing to deny a petition for reconsideration of our 2017 determination that States that are participating in CSAPR can continue to rely on CSAPR participation as a BART alternative. Finally, we are proposing to find that our prior approval of the portion of the Texas Regional Haze SIP that addresses the BART requirement for EGUs for Particulate Matter (PM) was made in error and are proposing to correct that error by proposing to disapprove that portion of the Texas Regional Haze SIP through our authority under the CAA section 110(k)(6), and, as part of a FIP, we are proposing PM BART limits for 12 EGUs located at six Texas facilities.
Full Text
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[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Proposed Rules]
[Pages 28918-28984]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08732]
[[Page 28917]]
Vol. 88
Thursday,
No. 86
May 4, 2023
Part V
Environmental Protection Agency
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40 CFR Parts 52, 78, and 97
Revision and Promulgation of Air Quality Implementation Plans; Texas;
Regional Haze Federal Implementation Plan; Disapproval and Need for
Error Correction; Denial of Reconsideration of Provisions Governing
Alternative to Source-Specific Best Available Retrofit Technology
(BART) Determinations; Proposed Rule
Federal Register / Vol. 88, No. 86 / Thursday, May 4, 2023 / Proposed
Rules
[[Page 28918]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 78, and 97
[EPA-R06-OAR-2016-0611; EPA-HQ-OAR-2016-0598; FRL-9771-01-R6]
Revision and Promulgation of Air Quality Implementation Plans;
Texas; Regional Haze Federal Implementation Plan; Disapproval and Need
for Error Correction; Denial of Reconsideration of Provisions Governing
Alternative to Source-Specific Best Available Retrofit Technology
(BART) Determinations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is proposing to withdraw the
existing Texas Sulfur Dioxide (SO<INF>2</INF>) Trading Program
provisions, which constitute the Federal implementation plan (FIP) the
EPA previously promulgated to address SO<INF>2</INF> Best Available
Retrofit Technology (BART) requirements for EGUs in Texas that are not
adequately satisfied by the Texas Regional Haze State implementation
plan (SIP). In its place, the EPA proposes a FIP that establishes
SO<INF>2</INF> limits on 12 Electric Generating Units (EGUs) located at
six Texas facilities to fulfill requirements of the Regional Haze Rule
for the installation and operation of BART for SO<INF>2</INF>. Based on
these proposed changes, we also propose to affirm the continued
validity of participation in the Cross-State Air Pollution Rule (CSAPR)
trading programs as a BART alternative. Therefore, the EPA is proposing
to deny a petition for reconsideration of our 2017 determination that
States that are participating in CSAPR can continue to rely on CSAPR
participation as a BART alternative. Finally, we are proposing to find
that our prior approval of the portion of the Texas Regional Haze SIP
that addresses the BART requirement for EGUs for Particulate Matter
(PM) was made in error and are proposing to correct that error by
proposing to disapprove that portion of the Texas Regional Haze SIP
through our authority under the CAA section 110(k)(6), and, as part of
a FIP, we are proposing PM BART limits for 12 EGUs located at six Texas
facilities.
DATES:
Comments: Comments must be received on or before July 3, 2023.
Virtual Public Hearing: The EPA will hold a virtual public hearing
to solicit comments on May 19, 2023. The last day to pre-register to
speak at the hearing will be on May 17, 2023. On May 18, 2023, the EPA
will post a general agenda for the hearing that will list pre-
registered speakers in approximate order at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a>. If you require the services of a
translator or a special accommodation such as audio description/closed
captioning, please pre-register for the hearing and describe your needs
by May 11, 2023.
For more information on the virtual public hearing, see
SUPPLEMENTARY INFORMATION.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2016-0611 to the Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> (our preferred method). For additional submission
methods, please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided.
Docket: The docket for this action is available electronically at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Some information in the docket may not be
publicly available via the online docket due to docket file size
restrictions, such as certain modeling files, or content (e.g., CBI).
To request a copy of the modeling files, please send a request via
email to <a href="/cdn-cgi/l/email-protection#96c4a0aaf7b6fee4f3f0ab" mailto:TXBARTandCSAPRPetition@epa.gov"><span class="__cf_email__" data-cfemail="84d0dcc6c5d6d0e5eae0c7d7c5d4d6d4e1f0edf0edebeac4e1f4e5aae3ebf2">[email protected]</span></a>">R6<a href="/cdn-cgi/l/email-protection#93c7cbd1d2c1c7f2fdf7d0c0d2c3c1c3f6e7fae7fafcfdd3f6e3f2bdf4fce5"><span class="__cf_email__" data-cfemail="3a6e62787b686e5b545e79697b6a686a5f4e534e5355547a5f4a5b145d554c">[email protected]</span></a></a>. For questions about a
document in the docket please contact individual listed in the FOR
FURTHER INFORMATION CONTACT section.
CBI: Do not submit information containing CBI to the EPA through
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. To submit information claimed as CBI,
please contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section. Clearly mark the part or all of the information that
you claim to be CBI. In addition to one complete version of the
comments that includes information claimed as CBI, you must submit a
copy of the comments that does not contain the information claimed as
CBI directly to the public docket through the procedures outlined in
Instructions earlier. Information not marked as CBI will be included in
the public docket and the EPA's electronic public docket without prior
notice. Information marked as CBI will not be disclosed except in
accordance with procedures set forth in 40 Code of Federal Regulations
(CFR) part 2. For the full EPA public comment policy, information about
CBI or multimedia submissions, and general guidance on making effective
comments, please visit <a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
To pre-register to attend or speak at the virtual public hearing,
please use the online registration form available at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a> or contact us via email at
<a href="/cdn-cgi/l/email-protection#3e6c087c7f6c6a5f505a7d6d7f6e6c6e5b4a574a5751507e5b4e5f10595148"><span class="__cf_email__" data-cfemail="64365226253630050a0027372534363401100d100d0b0a240114054a030b12">[email protected]</span></a>. For more information on the virtual
public hearing, see SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Michael Feldman, Air and Radiation
Division, SO<INF>2</INF> and Regional Haze Section (ARSH),
Environmental Protection Agency, 1201 Elm St., Suite 500 Dallas, TX
75270; telephone number: 214-665-9793; or via email:
<a href="/cdn-cgi/l/email-protection#bfed89fdfeedebded1dbfcecfeefedefdacbd6cbd6d0d1ffdacfde91d8d0c9"><span class="__cf_email__" data-cfemail="71234733302325101f1532223021232114051805181e1f311401105f161e07">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
There are two dockets supporting this action, EPA-R06-OAR-2016-0611
and EPA-HQ-OAR- EPA-HQ-OAR-2016-0598. Docket No. EPA-R06-OAR-2016-0611
contains information specific to BART requirements for Texas, including
this notice of proposed rulemaking and prior rulemakings related to
Texas BART, previous submittals from the State, and the Technical
Support Documents for this action. Docket No. EPA-HQ-OAR-2016-0598
contains previous actions and information related to CSAPR as a BART
alternative. All comments regarding this proposed action should be made
in Docket No. EPA-R06-OAR-2016-0611. For additional submission methods,
please email <a href="/cdn-cgi/l/email-protection#37636f7576656356595374647667656752435e435e58597752475619505841"><span class="__cf_email__" data-cfemail="3c68647e7d6e685d52587f6f7d6c6e6c594855485553527c594c5d125b534a">[email protected]</span></a>.
Virtual Public Hearing
The EPA is holding a virtual public hearing to provide interested
parties the opportunity to present data, views, or arguments concerning
the proposal. The EPA will hold a virtual public hearing to solicit
comments on May 19, 2023. The hearing will convene in two sessions.
Session 1 will convene at 1 p.m. Central Time (CT) and will conclude at
3 p.m. CT, or 15 minutes after the last pre-registered presenter in
attendance has presented if there are no additional presenters. Session
2 will convene at 4 p.m. Central Time (CT) and will conclude at 7 p.m.
CT, or 15 minutes after the last pre-registered presenter in attendance
has presented if
[[Page 28919]]
there are no additional presenters. The EPA will announce further
details, including information on how to register for the virtual
public hearing, on the virtual public hearing website at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a>. The EPA will begin pre-
registering speakers and attendees for the hearing upon publication of
this document in the Federal Register. To pre-register to attend or
speak at the virtual public hearing, please use the online registration
form available at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a> or
contact us via email at <a href="/cdn-cgi/l/email-protection#75274337342721141b1136263425272510011c011c1a1b351005145b121a03"><span class="__cf_email__" data-cfemail="81d3b7c3c0d3d5e0efe5c2d2c0d1d3d1e4f5e8f5e8eeefc1e4f1e0afe6eef7">[email protected]</span></a>. The last day to
pre-register to speak at the hearing will be on May 17, 2023. On May
18, 2023, the EPA will post a general agenda for the hearing that will
list pre-registered speakers in approximate order at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a>. Additionally, requests to speak
will be taken on the day of the hearing as time allows.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing to run either ahead of schedule or behind schedule. Each
commenter will have approximately 3 to 5 minutes to provide oral
testimony. The EPA encourages commenters to provide the EPA with a copy
of their oral testimony electronically by including it in the
registration form or emailing it to <a href="/cdn-cgi/l/email-protection#9fcda9dddecdcbfef1fbdcccdecfcdcffaebf6ebf6f0f1dffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="7c2e4a3e3d2e281d12183f2f3d2c2e2c190815081513123c190c1d521b130a">[email protected]</span></a>. The
EPA may ask clarifying questions during the oral presentations but will
not respond to the presentations at that time. Written statements and
supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the virtual public hearing. A transcript of
the virtual public hearing, as well as copies of oral presentations
submitted to the EPA, will be included in the docket for this action.
The EPA is asking all hearing attendees to pre-register, even those
who do not intend to speak. The EPA will send information on how to
join the public hearing to pre-registered attendees and speakers.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross">https://www.epa.gov/tx/texas-regional-haze-best-available-retrofit-technology-federal-implementation-plan-and-cross</a>.
While the EPA expects the hearing to go forward as set forth above,
please monitor our website or contact us via email at
<a href="/cdn-cgi/l/email-protection#03513541425157626d6740504253515366776a776a6c6d436673622d646c75"><span class="__cf_email__" data-cfemail="95c7a3d7d4c7c1f4fbf1d6c6d4c5c7c5f0e1fce1fcfafbd5f0e5f4bbf2fae3">[email protected]</span></a> to determine if there are any updates.
The EPA does not intend to publish a document in the Federal Register
announcing updates.
If you require the services of a translator or a special
accommodation such as audio description/closed captioning, please pre-
register for the hearing and describe your needs by May 11, 2023. The
EPA may not be able to arrange accommodations without advance notice.
Table of Contents
I. Executive Summary
II. Background
A. Regional Haze
B. BART
C. Previous Actions Related to Texas BART and ``CSAPR Better-
Than-BART''
D. Consultation With Federal Land Managers (FLMs)
III. Overview of Proposed Action
IV. Withdrawal of the Texas SO<INF>2</INF> Trading Program as a BART
Alternative for SO<INF>2</INF>
A. Legal Authority To Withdraw the Texas SO<INF>2</INF> Trading
Program
B. Basis for Withdrawing the Texas SO<INF>2</INF> Trading
Program
V. CSAPR Participation as a BART Alternative
A. Introduction
B. Background
C. Summary of the 2020 Petition for Reconsideration and
Associated Litigation
D. Criteria for Granting a Mandatory Petition for
Reconsideration
E. The EPA's Evaluation of the Petition for Reconsideration
VI. The EPA's Authority To Promulgate a FIP Addressing
SO<INF>2</INF> and PM BART
A. CAA Authority To Promulgate a FIP for SO<INF>2</INF> BART
B. Error Correction and CAA Authority To Promulgate a FIP--PM
BART
VII. BART Analysis for SO<INF>2</INF> and PM
A. Identification of Sources Subject to BART
B. BART Five Factor Analysis
VIII. Weighing of the Five BART Factors and Proposed BART
Determinations
A. SO<INF>2</INF> BART for Coal-Fired Units With no
SO<INF>2</INF> Controls
B. SO<INF>2</INF> BART for Coal-Fired Units With Existing
Scrubbers
C. PM BART
IX. Proposed Action
A. Regional Haze
B. CSAPR Better-Than-BART
X. Environmental Justice Considerations
XI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Overview
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determinations Under CAA Section 307(b)(1) and (d)
I. Executive Summary
The CAA's visibility protection program was created in response to
a national goal set by Congress in 1977 to remedy and prevent
visibility impairment in certain national parks, such as Grand Canyon
National Park, and national wilderness areas, such as the Okefenokee
National Wildlife Refuge. Vistas in these areas are often obscured by
visibility impairment such as regional haze, which is caused by
emissions from numerous sources located over a wide geographic area.
In response to this Congressional directive, the EPA promulgated
regulations to address visibility impairment in 1999. These
regulations, which are commonly referred to as the Regional Haze Rule,
established an iterative process for achieving Congress's national goal
by providing for multiple, approximately 10-year ``planning periods''
in which State air agencies must submit to EPA plans that address
sources of visibility-impairing pollution in their States. The first
State plans were due in 2007 for the planning period that ended in
2018. The second State plans were due in 2021 for the period that ends
in 2028. This proposal focuses on obligations from the first planning
period of the regional haze program.
A central element of these first planning period State plans was
the requirement for certain older stationary sources to install the
Best Available Retrofit Technology (BART) for the purpose of making
reasonable progress towards Congress's national goal of eliminating
visibility impairment within our nation's most treasured lands. The
Regional Haze Rule provided two approaches a State could take to
fulfill its BART obligations: (1) conduct source-by-source evaluations
for covered sources, or (2) implement an alternative program, such as
an emissions trading program, that achieves greater reasonable progress
than source-by-source BART.
[[Page 28920]]
One such BART alternative that 19 States have relied on for over a
decade to fulfill some or all of their BART obligations with respect to
visibility-impairing pollution from power plants is participation in
the EPA's Cross-State Air Pollution Rule (CSAPR), an emissions trading
program that was promulgated in 2011. Changes to the CSAPR program over
the years, particularly with respect to the status of the State of
Texas, have required the EPA to reexamine on several occasions whether
the program continues to achieve greater reasonable progress than
source-by-source BART for participating States. Most recently, after
removing Texas from certain aspects of the CSAPR program, the EPA
reaffirmed the viability of the CSAPR program as a BART alternative in
2017 and then again in 2020 when the EPA denied a petition for
reconsideration of the 2017 reaffirmation.
Texas submitted its first State plan to address regional haze in
2009, relying at that time on the now-defunct predecessor program to
CSAPR to satisfy the BART requirement for its power plants.\1\ The EPA
disapproved this portion of Texas's plan in 2012. Texas is home to
numerous power plants, many of which operate without modern pollution
controls. As a result, several of these plants are among the highest
emitters of visibility-impairing pollutants, such as sulfur dioxide
(SO<INF>2</INF>), in the nation. These emissions cause or contribute to
visibility impairment in such iconic places as Big Bend National Park
and Guadalupe Mountains National Park in Texas, Salt Creek Wilderness
Area in New Mexico, Caney Creek Wilderness Area in Arkansas, and
Wichita Mountains Wilderness Area in Oklahoma. In 2017, the EPA
proposed to address the gap in Texas's plan by, among other things,
requiring source-by-source BART controls for SO<INF>2</INF> emissions
from covered sources that would have significantly reduced these
emissions. The EPA never finalized this proposal, however. Instead, in
2017 (and again in 2020), the EPA promulgated an intrastate trading
program to govern SO<INF>2</INF> emissions from Texas power plants,
based on a finding that the program would achieve greater reasonable
progress than source-by-source BART even though the program would allow
for increases in SO<INF>2</INF> emissions (and thus increased
visibility impairment) instead of emission reductions.
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\1\ <a href="https://www.tceq.texas.gov/airquality/sip/bart/haze_sip.html">https://www.tceq.texas.gov/airquality/sip/bart/haze_sip.html</a>.
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This proposal seeks to address both the BART requirements for
Texas's power plants and an outstanding petition that once again calls
into question the continued viability of the CSAPAR program as a BART
alternative for participating States due to the status of Texas, and
the complicated interactions between these two regulatory regimes.
Specifically, the EPA is proposing to withdraw the intrastate trading
program on the basis that it does not achieve greater reasonable
progress than source-by-source BART. In its place, the EPA is proposing
to promulgate source-by-source BART emission limits for covered sources
in Texas. If finalized, these emission limits would reduce emissions
from these sources by more than 80,000 tons of SO<INF>2</INF>
emissions, improving visibility across a wide range of the nation's
most scenic vistas. In addition, the EPA is proposing that these
changes to the Texas plan, if finalized, would allow the EPA to once
again reaffirm that the CSAPR program remains a viable BART alternative
for the 19 participating States. On that basis, the EPA is proposing to
deny the outstanding petition seeking to end these States' longstanding
reliance on the CSAPR program to satisfy their BART obligations for
power plants.
II. Background
A. Regional Haze
Regional haze is visibility impairment that is produced by a
multitude of sources and activities which are located across a broad
geographic area. These sources and activities emit fine particulate
matter (PM<INF>2.5</INF>) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and its precursors (e.g., sulfur
dioxide (SO<INF>2</INF>), nitrogen oxides (NO<INF>X</INF>), and, in
some cases, ammonia (NH<INF>3</INF>) and volatile organic compounds
(VOCs)). Fine particle precursors react in the atmosphere to form
PM<INF>2.5,</INF> which, in addition to direct sources of PM
<INF>2.5,</INF> impairs visibility by scattering and absorbing light.
Visibility impairment (i.e., light scattering) reduces the clarity,
color, and visible distance that one can see. PM<INF>2.5</INF> can also
cause serious health effects (including premature death, heart attacks,
irregular heartbeat, aggravated asthma, decreased lung function, and
increased respiratory symptoms) and mortality in humans, and
contributes to environmental effects such as acid deposition and
eutrophication.
In section 169A of the 1977 Amendments to the Clean Air Act (CAA),
Congress created a program for protecting visibility in the nation's
national parks and wilderness areas. This section of the CAA
establishes as a national goal the prevention of any future, and the
remedying of any existing, anthropogenic impairment of visibility in
156 national parks and wilderness areas designated as mandatory Class I
areas.\2\ Congress added section 169B to the CAA in 1990 to address
regional haze issues, and the EPA promulgated the Regional Haze Rule
(RHR), codified at 40 CFR 51.308,\3\ on July 1, 1999.\4\ The RHR
established a requirement to submit a regional haze SIP, which applies
to all 50 States, the District of Columbia, and the Virgin Islands.\5\
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\2\ Areas designated as mandatory Class I areas consist of
National Parks exceeding 6,000 acres, wilderness areas and national
memorial parks exceeding 5,000 acres, and all international parks
that were in existence on August 7, 1977. 42 U.S.C. 7472(a). In
accordance with section 169A of the CAA, the EPA, in consultation
with the Department of Interior, promulgated a list of 156 areas
where visibility is identified as an important value. 44 FR 69122
(November 30, 1979). The extent of a mandatory Class I area includes
subsequent changes in boundaries, such as park expansions. 42 U.S.C.
7472(a). Although States and Tribes may designate as Class I
additional areas which they consider to have visibility as an
important value, the requirements of the visibility program set
forth in section 169A of the CAA apply only to ``mandatory Class I
Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i).
When we use the term ``Class I area'' in this action, we mean a
``mandatory Class I Federal area.''
\3\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, the EPA also promulgated regulations
specific to addressing regional haze visibility impairment in Class
I areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are not relevant here.
\4\ See 64 FR 35714 (July 1, 1999). On January 10, 2017, the EPA
promulgated revisions to the RHR that apply for the second and
subsequent implementation periods. See 82 FR 3078 (Jan. 10, 2017).
\5\ 40 CFR 51.300(b).
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To address regional haze visibility impairment, the RHR established
an iterative planning process that requires States in which Class I
areas are located and States from which emissions may reasonably be
anticipated to cause or contribute to any impairment of visibility in a
Class I area to periodically submit SIP revisions to address regional
haze visibility impairment.\6\ Under the CAA, each SIP submission must
contain ``a long-term (ten to fifteen years) strategy for making
reasonable progress toward meeting the national goal,'' and the initial
round of SIP submissions also had to address the statutory requirement
[[Page 28921]]
that certain older, larger sources of visibility-impairing pollutants
install and operate the Best Available Retrofit Technology (BART), as
discussed further in Section II.B.\7\ States' first regional haze SIPs
were due by December 17, 2007, with subsequent SIP submissions
containing revised long-term strategies originally due July 31, 2018,
and every ten years thereafter.\8\
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\6\ See 42 U.S.C. 7491(b)(2); 40 CFR 51.308(b) and (f); see also
64 FR 35768 (July 1, 1999). The EPA established in the RHR that all
States either have Class I areas within their borders or ``contain
sources whose emissions are reasonably anticipated to contribute to
regional haze in a Class I area;'' therefore, all States must submit
regional haze SIPs. See 64 FR 35721. In addition to each of the 50
States, the EPA also concluded that the Virgin Islands and District
of Columbia contain a Class I area and/or contain sources whose
emissions are reasonably anticipated to contribute regional haze in
a Class I area. See 40 CFR 51.300(b) and (d)(3).
\7\ See 42 U.S.C. 7491(b)(2)(A); 40 CFR 51.308(d) and (e).
\8\ See 40 CFR 51.308(b). The 2017 RHR revisions changed the
second period SIP due date from July 31, 2018, to July 31, 2021, and
maintained the existing schedules for the subsequent implementation
periods. See 40 CFR 51.308(f).
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B. BART
Section 169A of the CAA directs States to evaluate the use of
retrofit controls at certain larger, older stationary sources to
address visibility impacts from these sources, whose emissions are
often uncontrolled or poorly controlled. Specifically, section
169A(b)(2) of the CAA requires States to revise their SIPs to contain
such measures as may be necessary to make reasonable progress towards
the national visibility goal, including a requirement that certain
categories of existing major stationary sources built between 1962 and
1977 procure, install, and operate BART as determined by the State
applying five statutory factors. On July 6, 2005, the EPA published the
Guidelines for BART Determinations Under the Regional Haze Rule at
Appendix Y to 40 CFR part 51 (BART Guidelines) to assist States in the
BART evaluation process. Under the RHR and the BART Guidelines, the
BART evaluation process consists of three steps: (1) An identification
of all BART-eligible sources in the State, (2) an assessment of whether
the BART-eligible sources are subject to BART (based on a determination
that each source or sources may reasonably be anticipated to cause or
contribute to any visibility impairment in a Class I area), and (3) a
determination of an emission limit reflecting BART after applying the
five statutory BART factors.\9\ In applying the BART factors for a
fossil fuel-fired electric generating plant with a total generating
capacity in excess of 750 megawatts, a State must use the approach set
forth in the BART Guidelines.\10\ A State is generally encouraged, but
not required, to follow the BART Guidelines for other types of
sources.\11\
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\9\ See generally 40 CFR 51.308(e)(1); 40 CFR part 51, Appendix
Y.
\10\ 42 U.S.C. 7491(b); 40 CFR 51.308(e)(1)(ii)(B).
\11\ See 40 CFR part 51, Appendix Y. For additional details
regarding the three steps of the BART evaluation process, see, e.g.,
85 FR 47134, 47136-37 (August 4, 2020).
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States must make source-specific BART determinations for all
``BART-eligible'' sources determined to be subject to BART. However, as
an alternative to making these ``source-specific'' BART determinations,
States may adopt an emissions trading program or other alternative
program for all or a portion of their BART-eligible sources, so long as
the alternative achieves greater reasonable progress towards improving
visibility than BART would for those sources, and the alternative meets
certain other requirements. Several options are available for making
BART-alternative demonstrations, and these are discussed in greater
detail in Section IV.B and Section V.\12\
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\12\ See generally 40 CFR 51.308(e)(2)-(4).
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States generally undertook the BART determination process during
the regional haze program's first implementation period. While the BART
requirement is considered a one-time requirement, BART-eligible
sources, including sources found subject to BART and for which a BART
emission limit was established, may need to be re-assessed for
additional controls in future implementation periods under the CAA's
reasonable progress provisions. Thus, the EPA has stated that States
should treat BART-eligible sources the same as other reasonable
progress sources going forward.\13\
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\13\ See 81 FR 26942, 26947 (May 4, 2016).
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C. Previous Actions Related to Texas BART and ``CSAPR Better-Than-
BART''
The procedural history leading up to this proposed action is set
forth in detail in this section. On March 31, 2009, Texas submitted a
regional haze SIP (the 2009 Regional Haze SIP) to the EPA that included
reliance on Texas's participation in trading programs under the Clean
Air Interstate Rule (CAIR) as an alternative to BART for SO<INF>2</INF>
and NO<INF>X</INF> emissions from Electric Generating Units (EGUs).\14\
This reliance was consistent with the EPA's regulations at the time
that Texas developed its 2009 Regional Haze SIP.\15\ However, at the
time Texas submitted its SIP to the EPA, the D.C. Circuit had remanded
CAIR (without vacatur).\16\ The court left CAIR and our CAIR FIPs in
place in order to ``temporarily preserve the environmental values
covered by CAIR'' until we could, by rulemaking, replace CAIR
consistent with the court's opinion. The EPA promulgated the Cross-
State Air Pollution Rule (CSAPR) to replace CAIR in 2011 \17\ (and
revised it in 2012).\18\ CSAPR established FIP requirements for sources
in a number of States, including Texas, to address the States'
interstate transport obligation under CAA section 110(a)(2)(D)(i)(I).
CSAPR addresses interstate transport of PM<INF>2.5</INF> and ozone by
requiring affected EGUs in these States to participate in one or more
of the CSAPR trading programs, which establish emissions budgets that
apply to the EGUs' collective annual emissions of SO<INF>2</INF> and
NO<INF>X</INF>, as well as emissions of NO<INF>X</INF> during ozone
season.\19\
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\14\ CAIR required certain States, including Texas, to reduce
emissions of SO<INF>2</INF> and NO<INF>X</INF> that contribute
significantly to downwind nonattainment of the 1997 NAAQS for fine
particulate matter and ozone. See 70 FR 25152 (May 12, 2005).
\15\ See 70 FR 39104 (July 6, 2005).
\16\ See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008),
as modified, 550 F.3d 1176 (D.C. Cir. 2008).
\17\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (Aug. 8, 2011).
\18\ CSAPR was amended three times in 2011 and 2012 to add five
States to the seasonal NO<INF>X</INF> program and to increase
certain State budgets. 76 FR 80760 (December 27, 2011); 77 FR 10324
(February 21, 2012); 77 FR 34830 (June 12, 2012).
\19\ Ozone season for CSAPR purposes is May 1 through September
30.
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Following the issuance of CSAPR, the EPA determined that CSAPR
would achieve greater reasonable progress towards improving visibility
than would source-specific BART in CSAPR States (a determination often
referred to as ``CSAPR Better-than-BART'').\20\ In the EPA's 2012
action promulgating CSAPR-Better-than-BART, the EPA used air quality
modeling to show that CSAPR met the two-pronged numerical test for a
BART alternative under 40 CFR 51.308(e)(3).\21\ In the same action, we
revised the Regional Haze Rule to allow States whose sources
participate in the CSAPR trading programs to rely on such participation
in lieu of requiring BART-eligible EGUs in the State to meet source-
specific emission limits reflective of BART controls as to the relevant
pollutant. In addition to allowing States to rely on CSAPR to address
BART requirements, the EPA issued limited disapprovals of a number of
States' regional haze SIPs, including the 2009 Regional Haze SIP
submittal from Texas, due to the States' reliance on CAIR, which had
been replaced by CSAPR.\22\ The EPA did not immediately promulgate a
FIP to address those aspects of the 2009 Regional Haze SIP submittal
from Texas subject to the
[[Page 28922]]
limited disapproval in order to allow more time for the EPA to assess
the remaining elements of the SIP.
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\20\ 77 FR 33642 (June 7, 2012). This determination was upheld
by the D.C. Circuit. See Util. Air Regulatory Grp. v. EPA, 885 F.3d
714 (D.C. Cir. 2018).
\21\ See generally 77 FR 33642 (June 7, 2012).
\22\ Id.
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In December 2014, we proposed an action to address the remaining
regional haze obligations for Texas.\23\ In that action, we proposed,
among other things, to rely on our CSAPR FIP requiring Texas sources'
participation in the CSAPR trading programs to satisfy the
NO<INF>X</INF> and SO<INF>2</INF> BART requirements for Texas's BART-
eligible EGUs consistent with the 2012 revisions to the Regional Haze
Rule. We also proposed to approve the portions of the 2009 Texas
Regional Haze SIP addressing PM BART requirements for the State's BART-
eligible EGUs. Before that proposed rule was finalized, however, the
D.C. Circuit issued a decision on a number of challenges to CSAPR,
denying most claims, but remanding the CSAPR SO<INF>2</INF> and/or
seasonal NO<INF>X</INF> emissions budgets of several States to the EPA
for reconsideration, including the Phase 2 SO<INF>2</INF> and seasonal
NO<INF>X</INF> budgets for Texas.\24\ Due to the uncertainty arising
from the remand of Texas's CSAPR budgets, we did not finalize our
December 2014 proposal to rely on CSAPR to satisfy the SO<INF>2</INF>
and NO<INF>X</INF> BART requirements for Texas EGUs.\25\ Additionally,
because our proposed action on the PM BART provisions for EGUs was
dependent on how SO<INF>2</INF> and NO<INF>X</INF> BART were satisfied,
we did not take final action on the PM BART elements of the 2009 Texas
Regional Haze SIP.\26\
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\23\ 79 FR 74818 (Dec. 16, 2014).
\24\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 132 (D.C. Cir. 2015). In 2012, several State,
industry, and other petitioners challenged CSAPR in the D.C.
Circuit, which stayed and then vacated the rule, ruling on only a
subset of petitioners' claims. See EME Homer City Generation, L.P.
v. EPA, 696 F.3d 7 (D.C. Cir. 2012). However, in April 2014 the
Supreme Court reversed the vacatur and remanded to the D.C. Circuit
for resolution of petitioners' remaining claims. See EPA v. EME
Homer City Generation, L.P., 572 U.S. 489 (2014). Following the
Supreme Court remand, the D.C. Circuit conducted further proceedings
to address petitioners' remaining claims. In July 2015, the court
issued a decision denying most of the claims but remanding the Phase
2 SO<INF>2</INF> emissions budgets for Alabama, Georgia, South
Carolina, and Texas and the Phase 2 ozone-season NO<INF>X</INF>
budgets for eleven States to the EPA for reconsideration.
\25\ 81 FR 296 (Jan. 5, 2016).
\26\ In January 2016, we finalized action on the remaining
aspects of the December 2014 proposal. This final action
disapproved, among other things Texas's reasonable progress analysis
and Texas's long-term strategy. The EPA promulgated a FIP
establishing a new long-term strategy that consisted of
SO<INF>2</INF> emission limits for 15 coal-fired EGUs at eight power
plants. 81 FR 296, 302 (Jan. 5, 2016). That rulemaking was
judicially challenged, however, and in July 2016, the Fifth Circuit
granted the petitioners' motion to stay the rule pending review.
Texas v. EPA, 829 F.3d 405 (5th Cir. 2016). On March 22, 2017,
following the submittal of a request by the EPA for a voluntary
remand of the parts of the rule under challenge, the Fifth Circuit
Court of Appeals remanded the rule in its entirety. (In this
rulemaking, we are not addressing those remanded requirements.)
March 22, 2017, Order, Texas v. EPA, 829 F.3d 405 (5th Cir. 2016)
(No. 16-60118).
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On October 26, 2016, the EPA finalized an update to CSAPR to
address the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR
Update).\27\ The EPA also responded to the D.C. Circuit's remand in EME
Homer City II of certain CSAPR seasonal NO<INF>X</INF> budgets in that
action.\28\ As to Texas, the EPA withdrew Texas's seasonal
NO<INF>X</INF> budget finalized in CSAPR to address the 1997 ozone
NAAQS. However, in that same action, the EPA promulgated a FIP with a
revised seasonal NO<INF>X</INF> budget for Texas to address the 2008
ozone NAAQS.\29\ Accordingly, Texas sources remain subject to CSAPR
seasonal NO<INF>X</INF> requirements.
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\27\ 81 FR 74504 (Oct. 26, 2016).
\28\ See generally EME Homer City II, 795 F.3d 118, (D.C. Cir.
2015).
\29\ 81 FR 74504, 74524-25.
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On November 10, 2016, in response to the D.C. Circuit's remand in
EME Homer II of Texas's CSAPR SO<INF>2</INF> budget, we proposed to
withdraw the FIP provisions that required EGUs in Texas to participate
in the CSAPR trading programs for annual emissions of SO<INF>2</INF>
and NO<INF>X.</INF>\30\ The EPA indicated that if the withdrawal was
finalized, Texas would no longer be eligible under 40 CFR 51.308(e)(4)
to rely on participation of its EGUs in a CSAPR trading program as an
alternative to source-specific SO<INF>2</INF> BART determinations.\31\
We also proposed to reaffirm the EPA's 2012 analytical demonstration
that CSAPR provides greater reasonable progress than BART despite the
changes in CSAPR's geographic scope to address the EME Homer City II
remand, including removal of Texas's EGUs from the CSAPR trading
program for SO<INF>2</INF> emissions.\32\ On September 29, 2017, we
finalized the withdrawal of the FIP provisions for annual emissions of
SO<INF>2</INF> and NO<INF>X</INF> for EGUs in Texas \33\ and affirmed
our proposed finding that the EPA's 2012 analytical demonstration
remains valid and that participation in the CSAPR trading programs as
amended continues to meet the Regional Haze Rule's criteria for an
alternative to BART.\34\ (We refer to this as the ``2017 Affirmation of
CSAPR Better-than-BART'' throughout this notice.) In the September 29,
2017, final rule we evaluated the potential emissions shifting that
could occur due to the withdrawal of Texas from the CSAPR trading
program for SO<INF>2</INF> emissions. Based on this evaluation, we
determined that an increase in emissions in the remaining CSAPR States
participating in the SO<INF>2</INF> trading program would be more than
offset by the favorable visibility impacts brought about by the reduced
emissions in Texas under presumptive source-specific SO<INF>2</INF>
BART for the State's BART-eligible EGUs.\35\ As discussed later in this
section, certain environmental organizations filed a petition for
reconsideration of this affirmation in November 2017.
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\30\ 81 FR 78954 (Nov. 10, 2016).
\31\ Id. at 78956. The EPA also noted that because Texas EGUs
would continue to participate in a CSAPR trading program for ozone-
season NO<INF>X</INF> emissions, Texas would still be eligible under
40 CFR 51.308(e)(4) to rely on CSAPR participation as an alternative
to source-specific NO<INF>X</INF> BART determinations for the
covered sources. 81 FR at 78962.
\32\ Id.
\33\ Texas continues to participate in CSAPR for ozone season
NO<INF>X</INF>. See final action signed September 21, 2017,
available at <a href="http://regulations.gov">regulations.gov</a> in Docket No. EPA-HQ-OAR-2016-0598.
\34\ 82 FR 45481 (September 29, 2017).
\35\ Id. at 45493-94.
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On January 4, 2017, we proposed a FIP to address the BART
requirements for Texas's BART-eligible EGUs. With respect to
NO<INF>X</INF>, we proposed to replace the 2009 Regional Haze SIP's
reliance on CAIR with reliance on our CSAPR FIP to address the
NO<INF>X</INF> BART requirements for EGUs.\36\ This portion of our
proposal was based on the CSAPR Update and our separate November 10,
2016, proposed finding that the EPA's actions in response to the D.C.
Circuit's remand would not adversely impact our 2012 demonstration that
participation in the CSAPR trading programs meets the Regional Haze
Rule's criteria for alternatives to BART.\37\ We noted that we could
not finalize this portion of our proposed FIP to address the
NO<INF>X</INF> BART requirements for EGUs unless and until we finalized
our proposed finding that CSAPR was still better than BART.\38\ (This
predicate finding was finalized on September 29, 2017.)
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\36\ 82 FR 912, 914-15 (Jan. 4, 2017).
\37\ 81 FR 74504 (Nov. 10, 2016).
\38\ 82 FR 912, 915 (Jan. 4, 2017).
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The January 4, 2017, proposed action addressing the SO<INF>2</INF>
BART requirements for Texas EGUs acknowledged that Texas sources would
no longer be participating in the CSAPR program for SO<INF>2</INF>, and
therefore, the remaining unfulfilled BART requirements for Texas's
BART-eligible EGUs would need to be fulfilled by either an approved SIP
or an EPA-issued FIP. The EPA proposed to satisfy these requirements
through a BART FIP,
[[Page 28923]]
which addressed the identification of BART-eligible EGU sources,
screening to identify which BART-eligible sources are ``subject-to-
BART'' (i.e., may reasonably be anticipated to cause or contribute to
any impairment of visibility in any Class I area), and source-by-source
determinations of SO<INF>2</INF> BART controls as appropriate. We
proposed SO<INF>2</INF> emission limits on 29 EGUs located at 14
facilities.
In the January 2017 proposal, we also proposed to disapprove the
portion of the 2009 Texas Regional Haze SIP that made BART
determinations for PM from EGUs, on the grounds that the demonstration
in the 2009 Texas Regional Haze SIP relied on underlying assumptions as
to how the SO<INF>2</INF> and NO<INF>X</INF> BART requirements for EGUs
were being met that were no longer valid with the proposed source-
specific SO<INF>2</INF> requirements.\39\ The 2009 Texas Regional Haze
SIP included a pollutant-specific screening analysis for PM to
demonstrate that Texas EGUs were not subject to BART for PM. In a 2006
guidance document,\40\ the EPA stated that pollutant-specific screening
can be appropriate where a State is relying on a BART alternative to
address both NO<INF>X</INF> and SO<INF>2</INF> BART. While we
previously proposed to approve the EGU BART determinations for PM in
the 2009 Texas Regional Haze SIP back in 2014, at that time, CSAPR was
an appropriate alternative for SO<INF>2</INF> and NO<INF>X</INF> BART
requirements for EGUs. With the proposal to promulgate source-specific
SO<INF>2</INF> BART requirements, however, SO<INF>2</INF> BART would no
longer be addressed by a BART alternative. Thus, pollutant-specific
screening for PM was no longer appropriate. To address PM BART
requirements, we proposed to promulgate source-specific PM BART
requirements, which generally were based on existing practices and
control capabilities for those EGUs that we proposed to find subject to
BART. For coal-fired units, we proposed PM BART limits consistent with
PM emission limits in the Mercury and Air Toxics Standards (MATS) rule;
for gas-fired units, we proposed PM BART would be satisfied by making
the burning of pipeline-quality gas federally enforceable; and for oil-
fired units, we proposed that fuel-content requirements for
SO<INF>2</INF> BART would also satisfy PM BART.\41\
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\39\ In the 2009 Regional Haze Texas SIP, emissions of both
SO<INF>2</INF> and NO<INF>X</INF> from Texas's BART-eligible EGUs
were covered by participation in trading programs, which allowed
Texas to conduct a screening analysis of the visibility impacts from
PM emissions from such units in isolation. However, modeling on a
pollutant specific basis for PM is appropriate only in the narrow
circumstance of reliance on BART alternatives to satisfy both
NO<INF>X</INF> and SO<INF>2</INF> BART. Due to the complexity and
nonlinear nature of atmospheric chemistry and chemical
transformation among pollutants, the EPA has not recommended
performing modeling on a pollutant-specific basis to determine
whether a source is subject to BART, except in the unique situation
described above. See discussion in Memorandum from Joseph Paisie to
Kay Prince, ``Regional Haze Regulations and Guidelines for Best
Available Retrofit Technology (BART) Determinations,'' July 19,
2006.
\40\ See discussion in Memorandum from Joseph Paisie to Kay
Prince, ``Regional Haze Regulations and Guidelines for Best
Available Retrofit Technology (BART) Determinations,'' July 19,
2006.
\41\ 82 FR at 936.
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The EPA received public comments on this 2017 proposal encouraging
the agency to consider other potentially viable methods of implementing
a BART alternative for SO<INF>2</INF> in Texas, rather than finalizing
source-specific BART limits. Specifically, some commenters suggested to
the EPA the concept of a trading program as a BART alternative to
satisfy SO<INF>2</INF> BART requirements. After considering these and
other public comments, rather than finalizing source-specific BART
limits for subject-to-BART EGUs in Texas, we issued a final action on
October 17, 2017, that addressed SO<INF>2</INF> BART requirements for
all BART-eligible coal-fired units and a number of BART-eligible gas-
or gas/fuel oil-fired units through a BART alternative for
SO<INF>2</INF>--specifically, a new intrastate trading program (Texas
SO<INF>2</INF> Trading Program). The remaining BART-eligible EGUs not
covered by the Texas SO<INF>2</INF> Trading Program were determined to
be not subject to BART based on screening methods as described in our
January 2017 proposed rule and the associated BART Screening technical
support document (BART Screening TSD) for that action.\42\
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\42\ See document in <a href="http://regulations.gov">regulations.gov</a> at docket identification
number EPA-R06-OAR-2016-0611-0005.
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At the time, the EPA modeled the Texas SO<INF>2</INF> Trading
Program after the CSAPR SO<INF>2</INF> trading program. We determined
that the Texas SO<INF>2</INF> Trading Program would achieve similar
emission reductions to CSAPR had the State continued to be subject to
the CSAPR trading program through a FIP or SIP. As such, we concluded
that the Texas program satisfied the clear-weight-of-evidence test
requirements for a BART alternative under 40 CFR 51.308(e)(2).\43\ As
finalized in October 2017, the Texas SO<INF>2</INF> Trading Program
established an annual trading program budget of 238,393 tons allocated
to the covered units, as well as a Supplemental Allowance Pool budget
of 10,000 tons, for a total of up to 248,393 allowances potentially
available in each year on average.\44\ The Texas SO<INF>2</INF> Trading
Program allowed ``banking'' of allowances for use in future years,
similar to the CSAPR trading programs, but unlike the CSAPR programs,
did not impose an ``assurance level'' above which annual emissions
would be penalized via a higher allowance-surrender ratio. The Texas
SO<INF>2</INF> Trading Program did not include all EGUs that would have
been subject to CSAPR, but the EPA concluded that potential annual
emissions from the excluded units were relatively small (i.e., less
than 27,500 tons) and would not undermine its overall conclusion that
the Texas SO<INF>2</INF> Trading Program was essentially equivalent in
design and stringency to the CSAPR program.\45\ In reaching that
conclusion, the EPA compared the annual average emission limit of
248,393 tons under the Texas SO<INF>2</INF> Trading Program (combined
with estimated emissions for the non-covered EGUs) to a benchmark
figure of 317,100 tons of annual SO<INF>2</INF> emissions evaluated for
EGUs in Texas in the 2012 CSAPR Better-Than-BART analysis.\46\
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\43\ 82 FR 48324, 48329-30, 48357 (Oct. 17, 2017). The EPA
initially determined that the Texas SO<INF>2</INF> Trading Program
achieved greater reasonable progress than source-specific BART under
the clear-weight-of-evidence test in 40 CFR 51.308(e)(2), relying on
the EPA's national finding that CSAPR provides for greater
reasonable progress than BART and the fact that the Texas
SO<INF>2</INF> Trading Program would achieve similar emission
reductions to CSAPR in Texas. See 82 FR at 48329-30.
\44\ Id. at 48358.
\45\ Id.
\46\ Id. at 48359-60.
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In our final action on October 17, 2017, we also finalized our
January 2017 proposed determination that Texas's participation in
CSAPR's trading program for ozone-season NO<INF>X</INF> qualifies as an
alternative to source-specific NO<INF>X</INF> BART. Because Texas
continues to participate in CSAPR's trading program for ozone-season
NO<INF>X</INF>, we are not reopening this determination in this action.
Finally, because both NO<INF>X</INF> and SO<INF>2</INF> were now once
again addressed by a BART alternative, we approved Texas's 2009
Regional Haze SIP's determination, based on a pollutant-specific
screening analysis, that Texas's EGUs are not subject to BART for PM.
On November 28, 2017, Sierra Club and the National Parks
Conservation Association (NPCA) submitted a petition for partial
reconsideration of our September 2017 finding affirming that CSAPR
continues to satisfy requirements as a BART alternative.\47\
[[Page 28924]]
Among other things, the petitioners alleged that it was impracticable,
and indeed impossible, to comment on the relationship between the Texas
SO<INF>2</INF> Trading Program and the CSAPR Better-than-BART analysis
in the final rule because the EPA did not finalize the Texas
SO<INF>2</INF> Trading Program until after the final rule was signed
and the EPA had assumed presumptive source-specific SO<INF>2</INF> BART
controls in the rulemaking record for the final rule.\48\ Petitioners
alleged, in particular, that the EPA's emissions shifting analysis
accounted for potential increases in emissions in remaining CSAPR
States of between 22,300 to 53,000 tons by assuming these emissions
would be offset by an estimated 127,300 tons of SO<INF>2</INF> emission
reductions in Texas due to presumptive source-specific BART
controls.\49\ However, these petitioners alleged that this assumption
was proven false when the EPA promulgated the Texas SO<INF>2</INF>
Trading Program rather than source-specific BART.\50\ On this basis,
among other things, petitioners sought mandatory reconsideration of the
September 29, 2017 action under CAA section 307(d)(7)(B).
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\47\ Sierra Club and National Parks Conservation Association,
Petition for Partial Reconsideration of Interstate Transport of Fine
Particulate Matter: Revision of Federal Implementation Plan
Requirements for Texas; Final Rule; 82 FR 45481 (Sept. 29, 2017);
EPA-HQ-OAR-2016-0598; FRL-9968-46-OAR (submitted Nov. 28, 2017).
\48\ Id. at 8-9.
\49\ Id. at 13-14.
\50\ Id.
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On December 15, 2017, the EPA received a separate petition from
Sierra Club, NPCA, and the Environmental Defense Fund (EDF) requesting
reconsideration of certain aspects of the October 2017 final rule
focused mainly on issues related to the Texas SO<INF>2</INF> Trading
Program promulgated to address the SO<INF>2</INF> BART requirement for
Texas EGUs.\51\ In response to the December 15, 2017, petition for
reconsideration and in light of the change in direction between the
EPA's proposed and final actions for SO<INF>2</INF> BART in Texas, we
stated that we believed that certain aspects of the October 2017 final
rule could benefit from further public comment. Accordingly, on August
27, 2018, the EPA proposed to affirm in most respects the October 2017
final rule, including the Texas SO<INF>2</INF> Trading Program, but
solicited public comment on certain issues including whether the Texas
SO<INF>2</INF> Trading Program for certain EGUs in Texas met the
requirements for an alternative to BART for SO<INF>2</INF> and our
approval of Texas's SIP determination that no sources are subject to
BART for PM.\52\
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\51\ Sierra Club, National Parks Conservation Association, and
Environmental Defense Fund Petition for Reconsideration of
Promulgation of Air Quality Implementation Plans; State of Texas;
Regional Haze and Interstate Visibility Transport Federal
Implementation Plan (Oct. 17, 2017) EPA-R06-OAR-2016-0611; FRL-9969-
07-Region 6 (submitted Dec. 15, 2017).
\52\ 83 FR 43586, 43587.
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On November 14, 2019, partly in response to comments received on
its 2018 proposed affirmation, the EPA issued a supplemental proposal
to amend certain parts of the Texas SO<INF>2</INF> Trading Program.\53\
The supplemental proposal included additional measures such as an
assurance level and penalty provisions. Specifically, these provisions
imposed a penalty surrender ratio of three-to-one on SO<INF>2</INF>
emissions exceeding a specified ``assurance level.'' \54\ The notice
also proposed a variability limit set at 7 percent of the trading
program budget (or 16,668 tons) and a resulting assurance level of 107
percent of the trading program budget (or 255,081 tons \55\) based on
the CSAPR methodology establishing such amounts for CSAPR States but
applied to Texas-specific data.\56\ The supplemental proposal also
included other minor changes with the goal of strengthening the overall
stringency of the program.\57\
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\53\ 84 FR 61850 (Nov. 14, 2019).
\54\ Id. at 61853.
\55\ In the final rule signed on June 29, 2020, we adjusted the
assurance level to 255,083 tons rather than the 255,081-ton
assurance level we proposed in the November 2019 supplemental
proposal. 85 FR 49170, 49183 (Aug. 12, 2020).
\56\ The increment between a State's emissions budget and its
corresponding assurance level is referred to as a ``variability
limit,'' because the increment is designed to account for year-to-
year variability in electricity generation and associated emissions.
\57\ 84 FR at 61855-56.
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On June 29, 2020, in two separate but concurrent actions, former
EPA Administrator Andrew Wheeler signed a final rule affirming, with
the proposed modifications from the supplemental proposal described
above, the Texas SO<INF>2</INF> Trading Program as an alternative to
BART for SO<INF>2</INF> for certain sources in Texas and signed a
letter denying the petition for reconsideration of the 2017 affirmation
of CSAPR Better-than-BART.\58\ Along with the denial of the petition,
the EPA also published in the docket the ``Cross-State Air Pollution
Rule (CSAPR) Better Than Best Available Retrofit Technology (BART)
Petition for Reconsideration Sensitivity Calculations'' \59\ to
demonstrate that, even accounting for the reduced stringency of the
Texas SO<INF>2</INF> Trading Program as compared to source-specific
BART in Texas, and assuming a concomitant shift in SO<INF>2</INF>
emissions to remaining CSAPR States in the southeastern United States,
CSAPR remained a valid BART alternative.
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\58\ See 85 FR 49170 (Aug. 12, 2020) (affirming the Texas
SO<INF>2</INF> Trading Program as an alternative to BART for certain
EGU sources in Texas). 85 FR 40286 (July 6, 2020) (providing notice
that the agency responded to a petition for partial reconsideration
of the 2017 affirmation of CSAPR better than BART).
\59\ Docket document ID EPA-HQ-OAR-2016-0598-0034 available at
<a href="https://www.regulations.gov/docket/EPA-HQ-OAR-2016-0598">https://www.regulations.gov/docket/EPA-HQ-OAR-2016-0598</a>.
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On August 28, 2020, the Sierra Club, NPCA, and Earthjustice
submitted a petition for partial reconsideration under CAA section
307(d)(7)(B) of the EPA's 2020 Denial of their November 2017 petition
for reconsideration (August 2020 petition).\60\ The petitioners alleged
that because the EPA presented the updated CSAPR Better-than-BART
sensitivity calculations for the first time in its 2020 denial of the
2017 Petition (and thus they were not afforded an opportunity to
comment), and because that updated analysis is of central relevance to
the September 2017 Final Rule, the EPA must reconsider both actions
under CAA section 307(d)(7)(B).\61\ The petitioners alleged that,
contrary to the EPA's conclusions in its 2020 Denial, the updated CSAPR
Better-than-BART analysis demonstrates that visibility improvement
under CSAPR is not equal to or greater than visibility improvement
under source-specific BART averaged over all 140 Class I areas, or the
60 eastern Class I areas covered by CSAPR.\62\ The August 2020 petition
will be discussed in further detail in Section V.
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\60\ Petition for Partial Reconsideration of Denial of Petition
for Reconsideration and Petition for Reconsideration of the
Interstate Transport of Fine Particulate Matter: Revision of Federal
Implementation Plan Requirements for Texas (Aug. 28, 2020), Docket
document ID EPA-HQ-OAR-2016-0598-0041, available in
<a href="http://www.regulations.gov">www.regulations.gov</a>.
\61\ 2020 Pet. at 8.
\62\ 2020 Pet. at 9.
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On October 13, 2020, we received a separate petition for partial
reconsideration from NPCA, Sierra Club, and Earthjustice, on our 2020
final rule affirming that the Texas SO<INF>2</INF> Trading Program is a
valid alternative to SO<INF>2</INF> BART requirements for Texas
EGUs.\63\ In the petition, Petitioner's allege that the EPA presented a
corrected sensitivity analysis for the first time on July 6, 2020, the
day the EPA published notice of its denial of the 2017 administrative
petition for reconsideration of the CSAPR Better-than-BART affirmation
and after the EPA signed the final rule affirming the Texas Regional
Haze BART FIP.
[[Page 28925]]
Specifically, the Petitioners alleged that the corrected sensitivity
analysis is the ``primary evidence'' for the EPA's conclusion that the
Texas SO<INF>2</INF> Trading Program is a lawful and valid BART
alternative for SO<INF>2</INF> under the Regional Haze Rule, and that
contrary to the EPA's assertions, the ``corrected'' analysis reveals
that the Texas SO<INF>2</INF> Trading Program does not achieve greater
reasonable progress than source-specific BART, and therefore, is
arbitrary and contrary to the Clean Air Act and Regional Haze Rule.
Moreover, Petitioners contended that the corrected sensitivity analysis
demonstrates that visibility improvement under CSAPR, including the
Texas SO<INF>2</INF> Trading Program, is not equal to or greater than
visibility improvement under source-specific BART averaged over all 140
Class I areas or the 60 eastern Class I areas generally within the
States covered under CSAPR. Because the EPA disclosed the updated
analysis for the first time on July 6, 2020, the Petitioners argued
that the grounds for the objections raised in this petition arose after
the period for public comment, which ended on January 13, 2020, for the
EPA's supplemental notice of proposed rulemaking (84 FR 61,850 (Nov.
14, 2019)). Thus, Petitioners alleged the petition met the requirements
for mandatory reconsideration under CAA section 307(d)(7)(B).
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\63\ Sierra Club, National Parks Conservation Association, and
Earthjustice Petition for Partial Reconsideration of Promulgation of
Air Quality Implementation Plans; State of Texas; Regional Haze and
Interstate Visibility Transport Federal Implementation Plan EPA-R06-
OAR-2016-0611 (dated Oct. 13, 2020).
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By letter dated June 22, 2021, the EPA acknowledged receipt of the
petition for partial reconsideration and, without conceding that the
conditions for mandatory reconsideration were necessarily met pursuant
to CAA section 307(d)(7)(B), the agency recognized that aspects of this
action warrant careful review, and potential modification, to ensure
our actions are fully consistent with the requirements of the Clean Air
Act and the Regional Haze Rule.\64\ The letter stated the EPA's intent
to reconsider certain aspects of the Texas Regional Haze BART action,
which we are proposing in this action.
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\64\ Letter from Joseph Goffman, Acting Assistant Administrator
Office of Air and Radiation, Re: Sierra Club and National Parks
Conservation Association, Petition for Partial Reconsideration of
Promulgation of Air Quality Implementation Plans; State of Texas;
Regional Haze and Interstate Visibility Transport Federal
Implementation Plan EPA-R06-OAR-2016-0611 (June 22, 2021) available
in Docket ID No. EPA-R06-OAR-2016-0611 or at <a href="https://www.epa.gov/system/files/documents/2021-07/tx-rh-bart-fip-response-signed_1.pdf">https://www.epa.gov/system/files/documents/2021-07/tx-rh-bart-fip-response-signed_1.pdf</a>.
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D. Consultation With Federal Land Managers (FLMs)
The Regional Haze Rule requires that a State, or the EPA if
promulgating a FIP, consult with FLMs before adopting and submitting a
required SIP or SIP revision or a required FIP or FIP revision. Under
40 CFR 51.308(i)(2), a State, or the EPA if promulgating a FIP, must
provide an opportunity for consultation no less than 60 days prior to
holding any public hearing or other public comment opportunity on a SIP
or SIP revision, or FIP or FIP revision, for regional haze. The EPA
must include a description of how it addressed comments provided by the
FLMs when considering a FIP or FIP revision. We consulted with the FLMs
(specifically, U.S. Fish and Wildlife Service, U.S. Forest Service, and
the National Park Service) on December 6, 2022. During the consultation
we provided an overview of our proposed actions. The FLMs signaled
support for our proposed action.\65\
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\65\ See ``Texas Regional Haze FLM Consultation 12-6-2022.xls''
in the docket for this action.
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III. Overview of Proposed Action
In this notice of proposed rulemaking, the EPA proposes an action
with several interrelated components. As more fully explained in the
following sections, on reconsideration, and due to concerns that our
justification for the Texas SO<INF>2</INF> Trading Program rested on an
erroneous interpretation of our BART alternative regulations, we are
proposing to withdraw the Texas SO<INF>2</INF> Trading Program and
instead propose source-specific BART limits for certain EGUs in Texas.
We are proposing to satisfy the Regional Haze Rule's SO<INF>2</INF>
BART requirements through conducting a source-specific BART analysis
for certain BART-eligible EGU sources identified in this action.
Additionally, based on our assessment of the effect of this proposed
action with regard to Texas BART (if finalized), we are proposing to
re-affirm our 2017 analytical demonstration that CSAPR remains a valid
BART alternative. Thus, in this action we propose to deny the 2020
petition for partial reconsideration of our 2020 denial of a petition
for reconsideration of that 2017 determination. Finally, we are
proposing to make an error correction under CAA section 110(k)(6) with
respect to our prior approval of the portion of the 2009 Texas Regional
Haze SIP that found that Texas's EGUs are not subject to BART for PM on
the grounds that our approval relied on underlying assumptions as to
how the SO<INF>2</INF> and NO<INF>X</INF> BART requirements for EGUs
were being met that are no longer valid with the proposed withdrawal of
the Texas SO<INF>2</INF> Trading Program. As such, we propose to
correct the error by disapproving Texas's 2009 Regional Haze SIP
submission related to PM BART and propose to satisfy PM BART by also
conducting a source-specific BART analysis for certain BART-eligible
EGU sources identified in this action. Unless expressly reopened in
this notice, the EPA is not reopening any other prior determinations
related to regional haze requirements in the State of Texas.
IV. Withdrawal of the Texas SO2 Trading Program as a BART Alternative
for SO2
As previously stated, on August 12, 2020, the EPA published a final
rule affirming our 2017 final rule that the Texas SO<INF>2</INF>
Trading Program, with amendments, satisfied the requirements for a BART
alternative for SO<INF>2</INF> under 40 CFR 51.308(e)(2).\66\ In this
action, we are proposing to find that the basis for the Texas
SO<INF>2</INF> Trading Program as a BART alternative rested on an
erroneous interpretation of our BART alternative regulations. That
interpretation in turn produced an analytical basis for the BART
alternative that we now propose to find insufficient and in error. We
are proposing to withdraw the Texas SO<INF>2</INF> Trading Program
under CAA section 110(k)(6) and our inherent authority to reconsider
prior actions.
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\66\ See generally 85 FR 49170.
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A. Legal Authority To Withdraw the Texas SO2 Trading Program
1. The EPA's Error Correction Authority Under CAA 110(k)(6)
The EPA proposes to correct its Texas Regional Haze BART FIP by
proposing to withdraw the Texas SO<INF>2</INF> Trading Program and
proposing to instead conduct a source-specific BART analysis for the
BART-eligible EGUs included in the Texas SO<INF>2</INF> Trading
Program. In this action, we are proposing to find that the Texas
SO<INF>2</INF> Trading Program was promulgated on an erroneous basis,
constituting an error under CAA section 110(k)(6).
Section 110(k)(6) of the CAA provides the EPA with the authority to
make corrections to actions on CAA implementation plans that are
subsequently found to be in error. Ass'n of Irritated Residents v. EPA,
790 F.3d 934, 948 (9th Cir. 2015) (110(k)(6) is a ``broad provision''
enacted to provide the EPA with an avenue to correct errors). The key
provisions of section 110(k)(6) are that the Administrator has the
authority to ``determine'' that the promulgation of a plan was ``in
error,'' and when the Administrator does so, may then revise the action
``as
[[Page 28926]]
appropriate,'' in the same manner as the prior action.\67\ Moreover,
CAA section 110(k)(6) ``confers discretion on the EPA to decide if and
when it will invoke the statute to revise a prior action.'' 790 F.3d at
948 (section 110(k)(6) grants the ``EPA the discretion to decide when
to act pursuant to that provision'').
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\67\ See 85 FR 73636, 73637 (Nov. 19, 2020).
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While CAA section 110(k)(6) provides the EPA with the authority to
correct its own ``error,'' nowhere does this provision or any other
provision in the CAA define what qualifies as ``error.'' Thus, the EPA
believes that the term should be given its plain language, everyday
meaning, which includes all unintentional, incorrect, or wrong actions
or mistakes.\68\ Under CAA section 110(k)(6), the EPA must make an
error determination and provide the ``the basis thereof.'' There is no
indication that this is a substantial burden for the Agency to meet. To
the contrary, the requirement is met if the EPA clearly articulates the
error and basis thereof. Ass'n of Irritated Residents v. EPA, 790 F.3d
at 948; see also 85 FR 73636, 73638.
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\68\ See 85 FR at 73637-38.
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2. The EPA's Inherent Authority To Reconsider Its Prior Action
In addition to the error correction provision of CAA section
110(k)(6), the EPA also has the inherent administrative authority to
withdraw the Texas SO<INF>2</INF> Trading Program and propose in its
place to conduct a source-specific BART analysis for the BART-eligible
EGUs included in the Texas SO<INF>2</INF> Trading Program. This
authority lies in CAA section 301(a), read in conjunction with CAA
section 110 and case law holding that an agency has inherent authority
to reconsider its prior actions.\69\ Section 301(a) authorizes the EPA
``to prescribe such regulations as are necessary to carry out the
[EPA's] functions'' under the CAA. Reconsidering prior rulemakings,
when necessary, is part of the ``[EPA's] functions'' under the CAA--
considering the EPA's inherent authority as recognized under the case
law to do so--and as a result, CAA section 301(a) confers authority
upon the EPA to undertake this rulemaking. Moreover, CAA section
110(c)(1) provides the EPA with the authority to promulgate a FIP where
``the Administrator . . . disapproves a State implementation plan
submission in whole or in part.'' As such, the EPA's authority to
promulgate FIPs under the CAA necessarily provides it the inherent
authority to amend/withdraw FIPs.\70\
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\69\ Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th
Cir. 1980) (``Administrative agencies have an inherent authority to
reconsider their own decisions, since the power to decide in the
first instance carries with it the power to reconsider.'')
\70\ See 76 FR 25177, 25181 (May 2011).
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Additionally, it is well-established that the EPA has discretion to
revisit existing regulations. Specifically, agencies have inherent
authority to reconsider past decisions and to revise, replace, or
repeal a decision to the extent permitted by law and supported by a
reasoned explanation. FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009) (``Fox''); Motor Vehicle Manufacturers Ass'n of the
United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463
U.S. 29, 42 (1983) (``State Farm''); see also Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 221-22 (2016).
As such, we find that our inherent ability to reconsider past
actions also provides us the authority to withdraw the Texas
SO<INF>2</INF> Trading Program for the same reasons as under CAA
section 110(k)(6), as described in Section IV.B. That is, because the
Texas SO<INF>2</INF> Trading Program rested on what we find to be an
improper interpretation of our BART alternative regulations, we are
proposing to withdraw the program and to conduct a source-specific BART
analysis for those EGUs currently participating in the program.
The EPA acknowledges the potential for reliance interests to be
affected by our reconsideration of a prior rule. However, the EPA is
not aware of any substantial commitment of resources or capital, or
that the EGUs covered by the Texas SO<INF>2</INF> Trading Program
undertook any significant decisions in reliance on participation in the
trading program. The Texas SO<INF>2</INF> Trading Program established
an emissions budget that the covered sources were already operating
well below. Therefore, the requirements of the Texas SO<INF>2</INF>
Trading Program did not cause any sources to invest in new pollution
control technology or to undertake any other significant investments.
Further, because the Texas SO<INF>2</INF> Trading Program rested on an
improper interpretation of our BART alternative regulations, we do not
think a reliance interest alone (even if there were such interests)
would be sufficient to overcome the need to return to a proper
interpretation of our BART regulations and proper implementation of the
BART program.
B. Basis for Withdrawing the Texas SO2 Trading Program
We propose that, in attempting to demonstrate that the Texas
SO<INF>2</INF> Trading Program satisfied the BART alternative
requirements in 40 CFR 51.308(e)(2), the EPA erroneously relied on its
previous determination that the CSAPR trading program is better-than-
BART nationwide, when in fact the Texas SO<INF>2</INF> Trading Program
was a separate BART alternative program that was not a part of the
CSAPR program.\71\ Because the Texas SO<INF>2</INF> Trading Program was
and is separate and distinct from CSAPR and functioned as an
independent BART alternative disconnected from any other BART
alternative, we propose that in conducting the comparative analysis
required by 51.308(e)(2)(i), the EPA should have compared the
visibility benefits of the Texas SO<INF>2</INF> Trading Program in
isolation with the visibility benefits of source-specific BART controls
for the particular subject-to-BART sources that would have been
required in the absence of the BART alternative. We conducted no such
comparison in either the 2017 rule originally promulgating the Texas
SO<INF>2</INF> Trading Program, nor in the 2020 action affirming the
Texas SO<INF>2</INF> Trading Program with certain, minor amendments.
For purposes of determining whether it is appropriate to now withdraw
the Texas SO<INF>2</INF> Trading Program as a BART alternative, we have
conducted an analysis comparing the Texas SO<INF>2</INF> Trading
Program to source-specific BART for the relevant EGU BART sources. We
propose to find that source-specific BART controls substantially
outperform the Texas SO<INF>2</INF> Trading Program in terms of
emission reductions and visibility improvement at the Class I areas
that are affected by the sources in Texas. As a result of this finding
of error, we are proposing to withdraw the Texas SO<INF>2</INF> Trading
Program as a BART alternative for SO<INF>2</INF> and propose in its
place to conduct a source-specific BART analysis for those BART-
eligible EGUs included in the Texas SO<INF>2</INF> Trading Program.
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\71\ See 82 FR 48324, 48330 (Oct. 17, 2017).
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1. BART Alternative Requirements
The Regional Haze Rule's BART provisions generally direct States to
identify all BART-eligible sources; determine which of those BART-
eligible sources are subject to BART requirements based on whether the
sources emit air pollutants that may reasonably be anticipated to cause
or contribute to visibility impairment in a Class I area; determine
source-specific BART for each source that is subject to BART
requirements, based on an analysis taking specified factors into
consideration; and include emission limitations reflecting those BART
determinations in their SIPs. However, the Regional Haze Rule also
provides
[[Page 28927]]
each State with the flexibility to adopt an allowance trading program
or other alternative measure instead of requiring source-specific BART
controls, so long as the alternative measure is demonstrated to achieve
greater reasonable progress than BART toward the national goal of
achieving natural visibility conditions in Class I areas.
States, or the EPA if promulgating a FIP, that opt to rely on an
alternative program in lieu of source-specific BART, must meet the
requirements under 40 CFR 51.308(e)(2) and, if applicable, (e)(3).
These requirements for alternative programs establish the criteria for
demonstrating that the alternative program will achieve greater
reasonable progress than would be achieved through the installation and
operation of BART (i.e., they establish the ``better-than-BART'' tests)
and are fundamental elements of any alternative program. To demonstrate
that the alternative program achieves greater reasonable progress than
source-specific BART, States, or the EPA if developing a FIP, must
demonstrate that the alternative meets the requirements, as applicable,
in 40 CFR 51.308(e)(2)(i) through (vi). Separately, under 40 CFR
51.308(e)(4), States whose sources participate in the CSAPR trading
program(s) may rely on such programs to satisfy BART as to the relevant
pollutants and sources without the need for any additional analysis
(discussed in more detail in Section V).
Under 40 CFR 51.308(e)(2), the State, or the EPA, must conduct an
analysis of the best system of continuous emission control technology
available and the associated emission reductions achievable for each
source subject to BART covered by the alternative program, termed a
``BART benchmark.'' \72\ Where the alternative program has been
designed to meet requirements other than BART, simplifying assumptions
may be used to establish a BART benchmark.\73\ The BART benchmark is
the basis for comparison in the better-than-BART test for BART
alternatives. Under 40 CFR 51.308(e)(2)(i)(E), the State or the EPA
must provide a determination that the alternative program achieves
greater reasonable progress than BART under 40 CFR 51.308(e)(3). 40 CFR
51.308(e)(3), in turn, provides two different avenues, applicable under
specific circumstances, for determining whether the BART alternative
achieves greater reasonable progress than BART. If the distribution of
emissions under the alternative program is not substantially different
than under BART, and the alternative program results in greater
emissions reductions of each relevant pollutant than BART, then the
alternative program may be deemed to achieve greater reasonable
progress. On the other hand, if the distribution of emissions is
significantly different, the differences in visibility improvement
between BART and the alternative program must be determined by
conducting dispersion modeling for each impacted Class I area for the
best and worst 20 percent of days. This modeling demonstrates ``greater
reasonable progress'' if both of the following criteria are met: (1)
Visibility does not decline in any Class I area; and (2) there is
overall improvement in visibility when comparing the average
differences in visibility conditions between BART and the alternative
program across all the affected Class I areas.\74\
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\72\ 40 CFR 51.308(e)(2)(i)(C).
\73\ 40 CFR 51.308(e)(2)(i)(C).
\74\ 40 CFR 51.308(e)(3).
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Alternatively, pursuant to 40 CFR 51.308(e)(2)(i)(E), a third test
is available under which States may show that the BART alternative
achieves greater reasonable progress than BART ``based on the clear
weight of evidence.'' As stated in the EPA's revisions to the Regional
Haze Rule governing alternatives to source-specific BART
determinations, such demonstrations attempt to make use of all
available information and data which can inform a decision while
recognizing the relative strengths and weaknesses of that information
in arriving at the soundest decision possible.\75\ Factors which can be
used in a weight of evidence determination in this context may include,
but are not limited to, future projected emissions levels under the
program as compared to under BART, future projected visibility
conditions under the two scenarios, the geographic distribution of
sources likely to reduce or increase emissions under the program as
compared to BART sources, monitoring data and emissions inventories,
and sensitivity analyses of any models used. This array of information
and other relevant data may be of sufficient quality to inform the
comparison of visibility impacts between BART and the alternative
program. In showing that an alternative program is better than BART and
when there is confidence that the difference in visibility impacts
between BART and the alternative scenarios are expected to be large
enough, a weight of evidence comparison may be warranted in making the
comparison.
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\75\ 71 FR 60612, 60622 (Oct. 13, 2006).
---------------------------------------------------------------------------
Under 40 CFR 51.308(e)(2)(iii) and (iv), all emission reductions
for the alternative program must take place during the period of the
first long-term strategy (i.e., the first planning period) for regional
haze and all the emission reductions resulting from the alternative
program must be surplus to those reductions resulting from measures
adopted to meet requirements of the CAA as of the baseline date of the
SIP.
2. The EPA Inappropriately Relied on CSAPR When Promulgating and
Affirming the Texas SO<INF>2</INF> Trading Program in 2017 and 2020
The EPA has long maintained that the CSAPR trading programs can
function as a BART alternative for the relevant covered visibility
pollutants for the EGU BART sources that are covered by the relevant
CSAPR trading program. The EPA promulgated CSAPR, a revised multistate
trading program to replace CAIR, in 2011 (and revised it in 2012).\76\
CSAPR established FIP requirements for several States, including Texas,
to address the States' interstate transport obligation under CAA
section 110(a)(2)(D)(i)(I). The EPA made the original CSAPR better-
than-BART determination in a 2012 rulemaking, codified at 40 CFR
51.308(e)(4), and subsequently reaffirmed that determination in a 2017
rulemaking.\77\ At the time of the 2012 rulemaking, Texas was part of
the CSAPR annual NO<INF>X</INF> and SO<INF>2</INF> trading programs to
address interstate transport of PM<INF>2.5</INF>. Therefore, Texas was
among the States who could choose to meet BART obligations for their
EGUs through participation in the relevant CSAPR trading program. The
EPA subsequently withdrew Texas from CSAPR for purposes of addressing
interstate transport requirements for the PM<INF>2.5</INF> NAAQS (i.e.,
Texas was withdrawn from the annual NO<INF>X</INF> and SO<INF>2</INF>
trading programs) in response to the D.C. Circuit Court's decision in
EME Homer City Generation, L.P. v. EPA.\78\ However, when the EPA
promulgated the Texas SO<INF>2</INF> Trading Program, the Agency
reasoned that it could nonetheless
[[Page 28928]]
satisfy the Regional Haze Rule's BART alternative requirements by
demonstrating that SO<INF>2</INF> emissions under the Texas
SO<INF>2</INF> Trading Program were comparable to SO<INF>2</INF>
emissions anticipated from Texas had Texas remained in CSAPR.\79\
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\76\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (Aug. 8, 2011).
\77\ 77 FR 33642 (June 7, 2012) (codified at 40 CFR
51.308(e)(4)). The final rule amended the Regional Haze Rule to
allow States whose EGUs participate in one of the CSAPR trading
programs for a given pollutant to rely on that participation as an
alternative to source-specific BART requirements); see also 82 FR
45481 (Sep 29, 2017) (affirming that CSAPR remained better than BART
nationwide after Texas and other States were removed from CSAPR for
PM).
\78\ EME Homer City Generation, L.P. v. EPA, 795 F. 3d 118, 138
(D.C. Cir. 2015).
\79\ 82 FR 48324, 48336 (Oct. 17, 2017).
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As we explained in our June 2020 affirmation of the Texas
SO<INF>2</INF> Trading Program, annual SO<INF>2</INF> emissions for
sources covered by the Texas SO<INF>2</INF> Trading Program are
constrained by the annual budgets and an assurance level of 255,083
tons. The EPA then added to this amount an estimated 35,000 tons per
year of emissions from units not covered by the Texas SO<INF>2</INF>
Trading Program, but which would have been covered by the CSAPR
program. This yielded 290,083 tons of SO<INF>2</INF>, which was below
the 317,100-tons per year emissions level assumed for Texas sources
under CSAPR.\80\ Thus, rather than considering the Texas SO<INF>2</INF>
Trading Program in isolation as a BART alternative and comparing the
effects of that program to the effects of source-specific BART for the
relevant EGUs in Texas to determine whether it made ``greater
reasonable progress,'' the EPA instead relied on the CSAPR Better-than-
BART analysis as the basis for concluding that the Texas SO<INF>2</INF>
Trading Program provided greater reasonable progress than BART--even
though the Texas SO<INF>2</INF> Trading Program was not connected in
any way to CSAPR and functioned as its own, independent BART
alternative.
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\80\ Promulgation of Air Quality Implementation Plans; State of
Texas; Regional Haze and Interstate Visibility Transport Federal
Implementation Plan 85 FR 49170, 49183 (Aug. 12, 2020).
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Such reliance is inconsistent with the requirements of the Regional
Haze Rule's requirements for a BART alternative in 40 CFR 51.308(e)(2),
which requires a comparison between the BART alternative and the BART
benchmark for the relevant sources.\81\ Because the Texas
SO<INF>2</INF> Trading Program is an intrastate program, the effects of
that program should have been considered independently of CSAPR.
Indeed, participation in the CSAPR program in lieu of implementing BART
requirements is provided for under a separate provision of the Regional
Haze Rule, 40 CFR 51.308(e)(4). Thus, the EPA could only rely on the
analytical demonstrations made in the CSAPR better-than-BART
rulemakings had Texas remained in CSAPR.\82\ Once Texas was withdrawn
from CSAPR, the EPA could not rely on that provision as justification
that the Texas SO<INF>2</INF> Trading Program made ``greater reasonable
progress'' than BART at Texas EGUs. Thus, whether the Texas
SO<INF>2</INF> Trading Program provided similar or more reductions than
anticipated had Texas remained in CSAPR is irrelevant and fails to
demonstrate that it achieves greater reasonable progress than BART as
required by 40 CFR 51.308(e)(2).
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\81\ 40 CFR 51.308(e)(2).
\82\ Even after the removal of Texas (and other States) from
CSAPR following the remand of certain CSAPR budgets in EME Homer
City Generation, Texas (and other States) had the option to
voluntarily participate in CSAPR to gain the benefit of addressing
BART obligations. Texas declined to adopt this approach.
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Furthermore, although the Texas SO<INF>2</INF> Trading Program was
modeled after CSAPR in its design and operation, the two programs are
distinct. First, the sources covered under the Texas SO<INF>2</INF>
Trading Program do not include all the sources in Texas that were part
of the CSAPR trading program.\83\ Thus, the EPA had to rely on an
unenforceable emissions assumption of 35,000 tons per year from the
non-covered sources to allow for an apples-to-apples comparison between
the Texas program and the CSAPR program in terms of the universe of
sources analyzed.\84\ However, there was no obligation that the non-
covered sources would emit below that assumed level in perpetuity.
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\83\ See 85 FR 49170, 49184.
\84\ 85 FR 49170, 49184.
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Second, CSAPR was designed as a regional trading program that
involved the participation of sources from many States over a wide
geographic area, as compared to the Texas SO<INF>2</INF> Trading
Program, which is an intrastate trading program. As such, the Texas
SO<INF>2</INF> Trading Program is limited to sources in Texas which
cannot trade allowances with sources in other States as is permitted
under CSAPR. Because of the scope of participation in CSAPR, in
demonstrating that CSAPR was Better-than-BART, the EPA was not required
by the rule to demonstrate that CSAPR achieves greater reasonable
progress than BART at every Class I area or in every State.\85\ Rather,
the EPA demonstrated that CSAPR achieved greater visibility improvement
than BART when visibility was averaged across all Class I areas.\86\ In
averaging visibility improvement from CSAPR across all the affected
Class I areas, the 2012 demonstration properly relied on the
substantial emission reductions anticipated to occur in the eastern
half of the country for which other States, which included Texas at the
time, could take advantage of without having to apply source-specific
BART.\87\ For example, SO<INF>2</INF> emissions in Tennessee were
anticipated to be approximately 321,300 in a nationwide BART
scenario,\88\ but only approximately 66,700 under CSAPR.\89\ Similar
situations were also anticipated in several other States including Ohio
(546,700 tons of SO<INF>2</INF> under a nationwide BART scenario
compared to only 190,000 tons under CSAPR); Indiana (454,500 tons of
SO<INF>2</INF> under a nationwide BART scenario compared to only
202,900 tons under CSAPR); and Pennsylvania (222,600 tons of
SO<INF>2</INF> under a BART scenario compared to only 134,500 tons
under CSAPR).\90\
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\85\ See 77 FR at 33650.
\86\ See e.g., 77 FR at 33650.
\87\ Specifically, in the 2017 affirmation that CSAPR remains
better than BART after withdrawal of multiple States from CSAPR,
including Texas, we stated that the 2012 analytic demonstration
showed that the difference in emissions between the CSAPR scenario
plus BART elsewhere would lead to an overall reduction in
SO<INF>2</INF> emission reductions for the overall modeled region of
773,000 tons as compared to application of source specific BART
nationwide. See memo entitled ``Sensitivity Analysis Accounting for
Increases in Texas and Georgia Transport Rule State Emissions
Budgets,'' Docket document ID No. EPA-HQ-OAR-2011-0729-0323 (May 29,
2012) (2012 CSAPR/BART sensitivity analysis memo), at 1-2, available
in the docket for this proposed action.
\88\ For all BART-eligible EGUs in the Nationwide BART scenario
and for BART-eligible EGUs not subject to CSAPR for a particular
pollutant in the CSAPR + BART-elsewhere scenario, the modeled
emission rates were the presumptive EGU BART limits for
SO<INF>2</INF> and NO<INF>X</INF> as specified in the BART
Guidelines (Appendix Y to 40 CFR part 51--Guidelines for BART
Determinations under the Regional Haze Rule), unless an actual
emission rate at a given unit with existing controls was lower, in
which case the lower emission rate was modeled. (For additional
details see Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket document ID No. EPA-HQ-
OAR-2011-0729-0014 (December 2011) (2011 CSAPR/BART Technical
Support Document EPA-HQ-OAR-2011-0729-0014) in <a href="http://www.regulations.gov">www.regulations.gov</a>.
\89\ See Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket document ID No. EPA-HQ-
OAR-2011-0729-0014 (December 2011) (2011 CSAPR/BART Technical
Support Document EPA-HQ-OAR-2011-0729-0014), at table 2-4, also
available in the docket for this action at document ID EPA-R06-OAR-
2016-0611-0119.
\90\ See Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket ID No. EPA-HQ-OAR-2011-
0729-0014 (December 2011) (2011 CSAPR/BART Technical Support
Document), at table 2-4, available in <a href="http://www.regulations.gov">www.regulations.gov</a>, document
ID EPA-R06-OAR-2016-0611-0119.
---------------------------------------------------------------------------
However, while CSAPR leads to greater emissions reductions overall
over the modeled region, we explained that for certain CSAPR States,
application of source-specific BART was projected to lead to greater
emission reductions than through participation in CSAPR. We explained
that this could occur in CSAPR States that have numerous BART-eligible
EGUs.\91\ One
[[Page 28929]]
such State where this was anticipated to occur was Texas. In the case
of Texas, the projected SO<INF>2</INF> emissions from affected EGUs in
the modeled nationwide-BART scenario (139,300 tons per year) are
considerably lower than the projected SO<INF>2</INF> emissions from the
affected EGUs in the CSAPR scenario (266,600 tons per year as modeled,
and up to approximately 317,100 tons, as addressed in the 2012 CSAPR/
BART sensitivity analysis memo).\92\ Thus, the application of
presumptive source-specific BART, instead of participation in the CSAPR
SO<INF>2</INF> trading program, would have resulted in projected
emissions of 139,300 tons per year, a reduction in projected
SO<INF>2</INF> emissions by between approximately 127,300 tons and
177,800 tons from the CSAPR SO<INF>2</INF> trading program
emissions.\93\ As a result, a demonstration that the Texas
SO<INF>2</INF> Trading Program achieves equivalent emissions reductions
as anticipated had Texas remained in CSAPR fails to demonstrate that
the Texas SO<INF>2</INF> Trading Program achieves greater reasonable
progress than BART for the BART sources in Texas participating in the
Texas SO<INF>2</INF> Trading Program. The comparison in estimated
emissions above strongly indicates this not to be the case.
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\91\ 81 FR 78954, 78962-63 (Nov. 10, 2016).
\92\ 81 FR 78954, 78962-63 (Nov. 10, 2016).
\93\ 81 FR 78954, 78962-63 (Nov. 10, 2016). As stated in both
the proposal and final rule withdrawing Texas from CSAPR
SO<INF>2</INF> trading program, the 127,300-ton amount was described
as the minimum reduction in projected Texas SO<INF>2</INF> emissions
because it did not reflect a 50,500-ton increase in the Texas
SO<INF>2</INF> budget that occurred after the original CSAPR
scenario was modeled. If that budget increase had been reflected in
the original CSAPR scenario, modeled Texas EGU SO<INF>2</INF>
emissions in that scenario would likely have been higher,
potentially by the full 50,500-ton amount. The CSAPR budget increase
would have had no effect on Texas EGUs' modeled SO<INF>2</INF>
emissions under BART. Therefore, the 127,300-ton minimum estimate of
the reduction in projected Texas SO<INF>2</INF> emissions caused by
removing Texas EGUs from CSAPR for SO<INF>2</INF>, which are
computed as the difference between Texas EGUs' collective emissions
in the original CSAPR scenario and the BART scenario, may be
understated by as much as 50,500 tons. See 82 FR at 45492; 81 FR at
78962-63.
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Thus, we propose that it was an error to allow the Texas
SO<INF>2</INF> Trading Program to rely on a demonstration made for a
different and unconnected BART alternative (i.e., CSAPR) because it
failed to comport with the requirements in 40 CFR 51.308(e)(2).
Instead, the EPA should have assessed whether the Texas SO<INF>2</INF>
Trading Program provides for greater reasonable progress than BART for
those BART sources in Texas covered by the Texas SO<INF>2</INF> Trading
Program.\94\
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\94\ See 40 CFR 51.308(e)(2), (e)(3).
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3. The Texas SO<INF>2</INF> Trading Program Does Not Achieve Greater
Reasonable Progress Than BART
Because the 2017 Texas BART FIP and subsequent affirmation
improperly relied on CSAPR to support the validity of the Texas
SO<INF>2</INF> Trading Program, there is no evidence in the record to
support a finding that the Texas SO<INF>2</INF> Trading Program
provides for greater reasonable progress than BART when compared to the
proper BART benchmark (i.e., source specific BART for the sources in
Texas covered by the Texas SO<INF>2</INF> Trading Program). Rather, the
relevant information indicates that had the Texas SO<INF>2</INF>
Trading Program been compared to the appropriate Texas-specific BART
benchmark, the analysis would have found that the Texas SO<INF>2</INF>
Trading Program does not provide for greater reasonable progress than
BART at the Class I areas affected by those sources.
For purposes of determining whether it is appropriate to now
withdraw the Texas SO<INF>2</INF> Trading Program as a BART
alternative, we have conducted an analysis comparing the effects of the
Texas SO<INF>2</INF> Trading Program to source-specific BART for the
relevant EGU BART sources. The purpose of this analysis is not to
conduct a full re-evaluation of the Texas SO<INF>2</INF> Trading
Program under each of the requirements of the BART-alternative
regulations of 40 CFR 51.308(e)(2). Rather, this analysis evaluates the
question of whether, even under conservative assumptions, the Texas
SO<INF>2</INF> Trading Program, when compared to the proper BART
benchmark (source-specific BART for the relevant sources in Texas),
could possibly achieve greater reasonable progress. The analysis
confirms a stark disparity in outcomes, with the Texas SO<INF>2</INF>
Trading Program not securing any additional emission reductions and
even allowing for substantial SO<INF>2</INF> emissions increases from
baseline levels while source-specific BART would achieve substantial
SO<INF>2</INF> emissions decreases. We propose to find that the
installation and operation of source-specific BART controls
substantially outperform the Texas SO<INF>2</INF> Trading Program in
terms of emission reductions and resulting visibility improvement at
the Class I areas that are affected by the sources in Texas, and that
the Texas SO<INF>2</INF> Trading Program does not achieves greater
reasonable progress than BART as required by 40 CFR 51.308(e)(2).
As we explained earlier in Section II and in our June 2020
affirmation of the Texas SO<INF>2</INF> Trading Program as an
alternative to BART for SO<INF>2</INF>, annual SO<INF>2</INF> emissions
for sources covered by the Texas SO<INF>2</INF> Trading Program are
constrained by the annual budgets and an assurance level of 255,083
tons.\95\ The Texas SO<INF>2</INF> Trading Program imposes a penalty
surrender ratio of three allowances for each ton of emissions in any
year in excess of the assurance level, which provides a disincentive
against emissions exceeding the assurance level. Added to this amount
is an estimated 35,000 tons per year of emissions from units not
covered by the Texas SO<INF>2</INF> Trading Program, but which would
have been covered by the CSAPR program. This yields an estimated
290,083 tons of SO<INF>2</INF> from all Texas EGUs. This is
significantly higher than the 139,300 tons per year estimated in the
nationwide BART only scenario for Texas EGUs in the 2012 CSAPR better
than BART demonstration. In other words, the presumptive BART scenario
developed for the 2012 demonstration would result in approximately
150,000 tons per year less SO<INF>2</INF> emissions than the Texas
SO<INF>2</INF> Trading Program scenario.
---------------------------------------------------------------------------
\95\ 85 FR 49170, 49183 (Aug. 12, 2020).
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We note, however, that this comparison of emissions of the Texas
SO<INF>2</INF> Trading Program and presumptive BART from the 2012 CSAPR
analysis does not account for recent facility shutdowns. Sandow,\96\
Big Brown,\97\ and Monticello \98\ retired in 2018. Welsh Unit 2
retired in 2016,\99\ and the J. T. Deely units retired at the end of
2018.\100\ While these retirements have resulted in overall emission
reductions, they have also resulted in a surplus of allowances that
serve to decrease or eliminate any
---------------------------------------------------------------------------
\96\ See letter dated February 14, 2018, from Kim Mireles of
Luminant to the TCEQ requesting to cancel certain air permits and
registrations for Sandow Steam Electric Station available in the
docket for this action at document ID EPA-R06-OAR-2016-0611-0143 for
Sandow Unit 4 and document ID EPA-R06-OAR-2016-0611-0134 for Sandow
Unit 5.
\97\ See letter dated March 27, 2018, from Kim Mireles of
Luminant to the TCEQ requesting to cancel certain air permits and
registrations for Big Brown available in the docket for this action
at document ID EPA-R06-OAR-2016-0611-0130.
\98\ See letter dated February 8, 2018, from Kim Mireles of
Luminant to the TCEQ requesting to cancel certain air permits and
registrations for Monticello available in the docket for this action
at document ID EPA-R06-OAR-2016-0611-0132.
\99\ Welsh Unit 2 was retired on April 16, 2016, pursuant to a
Consent Decree (No. 4:10-cv-04017-RGK) and subsequently removed from
the Title V permit (permit no. O26). See ``TX197.183 Turk (Welsh)
Consent Decree 12.22.11'' (document ID EPA-R06-OAR-2016-0611-0138)
and ``TX187.129 AIR OP_O26-13404_Permits_Public_20160919_Project
File Folder_1410429 (document ID EPA-R06-OAR-2016-0611-0129) in the
docket for this action.
\100\ See letters dated December 2021 from the TCEQ to Danielle
Frerich regarding the cancellation of air quality permits for the J.
T. Deely Units available in the docket for this action.
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[[Page 28930]]
regulatory pressure from the Texas SO<INF>2</INF> Trading Program to
further decrease emissions from current levels. Under the Texas
SO<INF>2</INF> Trading Program, retired units continue to be allocated
allowances for a period of five years.\101\ After that period, those
allowances are still allocated but to the supplemental allowance
pool.\102\ Sources participating in the Texas SO<INF>2</INF> Trading
Program have flexibility to transfer allowances among multiple
participating units under the same owner/operator when planning
operations, and unused allowances can be banked for use in future
years.\103\ Furthermore, allowances are allocated from the supplemental
allowance pool each year if the reported emissions for an ownership
group exceeds the amount of allowances allocated to that group, with a
limit on these allocations in any year of 16,688 tons plus any
allowances added to the pool in that year from retired units. The
combination of allocations to retired units, banking of allowances, and
allocations from the supplemental allowance pool results in an excess
availability in allowances to cover the sources' emissions with the
only limitation being the assurance level.
---------------------------------------------------------------------------
\101\ 40 CFR 97.911(a)(2).
\102\ 40 CFR 97.911(a)(2).
\103\ See 45 FR at 49208.
---------------------------------------------------------------------------
Because the Texas SO<INF>2</INF> Trading Program contains both BART
and non-BART EGUs, we must establish emission estimates for both types
of units to compare the installation and operation of source-specific
BART for SO<INF>2</INF> to the Texas SO<INF>2</INF> Trading Program.
For the purposes of comparing the Texas SO<INF>2</INF> Trading Program
to source-specific BART, we assume that all BART-eligible coal-fired
sources are subject to BART \104\ and that source-specific BART results
in emission reductions greater than or equal to those reductions
estimated based on a presumptive BART level of 0.15 lb/MMBtu.\105\
\106\ For the gas fired sources included in the Texas SO<INF>2</INF>
Trading Program, we assume that they are not subject to BART for
purposes of this analysis and thus treat them as non-BART sources.\107\
We note that an assumption of 95 percent control would result in lower
emissions than the 0.15 lb/MMBtu rate for all BART units, however, for
the purpose of this comparison, we are selecting a conservative (high)
estimate for presumptive BART limits to illustrate the large emission
reductions available through the installation and operation of BART
even at this conservatively high emission rate. We also note that the
assumption of 0.15 lb/MMBtu is more conservative than what was used for
these units in the 2012 CSAPR Better-than-BART analysis.
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\104\ This is consistent with our subject to BART screening
analysis below in Section VII.
\105\ BART Guidelines, 70 FR 39104, 39131 (July 6, 2005). ``. .
., we are establishing a BART presumptive emission limit for coal-
fired EGUs greater than 200 MW in size without existing
SO<INF>2</INF> control. These EGUs should achieve either 95 percent
SO<INF>2</INF> removal, or an emission rate of 0.15 lb
SO<INF>2</INF>/MMBtu, unless a State determines that an alternative
control level is justified based on a careful consideration of the
statutory factors.''
\106\ In Section VII of this proposed action, we evaluate and
identify which of the BART-eligible EGUs currently in the Texas
SO<INF>2</INF> Trading Program are subject to BART sources as well
as the analysis of the five factors that inform the BART
determination for subject to BART sources. In Section VIII, we
provide our weighing of the factors and proposed determination on
source-specific BART requirements for these sources.
\107\ We note that in Section VII we determined that W. A.
Parish Unit WAP4, which is gas fired, is subject to BART because it
is co-located with two other coal-fired BART units (Units WAP5 &
WAP6). Thus, in evaluating whether the BART-eligible units at W. A.
Parish were subject to BART we evaluated emissions from Units WAP4
with WAP5 & WAP6, which is consistent with the subject to BART
evaluation process as explained in Section VII. For Unit WAP4, we
are not assuming any further reductions due to application of BART
because of the inherently low levels of SO<INF>2</INF> from firing
natural gas.
---------------------------------------------------------------------------
To estimate emissions for BART sources, we multiplied the average
heat input from 2016-2020 by a presumptive BART emission rate of 0.15
lb/MMBtu.\108\ To obtain a conservative estimate for non-BART units, we
used the maximum annual emissions from the 2016-2020 period for each
unit. The use of the maximum annual emissions from the 2016-2020 period
for each non-BART unit provides a conservative assumption of emissions
anticipated from these units to represent a scenario in which they are
not participating in the Texas SO<INF>2</INF> Trading Program. We then
added the estimated emissions from the BART units together with the
estimated emissions from the non-BART units to compare emissions
between the Texas SO<INF>2</INF> Trading Program and BART. Sources that
have recently shutdown were not included in the analysis. In addition
to comparing emission levels under source-specific BART to the
assurance level of the Texas SO<INF>2</INF> Trading Program, we also
consider the impact of source-specific BART on current emissions levels
under the program.
---------------------------------------------------------------------------
\108\ The Fayette BART units (Units 1 and 2) are currently
operating well below 0.15 lb/MMBtu. For these units, the maximum
annual emissions from 2016-2020 were used in this comparison.
---------------------------------------------------------------------------
Table 1 shows 2021 annual emissions in one column, and the other
column shows estimated emissions under the presumptive BART assumptions
plus the maximum annual emissions from the 2016-2020 period for those
non-BART units as described in the paragraph above. The 2021 emissions
are the most recent annual emissions available at the time of this
action and represent emissions under the Texas SO<INF>2</INF> Trading
Program regulations, including the amended provisions in the 2020 final
action. Under these conservative assumptions, presumptive BART for
those BART-eligible units plus the maximum annual emissions from the
2016-2020 period for those non-BART units still results in an
approximately 32 percent reduction in total estimated emissions as
compared to actual emissions for these same sources as provided for
under the Texas SO<INF>2</INF> Trading Program. This is a significant
reduction compared to actual emissions and far below the assurance
level of 255,083 tons per year. Additionally, in looking at only
subject-to-BART units, presumptive BART reduces emissions by more than
70,000 tons as compared to what those units are emitting under the
Texas SO<INF>2</INF> Trading Program. The estimated emissions for the
BART sources under presumptive BART of 24,108 tons is also far below
the allowance allocations to these units of 96,487 tons of allowances
per year. As detailed in Section VIII, our determinations of source-
specific BART result in even larger emission reductions than what was
calculated here under these presumptive BART assumptions.
[[Page 28931]]
Table 1--Comparison of Actual Emissions Under the Texas SO2 Trading
Program and Presumptive BART \109\
------------------------------------------------------------------------
Presumptive BART
emissions plus
2021 Actual max. emissions
emissions (tons) for non-BART
(tons)
------------------------------------------------------------------------
Total (SO2 Trading Program Units). 129,790 88,023
Total (Subject-to-BART units only) 96,601 24,108
------------------------------------------------------------------------
Because the alternative program under review, the Texas
SO<INF>2</INF> Trading Program, results in much higher emissions than
source-specific BART, we are proposing to find that the Texas
SO<INF>2</INF> Trading Program does not meet the requirements of a BART
alternative under 40 CFR 51.308(e)(2). As discussed earlier, if the
distribution of emissions under the alternative program is not
substantially different than under BART, and the alternative program
results in greater emissions reductions of each relevant pollutant than
under BART, then the alternative program may be deemed to achieve
greater reasonable progress.\110\ The Texas SO<INF>2</INF> Trading
Program under review does not result in greater emission reductions
than under BART. Rather, compared to the presumptive BART scenario,
emissions from sources covered by the Texas SO<INF>2</INF> Trading
Program are similar or higher. Furthermore, the Texas SO<INF>2</INF>
Trading Program does not secure emission reductions at non-BART sources
in Texas to compensate for the higher than BART emissions at the Texas
BART sources. In these situations, a BART alternative program can only
achieve greater reasonable progress than BART when emission reductions
from non-BART sources are large enough (or the resulting visibility
benefits from those reductions are large enough) to compensate for
smaller emission reductions at BART sources than would be achieved
under source-specific BART.
---------------------------------------------------------------------------
\109\ See ``Annual EI Texas thru 2021.xlsx'' available in the
docket for this action.
\110\ 40 CFR 51.308(e)(2)(E), (e)(3).
---------------------------------------------------------------------------
This finding that the Texas SO<INF>2</INF> Trading Program, which
was designed to achieve a stringency level on par with CSAPR, does not
achieve greater reasonable progress than BART, when isolated to the
units in Texas, is not surprising, and it does not undermine the
continued validity of CSAPR as a BART-alternative in other States. As
discussed earlier in Section IV.B.2, the CSAPR program resulted in
large emission reductions anticipated to occur in the eastern half of
the country due to its coverage of both many BART sources and many non-
BART sources. However, this was not true for every State. Texas, for
instance, generally had higher emissions under the CSAPR BART
alternative compared to source-specific BART, since it had relatively
more BART-eligible sources compared to many other States in the eastern
United States. As discussed, Texas was removed from the CSAPR
SO<INF>2</INF> trading program in September 2017, and therefore, cannot
rely on the reductions in the eastern half of the country brought about
by CSAPR because the Texas SO<INF>2</INF> Trading Program is
independent of CSAPR. As an independent BART alternative, the Texas
SO<INF>2</INF> Trading Program is deficient because it secures no
additional emission reductions from any non-BART sources and, as
demonstrated, the BART emission reductions that would need to be offset
are very large. Because the Texas SO<INF>2</INF> Trading Program
secures no reductions (and in fact would have permitted significant
growth in emissions from current levels), the establishment of source-
specific BART emission limits would result in large additional emission
reductions by comparison that would result in comparatively greater
visibility benefits. Accordingly, the Texas SO<INF>2</INF> Trading
Program does not provide for greater reasonable progress than the
installation and operation of BART, and therefore, fails to meet the
requirements for a BART alternative under the Regional Haze Rule. Thus,
we are proposing to withdraw the Texas SO<INF>2</INF> Trading Program
and instead propose to satisfy the Regional Haze Rule's SO<INF>2</INF>
BART requirements through conducting a source-specific BART analysis
for certain BART-eligible EGU sources identified in Sections VII and
VIII of this action.
V. CSAPR Participation as a BART Alternative
A. Introduction
If the proposed source-specific BART requirements in Texas are
finalized, the analytical basis within the EPA's withdrawal of Texas
from the CSAPR trading programs for annual NO<INF>X</INF> and
SO<INF>2</INF> in September of 2017 will be restored (82 FR 45481).
Therefore, the EPA is proposing to find that, if this proposal to
implement source-specific BART requirements at certain EGUs in Texas is
finalized, the analytical basis for concluding that the implementation
of CSAPR in the remaining covered States will continue to meet the
criteria for a BART alternative for those States remains valid. Related
to this finding, the EPA is also proposing to deny a 2020
administrative petition for partial reconsideration brought by Sierra
Club, National Parks Conservation Association (NPCA), and Earthjustice
of the EPA's June 2020 denial of a 2017 petition to reconsider the
EPA's original September 2017 finding, the details of which are
provided in the next sections. Based on this analysis, the EPA is
affirming the current Regional Haze Rule provision allowing States
whose EGUs continue to participate in a CSAPR trading program for a
given pollutant to continue to rely on CSAPR participation as a BART
alternative for its BART-eligible EGUs for that pollutant. The public
is invited to comment on this proposed basis for denying the 2020
petition for partial reconsideration.
B. Background
1. CSAPR Better-Than-BART
a. General Background
CSAPR (76 FR 48208; Aug. 8, 2011) implements a series of emissions
trading programs for sulfur dioxide (SO<INF>2</INF>) and nitrogen
oxides (NO<INF>X</INF>) across the eastern United States to address
interstate ozone and fine particulate (PM<INF>2.5</INF>) pollution
under CAA section 110(a)(2)(D)(i)(I) (the ``good neighbor
provision'').\111\ The EPA has issued regulations allowing the CSAPR
States to rely on participation in these trading programs in lieu of
requiring source-specific BART controls at their BART-eligible EGUs
covered by one or more of the CSAPR trading programs with respect to
the visibility pollutant at issue (i.e., NO<INF>X</INF> or
SO<INF>2</INF>). See
[[Page 28932]]
40 CFR 51.308(e)(4).\112\ This determination authorizing reliance on
CSAPR participation as a BART alternative is often referred to as
``CSAPR Better-Than-BART.'' \113\
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\111\ 42 U.S.C. 7410(a)(2)(D)(i)(I).
\112\ The EPA had previously made a similar finding for the
predecessor to CSAPR, the Clean Air Interstate Rule (CAIR), and this
determination was upheld in UARG v. EPA, 471 F.3d 1333 (D.C. Cir.
2006) (UARG I).
\113\ 77 FR 33642 (June 7, 2012).
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In the EPA's 2012 action promulgating CSAPR Better-Than-BART, the
EPA used air quality modeling to show CSAPR met the two-pronged
numerical test for a BART alternative.\114\ To account for certain
CSAPR State-budget increases that were made after the initial modeling
was conducted, the 2012 CSAPR Better-Than-BART determination also
included a sensitivity analysis (2012 sensitivity analysis) that
examined the effect of those budget increases on the modeled visibility
impacts for the CSAPR scenario.\115\ In the 2012 action, the EPA found
that under a scenario analyzing the visibility benefits of CSAPR
(referred to as the ``CSAPR + BART-Elsewhere'' scenario), visibility
would not decline in any Class I area compared to a baseline scenario,
satisfying the first prong of the two-pronged BART-alternative test.
The EPA also found that the CSAPR + BART-Elsewhere scenario would
result in an overall improvement in visibility on average across
affected Class I areas, as compared to a scenario analyzing visibility
benefits resulting from ``presumptive'' BART limits at all BART-
eligible sources (referred to as the ``nationwide BART'' scenario),
satisfying the second prong of the two-pronged BART-alternative test.
The EPA's findings held true whether looking at the 60 Class I areas in
the eastern U.S. most heavily impacted by the sources subject to CSAPR
or looking at all 140 Class I areas in the continental United States.
The United States Court of Appeals for the D.C. Circuit (D.C. Circuit)
upheld this action in UARG v. EPA, 885 F.3d 714 (D.C. Cir. 2018) (UARG
II).
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\114\ 40 CFR 51.308(e)(3); See generally 77 FR 33642 (June 7,
2012).
\115\ See 77 FR 33642, 33651-52; This sensitivity analysis was
included in a technical memo accompanying the 2012 action. See
``Sensitivity Analysis Accounting for Increases in Texas and Georgia
Transport Rule State Budgets,'' Docket ID No. EPA-HQ-OAR-2011-0729
and in the docket for this action at document ID EPA-R06-OAR-2016-
0611-0113.
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To account for certain CSAPR State-budget increases that were made
after the initial modeling was conducted, the 2012 CSAPR Better-Than-
BART determination also included a sensitivity analysis (2012
sensitivity analysis) that examined the effect of those budget
increases on the modeled visibility impacts for the CSAPR + BART-
Elsewhere scenario.\116\ The EPA determined that the increases in
SO<INF>2</INF> and NO<INF>X</INF> budgets were small enough that they
did not require a comprehensive set of new power sector and air quality
modeling. Instead, the 2012 sensitivity analysis applied a simple, but
very conservative adjustment factor to the existing quantitative air
quality modeling results to show that, even with the higher emissions
budgets, the CSAPR + BART-Elsewhere scenario was still projected to
show greater reasonable progress toward natural visibility than the
Nationwide BART scenario. Specifically, the 2012 sensitivity analysis
applied adjustments to visibility impacts in the CSAPR + BART-Elsewhere
scenario to account for increases in the SO<INF>2</INF> budgets for
Texas and Georgia, since SO<INF>2</INF>-driven impacts were the most
important impacts in the analysis and Texas and Georgia had the largest
SO<INF>2</INF> budget increases.
---------------------------------------------------------------------------
\116\ See 77 FR 33642, 33651-52; This sensitivity analysis was
included in a technical memo accompanying the 2012 action. See
``Sensitivity Analysis Accounting for Increases in Texas and Georgia
Transport Rule State Budgets,'' Docket ID No. EPA-HQ-OAR-2011-0729
and in the docket for this action at document ID EPA-R06-OAR-2016-
0611-0113.
---------------------------------------------------------------------------
The 2012 sensitivity analysis identified sets of Class I areas that
are most impacted by emissions in Texas (9 areas) and Georgia (7 areas)
and assumed that all of the modeled visibility improvement in those
sets of Class I areas is due to SO<INF>2</INF> emissions reductions
from either Texas or Georgia, respectively. This methodology is highly
conservative because the projected SO<INF>2</INF> emissions reductions
in Texas and Georgia represented only 4.4 percent and 1.8 percent,
respectively, of the total projected regional emissions reductions in
the CSAPR + BART-Elsewhere scenario, and the Class I areas most
impacted by Texas and Georgia emissions are also affected by the very
large emissions reductions projected from other States in the regional
CSAPR + BART-Elsewhere scenario. By assuming a linear relationship
between emissions increases in Texas and Georgia and visibility
degradation in those Class I areas, the EPA very conservatively
determined that even with the budget increases, the CSAPR + BART-
Elsewhere scenario was projected to achieve greater visibility
improvement than the Nationwide BART scenario on average across all 60
eastern Class I areas and all 140 nationwide Class I areas, thereby
satisfying the second prong of the two-pronged test under 40 CFR
51.308(e)(3). The sensitivity analysis also showed no visibility
degradation in the CSAPR + BART-Elsewhere scenario relative to the
baseline scenario at any Class I area, thereby satisfying the first
prong of the test.
b. The CSAPR Remand and the EPA's 2017 Affirmation of CSAPR Better-
Than-BART
The original 2011 CSAPR action was largely upheld by the Supreme
Court in 2014.\117\ However, the case was remanded to the D.C. Circuit
to assess whether the EPA may have ``over-controlled'' certain States
for purposes of implementing the good neighbor provision. In EME Homer
City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015), based on
this potential for overcontrol, the court remanded certain State
budgets to the EPA, including Texas' SO<INF>2</INF> budget, which the
EPA had established to address PM<INF>2.5</INF> transport.
---------------------------------------------------------------------------
\117\ EPA v. EME Homer City Generation, L.P., 572 U.S. 489
(2014).
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To address the remand, in November 2016, the EPA proposed to remove
Texas EGUs from the CSAPR SO<INF>2</INF> Group 2 Trading Program as
well as the CSAPR NO<INF>X</INF> Annual Trading Program, which
similarly addressed PM<INF>2.5</INF> transport.\118\ The EPA indicated
that if the withdrawal was finalized, Texas would no longer be eligible
under 40 CFR 51.308(e)(4) to rely on participation of its EGUs in a
CSAPR trading program as an alternative to source-specific
SO<INF>2</INF> BART determinations.\119\ The EPA also provided a
proposed analysis (2016 proposed analysis) showing that the changes in
the geographic scope of CSAPR coverage since the EPA's original 2012
CSAPR Better-Than-BART determination, including the proposed withdrawal
of Texas EGUs from the CSAPR SO<INF>2</INF> and annual NO<INF>X</INF>
trading programs, would not have altered the 2012 determination because
the changes would not have altered the EPA's analytical findings that
both prongs of the two-pronged test for a BART alternative under 40 CFR
51.308(e)(3) were satisfied.\120\
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\118\ See 81 FR 78954 (Nov. 10, 2016).
\119\ Id. at 78956; the EPA also noted that because Texas EGUs
would continue to participate in a CSAPR trading program for ozone-
season NO<INF>X</INF> emissions, Texas would still be eligible under
40 CFR 51.308(e)(4) to rely on CSAPR participation as an alternative
to source-specific NO<INF>X</INF> BART determinations for the
covered sources. 81 FR at 78962.
\120\ See id. at 78961-64.
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In September 2017, the EPA finalized the withdrawal of Texas EGUs
from the
[[Page 28933]]
CSAPR SO<INF>2</INF> and annual NO<INF>X</INF> programs.\121\ In the
same action, the EPA also issued its final analysis (2017 final
analysis) showing that, even with Texas EGUs no longer participating in
these programs (and other changes in the geographic coverage of CSAPR),
the EPA's original 2012 analytical finding that CSAPR is better than
BART remained valid.\122\ In response to comments received on the 2016
proposed analysis, the EPA's 2017 final analysis included an evaluation
of the potential impact of emissions shifting under both prongs of the
two-pronged test for a BART alternative under 40 CFR 51.308(e)(3). This
analysis focused on the fact that if Texas sources were withdrawn from
the CSAPR SO<INF>2</INF> Group 2 Trading Program, they would no longer
purchase up to 22,300 SO<INF>2</INF> allowances from sources in other
Group 2 States, as had been projected in the CSAPR + BART-Elsewhere
scenario used in the 2012 CSAPR Better-Than-BART determination. As to
the first prong, the EPA explained that, relative to a baseline
scenario without CSAPR or BART, a revised CSAPR + BART-Elsewhere
scenario with an increased quantity of SO<INF>2</INF> allowances
available for use by units in other Group 2 States would still show no
visibility degradation at any Class I area because, absent unusual
circumstances that the EPA showed were not expected to occur in this
case, all units in the remaining Group 2 States would still have
stronger incentives to control their SO<INF>2</INF> emissions in the
revised CSAPR + BART-Elsewhere scenario (with some positive allowance
price) than in the baseline scenario (without any allowance
price).\123\
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\121\ See 82 FR 45481 (September 29, 2017).
\122\ See id. at 45490-94.
\123\ Id. at 45493.
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As to the second prong, the EPA assumed that the availability of
22,300 additional allowances would result in a 22,300-ton increase in
emissions in the remaining Group 2 States, but observed that the
potential adverse visibility impacts of those emissions would be more
than offset by the favorable visibility impacts of at least 127,300
tons of reduced emissions in Texas under presumptive source-specific
SO<INF>2</INF> BART for the State's BART-eligible EGUs.\124\ In other
words, under the methodological framework the EPA devised in 2012 to
compare CSAPR with BART, see 77 FR 33648-49, the EPA concluded that the
``Transport Rule [CSAPR] + BART Elsewhere'' scenario would still
outperform the ``Nationwide BART'' scenario, even if Texas's EGU BART
sources fell under the ``BART Elsewhere'' category rather than the
CSAPR category. Thus, the EPA's conclusion that CSAPR satisfied the
second prong of the two-pronged test rested in part on assuming net
SO<INF>2</INF> reductions of approximately 105,000 tons from
presumptive source-specific BART in Texas, after accounting for the
potential for shifting of 22,300 tons of emissions from Texas to the
remaining Group 2 States.\125\
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\124\ Id. at 45493-94.
\125\ 82 FR 45493-94.
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2. Promulgation and Affirmation of the Texas SO<INF>2</INF> Trading
Program as a BART Alternative
As explained in Section II.C, rather than finalize source-specific
BART SO<INF>2</INF> emission limits for subject-to-BART EGUs in Texas
(as had been assumed in the September 2017 finding affirming CSAPR as
better than BART), the EPA took final action in October 2017
establishing an intrastate trading program for SO<INF>2</INF> for
certain Texas EGUs as an alternative to BART.\126\ On June 29, 2020,
after completing rulemaking proceedings on reconsideration, the EPA
affirmed the Texas SO<INF>2</INF> Trading program as a BART
alternative, with certain amendments as proposed in November 2019.\127\
This rulemaking, its rationale, and subsequent reconsideration and
affirmation in June 2020 are summarized in Section II.C and are not
repeated here.
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\126\ See 82 FR 48324 (October 17, 2017); In the same January
2017 and October 2017 notices, the EPA also proposed and finalized
action to rely on CSAPR participation as a NO<INF>X</INF> BART
alternative for Texas EGUs, see 82 FR at 946; 82 FR at 48361.
\127\ 85 FR 49170 (Aug. 12, 2020).
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3. The EPA's Denial of Petition for Reconsideration of the 2017
Affirmation of CSAPR As a BART Alternative
On November 28, 2017, the Sierra Club and NPCA submitted a petition
for partial reconsideration (2017 petition) under CAA section
307(d)(7)(B) of our September 29, 2017 action withdrawing Texas from
the CSAPR trading programs for SO<INF>2</INF> and annual NO<INF>X</INF>
and affirming that CSAPR participation continues to satisfy
requirements as a BART alternative (September 2017 Final Rule).\128\
The petitioners alleged that it was impracticable, and indeed
impossible, to comment on the relationship between the Texas
SO<INF>2</INF> Trading Program and the CSAPR Better-Than-BART analysis
in the final rule because the EPA did not finalize the Texas
SO<INF>2</INF> Trading Program until after the final rule was signed
and the EPA had assumed presumptive source-specific SO<INF>2</INF> BART
controls in the rulemaking record for the final rule.\129\ The
petitioners also alleged it was impracticable to comment on other
aspects of the EPA's geographic emissions shifting analysis, which was
not presented until the final rule.\130\ The petitioners argued that
both sets of issues are of central relevance to the September 2017
Final Rule.
---------------------------------------------------------------------------
\128\ The Sierra Club and National Parks Conservation
Association, Petition for Partial Reconsideration of Interstate
Transport of Fine Particulate Matter: Revision of Federal
Implementation Plan Requirements for Texas; Final Rule; 82 FR 45,481
(September 29, 2017); EPA-HQ-OAR-2016-0598; FRL-9968-46-OAR
(November 28, 2017).
\129\ Id. at 8-9.
\130\ Id. at 9.
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With respect to the BART requirements in Texas, the petitioners
argued that the final rule was ``impermissibly based upon a factual
predicate that no longer exists--namely, that sulfur dioxide emission
reductions associated with the installation of presumptive source-
specific BART would be install [sic] at Texas EGUs.'' \131\ The
petitioners went on to purportedly demonstrate, using the 2012
sensitivity analysis methodology developed by the EPA, that source-
specific BART in Texas would improve visibility in Class I areas in or
affected by Texas more than CSAPR or the Texas SO<INF>2</INF> Trading
Program.\132\
---------------------------------------------------------------------------
\131\ Id. at 10.
\132\ Id. at 11-13.
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Concurrently with the affirmation of the Texas SO<INF>2</INF>
Trading Program on June 29, 2020, the EPA issued a denial of the 2017
petition (2020 Denial).\133\ In addition to addressing the other
objections raised in the 2017 petition,\134\
[[Page 28934]]
the EPA included an updated sensitivity analysis (2020 sensitivity
analysis) assessing whether CSAPR would remain a valid BART alternative
based on assumptions regarding emissions performance under the Texas
SO<INF>2</INF> Trading Program rather than source-specific BART.\135\
The EPA used the same methodology it had used in its 2012 CSAPR Better-
Than-BART determination and applied an emissions assumption for the
Texas SO<INF>2</INF> Trading Program used by Petitioners in their 2017
petition of 320,600 tons of SO<INF>2</INF> per year. The EPA also used
an assumption that there would be a 22,300-ton increase in emissions in
a single State in the Group 2 trading program, Georgia.\136\ The EPA
presented the results of this analysis in Table 3 of the 2020 Denial,
and we asserted that for purposes of the ``prong 2'' portion of the
BART analysis, that CSAPR continued to perform equal to or better than
BART.\137\ Based on this analysis, the EPA reaffirmed the 2012 CSAPR
Better-Than-BART determination, albeit now on the assumption of the
Texas SO<INF>2</INF> Trading Program operating in Texas rather than
CSAPR or presumptive source-specific BART.\138\
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\133\ 85 FR 40286 (July 6, 2020) (``2020 Denial''); See, e.g.,
Letter from U.S. EPA Administrator Andrew Wheeler to Joshua Smith,
Sierra Club, denying petition for reconsideration (June 29, 2020),
Docket ID EPA-HQ-OAR-2016-0598-0036. The EPA concurrently sent
identical letters to other petitioners. This letter, rather than the
Federal Register notice, is what we refer to when citing specific
pages in the ``2020 Denial.''
\134\ In their 2020 petition for partial reconsideration
summarized below, Petitioners did not renew their objections as to
other aspects of the EPA's analysis in the 2020 Denial and therefore
these issues will not be summarized here. As to the issues not
raised in their 2020 petition, but addressed in denying their 2017
petition, the EPA is not reopening the bases for denial of these
objections set forth in its 2020 Denial letter. We note that in
their 2020 petition for partial reconsideration, Petitioners noted
that they ``continue to object'' to the EPA's use of ``presumptive''
BART limits in its CSAPR better than BART analysis. See 2020
Petition at 5 n.10. The EPA is not revisiting this issue here. The
EPA explained in its 2020 Denial why this objection did not meet
either prong of the CAA section 307(d)(7)(B) test for mandatory
reconsideration, including that petitioners could have, but did not,
comment on this issue in the original 2017 affirmation rulemaking
proceeding. See 2020 Denial at 19-20.
\135\ 2020 Denial at 13-16.
\136\ Id. at 14-15.
\137\ Id. at 16.
\138\ Note that neither in the 2020 Denial or in this present
proposal are we reopening our determination in the September 2017
Final Rule that withdrawal of Texas from the annual NO<INF>X</INF>
trading program would have caused sufficient changes in modeled
NO<INF>X</INF> emissions in a revised CSAPR scenario to materially
alter the visibility impacts comparison. See 82 FR 45492 n.82. As
detailed in the November 2016 proposal, projected annual
NO<INF>X</INF> emissions from Texas EGUs were only 2,600 tons higher
than the annual NO<INF>X</INF> emissions projected for the CSAPR +
BART-Elsewhere case, in which it was assumed that the EGUs were
subject to CSAPR requirements for both ozone-season and annual
NO<INF>X</INF> emissions. The EPA determined that this relatively
small increase in NO<INF>X</INF> emissions in the CSAPR + BART-
Elsewhere case would have been too small to cause any change in the
results of either prong of the two-pronged CSAPR-Better-Than-BART
test.
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C. Summary of the 2020 Petition for Reconsideration and Associated
Litigation
On August 28, 2020, the Sierra Club, NPCA, and Earthjustice
submitted a petition for partial reconsideration under CAA section
307(d)(7)(B) of the EPA's 2020 Denial of their November 2017 petition
for reconsideration (2020 petition).\139\ The petitioners alleged that
because the EPA presented the updated CSAPR Better-than-BART
sensitivity calculations for the first time in its 2020 Denial of the
2017 Petition (and thus they were not afforded an opportunity to
comment), and because that updated analysis is of central relevance to
the September 2017 Final Rule, the EPA must reconsider both actions
under CAA section 307(d)(7)(B). The petitioners alleged that, contrary
to the EPA's conclusions in its 2020 Denial, the updated CSAPR Better-
Than-BART analysis demonstrates that visibility improvement under CSAPR
is not equal to or greater than visibility improvement under source-
specific BART averaged over all 140 Class I areas, or the 60 eastern
Class I areas covered by CSAPR.\140\
---------------------------------------------------------------------------
\139\ Petition for Partial Reconsideration of Denial of Petition
for Reconsideration and Petition for Reconsideration of the
Interstate Transport of Fine Particulate Matter: Revision of Federal
Implementation Plan Requirements for Texas (Aug. 28, 2020), Docket
ID EPA-HQ-OAR-2016-0598-0041.
\140\ Id. at 9.
---------------------------------------------------------------------------
Specifically, Petitioners note that had the EPA's results been
reformatted to display two decimal places instead of one, the average
visibility improvement for the CSAPR + BART-Elsewhere scenario would
have been less than that of the Nationwide BART scenario on two of the
four metrics used.\141\ Thus, Petitioners concluded that the EPA's 2020
sensitivity analysis proves that the visibility improvement in the
CSAPR + BART-Elsewhere scenario, with the adjustments made to Texas's
and Georgia's emissions, is not equal to or greater than the visibility
improvement in the Nationwide BART scenario. Moreover, Petitioners also
argue that it was impracticable for them to raise these issues
concerning the sensitivity analysis during the comment period for the
September 2017 Final Rule because the sensitivity calculations were
presented for the first time in the 2020 Denial.\142\ The Petitioners
claim that the data within the 2020 sensitivity analysis addresses an
issue of central relevance to the September 2017 Final Rule, i.e.,
whether CSAPR results in an overall improvement in visibility compared
to source-specific BART. Moreover, because Petitioners claim that the
EPA's sensitivity analysis showed that source-specific BART would
result in greater visibility improvement than CSAPR, they argue that
the EPA's continued reliance on CSAPR as a BART alternative is
arbitrary, capricious, and contrary to law.\143\
---------------------------------------------------------------------------
\141\ Id. at 11.
\142\ Id. at 12.
\143\ Id. at 13.
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Sierra Club, NPCA, and Earthjustice also filed a petition for
judicial review of the 2020 Denial in the U.S. Court of Appeals for the
District of Columbia.\144\ On November 3, 2020, this challenge and the
Petitioners' preexisting challenge to the September 2017 final analysis
(No. 17-1253 (D.C. Cir.)) were consolidated. On January 13, 2021, the
court placed the petitions for review in abeyance pending further order
of the court, and the court directed the parties to file motions to
govern following the EPA's action on the 2020 petition.
---------------------------------------------------------------------------
\144\ National Parks Conservation Association et al. v. EPA, No.
20-1341 (D.C. Cir. filed Sept. 4, 2020).
---------------------------------------------------------------------------
The EPA is now proposing to deny the 2020 petition in this action.
D. Criteria for Granting a Mandatory Petition for Reconsideration
Under section 307(d)(7)(B) of the Act, ``[o]nly an objection to a
rule or procedure which was raised with reasonable specificity during
the period for public comment . . . may be raised during judicial
review.'' \145\ However, ``[i]f a person raising an objection can
demonstrate . . . that it was impracticable to raise such objection
within such time or if the grounds for such objection arose after the
period for public comment . . . and if such objection is of central
relevance to the outcome of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule.'' \146\ The EPA considers
an objection to be of ``central relevance'' to the outcome of a rule
``if it provides substantial support for the argument that the
regulation should be revised.'' \147\
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\145\ 42 U.S.C. 7607(d)(7)(B).
\146\ Id.
\147\ See Coal. For Responsible Regulation, Inc. v. EPA, 684
F.3d 102, 125 (D.C. Cir. 2012) (internal citation and quotation
omitted).
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E. The EPA's Evaluation of the Petition for Reconsideration
The EPA proposes to deny the 2020 petition because the objections
raised to the 2020 Denial are not ``centrally relevant'' under a
scenario in which the EPA finalizes the proposal to withdraw the
present BART-alternative intrastate trading FIP for Texas EGUs and
replaces those requirements with source-specific SO<INF>2</INF> BART
requirements. Under this scenario, the findings made in the September
2017 Final Rule (i.e., the EPA's finding that CSAPR remains better than
BART) can be affirmed. The Agency acknowledges that the petitioners
raised legitimate questions in the 2020 petition concerning the 2020
sensitivity analysis and the conclusion that CSAPR remains better than
BART in a scenario in which the Texas SO<INF>2</INF> Trading Program is
implemented. However, with this proposal and the return to source-
specific BART requirements in Texas, this issue is effectively
resolved. The 2020 petition can therefore be denied since the
[[Page 28935]]
objection raised is no longer centrally relevant.
For purposes of the 2012 analytic demonstration that CSAPR provides
for greater reasonable progress than BART, the EPA treated Texas EGUs
as subject to CSAPR for SO<INF>2</INF> and annual NO<INF>X</INF> (as
well as ozone-season NO<INF>X</INF>). In the September 2017 Final Rule,
the EPA recognized that the treatment of Texas EGUs in the 2012
analysis would have been different if those sources were not in the
CSAPR SO<INF>2</INF> and annual NO<INF>X</INF> programs. To address
potential concerns about continuing to rely on CSAPR participation as a
BART alternative for EGUs in the remaining CSAPR States, the EPA
provided an analysis explicitly addressing the potential effect on the
2012 analytic demonstration if the treatment of Texas (and several
other States') EGUs had been consistent with the updated scope of CSAPR
coverage following the D.C. Circuit's remand of CSAPR in EME Homer
City. In particular, in its September 2017 Final Rule, the EPA assumed
that, as for all other non-CSAPR States, Texas EGUs would be subject to
presumptive, source-specific SO<INF>2</INF> BART limits.
As discussed below, if the EPA's proposal in this action to
implement source-specific BART requirements at certain EGUs in Texas is
finalized, the analytical basis for the EPA's September 2017
conclusions will be restored, and that analysis will continue to
support the conclusion that CSAPR participation would achieve greater
reasonable progress than BART, despite the change in the treatment of
Texas EGUs. Consequently, by virtue of this proposed action that
relates to Texas, the EPA is also able to propose to reaffirm the
continued validity of the CSAPR better-than-BART provision, 40 CFR
51.308(e)(4), which authorizes the use of CSAPR participation as a BART
alternative for BART-eligible EGUs for a given pollutant in States
whose EGUs continue to participate in a CSAPR trading program for that
pollutant. In the September 2017 Final Rule, the EPA evaluated whether
a revised CSAPR scenario reflecting the removal of Texas EGUs from the
CSAPR SO<INF>2</INF> program (and other changes in CSAPR's geographic
scope) would continue to satisfy the two-pronged test under 40 CFR
51.308(e)(3). Regarding the changes in CSAPR requirements for Texas
EGUs, the EPA determined that the changes would have no adverse impact
on the 2012 analytic demonstration. Finalization of this proposal would
restore the analytical bases for the EPA's conclusions in the September
2017 Final Rule. We discuss that analysis in the following paragraphs
and explain how it would be restored if this action is finalized as
proposed.
As the EPA concluded in the September 2017 Final Rule, Texas EGUs
are ineligible to rely on CSAPR as an SO<INF>2</INF> BART alternative.
In this proposal, we are affirming this position and rejecting the
contrary arguments that the Agency previously put forward in support of
the Texas BART-alternative FIP, as explained above in Section IV. As
explained in the November 2016 proposal,\148\ if this information had
been available at the time of the 2012 CSAPR Better-than-BART
demonstration, the treatment of Texas EGUs in the baseline case and in
the Nationwide BART case would not have changed, but in the CSAPR +
BART-Elsewhere case, Texas EGUs would have been treated as subject to
source-specific SO<INF>2</INF> BART instead of being treated as subject
to CSAPR SO<INF>2</INF> requirements. In the case of Texas, the
projected SO<INF>2</INF> emissions from affected EGUs in the modeled
Nationwide BART scenario (139,300 tons per year) are considerably lower
than the projected SO<INF>2</INF> emissions from the affected EGUs in
the CSAPR + BART-Elsewhere scenario (266,600 tons per year as modeled,
and up to approximately 317,100 tons, as addressed in the 2012
sensitivity analysis).
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\148\ See 81 FR 78954 (Nov. 10, 2016).
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As modeled, treating Texas EGUs in the CSAPR + BART-Elsewhere
scenario as subject to source-specific SO<INF>2</INF> BART instead of
CSAPR SO<INF>2</INF> requirements would therefore have reduced
projected SO<INF>2</INF> emissions by between 127,300 tons and
approximately 177,800 tons in this scenario, thereby improving
projected air quality in this scenario relative to projected air
quality in both the Nationwide BART scenario and the baseline
scenario.\149\ At the lower end of this range, a reduction in
SO<INF>2</INF> emissions of 127,300 tons would represent a reduction of
over four percent of the total SO<INF>2</INF> emissions from EGUs in
all modeled States in the CSAPR + BART-elsewhere scenario. The EPA has
previously observed that the visibility improvements from CSAPR
relative to BART are primarily attributable to the greater reductions
in SO<INF>2</INF> emissions from CSAPR across the overall modeled
region in the CSAPR + BART-Elsewhere scenario relative to the
Nationwide BART scenario.
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\149\ As explained in greater detail in Section IV, while many
States participating in CSAPR were projected to have substantially
lower SO<INF>2</INF> emissions under CSAPR as compared to
implementing BART requirements, this was not the case for Texas's
EGUs.
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With a return to source-specific SO<INF>2</INF> BART requirements
at the relevant Texas EGUs, this analysis will continue to (or, once
again will) be valid. Further, we propose to find that the conclusions
reached in the September 2017 Final Rule regarding ``emissions
shifting'' from Texas back into the remaining CSAPR region would remain
valid if source-specific BART requirements are implemented at the
relevant Texas EGUs. The September 2017 Final Rule responded to a
comment regarding potential ``emissions shifting'' when Texas was
removed from the CSAPR SO<INF>2</INF> trading program. For purposes of
the second prong, to account for the effect of potential emissions
shifting caused by the fact that Texas sources would no longer purchase
SO<INF>2</INF> allowances from sources in other CSAPR Group 2 States,
the EPA assumed that SO<INF>2</INF> emissions in Georgia could increase
by up to 22,300 tons, the quantity of allowances that Texas had been
projected to purchase from the other Group 2 States in the original
CSAPR scenario. However, as detailed above, the EPA showed in 2017 that
a potential shift of up to 22,300 SO<INF>2</INF> tons to Georgia (or
other CSAPR States) would be dwarfed by the lower SO<INF>2</INF> tons
emitted in Texas under a source-specific BART scenario (127,300 tons or
more). Therefore, the EPA proposes that the September 2017 Final Rule's
conclusion that CSAPR would continue to pass both prongs of the better-
than-BART test, even accounting for emissions shifting, remains valid
(or will once again be valid) if this proposal is finalized and source-
specific BART is implemented in Texas.
In summary, the EPA proposes to affirm that if the information
regarding the proposed withdrawal of CSAPR FIP requirements for
SO<INF>2</INF> for Texas EGUs had been available at the time of the
2012 CSAPR Better-than-BART analytic demonstration, the CSAPR + BART-
Elsewhere scenario would have reflected SO<INF>2</INF> emissions from
Texas EGUs under presumptive source-specific BART. This would have been
127,300 or more tons per year lower than the emissions projections
under CSAPR and remains a valid assumption so long as the presumed
source-specific SO<INF>2</INF> BART reductions are in fact required in
Texas. Under this assumption--which is, again, made possible by
withdrawing the current BART-alternative FIP and implementing source-
specific BART in Texas as outlined in this proposal--emissions would
not have changed in the Nationwide BART or baseline scenarios. Instead,
modeled visibility improvement in the CSAPR + BART-Elsewhere scenario
would have been
[[Page 28936]]
even larger relative to the other scenarios than what was modeled in
the 2012 analytic demonstration.
Lower SO<INF>2</INF> emissions in Texas (after implementation of
source-specific BART) would clearly lead to more visibility improvement
on the best and worst visibility days in the nearby Class I areas.
Since the ``original'' CSAPR + BART-Elsewhere scenario passed both
prongs of the better-than-BART test (compared to the Nationwide BART
scenario and the baseline scenario), a modified CSAPR + BART-Elsewhere
scenario without Texas in the CSAPR region would without question also
have passed both prongs of the better-than-BART test. The EPA therefore
further proposes that there is no need to do any new modeling or more
complicated sensitivity analysis to affirm the findings of the
September 2017 Final Rule. And for the same reason, there is no need to
do any additional modeling or analysis to support this finding under
the current Texas BART proposal in this action (i.e., to withdraw the
Texas SO<INF>2</INF> Trading Program and replace the FIP with source-
specific BART for Texas EGUs), assuming this proposal is finalized.
Therefore, the EPA proposes to deny the 2020 petition for partial
reconsideration and proposes to again affirm the use of CSAPR as a BART
alternative for all States whose EGUs continue to participate in the
CSAPR trading programs as to the relevant pollutants. Specifically, the
EPA proposes to conclude that, if the present proposal and the
restoration of the analytical premise for the findings of the September
2017 Final Rule are finalized, the objections that the 2020 petition
for partial reconsideration raised as to the analysis the EPA presented
in the 2020 Denial will be resolved and are therefore not of ``central
relevance'' to the September 2017 Final Rule. We are providing the
opportunity for, and invite, public comment on this proposed denial of
the petition for partial reconsideration.
VI. The EPA's Authority To Promulgate a FIP Addressing SO<INF>2</INF>
and PM BART
A. CAA Authority To Promulgate a FIP for SO2 BART
Under section 110(c) of the CAA, whenever the EPA disapproves a
mandatory SIP submission in whole or in part, the EPA is required to
promulgate a FIP within 2 years unless we approve a SIP revision
correcting the deficiencies before promulgating a FIP. The term
``Federal implementation plan'' is defined in Section 302(y) of the CAA
in pertinent part as a plan promulgated by the Administrator to correct
an inadequacy in a SIP.
Beginning in 2012, following the limited disapproval of the Texas
Regional Haze SIP, the EPA has had the authority and obligation to
promulgate a FIP to address BART for Texas EGUs for SO<INF>2</INF>. As
discussed in Section II, we exercised this FIP authority in October
2017 to promulgate a BART alternative (the Texas SO<INF>2</INF> Trading
Program) to address the inadequacy of Texas's SIP as it pertained to
BART requirements for Texas EGUs for SO<INF>2</INF>. Because we are now
proposing that the basis for the Texas SO<INF>2</INF> Trading Program
as a BART alternative rested on an erroneous interpretation of our BART
alternative regulations, and thus proposing to withdraw the program for
the reasons explained throughout Section IV, we have an obligation
under the CAA to promulgate a FIP in its place. We propose to exercise
this FIP authority through conducting a source-specific BART analysis
for those BART-eligible EGU sources participating in the Texas
SO<INF>2</INF> Trading Program and, as appropriate, establish source-
specific BART emission limits and associated compliance requirements,
as identified in Sections VII and VIII of this action.
B. Error Correction and CAA Authority To Promulgate a FIP--PM BART
The EPA proposes that its prior approval of a portion of Texas's
2009 Regional Haze SIP related to its finding that no EGUs were subject
to BART requirements for PM (PM BART) was in error under CAA section
110(k)(6). Section 110(k)(6) of the CAA provides the EPA with the
authority to make corrections to actions that are subsequently found to
be in error. Ass'n of Irritated Residents v. EPA, 790 F.3d 934, 948
(9th Cir. 2015) (explaining that 110(k)(6) is a ``broad provision''
enacted to provide the EPA with an avenue to correct errors). The EPA
proposes that its approval of the portion of Texas's Regional Haze SIP
addressing PM BART for EGUs was in error, as the approval was based on
the Texas SO<INF>2</INF> Trading Program that was promulgated in error.
Under CAA section 110(k)(6), once the EPA determines that its previous
action approving a SIP revision was in error, the EPA may revise such
action as appropriate without requiring any further submission from the
State. To correct the error here, the EPA proposes to revise its
previous approval of the portion of Texas's 2009 Regional Haze SIP
addressing PM BART for EGUs and proposes to instead disapprove this
portion of Texas's SIP.
In the 2009 Texas Regional Haze SIP, Texas conducted a screening
analysis of the visibility impacts from PM emissions in isolation and
determined that no EGUs were subject to BART for PM based on an
assumption that BART requirements for EGUs for both SO<INF>2</INF> and
NO<INF>X</INF> were covered by participation in an earlier trading
program (CAIR). This decision was consistent with a 2006 EPA memorandum
titled ``Regional Haze Regulations and Guidelines for Best Available
Retrofit Technology (BART) Determinations''; however, that memorandum
stated that pollutant-specific screening is only appropriate in the
limited situation where a State is relying on a BART alternative, such
as a trading program, to address both NO<INF>X</INF> and SO<INF>2</INF>
BART.\150\
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\150\ Memorandum from Joseph Paisie to Kay Prince, ``Regional
Haze Regulations and Guidelines for Best Available Retrofit
Technology (BART) Determinations,'' July 19, 2006, available in the
docket for this action.
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In our 2017 Texas BART FIP, we created the Texas SO<INF>2</INF>
Trading Program as a BART alternative to satisfy SO<INF>2</INF> BART
requirements for EGUs. As a result, the Texas BART FIP created a
scenario in which Texas EGUs were again subject to trading programs to
address both NO<INF>X</INF> and SO<INF>2</INF> BART, and therefore, the
EPA approved the pollutant-specific screening for PM as performed by
Texas in its 2009 Regional Haze SIP submittal. Upon further
consideration, and as described in more detail above in Section IV, we
have determined that the Texas SO<INF>2</INF> Trading Program as
promulgated in 2017, and affirmed in 2020, was based on an erroneous
interpretation of our BART alternative regulations. As such, it failed
to meet the requirements for a valid BART alternative and thus we are
proposing to withdraw the Texas SO<INF>2</INF> Trading Program and to
satisfy SO<INF>2</INF> BART requirements through conducting a source-
specific BART analysis. The basis for approval of Texas's SIP related
to the BART requirements for PM for EGUs rested on our creation of a
BART alternative for SO<INF>2</INF>, and we are proposing in this
action to determine that the Texas SO<INF>2</INF> Trading Program is
not a valid BART alternative. Consistent with our proposal regarding
the Texas SO<INF>2</INF> Trading Program, we are also proposing that
our approval of the portion of the 2009 Texas Regional Haze SIP related
to PM BART requirements for EGUs was in error.
Accordingly, the EPA is proposing to correct its previous approval
of the Texas 2009 Regional Haze SIP submittal related to PM BART for
EGUs by proposing to disapprove Texas's pollutant-specific PM screening
analysis and determination that PM BART emission limits are not
required for any
[[Page 28937]]
Texas EGUs. The EPA is proposing this action through an error
correction under CAA section 110(k)(6). If the EPA finalizes this
disapproval, the EPA will have the authority and obligation under CAA
section 110(c)(1)(B), to promulgate a FIP within 2 years. As part of
this rulemaking, the EPA proposes to promulgate a FIP addressing PM
BART requirements and satisfying that FIP obligation. As discussed
further in Section VII and Section VIII, the EPA is proposing source-
specific PM BART requirements for those EGUs that we propose to find
subject to BART.
VII. BART Analysis for SO2 and PM
As discussed in Section IV of this action, we are proposing to
withdraw the Texas SO<INF>2</INF> Trading Program previously
established as an alternative to SO<INF>2</INF> BART for Texas EGUs.
Thus, to satisfy SO<INF>2</INF> BART requirements for Texas, we are
proposing to conduct a source-specific BART evaluation consistent with
the BART Guidelines for appropriate EGU sources. Specifically, we must
evaluate EGUs that were previously identified as BART-eligible, but for
which no subject-to-BART determinations were made because they were
included in the Texas SO<INF>2</INF> Trading Program. Additionally,
because our approval of the portion of the Texas Regional Haze SIP
related to PM BART for EGUs was in error, we are now proposing an error
correction to disapprove that portion of the Texas SIP. We propose to
address the deficiency through a source-specific BART evaluation
consistent with the BART Guidelines for PM BART for the EGU sources
that were previously identified as BART-eligible, but for which no
subject-to-BART determinations were made because they were included in
the Texas SO<INF>2</INF> Trading Program.
A. Identification of Sources Subject to BART
In January 2016, we approved Texas's determination of which non-EGU
sources in the State are BART-eligible and the determination that none
of the State's BART-eligible non-EGU sources are subject to BART
because they are not reasonably anticipated to cause or contribute to
visibility impairment at any Class I areas.\151\ In our October 2017
Texas BART FIP,\152\ and subsequent affirmation in 2020, addressing
BART requirements for Texas EGUs, we noted that all BART-eligible EGUs
in Texas are either covered by a BART alternative or have screened out
of being subject to BART. Our October 2017 FIP lists the units covered
by the BART alternative for SO<INF>2</INF> (i.e., the Texas
SO<INF>2</INF> Trading Program) and identifies which of those units are
BART-eligible.\153\ For those BART-eligible EGUs that were not covered
by the Texas SO<INF>2</INF> Trading Program, we finalized
determinations that those EGUs are not subject-to-BART for
NO<INF>X</INF>, SO<INF>2</INF>, and PM based on screening methods as
described in our 2017 proposed rule and BART Screening TSD.\154\
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\151\ See 81 FR 296, 301 (Jan. 5, 2016).
\152\ See 82 FR at 48328 (Oct. 17, 2017).
\153\ 82 FR at 48329 (Oct.17, 2017).
\154\ See 82 FR at 48328-29 (Oct.17, 2017). Table 2 in the
October 2017 notice lists the EGUs that we finalized as being BART-
eligible, but for which we determined were not be subject-to-BART
based on various screening analysis as more fully described in the
2017 proposal (82 FR at 918-21). We are not reopening that
determination in this action.
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Because we are now proposing to withdraw the Texas SO<INF>2</INF>
Trading Program, we must evaluate the EGU sources that were previously
identified as BART-eligible, but for which no subject-to-BART
determinations were made because they were included in the Texas
SO<INF>2</INF> Trading Program. The sources included in the Texas
SO<INF>2</INF> Trading Program are identified in Table 2.
Table 2--Sources Included in the Texas SO2 Trading Program
----------------------------------------------------------------------------------------------------------------
Owner/operator Units BART-eligible
----------------------------------------------------------------------------------------------------------------
AEP...................................... Welsh Power Plant Unit 1........ Yes.
Welsh Power Plant Unit 2........ Yes.
Welsh Power Plant Unit 3........ No.
H W Pirkey Power Plant Unit 1... No.
Wilkes Unit 1 [dagger].......... Yes.
Wilkes Unit 2 [dagger].......... Yes.
Wilkes Unit 3 [dagger].......... Yes.
CPS Energy............................... J. T. Deely Unit 1.............. Yes.
J. T. Deely Unit 2.............. Yes.
O. W. Sommers Unit 1 [dagger]... Yes.
O. W. Sommers Unit 2 [dagger]... Yes.
LCRA..................................... Fayette/Sam Seymour Unit 1...... Yes.
Fayette/Sam Seymour Unit 2...... Yes.
Luminant................................. Big Brown Unit 1................ Yes.
Big Brown Unit 2................ Yes.
Martin Lake Unit 1.............. Yes.
Martin Lake Unit 2.............. Yes.
Martin Lake Unit 3.............. Yes.
Monticello Unit 1............... Yes.
Monticello Unit 2............... Yes.
Monticello Unit 3............... Yes.
Sandow Unit 4................... No.
Stryker ST2 [dagger]............ Yes.
Graham Unit 2 [dagger].......... Yes.
Coleto Creek Unit 1............. Yes.
NRG...................................... Limestone Unit 1................ No.
Limestone Unit 2................ No.
W. A. Parish Unit WAP4 [dagger]. Yes.
W. A. Parish Unit WAP5.......... Yes.
W. A. Parish Unit WAP6.......... Yes.
W. A. Parish Unit WAP7.......... No.
Xcel..................................... Tolk Station Unit 171B.......... No.
Tolk Station Unit 172B.......... No.
[[Page 28938]]
Harrington Unit 061B............ Yes.
Harrington Unit 062B............ Yes.
Harrington Unit 063B............ No.
El Paso Electric......................... Newman Unit 2 [dagger].......... Yes.
Newman Unit 3 [dagger].......... Yes.
Newman Unit **4 [dagger]........ Yes.
Newman Unit **5[dagger]......... Yes.
----------------------------------------------------------------------------------------------------------------
[dagger] Gas-fired or gas/fuel oil-fired units.
Some of the BART-eligible sources that were included in the Texas
SO<INF>2</INF> Trading Program have retired. Welsh Unit 2 retired in
2016 \155\ and Big Brown,\156\ Monticello,\157\ and the J.T. Deely
units retired at the end of 2018.\158\ These shutdowns are permanent
and enforceable because the CAA permits for these units have been
cancelled or the units have been withdrawn from the facilities' Title V
operating permits. These units may not return to operation without
going through CAA new source permitting and Title V operating
permitting requirements. Therefore, because the units are permanently
retired, it is not necessary to include these units in our screening
analysis to determine whether these sources are subject to BART.
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\155\ Welsh Unit 2 was retired on April 16, 2016, pursuant to a
Consent Decree (No. 4:10-cv-04017-RGK) and subsequently removed from
the Title V permit (permit no. O26). We have included the Consent
Decree, permitting notes, and new Title V permit showing that the
Unit is removed in the docket for this action.
\156\ See letter dated March 27, 2018, from Kim Mireles of
Luminant to the TCEQ requesting to cancel certain air permits and
registrations for Big Brown available in the docket (EPA-R06-OAR-
2016-0611-0132) for this action.
\157\ See letter dated February 8, 2018, from Kim Mireles of
Luminant to the TCEQ requesting to cancel certain air permits and
registrations for Monticello available in the docket (EPA-R06-OAR-
2016-0611-0130) for this action.
\158\ See letter dated December 15, 2021, from Johnny Bowers,
Team Leader Air Permits Division at TCEQ to Danielle Frerich
regarding the cancellation of air quality permits for the J.T. Deely
units available in the docket for this action.
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To determine which of those remaining BART-eligible sources listed
in Table 2 are anticipated to cause or contribute to visibility
impairment in any Class I area (subject-to-BART),\159\ the BART
Guidelines state that CALPUFF or another appropriate model can be used
to predict the visibility impacts from a single source at a Class I
area. The BART source is the collection of BART-eligible emission units
at a facility. A detailed discussion of the subject-to-BART screening
analysis is provided in the 2023 BART Modeling TSD.\160\ We summarize
the methodology and results of this analysis here.
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\159\ See 40 CFR part 51, Appendix Y, III, How to Identify
Sources ``Subject to BART.''
\160\ See our 2023 BART Modeling TSD in our docket.
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1. Modeling Approach
For States (or the EPA in the case of a FIP) using modeling to
determine the applicability of BART to single sources, the first step
in the BART Guidelines is to set a contribution threshold to assess
whether the impact of a single source (collectively the BART-eligible
units at a specific facility) is sufficient to cause or contribute to
visibility impairment at a Class I area. The BART Guidelines preamble
advises that, ``for purposes of determining which sources are subject
to BART, States should consider a 1.0 deciview (dv) change or more from
an individual source to `cause' visibility impairment, and a change of
0.5 dv to `contribute' to impairment.'' \161\ The BART Guidelines
further advise that ``States should have discretion to set an
appropriate threshold depending on the facts of the situation,'' but
``[a]s a general matter, any threshold that you use for determining
whether a source `contributes' to visibility impairment should not be
higher than 0.5 dv,'' and describe situations in which States may wish
to exercise their discretion to set lower thresholds, mainly in
situations in which a large number of BART-eligible sources within the
State and in proximity to a Class I area justify this approach.\162\ We
do not believe that the sources under consideration in this rule, most
of which are not in close proximity to a Class I area, merit the
consideration of a lower contribution threshold. Therefore, our
analysis employs a contribution threshold of 0.5 dv.
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\161\ 70 FR at 39118.
\162\ 70 FR at 39118.
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In this action we conducted modeling using both CALPUFF \163\ and
CAMx.\164\ In the 2005 BART Guidelines, CALPUFF was in part chosen
because it is much less resource intensive with respect to required
computing power, run time, and development of model inputs than
chemical transport models such as CAMx. Additionally, CAMx tools for
assessing single source impacts were still undergoing development at
that time. CAMx tools have advanced since 2005, and while still
resource intensive, for this action we were able to conduct CAMx
modeling using TCEQ's modeling platform as a starting point for this
assessment. We discuss details of the CALPUFF and CAMx modeling systems
throughout this section and in the 2023 BART Modeling TSD.
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\163\ EPA used the version of CALPUFF approved previously for
regulatory modeling (CALPUFF version 5.8.5, level 15214) as
discussed on EPA's website (<a href="https://www.epa.gov/scram/air-quality-dispersion-modeling-alternative-models">https://www.epa.gov/scram/air-quality-dispersion-modeling-alternative-models</a>) and this CALPUFF version is
available for download from Exponent at <a href="https://www.src.com/">https://www.src.com/</a>.
\164\ CAMx is available for download at <a href="https://www.camx.com/">https://www.camx.com/</a>.
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As recommended in the BART Guidelines, we performed stand-alone,
source-specific CALPUFF modeling on several of the remaining BART-
eligible sources included in Table 2 to determine which of the BART-
eligible sources in Table 2 cause or contribute to visibility
impairment in nearby Class I areas. CALPUFF is a multi-species non-
steady-state puff dispersion model that simulates the effects of
pollution transport, dispersion, transformation, and removal of
emissions from modeled sources for transport distances beyond 50 km
using general background concentrations to represent air pollution
levels that the modeled sources emissions interact. Relevant guidance
\165\ States that the CALPUFF
[[Page 28939]]
model is generally applicable at distances from 50 km to at least 300
km downwind of a source. However, previous Regional Haze BART SIP
modeling conducted by consultants and the States extended beyond 300km
for numerous BART analyses.\166\ In fact, in evaluating the Texas 2009
Regional Haze SIP, the EPA, FLM representatives, and TCEQ agreed with
using CALPUFF for Texas sources for distances out to 614 km.\167\
Initially, CALPUFF results beyond 300 km were thought to be potentially
conservative (overestimate impacts); however subsequent analysis of
CALPUFF indicates that it can also underpredict impacts at ranges
greater than 300km.\168\ For this particular BART analysis, we chose to
evaluate CALPUFF results out to approximately 450 km due to these
potential uncertainties that seem to be larger at ranges greater than
450 km.\169\ All BART-eligible sources that we modeled with CALPUFF in
this action have at least one Class I area within the more typical
CALPUFF range of 300km (see Table 3 for distance to most impacted Class
I areas for each modeled source). This use of CALPUFF is consistent
with the EPA's recommendation in the 2005 BART Guidelines \170\ to
determine whether a source is subject to BART and in conducting the
BART analysis for those sources determined to be subject to BART.\171\
We also have CAMx modeling results for all coal-fired BART-eligible
sources and as such we have both CALPUFF and CAMx modeling results for
the coal-fired sources within 450 km of Class I area(s). For those
sources beyond 450 km, we only used CAMx modeling results as discussed
in more detail later in this section.
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\165\ Interagency Workgroup on Air Quality Modeling (IWAQM)
Phase 2 Summary Report and Recommendations for Modeling Long-Range
Transport and Impacts on Regional Visibility, EPA- 454/R-98-019,
IWAQM, 1998; ``Federal Land Managers' Air Quality Related Values
Workgroup (FLAG)'': Phase I Report, FLAG, USDI--National Park
Service, Air Resources Division, Denver, CO., 2000. <a href="https://www.nature.nps.gov/air/Pubs/pdf/flag/FlagFinal.pdf">https://www.nature.nps.gov/air/Pubs/pdf/flag/FlagFinal.pdf</a>; Revisions to the
Guideline on Air Quality Models: Adoption of a Preferred Long Range
Transport Model and Other Resources, 72 FR 18440 (Apr. 15, 2003).
\166\ Historically, the EPA has indicated that use of CALPUFF
was generally acceptable at 300 km and for larger emissions sources
with elevated stacks, such as coal-fired power plants, we and FLM
representatives have also allowed or supported the use of CALPUFF
results at larger distances, beyond 400 km in some cases. For
example, South Dakota used CALPUFF for Big Stone's BART
determination, including its impact on multiple Class I areas
further than 400 km away. See 76 FR 76646, 76654 (Dec. 8, 2011), 77
FR 24845 (Apr.26, 2012). Nebraska relied on CALPUFF modeling to
evaluate whether numerous power plants were subject to BART where
the ``Class I areas [were] located at distances of 300 to 600
kilometers or more from'' the sources. See Best Available Retrofit
Technology Dispersion Modeling Protocol for Selected Nebraska
Utilities, p. 3, EPA Docket ID No. EPA-R07-OAR-2012-0158-0008.
\167\ In our 2014 proposed action and the 2016 final action on
the 2009 Texas Regional Haze SIP, we approved the use of CALPUFF to
screen BART-eligible non-EGU sources at distances of 400 to 614 km
for some sources. 79 FR 74818 (Dec. 16, 2014), 81 FR 296 (Jan. 5,
2016).
\168\ ``Documentation of the Evaluation of CALPUFF and Other
Long Range Transport Models using Tracer Field Experiment Data''
(PDF)(247 pp, 8 MB, 05-01-2012, 454-R-12-003). Prepared for the U.S.
Environmental Protection Agency by the ENVIRON International
Corporation. (EPA Contract No: EP-D-07-102, Work Assignment No: 4-
06); ``Evaluation of Chemical Dispersion Models using Atmospheric
Plume Measurements from Field Experiments'' (PDF)(127 pp, 3 MB, 09-
01-2012). Prepared for the U.S. Environmental Protection Agency by
the ENVIRON International Corporation. (EPA Contract No: EP-D-07-
102, Work Assignment No: 4-06 and 5-08); and ``Comparison of Single-
Source Air Quality Assessment Techniques for Ozone,
PM<INF>2.5</INF>, other Criteria Pollutants and AQRVs'' (PDF)(143
pp, 19 MB, 09-01-2012). Prepared for the U.S. Environmental
Protection Agency by the ENVIRON International Corporation. (EPA
Contract No: EP-D-07-102, Work Assignment No: 4-06 and 5-08);
<a href="https://www.epa.gov/scram/air-modeling-reports-and-journal-articles">https://www.epa.gov/scram/air-modeling-reports-and-journal-articles</a>.
See 2023 BART Modeling TSD for further discussion on this topic.
\169\ We discuss the choice of using CALPUFF model results in
the 300-450 km range in more detail in the 2023 BART Modeling TSD.
\170\ See 70 FR 39104, 39122-23 (July 6, 2005).
\171\ 70 FR at 39122.
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Consistent with the BART Guidelines, for those sources modeled with
CALPUFF, we compared the 98th percentile (equivalent to the 8th highest
daily value in each year modeled) impact from the three modeled years
to the 0.5 dv screening threshold following the modeling protocol
described in the 2023 BART Modeling TSD.\172\ The BART Guidelines
recommend that States (or the EPA in the case of a FIP) use the 24-hour
average actual emission rate from the highest emitting day of the
meteorological period modeled, unless this rate reflects periods of
start-up, shutdown, or malfunction. Consistent with this
recommendation, in this action, we used the 24-hour average actual
emission rate from the highest emitting day during the baseline period.
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\172\ In the 2005 BART Guidelines the selection of the 98th
percentile value rather than the maximum value was made to address
concerns with CALPUFF's limitations that could result in the maximum
from CALPUFF modeling being overly conservative. We state that,
``Most important, the simplified chemistry in the model tends to
magnify the actual visibility effects of that source. Because of
these features and the uncertainties associated with the model, we
believe it is appropriate to use the 98th percentile--a more robust
approach that does not give undue weight to the extreme tail of the
distribution.'' 70 FR at 39121.
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For this proposed action, we conducted modeling using a baseline
period of emissions data of 2016-2020 and used meteorological data for
2016-2018 to evaluate source visibility impacts to Class I areas. Our
selection of this baseline period for subject-to-BART screening
modeling was made based on consideration of a number of factors. We
note that most BART screening analyses, including the BART screening in
the 2009 Texas Regional Haze SIP, were based on a 2000-2004 baseline
period, used 2001-2003 meteorological data, and used 2002 in the
baseline modeling to project 2018 visibility conditions for the first
planning period SIPs. Our 2017 proposed rule also used this
period.\173\
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\173\ See generally 82 FR 912 (January 4, 2017).
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We selected the 2016-2020 emissions baseline period for subject-to-
BART screening in this instance because recent actual emissions more
accurately reflect future anticipated emissions which is required in
evaluating controls. In addition, this emissions baseline period is
consistent with the 2016-2018 meteorological period modeled. In this
manner, the screening, visibility benefit analysis, cost analysis, and
consideration of existing controls are all based on consideration of
the same baseline meteorological time period, operating conditions, and
emissions. The 2000-2004 baseline period is no longer representative of
anticipated future emissions or current operations because more recent
regulatory actions, such as the MATS rule, and market pressures have
impacted how these units now operate. We also note that our previous
use of baseline emissions data from 2000-2004 reflected steady-state
operating conditions during periods of high-capacity utilization and
was appropriate for the screening nature of the analysis rather than
any specific federally enforceable limit in effect at that time. We
believe this same approach, updated for 2016-2020, continues to serve
the same function and provides a suitable estimate of emissions during
high utilization for each of these sources. Additionally, it also
allows the screening, visibility benefit analysis, cost analysis, and
consideration of existing controls to all be based on the same baseline
period for meteorological data, operating conditions, and emissions.
Using an appropriate, updated baseline is also the foundation for
evaluating control costs once a source is determined to be subject to
BART. The BART determination includes consideration of past practices,
existing controls, and anticipated future operation. The BART
Guidelines state that in evaluating the costs of controls as part of
the five-factor analysis for sources determined to be subject to BART,
baseline annual emissions utilized for control cost analyses should be
a realistic depiction of anticipated annual emissions for the source
and calculated based upon continuation of past practice \174\ in the
absence of enforceable limitations.
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\174\ Past practices can include a broad consideration of
operations, changes in market conditions, and unique situations that
can impact emissions.
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[[Page 28940]]
For both the CALPUFF and CAMx modeling, the maximum 24-hour
emission rate (lb/hr) for NO<INF>X</INF> and SO<INF>2</INF> from the
2016-2020 baseline period for each source was identified through a
review of the daily emission data obtained from the EPA's Clean Air
Markets Program Data \175\ for each of the BART-eligible units included
in Table 2. Because daily emissions are not available for PM, we used
data from EPA's Air Markets Program Data and TCEQ's Central Registry EI
information to obtain PM<INF>10</INF> and PM<INF>2.5</INF> tpy emission
rates for each year (2016-2020) on a unit basis. We used the annual
average lb/MMBtu and the maximum daily heat input to calculate the
maximum daily PM<INF>10</INF> and PM<INF>2.5</INF> emissions rates that
were used in the subject to BART modeling and were also used in the
control cases. For the gas and gas/fuel oil facilities,\176\ we
utilized the heat input data from the EPA Clean Air Markets Division
(CAMD) coupled with the EPA's AP-42 emission factors to estimate
maximum PM<INF>10</INF> and PM<INF>2.5</INF> emissions. The 2023 BART
Modeling TSD includes additional discussion and source-specific
information used in the CALPUFF modeling for this portion of the
screening analysis.
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\175\ <a href="https://campd.epa.gov/">https://campd.epa.gov/</a>. See ``2016-2020 CAMD Data
Evaluation.xlsx'' in the docket for this action.
\176\ When we use the term ``gas,'' we mean ``pipeline natural
gas.''
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As previously discussed, while the BART Guidelines recommend the
use of CALPUFF to determine which sources are anticipated to contribute
to visibility impairment, the Guidelines also allow the use of another
``appropriate model'' to predict the visibility impacts from a single
source at a Class I area. Because some of these BART-eligible sources
(included in Table 2) are beyond the distance to Class I areas for
which CALPUFF modeling is typically used, we used photochemical grid
modeling (CAMx) to evaluate the visibility impacts of those sources. In
addition, we also used CAMx to evaluate the other BART-eligible coal-
fired EGUs with SO<INF>2</INF> emissions located within the typical
CALPUFF modeling range. The CAMx modeling includes all of these
emission sources to provide a consistent approach to compare the
modeling results across all these sources. CAMx is a photochemical grid
model that is formulated to assess the long-range transport of
emissions from sources up to distances of several thousand miles
including emissions from sources outside the range that CALPUFF is
typically utilized. CAMx allows modeling of impacts from individual
sources and assessment of their impacts on Class I areas at distances
much greater than the limited CALPUFF model system and accounts for all
the other known emissions sources in the modeling domain that results
in varying background pollution levels temporally and spatially that
individual source emissions interact. Furthermore, CAMx is also more
suited than other possible modeling approaches for evaluating the
visibility impacts of SO<INF>2</INF>, NO<INF>X</INF>, VOC, and PM
emissions, as it has a more robust chemistry mechanism that is
continually updated as the scientific community of peers agree on
chemistry, physics, and structural upgrades. As such, CAMx provides a
scientifically defensible platform for the assessment of visibility
impacts over a wide range of source-to-receptor distances that has been
used by a number of States in development of their Regional Haze SIPs,
including Texas.
Since CAMx modeling differs in several ways from CALPUFF modeling,
we are using different metrics to evaluate BART visibility impacts from
CAMx. For CAMx modeling, we utilize the maximum daily impact as the
primary metric for BART screening and assessment of visibility impacts
as compared to the use of the 98th percentile metric with CALPUFF. As
explained in the 2023 BART Modeling TSD, this approach recognizes
differences in the models and model inputs and their application in
determining whether the source is anticipated to cause or contribute to
visibility impairment. For example, one difference is that compared to
CALPUFF, CAMx utilizes a more robust chemistry mechanism, thus the
primary concern that drove the selection of the 98th percentile value
for CALPUFF based modeling are not applicable. Furthermore, because the
CAMx modeling uses a more limited meteorological data period (one year
of meteorology instead of three years used for CALPUFF modeling), and
CAMx modeling also uses only one receptor for the Class I area \177\
versus the many receptors covering the entire area of the Class I area
that are used in CALPUFF modeling, the maximum of the daily impacts at
a Class I area is appropriate for determining if a source is subject to
BART. The use of the maximum value from CAMx also comports with TCEQ's
use of the maximum value from CAMx modeling for BART screening that
TCEQ included in the 2009 Texas Regional Haze SIP.<SUP>178 179</SUP>
See the 2023 BART Modeling TSD for further discussion of the CALPUFF
and CAMx modeling systems, the metrics evaluated, and the limitations
and strengths of each modeling system.
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\177\ For CAMx, we used the location coordinates of the 13
IMPROVE monitors that represent the 15 Class I areas, as was done in
previous modeling. IMPROVE monitor GUMO1 represents both the
Guadalupe Mountains NP and the Carlsbad Caverns NP Class I areas,
and IMPROVE monitor WHPE1 represents both Wheeler Peak and Pecos
Wilderness Areas Class I areas. IMPROVE monitors are part of a
nationwide visibility monitoring network. The IMPROVE program
establishes current visibility and aerosol conditions in mandatory
Class I areas; identifies chemical species and emission sources
responsible for existing man-made visibility impairment; documents
long-term trends in visibility; and provides regional haze
monitoring representing all visibility-protected Federal Class I
areas, where practical.
\178\ See 2009 Texas Regional Haze SIP Appendix 9-5, ``Screening
Analysis of Potential BART-Eligible Sources in Texas''; Revised
Draft Final Modeling Protocol Screening Analysis of Potentially
BART-Eligible Sources in Texas, Environ Sept. 27, 2006; and Guidance
for the Application of the CAMx Hybrid Photochemical Grid Model to
Assess Visibility Impacts of Texas BART Sources at Class I Areas,
Environ December 13, 2007 all available in the docket for this
action. The EPA, the Texas Commission on Environmental Quality
(TCEQ), and FLM representatives verbally approved the approach in
2006 and in email exchange with TCEQ representatives in February
2007 (see email from Erik Snyder (EPA) to Greg Nudd of TCEQ Feb. 13,
2007 and response email from Greg Nudd to Erik Snyder Feb. 15, 2007,
available in the docket for this action).
\179\ We approved Texas's subject-to-BART analysis for non-EGU
sources which relied on this CAMx modeling in our January 5, 2016,
rulemaking (81 FR 296).
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For this proposed action, our CAMx modeling platform began with
TCEQ's 2016 Modeling Platform,\180\ namely TCEQ's 2016 emissions data,
2016 meteorological data, and other modeling files utilized in their
CAMx modeling for TCEQ's Second Planning Period Texas Regional Haze
SIP. We are using this updated modeling platform to reflect more recent
meteorology and emissions inventories and have identified it to be the
best available platform for modeling these sources in Texas.\181\ We
upgraded this modeling platform to the newest version of the CAMx
model, adjusted emissions for BART-eligible units, and utilized
[[Page 28941]]
different/new Particulate Matter Source Apportionment Technology (PSAT)
\182\ categories (individual EGU units and facilities) to track source
contributions for BART-eligible units. These adjustments are explained
in more detail in the 2023 BART Modeling TSD.
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\180\ For this action, we used TCEQ's 2016 modeling platform
from its Second Planning Period Regional Haze SIP revision. TCEQ
submitted this Second Planning Period Regional Haze SIP revision to
the EPA on July 20, 2021. The EPA has not reviewed this SIP nor
proposed action on this SIP, but we are utilizing the modeling
platform developed by TCEQ for this SIP to perform our modeling
analyses to determine whether a source is subject to BART and in
conducting the BART analysis for those sources determined to be
subject to BART. The EPA will evaluate the Second Planning Period
Regional Haze SIP submitted by TCEQ in a separate action. The SIP is
available at <a href="https://www.tceq.texas.gov/airquality/sip/bart/haze_sip.html">https://www.tceq.texas.gov/airquality/sip/bart/haze_sip.html</a> and in the docket for this action.
\181\ Consequently, a 2016-2018 period for CALPUFF modeling and
2016-2020 emissions would be consistent with this choice.
\182\ CAMx includes an advanced mechanism that allows tracking
the contributions of individual sources and pollutants within the
grid model. For purposes of tracking particulate matter formation,
we employed the CAMx PSAT for the BART-eligible sources included in
the Texas SO<INF>2</INF> Trading Program, including the three coal-
fired EGU sources that did not screen out with the CALPUFF modeling
(Harrington, Martin Lake, and Welsh).
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Using the BART Guidelines recommended maximum daily emissions and
post-processing approach, if the source (which is the aggregate of all
[…truncated; see source link]Indexed from Federal Register on May 4, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.