Proposed Rule2023-15338
Disapproval and Promulgation of Air Quality Implementation Plans; Texas and Oklahoma; Regional Haze State Implementation Plans; Federal Implementation Plan for Regional Haze; Completion of Remand
Primary source
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Published
July 26, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is proposing this action to address the voluntary remand of portions of a final rulemaking published in the Federal Register on January 5, 2016, addressing regional haze obligations for the first planning period in Texas and Oklahoma. Specifically, we are revisiting and again proposing disapproval of portions of the Texas Regional Haze State Implementation Plan (SIP) submission and portions of the Oklahoma Regional Haze SIP submission that relate to reasonable progress requirements for the first planning period from 2008 through 2018. We are also proposing to rescind the sulfur dioxide (SO<INF>2</INF>) emission limitations we promulgated as part of the Federal Implementation Plan (FIP) in the January 2016 Final Rule for 15 Texas electric generating units (EGUs) at eight facilities. We are proposing to determine that no additional controls are required for Texas or Oklahoma sources under these States' long-term strategies for making reasonable progress for the first planning period. We are leaving the portions of the Texas and Oklahoma Regional Haze SIPs that we approved in the January 2016 Final Rule in place and not reopening those determinations in this action.
Full Text
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<title>Federal Register, Volume 88 Issue 142 (Wednesday, July 26, 2023)</title>
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[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Proposed Rules]
[Pages 48152-48179]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15338]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2014-0754; FRL-10412-01-R6]
Disapproval and Promulgation of Air Quality Implementation Plans;
Texas and Oklahoma; Regional Haze State Implementation Plans; Federal
Implementation Plan for Regional Haze; Completion of Remand
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
[[Page 48153]]
Environmental Protection Agency (EPA) is proposing this action to
address the voluntary remand of portions of a final rulemaking
published in the Federal Register on January 5, 2016, addressing
regional haze obligations for the first planning period in Texas and
Oklahoma. Specifically, we are revisiting and again proposing
disapproval of portions of the Texas Regional Haze State Implementation
Plan (SIP) submission and portions of the Oklahoma Regional Haze SIP
submission that relate to reasonable progress requirements for the
first planning period from 2008 through 2018. We are also proposing to
rescind the sulfur dioxide (SO<INF>2</INF>) emission limitations we
promulgated as part of the Federal Implementation Plan (FIP) in the
January 2016 Final Rule for 15 Texas electric generating units (EGUs)
at eight facilities. We are proposing to determine that no additional
controls are required for Texas or Oklahoma sources under these States'
long-term strategies for making reasonable progress for the first
planning period. We are leaving the portions of the Texas and Oklahoma
Regional Haze SIPs that we approved in the January 2016 Final Rule in
place and not reopening those determinations in this action.
DATES:
Comments: Comments must be received on or before September 25,
2023.
Virtual Public hearing: The EPA will hold a virtual public hearing
to solicit comments on August 10, 2023. The last day to pre-register to
speak at the hearing will be on August 8, 2023. On August 9, 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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</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 August 2, 2023.
For more information on the virtual public hearing, see
SUPPLEMENTARY INFORMATION.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2014-0754 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, or content (e.g., CBI). For questions about a document in
the docket please contact the 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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</a> or contact us via email at
<a href="/cdn-cgi/l/email-protection#2c7e1a78747e647e494d5f43424d4e40497c5e434b5e495f5f6c495c4d024b435a"><span class="__cf_email__" data-cfemail="5c0e6a08040e140e393d2f33323d3e30390c2e333b2e392f2f1c392c3d723b332a">[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 Street, Suite 500, Dallas,
Texas 75270; telephone number: 214-665-9793; or via email:
<a href="/cdn-cgi/l/email-protection#b9eb8fede1ebf1ebdcd8cad6d7d8dbd5dce9cbd6decbdccacaf9dcc9d897ded6cf"><span class="__cf_email__" data-cfemail="f8aaceaca0aab0aa9d998b9796999a949da88a979f8a9d8b8bb89d8899d69f978e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
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 August 10, 2023. The hearing will convene at 3:00 p.m.
Central Time (CT) with a 15-minute break from 5:00 to 5:15 p.m. CT. The
hearing will conclude at 7:00 p.m. CT, or 15 minutes after the last
pre-registered presenter in attendance has presented if 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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</a> or contact us via email at
<a href="/cdn-cgi/l/email-protection#9dcfabc9c5cfd5cff8fceef2f3fcfff1f8cdeff2faeff8eeeeddf8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="297b1f7d717b617b4c485a4647484b454c795b464e5b4c5a5a694c5948074e465f">[email protected]</span></a>. The last day to pre-register to speak
at the hearing will be on August 8, 2023. On August 9, 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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</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#bae88ceee2e8f2e8dfdbc9d5d4dbd8d6dfeac8d5ddc8dfc9c9fadfcadb94ddd5cc"><span class="__cf_email__" data-cfemail="7d2f4b29252f352f181c0e12131c1f11182d0f121a0f180e0e3d180d1c531a120b">[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
[[Page 48154]]
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-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal">https://www.epa.gov/tx/texas-and-oklahoma-regional-haze-sip-disapproval-and-revision-regional-haze-federal</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#431175171b110b112622302c2d22212f2613312c2431263030032633226d242c35"><span class="__cf_email__" data-cfemail="164420424e445e44737765797877747a7346647971647365655673667738717960">[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 August 2, 2023. The
EPA may not be able to arrange accommodations without advance notice.
Table of Contents
I. Executive Summary
II. Background
A. Regional Haze
1. Determination of Baseline, Natural, and Current Visibility
Conditions
2. Reasonable Progress Requirements
3. Long-Term Strategy (LTS)
B. Previous Actions Related to Texas and Oklahoma Regional Haze
Reasonable Progress Requirements for the First Planning Period
C. Litigation, Stay Order, and EPA's Motion for Voluntary Remand
D. Federal Land Manager (FLM) Consultation
III. Overview of Proposed Actions
IV. Legal Authority for This Action
V. EPA's Review of the 2016 Prior Disapprovals on Remand
A. Proposal To Incorporate Our Prior Bases for Disapprovals
B. Supplemental Bases for Our Disapproval of Texas's Four-Factor
Analysis
1. Selection of Sources for Evaluation in Four-Factor Analysis
a. Texas's Cost-Effectiveness Threshold
b. Scrubber Upgrades
2. Consideration of the Four Factors
a. Texas's Assumptions of SO<INF>2</INF> Control Efficiency of
Scrubbers
b. Texas's Cost of Compliance Analysis Assumed Future CAIR
Reductions as a Baseline
3. Weighing of the Four Statutory Factors and Visibility
Benefits
a. Cost of Compliance
b. Texas's Approach in Grouping Sources
c. Texas's Evaluation of Potential Visibility Improvements
i. Texas's Use of Visibility Thresholds
ii. Visibility Benefits of Texas's Estimated Control Set
iii. Texas's Use of Degraded Background Conditions
d. Texas's ``Order of Magnitude Estimate'' for Visibility
Improvement
C. Clarification of Our Basis for Disapproval of Texas's
Calculation of Natural Visibility Conditions
D. Clarification of our Basis for Disapproval of Consultation
Between Texas and Oklahoma
VI. Amending the FIP on Remand
VII. Proposed Action
VIII. Environmental Justice Considerations
IX. Impact on Areas of Indian Country
X. Statutory and Executive Order Reviews
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 Big Bend, and
national wilderness areas, such as the Wichita Mountains Wilderness.
Vistas in these areas (referred to as Class I 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
(RHR), 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.
The CAA and RHR require States to submit a long-term strategy that
includes such measures as are necessary to achieve reasonable progress
for each Class I area. A central element of the long-term strategy for
the 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 other central element of a
state's long-term strategy is the requirement to include any additional
control measures that are necessary to make ``reasonable progress''
towards the national goal. To determine what control measures are
necessary to make reasonable progress and therefore must be included in
the long-term strategy, states must consider four statutory factors:
(1) the costs of compliance, (2) the time necessary for compliance, (3)
the energy and nonair quality environmental impacts of compliance, and
(4) the remaining useful life of any existing source subject to such
requirements. This statutory requirement is often referred to as a
``four-factor analysis.'' Additionally, when visibility-impairing
emissions from multiple states impact the same national park or
wilderness area, the RHR requires those states to coordinate and
consult with one another to ensure that each state is making reasonable
progress toward the national goal.
Texas is home to numerous power plants and industrial sources, 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 (Big Bend) and Guadalupe
Mountains National Park (Guadalupe Mountains) in Texas, and Wichita
Mountains Wilderness Area (Wichita Mountains) in Oklahoma. To address
this visibility impairment, Texas submitted its first regional haze
state implementation plan (SIP) in 2009. After reviewing the SIP, the
EPA determined that Texas did not analyze and weigh the four statutory
factors in a reasonable way such that the SIP did not provide for
reasonable progress towards eliminating visibility-impairing pollutants
at these national parks and wilderness areas. Additionally, the EPA
determined that Oklahoma and Texas did not adequately justify why
additional reductions from Texas's sources were not necessary to
address impacts at the Wichita Mountains as part of the consultation
process required under the RHR despite information showing that impacts
from Texas's sources were several times greater than the impact from
Oklahoma's own sources. Therefore, in 2016, the EPA promulgated a final
rule disapproving these portions of Texas's SIP and Oklahoma's SIP
(while approving other aspects of both SIPs). The partial disapprovals
triggered the requirement under the CAA for the EPA to promulgate a
federal implementation plan (FIP) to remedy the deficiencies in the
SIPs. Consequently, in the same action, EPA finalized a FIP that
required
[[Page 48155]]
cost-effective emissions control technologies that would have resulted
in improved visibility at the Class I areas impacted by sources in
Texas. However, Texas and several industry groups filed a petition for
review challenging the final rule in the Fifth Circuit where they
obtained a stay that prevented the rule from taking effect.
In response to the Fifth Circuit motion panel's non-binding stay
opinion, the EPA sought and received a voluntary remand of portions of
the final rule to reconsider its action. After considering the non-
binding stay opinion and other relevant facts, the EPA is again
proposing to disapprove the portions of the Texas and Oklahoma Regional
Haze SIPs that the Agency disapproved in 2016. The EPA is also
proposing to amend the FIP to account for recent developments, such as
the retirements of previously covered sources and the EPA's recently
proposed action to address the BART requirements for Texas's power
plants, which, if finalized as proposed, would reduce SO<INF>2</INF>
emissions in Texas by more than 80,000 tons per year (tpy), improving
visibility across a wide range of scenic vistas in both Texas and
nearby states. Based on these developments, the EPA proposes to
determine that no additional controls are necessary to make reasonable
progress for the first planning period, which ended in 2018.
It has been 14 years since Texas submitted its first planning
period Regional Haze SIP to EPA for review. Since that time, the first
planning period ended, the second planning period began, and Texas
submitted its Regional Haze SIP for the second planning period. Texas
remains one of the few states in the nation that does not have a
complete first planning period regional haze plan in place to protect
the national parks and wilderness areas impacted by sources within the
state. With this action, while also taking into consideration various
power plant shutdowns in Texas and the recently proposed BART action,
the EPA is proposing to find that the requirements for the first
planning period are fulfilled. In a separate future action, EPA will
evaluate Texas's second planning period Regional Haze SIP to determine
whether that SIP satisfies the relevant statutory and regulatory
requirements.
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.,
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.
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 (manmade) impairment of
visibility in 156 national parks and wilderness areas designated as
mandatory Class I areas.\1\ 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,\2\ on July 1,
1999.\3\ The RHR established a requirement for all States to submit a
regional haze SIP, including the District of Columbia, and the Virgin
Islands.\4\
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\1\ 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, 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.''
\2\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, 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.
\3\ See 64 FR 35714 (July 1, 1999). On January 10, 2017, EPA
promulgated revisions to the Regional Haze Rule that apply for the
second and subsequent implementation periods. See 82 FR 3078 (Jan.
10, 2017).
\4\ 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 to periodically
submit SIP revisions (each periodic revision referred to as a
``planning period'') to address regional haze visibility impairment at
Class I areas.\5\ 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 that
certain older, larger sources of visibility-impairing pollutants
install and operate Best Available Retrofit Technology (BART).\6\
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.\7\ This
action addresses first planning period reasonable progress
requirements.\8\
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\5\ See 42 U.S.C. 7491(b)(2); 40 CFR 51.308(b) and (f); see also
64 FR at 35768. EPA established in the Regional Haze Rule 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 at 35721. In addition to each of the
50 states, 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).
\6\ See 42 U.S.C. 7491(b)(2)(A); 40 CFR 51.308(d) and (e).
\7\ See 40 CFR 51.308(b). The 2017 Regional Haze Rule 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).
\8\ In a separate action, we proposed to withdraw the Texas
SO<INF>2</INF> Trading Program and proposed to address the
SO<INF>2</INF> and PM BART requirements for Texas BART eligible
sources with source-specific SO<INF>2</INF> and PM emission limits.
See generally 88 FR 28918 (May 4, 2023).
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1. Determination of Baseline, Natural, and Current Visibility
Conditions
The Regional Haze Rule establishes the deciview (dv) as the
principal metric for measuring visibility.\9\ This visibility metric
expresses uniform changes in the degree of haze in terms of common
increments across the entire range of visibility conditions, from
pristine to extremely hazy conditions. Visibility is also sometimes
expressed in terms of the visual range or light extinction. Visual
range is the greatest distance, in kilometers or miles, at which a dark
object can just be distinguished against the sky. Light extinction,
expressed in units of inverse megameters (Mm<SUP>-1</SUP>), is the
amount of light lost as it travels over distance. The haze index, in
units of deciviews (dv), is calculated directly from the total light
extinction. The deciview is a useful measure for tracking progress in
improving
[[Page 48156]]
visibility, because each deciview change is an equal incremental change
in visibility perceived by the human eye. Most people can detect a
change in visibility of one deciview.\10\
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\9\ See 64 FR 35714, 35725-27 (July 1, 1999).
\10\ The preamble to the Regional Haze Rule provides additional
details about the deciview. 64 FR at 35725.
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The deciview is used in expressing Reasonable Progress Goals (RPGs)
(which are interim visibility goals towards meeting the national
visibility goal), defining baseline, current, and natural conditions
and tracking changes in visibility. The regional haze SIPs must contain
measures that ensure ``reasonable progress'' toward the national goal
of preventing and remedying visibility impairment in Class I areas
caused by manmade air pollution by reducing anthropogenic emissions
that cause regional haze.
To track changes in visibility over time at each of the 156 Class I
areas covered by the visibility program (40 CFR 81.401-437), and as
part of the process for determining reasonable progress, states must
calculate the degree of existing visibility impairment at each Class I
area at the time of each regional haze SIP submittal and periodically
review progress every five years midway through each 10-year
implementation period. To do this, the RHR requirements for the first
planning period \11\ provide that states must determine the degree of
impairment (in deciviews) for the average of the 20 percent least
impaired (``best'') and 20 percent most impaired (``worst'') visibility
days over a specified time period at each of their Class I areas. In
addition, states must also develop an estimate of natural visibility
conditions for the purpose of comparing progress toward the national
goal. Natural visibility is determined by estimating the natural
concentrations of pollutants that cause visibility impairment and then
calculating total light extinction based on those estimates. We have
provided guidance to states regarding how to calculate baseline,
natural, and current visibility conditions in the first planning
period.\12\
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\11\ The applicable requirements of the Regional Haze Rule for
the first planning period are found in 40 CFR 51.308(d).
\12\ Guidance for Estimating Natural Visibility Conditions Under
the Regional Haze Rule, September 2003, EPA-454/B-03-005, available
at <a href="https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20030901_oaqps_epa-454_b-03-005_estimating_natural%20_visibility_regional_haze.pdf">https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20030901_oaqps_epa-454_b-03-005_estimating_natural%20_visibility_regional_haze.pdf</a> (hereinafter
referred to as ``our 2003 Natural Visibility Guidance''); and
Guidance for Tracking Progress Under the Regional Haze Rule, EPA-
454/B-03-004, September 2003, available at <a href="https://www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf">https://www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf</a> (hereinafter
referred to as our ``2003 Tracking Progress Guidance'').
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For the regional haze SIPs for the first planning period,
``baseline visibility conditions'' were the starting points for
assessing ``current'' visibility impairment. Baseline visibility
conditions represent the degree of visibility impairment for the 20
percent least impaired days and 20 percent most impaired days for each
calendar year from 2000 to 2004. Using monitoring data for 2000 through
2004, states are required to calculate the average degree of visibility
impairment for each Class I area on the 20 percent least and most
impaired days, based on the average of annual values over the five-year
period. The comparison of initial baseline visibility conditions to
natural visibility conditions indicates the amount of improvement
necessary to attain natural visibility, while the future comparison of
baseline conditions to the then current conditions will indicate the
amount of progress made. In general, the 2000-2004 baseline period is
considered the time from which improvement in visibility is measured in
the first planning period.
2. Reasonable Progress Requirements
The vehicle for ensuring continuing progress towards achieving the
natural visibility goal is the submission of a series of regional haze
SIPs from the States that include a long-term strategy, as discussed in
the subsection that follows, and establish two RPGs (i.e., one for the
``best'' and one for the ``worst'' days) for each Class I area within
the State for each (approximately) 10-year planning period.\13\ The
Regional Haze Rule does not mandate specific milestones or rates of
progress, but instead calls for States to establish goals that provide
for ``reasonable progress'' toward achieving natural visibility
conditions. In establishing RPGs, States must provide for an
improvement in visibility for the most impaired days over the
(approximately) 10-year period of the SIP and ensure no degradation in
visibility for the least impaired days over the same period.\14\
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\13\ See 64 FR at 35730-37.
\14\ Id.
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States have discretion in establishing RPGs for their Class I
areas, but in doing so must consider the following factors established
in section 169A of the CAA and in our Regional Haze Rule at 40 CFR
51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary
for compliance; (3) the energy and non-air quality environmental
impacts of compliance; and (4) the remaining useful life of any
potentially affected sources. States must demonstrate in their SIPs how
they considered these four factors when establishing the RPGs for the
best and worst days for each of their Class I areas. As noted in our
Reasonable Progress Guidance for the first planning period, States have
flexibility in how they take these factors into consideration, but must
exercise that discretion in a manner consistent with the CAA and the
Regional Haze Rule.\15\ In establishing the RPGs, States must also
consider the rate of progress needed to reach natural visibility
conditions by 2064 (referred to hereafter as the ``Uniform Rate of
Progress (URP)'') and the emission reduction measures needed to achieve
that rate of progress over the 10-year period of the SIP. Uniform
progress towards achievement of natural conditions by the year 2064
represents a rate of progress, which States are to use for analytical
comparison to the amount of progress they expect to achieve. In
establishing RPGs, each State with one or more Class I areas must also
consult with potentially ``contributing states,'' i.e., other nearby
states with emission sources that may be affecting visibility
impairment at Class I areas.\16\
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\15\ Guidance for Setting Reasonable Progress Goals under the
Regional Haze Program, June 1, 2007, memorandum from William L.
Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA
Regional Administrators, EPA Regions 1-10 (pp. 4-2, 5-1).
\16\ 40 CFR 51.308(d)(1)(iv).
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3. Long-Term Strategy (LTS)
Consistent with the requirement in section 169A(b) of the CAA that
States include in their regional haze SIP a 10-to-15-year strategy for
making reasonable progress, section 51.308(d)(3) of the Regional Haze
Rule requires that States include a LTS that addresses regional haze
visibility impairment for each mandatory Class I area within the State
and for each mandatory Class I area located outside the State which may
be affected by emissions from the State. The LTS in each implementation
period is the compilation of all control measures a State has
determined are necessary to make reasonable progress towards achieving
natural visibility conditions. The LTS must include ``enforceable
emissions limitations, compliance schedules, and other measures as
necessary to achieve the reasonable progress goals'' for all Class I
areas within, or affected by emissions from, the state.\17\
---------------------------------------------------------------------------
\17\ 40 CFR 51.308(d)(3).
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When a State's emissions are reasonably anticipated to cause or
contribute to visibility impairment in a Class I area located in
another State, the Regional Haze Rule requires the
[[Page 48157]]
impacted state to coordinate with the contributing States in order to
develop coordinated emissions management strategies.\18\ In such cases,
the contributing State must demonstrate that it has included in its SIP
submission all measures necessary to obtain its share of the emission
reductions needed to meet the RPGs for the Class I area. A State must
also consult with any State having emissions that are reasonably
anticipated to contribute to visibility impairment in any of its
mandatory Class I areas.\19\ Where other States cause or contribute to
impairment in a mandatory Class I area, the State must demonstrate that
it has included in its implementation plan all measures necessary to
obtain its share of the emission reductions needed to meet the progress
goal for the area.\20\ The State must document the technical basis on
which the State is relying to determine its apportionment of emission
reduction obligations necessary for achieving reasonable progress in
each mandatory Class I area it affects.\21\ Regional planning
organizations (RPOs) have provided forums for significant interstate
consultation, but additional consultations between States may be
required to sufficiently address interstate visibility issues. This is
especially true where two States belong to different RPOs.
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\18\ 40 CFR 51.308(d)(3)(i).
\19\ 40 CFR 51.308(d)(3)(i).
\20\ 40 CFR 51.308(d)(3)(ii).
\21\ 40 CFR 51.308(d)(3)(iii).
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States should consider all types of anthropogenic sources of
visibility impairment in developing their LTS, including stationary,
minor, mobile, and area sources.\22\ At a minimum, states must describe
how each of the following seven factors listed below are taken into
account in developing their LTS: (1) Emission reductions due to ongoing
air pollution control programs, including measures to address
``reasonably attributable visibility impairment'' (RAVI); (2) measures
to mitigate the impacts of construction activities; (3) emissions
limitations and schedules for compliance to achieve the RPG; (4) source
retirement and replacement schedules; (5) smoke management techniques
for agricultural and forestry management purposes including plans as
currently exist within the State for these purposes; (6) enforceability
of emissions limitations and control measures; (7) the anticipated net
effect on visibility due to projected changes in point, area, and
mobile source emissions over the period addressed by the LTS.\23\
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\22\ 40 CFR 51.308(d)(3)(iv).
\23\ 40 CFR 51.308(d)(3)(v).
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B. Previous Actions Related to Texas and Oklahoma Regional Haze
Reasonable Progress Requirements for the First Planning Period
On March 31, 2009, Texas submitted a regional haze SIP (the 2009
Regional Haze SIP) to the EPA to address regional haze requirements for
the first planning period. On December 16, 2014, we proposed an action
to partially approve this SIP revision as meeting certain requirements
of the regional haze program (2014 Proposed Rule).\24\ We also proposed
to partially disapprove the Texas SIP revision for not adequately
addressing other requirements of the regional haze program related to
reasonable progress, the long-term strategy, and the calculation of
natural visibility conditions. Given the large visibility impairment at
Oklahoma's Class I area \25\ due to emissions from Texas and the
requirements to develop emission control strategies in consultation
with impacting States,\26\ we proposed in the same action to partially
disapprove a revision to the Oklahoma SIP submitted on February 19,
2010, which also addressed regional haze for the first planning
period.\27\ We proposed a FIP for Texas and Oklahoma to remedy the
deficiencies we identified in the SIPs.
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\24\ 79 FR 74818 (Dec. 16, 2014).
\25\ Wichita Mountains is the only Class I area in Oklahoma. 40
CFR 81.424.
\26\ 79 FR at 74821-74822.
\27\ Specifically, we proposed to disapprove the portion of the
Oklahoma Regional Haze SIP that addresses the requirements of
section 51.308(d)(1), except for section 51.308(d)(1)(vi). 79 FR
74818 (Dec. 16, 2014).
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In January 2016, we took final action to partially approve and
partially disapprove portions of Texas's 2009 Regional Haze SIP and
Oklahoma's 2010 Regional Haze SIP (2016 Final Rule).\28\ We approved
the Texas SIP revision as meeting certain requirements of the regional
haze program, including BART requirements for facilities other than
Electric Generating Units (EGUs).\29\ We disapproved Texas's RPGs for
Big Bend and the Guadalupe Mountains and found that Texas did not
satisfy several of the requirements of the Regional Haze Rule at 40 CFR
51.308(d)(1) with regard to establishing RPGs, most notably the four-
factor analysis required under section 51.308(d)(1)(i)(A) and the
requirement to adequately justify RPGs that are less stringent than the
URP under section 51.308(d)(1)(ii). We disapproved Texas's calculation
of natural visibility conditions for Big Bend and Guadalupe Mountains
under section 51.308(d)(2)(iii) and other calculations that are
dependent on the calculation of natural visibility conditions,
including the calculation of the emission reductions needed to achieve
the URP for these Class I areas under section 51.308(d)(1)(i)(B) and
the calculation of the number of deciviews by which baseline conditions
exceed natural visibility conditions under section 51.308(d)(2)(iv)(A).
We also disapproved a majority of the portions of Texas's 2009 Regional
Haze SIP that address the long-term strategy requirements under section
51.308(d)(3), including the long-term strategy consultations with
Oklahoma. In the 2016 Final Rule, we also disapproved Oklahoma's RPGs
for the Wichita Mountains and disapproved the portions of the Oklahoma
SIP addressing the requirements of section 51.308(d)(1) with regard to
setting RPGs, with the exception of section 51.308(d)(1)(vi), which we
approved.
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\28\ 81 FR 296 (Jan. 5, 2016).
\29\ For EGU facilities, we addressed the BART requirements in a
separate rulemaking in 2017 (and affirmed in 2020), which, in part,
created the Texas SO<INF>2</INF> Trading Program. See 82 FR 48324
(October 17, 2017) and 85 FR 49170 (Aug.12, 2020). We recently
proposed to withdraw the Texas SO<INF>2</INF> Trading Program and
proposed to replace the program with source-specific SO<INF>2</INF>
emission limits for BART eligible sources. See generally 88 FR 28918
(May 4, 2023). We are not addressing BART for Texas EGUs in this
proposed rule.
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We also finalized a FIP for Texas and Oklahoma to remedy the
deficiencies we identified in their SIPs (2016 FIP).\30\ The FIP
included our own four factor analysis for Texas and implemented
SO<INF>2</INF> emission limits on fifteen Texas EGUs at eight different
facilities as part of a long-term strategy for making reasonable
progress at the Class I areas in Texas and Oklahoma; \31\ established
revised natural conditions on the 20 percent best and worst days for
the Guadalupe Mountains and Big Bend Class I areas; recalculated the
number of deciviews by which baseline visibility conditions exceed
natural visibility conditions for the Guadalupe Mountains and Big Bend
Class I areas; and established new RPGs for the Big Bend, the Guadalupe
Mountains, and Wichita Mountains Class I areas.\32\ The FIP did not
establish any additional requirements on sources within Oklahoma.
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\30\ See 81 FR at 346-47.
\31\ The Class I areas in Texas are Big Bend and Guadalupe
Mountains. The Class I area in Oklahoma is Wichita Mountains.
\32\ 81 FR at 346-47.
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[[Page 48158]]
C. Litigation, Stay Order, and EPA's Motion for Voluntary Remand
On March 1, 2016, the State of Texas, the Public Utility Commission
of Texas, and the Texas Commission on Environmental Quality (Texas)
filed a petition for review of the 2016 Final Rule in the United States
Court of Appeals for the Fifth Circuit. Additional parties added as
petitioners include Luminant Generation Company, L.L.C., and other
Utilities.\33\ On March 28, 2016, the Court granted motions to
intervene filed by IBEW Local Union 2337 in support of petitioners and
by Sierra Club and National Parks Conservation Association (NPCA) in
support of the EPA.\34\
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\33\ Other parties include: Big Brown Power Company, L.L.C.;
Luminant Mining Company, L.L.C.; Big Brown Lignite Company, L.L.C.;
Luminant Big Brown Mining Company, L.L.C.; Southwestern Public
Service Company; Utility Air Regulatory Group; Coleto Creek Power,
L.P.; NRG Texas Power, L.L.C.; and Nucor Corporation (Utilities).
\34\ The Court combined all petitions under Case No. 16-60118.
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On March 3, 2016, and March 17, 2016, the Utilities and Texas
respectively filed motions to stay the 2016 Final Rule in the Fifth
Circuit. The EPA filed a response to these motions on April 7, 2016,
and the Utilities and Texas filed separate reply briefs on April 18,
2016. The motions panel rendered a non-binding opinion on July 15, 2016
(2016 stay opinion), granting the stay and concluding, in part, that
the Petitioners had demonstrated a strong likelihood of success on the
merits.\35\
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\35\ Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016).
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Regarding the EPA's disapproval of Texas's RPGs, the motions panel
held that ``Petitioners are likely to establish that EPA improperly
failed to defer to Texas's application of the statutory factors and
improperly required a source-specific analysis not found in the Act or
Regional Haze Rule.'' \36\ As to EPA's disapproval of the consultation
between Texas and Oklahoma, the panel stated that ``EPA's disapproval
seems to stem in large part from its assertion that Texas had to
conduct a source-specific analysis and provide Oklahoma with that
source-specific analysis.'' \37\ The panel found that, ``given the
absence of a regulation or statute requiring source-specific
consultations'' (among other things), the ``Petitioners have a strong
likelihood of success in showing that EPA's disapproval of the
consultation between Oklahoma and Texas was arbitrary and capricious.''
\38\
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\36\ Texas, 829 F. 3d at 428. Additionally, the Court noted that
``other grounds for disapproval were asserted in the proposed rule
but were not finalized in the Final Rule.''
\37\ Texas, 829 F. 3d at 428.
\38\ Texas, 829 F. 3d at 429.
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Regarding the FIP, the panel found that Petitioners had a strong
likelihood of showing that EPA acted in excess of its statutory power
when it imposed emission controls that would not be installed until
after the period of time covered by the first planning period.\39\ The
panel found that ``EPA bound states (and accordingly bound itself) to a
ten-year window when it promulgated the Regional Haze Rule,'' and that
the EPA does not have the authority to require actions that would take
place after the particular period.\40\ Finally, the panel held that the
``EPA's truncated discussion of [electric power] grid reliability
indicates that the agency may not have fulfilled its statutory
obligation to consider the energy impacts of the FIP.'' \41\
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\39\ Texas, 829 F. 3d at 430.
\40\ Texas, 829 F. 3d at 430.
\41\ Texas, 829 F. 3d at 433. Additionally, the court stated it
did not need to consider whether EPA improperly used a dollars per
ton of reduced pollution metric versus a dollars per deciview
improvement metric ``or whether the costs imposed are unreasonable
as a whole in light of the minimal visibility benefits the FIP would
achieve in the relevant period,'' because petitioners have a strong
likelihood of establishing other flaws in the FIP. Texas, 829 F. 3d
at 431.
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The panel further found that petitioners had demonstrated that they
would suffer irreparable injury if the effect of the 2016 Final Rule
was not stayed pending litigation of the petition for review.\42\
Moreover, the panel found that a stay would not injure EPA or
Intervenor-Respondents, and that ``the public's interest in ready
access to affordable electricity outweighs the inconsequential
visibility differences that the federal implementation plan would
achieve in the near future.'' \43\ As such, the panel stayed the 2016
Final Rule in its entirety, ``including the emissions control
requirements, pending the outcome of this petition for review.'' \44\
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\42\ Texas, 829 F. 3d at 433-434.
\43\ Texas, 829 F. 3d at 434-435.
\44\ Texas, 829 F. 3d at 435.
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In addition to the panel's ruling, one of the petitioners,
Luminant, submitted a request for administrative reconsideration of the
2016 Final Rule pursuant to CAA section 307(d)(7)(B) on March 2,
2016.\45\ Among other things, Luminant argued that reconsideration is
appropriate because EPA did not finalize its proposal to rely on the
Cross-State Air Pollution Rule (CSAPR) to satisfy BART for Texas EGUs,
but nonetheless finalized the Agency's proposed long-term strategy and
RPGs for Texas. Luminant argued that, ``by deferring this action, EPA
is fundamentally changing the manner in which it will evaluate BART
controls for Texas and how reasonable progress is evaluated.'' \46\
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\45\ Luminant Reconsideration (Exhibit A w/Remand Motion).
\46\ Luminant Reconsideration (Exhibit A w/Remand Motion) at 2.
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On December 2, 2016, the EPA filed a motion for a partial voluntary
remand of the portions of the 2016 Final Rule disapproving the Texas
and Oklahoma SIPs and imposing FIPs.\47\ We stated that our concerns
leading to our request for a voluntary remand are ``substantial and
legitimate,'' as the court's order demonstrated that the 2016 Final
Rule could be found arbitrary and capricious or contrary to law.\48\ We
also stated that it was ``appropriate to reconsider the Final Rule,
provide interested parties with a new opportunity to provide comment,
including with respect to the views expressed in the Court's Order, and
issue a new rule that takes into account the comments received on any
factual circumstances that could warrant different outcomes.'' \49\ In
response to the EPA's motion for partial voluntary remand, on March 22,
2017, the court remanded the action to the EPA.
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\47\ Respondent's Motion for Partial Voluntary Remand, Texas v.
EPA, Case No. 16-60118 (Dec. 2, 2016) (hereinafter referred to as
``Remand Motion'').
\48\ Citizens Against Pellissippi Parkway Extension, Inc. v.
Mineta, 375 F.3d 412, 417 (6th Cir. 2004). Also, Remand Motion at
21.
\49\ Remand Motion at 21.
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Therefore, in this proposal, the EPA is revisiting its prior
regional haze SIP disapprovals and FIPs on remand. This is more fully
described in sections V and VI. Because the EPA's motion for remand was
specific to the prior regional haze SIP disapprovals and FIPs, we are
leaving our prior approvals in place and not reopening those
determinations in this action.\50\ Additionally, while the EPA has not
acted on Luminant's administrative
[[Page 48159]]
petition for reconsideration, at this time, we need not take a position
on the issue Luminant raised in its petition. In the separate 2023
Texas BART action, the EPA proposed BART controls for Texas EGUs, which
we anticipate finalizing before finalizing this reasonable progress
action.\51\ Once finalized, the Texas BART action should address
Luminant's concern.
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\50\ The 2016 Final Rule also disapproved portions of the
following Texas SIP submittals intended to address CAA provisions
under section 110(a)(2)(D)(i)(II) that prohibit air pollutant
emissions from interfering with measures required to protect
visibility in any other state: April 4, 2008: 1997 8-hour Ozone and
1997 PM<INF>2.5</INF> (24-hour and annual); May 1, 2008: 1997 8-hour
Ozone and 1997 PM<INF>2.5</INF> (24-hour and annual); November 23,
2009: 2006 24-hour PM<INF>2.5</INF>; December 7, 2012: 2010
NO<INF>2</INF>; December 13, 2012: 2008 8-hour Ozone; and May 6,
2013: 2010 1-hour SO<INF>2</INF> National Ambient Air Quality
Standards (NAAQS). In a proposed rule published on January 4, 2017
(82 FR 912), we proposed to reconsider the basis of our prior
disapproval and re-proposed disapproval of these portions of these
Texas SIP submittals and our final disapproval was published on
October 17, 2017 (82 FR 48324, 48332). We are not further addressing
our disapproval of the interstate visibility transport portions of
these Texas SIP submittals.
\51\ See, 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 88
FR 28918 (May 4, 2023), Docket No. EPA-R06-OAR-2016-0611; EPA-HQ-
OAR-2016-0598.
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D. Federal Land Manager (FLM) Consultation
The RHR 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 April 12, 2023. During the consultation
we provided an overview of our proposed actions. The FLMs signaled
general support for our proposed action and did not provide any written
comments.\52\
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\52\ See ``Texas Regional Haze FLM Consultation 4_12_23.xls'' in
the docket for this action.
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III. Overview of Proposed Actions
To address the voluntary remand, we are proposing to disapprove the
same portions of the Texas and Oklahoma SIPs we previously disapproved
in 2016. For certain portions of these disapprovals, we are
supplementing and clarifying our rationale for disapproval. For others,
we are incorporating our original bases for disapproval as detailed in
our 2014 Proposed Rule and 2016 Final Rule.
We are proposing to supplement and clarify our disapproval of the
portions of the Texas Regional Haze SIP that address several of the
requirements at section 51.308(d)(1) related to establishing RPGs, most
notably the four-factor analysis required under section
51.308(d)(1)(i)(A) and the requirement to adequately justify RPGs that
are less stringent than the URP under section 51.308(d)(1)(ii) based on
the consideration of the four statutory factors in section
51.308(d)(1)(i)(A). Additionally, we are proposing to supplement and
clarify our disapprovals of the Texas Regional Haze SIP regarding
natural visibility conditions and proposing to supplement and clarify
our disapprovals of the consultation portions in the Regional Haze SIPs
for Texas and Oklahoma.\53\
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\53\ See Section 51.308(d)(2)(iii) for requirements regarding
natural visibility conditions; Sections 51.308(d)(3)(i) and
51.308(d)(1)(iv) for the consultation requirements.
---------------------------------------------------------------------------
For the remaining portions of the Texas Regional Haze SIP that we
are proposing to disapprove, we are relying on the bases for
disapproval that were discussed in the preambles of our 2014 Proposed
Rule and 2016 Final Rule. Similarly, for those portions of the Oklahoma
Regional Haze SIP that we are proposing to disapprove, we are relying
on the bases for disapproval that were discussed in the preambles of
our 2014 Proposed Rule and 2016 Final Rule. We do not reiterate in
detail the bases for these disapprovals in this notice but rather refer
the reader to the preambles of those prior rulemakings. See section
V.A. for a detailed list of the portions of the Texas and Oklahoma
Regional Haze SIPs for which we are proposing disapproval and
incorporating our original bases for disapproval in this action.\54\
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\54\ See 79 FR 74818 (2014 Proposed Rule) and 81 FR 296 (2016
Final Rule).
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We are proposing to amend the 2016 FIP to find that no further
federal action is needed to remedy the proposed disapprovals of
portions of the Texas and Oklahoma Regional Haze SIPs. Therefore, we
are proposing to rescind the SO<INF>2</INF> emission limits established
in the 2016 Final Rule. Our proposal to rescind the SO<INF>2</INF>
emission limitations and the associated monitoring, reporting, and
recordkeeping requirements we established in the 2016 FIP is based on
developments that occurred during the period between the 2016 Final
Rule and this proposal, including the shutdown of several of the same
units for which we promulgated emission limits in the 2016 Final Rule,
our recently proposed SO<INF>2</INF> BART emission limits on several of
the same units for which we required controls in the 2016 Final Rule,
and the portion of the Fifth Circuit's stay opinion pertaining to the
imposition of controls beyond the end of the planning period. We also
acknowledge the EPA's ability to consider the remaining units during
our forthcoming review of Texas's Regional Haze SIP for the second
planning period. We are also proposing to find that our rescission of
the SO<INF>2</INF> emission limitations and the associated monitoring,
reporting, and recordkeeping requirements we established in the 2016
FIP is consistent with CAA section 110(l). Specifically, we are
proposing to find that our proposed rescission of the FIP would not
interfere with any applicable requirement concerning attainment or
reasonable further progress (as defined in section 7501 of this title),
or any other applicable requirements of the CAA.
IV. Legal Authority for This Action
The EPA has the authority to revisit its prior actions on SIPs and
FIPs on remand. As previously stated, in light of the discussion
regarding the likelihood of success on the merits set forth in the
Fifth Circuit's 2016 stay order, EPA moved for partial voluntary remand
of the SIP disapprovals and FIPs, without admitting error. The Fifth
Circuit granted the motion and remanded the action to EPA on March 22,
2017. Thus, EPA has an obligation to complete its action on remand.
On remand, EPA is taking this action pursuant to CAA sections
110(c)(1), 110(k)(3) and 169A(b)(2). CAA section 169A(b)(2) requires
states to revise their SIPs to contain such measures as may be
necessary to make reasonable progress towards the national visibility
goal. Additionally, CAA section 110(k)(3) authorizes EPA to approve,
disapprove, or partially approve and partially disapprove a SIP or SIP
revision, and CAA section 110(c)(1) authorizes EPA to promulgate a FIP
where ``the Administrator . . . disapproves a State implementation plan
submission in whole or in part.'' EPA's authority to take such actions
under the CAA necessarily provides it the inherent authority to revisit
and amend such actions as necessary. See Trujillo v. Gen Elec. Co., 621
F.2d 1084, 1086 (10th Cir. 1980). It is well established that agencies
have inherent authority to revisit 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); Motor Vehicle Manufacturers Ass'n of
the United States, Inc. v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29, 42 (1983); see also Encino Motorcars, LLC v. Navarro, 579
U.S. 211, 221-22 (2016). Further, the Fifth Circuit granted EPA's
request for a voluntary remand and this action responds to that remand.
[[Page 48160]]
V. EPA's Review of the 2016 Prior Disapprovals on Remand
In the 2016 Final Rule, we finalized our disapprovals of several
portions of the Texas and Oklahoma Regional Haze SIPs. In this action,
we are revisiting those prior disapprovals, and we are again proposing
to disapprove those portions of the SIPs and provide supplemental
rationale, where necessary, to support the proposed disapprovals.
A. Proposal To Incorporate Our Prior Bases for Disapprovals
The specific portions of the Texas Regional Haze SIP we disapproved
in the 2016 Final Rule are:
<bullet> Section 51.308(d)(1) regarding the RPGs for the Guadalupe
Mountains and Big Bend;
<bullet> Section 51.308(d)(1)(i)(A) regarding the requirement to
conduct a four-factor analysis;
<bullet> Section 51.308(d)(1)(i)(B) regarding the requirement to
calculate the emission reduction measures needed to achieve the URP for
the Guadalupe Mountains and Big Bend for the period covered by the SIP;
<bullet> Section 51.308(d)(1)(ii) regarding the requirement to
demonstrate, based on the factors in Section 51.308(d)(1)(i)(A), that
the progress goals adopted by Texas are reasonable;
<bullet> Section 51.308(d)(2)(iii) regarding the calculation of
natural visibility conditions for the Guadalupe Mountains and Big Bend
for the most impaired and least impaired days;
<bullet> Section 51.308(d)(2)(iv) regarding the calculation of the
number of deciviews by which baseline conditions exceed natural
visibility conditions for the Guadalupe Mountains and Big Bend for the
most impaired and least impaired days;
<bullet> Section 51.308(d)(3)(i) regarding Texas's long-term
strategy consultation with Oklahoma in order to develop coordinated
emission management strategies to address visibility impacts at the
Wichita Mountains;
<bullet> Section 51.308(d)(3)(ii) regarding the requirement for
Texas to secure its share of reductions necessary to achieve the RPGs
for the Guadalupe Mountains, Big Bend, and the Wichita Mountains;
<bullet> Section 51.308(d)(3)(iii) regarding the requirement for
Texas to document the technical basis for its long-term strategy for
the Guadalupe Mountains, Big Bend, and the Wichita Mountains;
<bullet> Section 51.308(d)(3)(v)(C) regarding Texas's emission
limitations and schedules for compliance to achieve the RPGs for the
Guadalupe Mountains, Big Bend, and the Wichita Mountains;
<bullet> 30 Texas Administrative Code (TAC) 116.1510(d), which was
incorporated into the Texas Regional Haze SIP and relied on the now
defunct CAIR.
The specific portions of the Oklahoma Regional Haze SIP we
disapproved in the January 5, 2016 rulemaking are:
<bullet> Section 51.308(d)(1) regarding the RPGs for the Wichita
Mountains;
<bullet> Section 51.308(d)(1)(i)(A) regarding the requirement to
conduct a four-factor analysis;
<bullet> Section 51.308(d)(1)(i)(B) regarding the requirement to
consider the URP for the Wichita Mountains and the emission reduction
measures needed to achieve it for the period covered by the SIP;
<bullet> Section 51.308(d)(1)(ii) regarding the requirement to
demonstrate, based on the factors in Section 51.308(d)(1)(i)(A), that
the rate of progress for the SIP to attain natural conditions by 2064
is not reasonable and that the progress goal adopted by Oklahoma is
reasonable;
<bullet> Section 51.308(d)(1)(iv) regarding the requirement for
Oklahoma to consult with Texas with respect to the visibility impact of
Texas sources at the Wichita Mountains.
Upon revisiting the 2016 disapprovals, we are again proposing to
disapprove these portions of the Texas and Oklahoma Regional Haze SIPs.
As we discuss in sections V.B--V.D, we are proposing to clarify and
supplement the basis of our proposed disapproval of certain elements of
the SIP submissions where the Fifth Circuit motion panel's 2016 stay
opinion appears to reflect a misunderstanding or disagreement with the
bases of our disapprovals. The portions for which we are proposing to
clarify and supplement the bases of our proposed disapprovals are as
follows:
<bullet> Texas's four-factor analysis required under section
51.308(d)(1)(i) and (ii);
<bullet> Texas's calculation of the natural visibility conditions
at the Guadalupe Mountains and Big Bend required under section
51.308(d)(2)(iii);
<bullet> The portion of the Texas Regional Haze SIP that is
intended to address the requirement in section 51.308(d)(3)(i) to
consult with other States with Class I areas where Texas emissions are
reasonably anticipated to contribute to visibility impairment in order
to develop coordinated emission management strategies;
<bullet> The portion of the Texas Regional Haze SIP that is
intended to address the requirement in section 51.308(d)(3)(ii) to
demonstrate that the state has included in its regional haze SIP all
measures necessary to obtain its share of the emission reductions
needed to meet the progress goal for any Class I area in another state
where its emissions cause or contribute to visibility impairment;
<bullet> The portion of the Texas Regional Haze SIP that is
intended to address the requirement in section 51.308(d)(3)(iii) to
document the technical basis on which the state is relying to determine
its apportionment of emission reduction obligations necessary for
achieving reasonable progress at the Guadalupe Mountains, Big Bend, and
the Wichita Mountains;
<bullet> The portion of the Oklahoma Regional Haze SIP that is
intended to address the requirement in section 51.308(d)(1)(iv) to
consult with those States which may reasonably be anticipated to cause
or contribute to visibility impairment in the Wichita Mountains.
For the remaining portions of the Texas and Oklahoma Regional Haze
SIPs that we are again proposing to disapprove, the bases for our
disapproval were previously discussed in the preamble of our proposed
rule published on December 16, 2014, and the preamble of our final rule
published on January 5, 2016. We are relying on the same bases for
disapproval previously discussed in those proposed and final
rulemakings and will not repeat the rationales in this notice but
rather refer the reader to the preamble of those prior rulemakings,\55\
and we incorporate those rationales by reference in this action. Those
remaining portions we are proposing to disapprove and for which we are
incorporating our original bases for disapproval in this action are as
follows:
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\55\ See 79 FR 74818 (2014 Proposed Rule) and 81 FR 296 (2016
Final Rule).
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<bullet> Texas's RPGs for the Guadalupe Mountains and Big Bend
under section 51.308(d)(1); \56\
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\56\ 79 FR at 74833-74843 (2014 Proposed Rule) and 81 FR 298-
299, 338, 339-343 (2016 Final Rule).
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<bullet> Texas's calculation of the emission reductions needed to
achieve the uniform rates of progress for the Guadalupe Mountains and
Big Bend under section 51.308(d)(1)(i)(B); \57\
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\57\ 79 FR at 74832-74833 (2014 Proposed Rule) and 81 FR at 299
(2016 Final Rule).
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<bullet> Texas's calculation of the number of deciviews by which
baseline conditions exceed natural conditions for the best and worst
visibility days at the Texas Class I areas under section
51.308(d)(2)(iv) given that this calculation relies on the
determination of natural visibility conditions, which we are proposing
to disapprove; \58\
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\58\ 79 FR at 74832 (2014 Proposed Rule) and 81 FR at 299-300
(2016 Final Rule).
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<bullet> The portion of the Texas Regional Haze SIP intended to
address paragraph (C) of section 51.308(d)(3)(v), which is
[[Page 48161]]
the requirement to consider emissions limitations and schedules for
compliance to achieve the reasonable progress goals; \59\
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\59\ 79 FR at 74862 (2014 Proposed Rule) and 81 FR at 301 (2016
Final Rule).
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<bullet> 30 TAC 116.1510(d), which was incorporated into the Texas
Regional Haze SIP and relies on the now defunct CAIR; \60\
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\60\ While the EPA finalized a limited disapproval of the
regional haze SIPs submitted by Texas and thirteen other states in a
final rule published on June 7, 2012 (77 FR 33642) because these
states relied on requirements of CAIR to satisfy certain regional
haze requirements, the EPA did not specifically take action in that
final rule on Texas's BART Rules at 30 TAC section 116 that were
incorporated in the Texas Regional Haze SIP. The EPA took final
action on Texas's BART Rules at 30 TAC section 116 in the 2016 Final
Rule (81 FR at 301, 312-313, 350). See also 79 FR at 74853-74854
(2014 Proposed Rule).
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<bullet> Oklahoma's RPGs for the Wichita Mountains under section
51.308(d)(1) and the portions of Oklahoma's Regional Haze SIP that are
intended to address the requirements of section 51.308(d)(1)(i)(A),
(i)(B), and (ii) with respect to Oklahoma's establishment of its RPGs
for the Wichita Mountains given that these portions of Oklahoma's
Regional Haze SIP relied on and were informed by the analysis and
results of Texas's reasonable progress analysis required under section
51.308(d)(1).\61\
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\61\ Thus, Oklahoma did not have adequate information from
Texas, nor did it request further investigation or reductions from
those sources in Texas with the greatest potential to impact
visibility in the Wichita Mountains to properly address these
requirements under section 51.308(d)(1)(i) through (v) related to
the establishment of its RPGs. See 79 FR 74818, 74864-74872 (2014
Proposed Rule) and 81 FR 302-303, 312-313, 338, 339-343 (2016 Final
Rule).
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B. Supplemental Bases for Our Disapproval of Texas's Four-Factor
Analysis
In establishing a RPG for each of its Class I areas, Texas is
required by CAA section 169A(g)(1) and section 51.308(d)(1)(i)(A) to
``[c]onsider the costs of compliance, the time necessary for
compliance, the energy and non-air quality environmental impacts of
compliance, and the remaining useful life of any potentially affected
sources, and include a demonstration showing how these factors were
taken into consideration in selecting the goal.'' This requirement is
often referred to as the reasonable progress ``four-factor analysis.''
In addition, section 51.308(d)(1)(ii) provides that for the period of
the SIP, if a state establishes an RPG that provides for a slower rate
of improvement in visibility than the rate that would be needed to
attain natural conditions by 2064, it must demonstrate based on the
factors in section 51.308(d)(1)(i)(A) that the rate of progress for the
SIP to attain natural conditions by 2064 is not reasonable; and that
the progress goal it adopted is reasonable. This requirement under
section 51.308(d)(1)(ii) applies to Texas because its RPGs for the 20
percent worst days establish a slower rate of progress than the URP for
Big Bend and the Guadalupe Mountains.
We provided a detailed discussion of the basis for our disapproval
of Texas's four-factor analysis in the preamble of our 2014 Proposed
Rule and provided a more abbreviated discussion of the basis for our
disapproval in the preamble of our 2016 Final Rule.\62\ However,
statements made by the Fifth Circuit motions panel in the 2016 stay
opinion appear to reflect a misunderstanding of the basis of our
disapproval of Texas's four-factor analysis. Specifically, the opinion
indicated that the EPA disapproved the Texas SIP for failing to
evaluate the four factors on a source-specific basis. The panel's
opinion stated that:
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\62\ 79 FR 74818, 74830-74838 and 74841-74843 (Dec. 16, 2014);
81 FR 296, 298-299, 308-311, 313-314, 318-319, 323-324, 327 (Jan. 5,
2016).
EPA argues that it had several grounds for disapproving the
Texas and Oklahoma goals and suggests each alone provides a
sufficient basis for the disapproval. Most of these `independent'
grounds boil down to EPA's insistence that Texas should have
conducted a source-specific requirement. Other grounds for
disapproval were asserted in the proposed rule but were not
finalized in the Final Rule. Compare 79 FR at 74,842-43 (proposing
disapproval because of Texas's cost threshold, weighing of factors
for individual sources, reliance on CAIR reductions, assumptions
about efficiency of SO<INF>2</INF> scrubbers, evaluation of
potential improvements, order of magnitude estimate, and scrubber
upgrade estimates), with 81 FR at 298-300 (finalizing disapproval
because of lack of source-specific analysis and estimation of
natural visibility conditions).\63\
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\63\ Texas, 829 F. 3d at 427-428.
The panel's characterization is incorrect. First, as we discuss in
the paragraphs and subsections that follow, the basis for our
disapproval of Texas's four-factor analysis was not, and is not, tied
to the lack of a source-specific analysis. Second, our 2016 disapproval
included these other grounds for disapproval. Here, the panel refers to
a subsection of the preamble of our 2016 Final Rule where we state that
we ``present a summary of the major points of our final decision
regarding the Texas regional haze SIP. . . and those parts of the
Oklahoma regional haze SIP that we have not previously acted upon.''
\64\ Since this was intended to be a summary, this subsection of the
2016 Final Rule did not identify and discuss in detail each of the
``other grounds for disapproval'' in the same way our 2014 Proposed
Rule did. However, these ``other grounds for disapproval'' were
discussed elsewhere in our 2016 Final Rule and in our Response to
Comments document associated with that final rule, and our disapproval
was based on consideration of all those deficiencies.\65\ In this
notice, we provide our evaluation of Texas's four-factor analysis and
again identify the deficiencies with this analysis. To address concerns
raised in the 2016 stay opinion, and where appropriate, we are
presenting additional analysis of the SIP to more fully explain the
deficiencies with Texas's four-factor analysis.
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\64\ See 81 FR at 298.
\65\ See for instance 81 FR at 299, footnote 11, where we
identify the lack of consideration of scrubber upgrade as part of
the basis for our disapproval. See 81 FR at 318 where we state that
Texas's cost threshold of $2,700/ton was unreasonable and point to
the 2014 proposed rule that discussed the issue in detail. See also
the Response to Comments Document (RTC) for the Texas-Oklahoma
Reasonable Progress SIP and FIP, page 857 and 909, where we discuss
Texas's reliance on CAIR reductions and assumptions about control
efficiency of SO<INF>2</INF> scrubbers. The RTC for the Texas-
Oklahoma Reasonable Progress SIP and FIP is available in the docket
for this action at Document ID EPA-R06-OAR-2014-0754-0087.
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The Regional Haze Rule does not require states to conduct four-
factor analyses on a source-specific basis. CAA section 169A(b)(2)
requires states to include in their SIPs ``emission limits, schedules
of compliance and other measures as may be necessary to make reasonable
progress.'' While these emission limits must apply to individual
sources or units, CAA section 169A(g)(1) does not explicitly require
states to consider the four factors on a source-specific basis when
determining what amount of emission reductions (and corresponding
visibility improvement) constitutes ``reasonable progress.'' The EPA
has consistently interpreted the CAA to provide states with the
flexibility to conduct four-factor analyses for specific sources,
groups of sources, or even entire source categories, depending on state
policy preferences and the specific circumstances of each state. While
the CAA and the Regional Haze Rule provide states with flexibility in
evaluating the four reasonable progress factors, states must exercise
reasoned judgment when choosing which sources, groups of sources, or
source categories to analyze. Consistent with the state's obligation to
exercise reasoned judgment in its analysis, EPA's role in reviewing a
SIP is not limited to accepting at face value a state's analysis in its
own SIP submission and its
[[Page 48162]]
determination that it has fully satisfied the requirements of the CAA.
Rather, Congress tasked EPA with the responsibility of ensuring
that a SIP submission satisfies the requirements of the CAA. Abundant
case law reflects an understanding that the EPA must evaluate SIP
submissions under CAA section 110(k)(2) and (3).\66\ If a SIP
submission is deficient in whole or in part, the EPA must so find, and
if not corrected, implement the relevant requirements through a FIP
under CAA section 110(c). Courts have held that EPA's ability to ensure
that a SIP submission satisfies the requirements of the CAA includes
the ability to review a state's analysis to ensure that it is
``reasonably moored to the Act's provisions and . . . based on reasoned
analysis.'' \67\ Thus, EPA's oversight role is ``more than the
ministerial task of routinely approving SIP submissions.'' \68\ If
EPA's role were otherwise, Congress would not have expressly tasked the
agency with both reviewing SIPs for completeness (CAA section
110(k)(1)(B)) and reviewing the substance of SIPs (CAA section
110(k)(2)-(4)).
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\66\ See e.g., Oklahoma v. EPA, 723 F.3d 1201, 1209 (10th Cir.
2013) (upholding EPA's disapproval of ``best available retrofit
technology'' (BART) SIP, noting BART ``does not differ from other
parts of the CAA--states have the ability to create SIPs, but they
are subject to EPA review''); see also Westar Energy v. EPA, 608
Fed. App'x 1, 3 (D.C. Cir. 2015) (``EPA acted well within the bounds
of its delegated authority when it disapproved of Kansas's proposed
[good neighbor] SIP.'').
\67\ North Dakota v EPA, 730 F.3d 750, 761 (8th Cir. 2013).
\68\ North Dakota v EPA, 730 F.3d 750, 761 (8th Cir. 2013). See
also Alaska Department of Environmental Conservation v. EPA, 540
U.S. 461, (2004) (concluding that EPA was not limited to verifying
that a BACT determination had been made, but rather EPA could
examine the substance of the BACT determination).
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As an initial matter, Texas followed a source-specific approach in
selecting sources for evaluation in the four-factor analysis and in
analyzing the cost of controls for individual sources, as we discussed
in the 2014 Proposed Rule.\69\ However, as stated earlier in this
section, we disapproved Texas's four-factor analysis not because Texas
did not perform its four-factor analysis on a source-specific basis,
but because the manner in which Texas analyzed and weighed the four
reasonable progress factors was flawed and unreasonable in a number of
key areas. First, Texas's overall approach in the selection of a set of
sources and controls for evaluation was unreasonable and led to
numerous potentially cost-effective controls being dismissed or
overlooked altogether. Second, in considering the costs of compliance,
which is one of the statutory factors States must consider under
section 51.308(d)(1)(i)(A), Texas made unreasonable assumptions that
resulted in the overestimation of the cost-effectiveness of controls
and a failure to assess costs of available controls for some sources.
Finally, in addressing the requirement under section 51.308(d)(1)(i)(A)
to include a demonstration showing how the statutory factors were taken
into consideration in establishing the RPGs, Texas unreasonably weighed
the costs of compliance and the visibility benefits of controls, which
resulted in unreasonable conclusions. We discuss these flaws in Texas's
four-factor analysis and its weighing of the four factors in more
detail in the subsections that follow.
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\69\ 79 FR at 74834-74838.
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1. Selection of Sources for Evaluation in Four-Factor Analysis
The Reasonable Progress Guidance for the first planning period
provides an overview of the process for developing RPGs, potential
methods for identifying which source categories should be evaluated for
controls, and suggestions for evaluating the four statutory factors
with respect to potentially affected stationary sources.\70\ The
process begins with the identification of key pollutants and sources
and/or source categories that are contributing to visibility impairment
at each Class I area.\71\ A set of sources should be reasonably
selected for the four factor analysis based on the sources and source
categories that have been identified to contribute to visibility
impairment at the applicable Class I areas. The Reasonable Progress
Guidance recommends that states ``[i]dentify the control measures and
associated emission reductions that are expected to result from
compliance with existing rules and other available measures for the
sources and source categories.'' \72\ States should then determine what
additional control measures would be reasonable based on the statutory
factors and other relevant factors for the sources and/or sources
categories that have been identified.\73\
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\70\ See generally ``Guidance for Setting Reasonable Progress
Goals Under the Regional Haze Program,'' dated June 1, 2007
(hereafter ``Reasonable Progress Guidance'').
\71\ Reasonable Progress Guidance at 3-1.
\72\ Reasonable Progress Guidance at 2-3.
\73\ Reasonable Progress Guidance at 2-3.
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After identification of key pollutants and source categories, Texas
narrowed the scope of the control analysis to point sources of
NO<INF>X</INF> and SO<INF>2</INF> and developed a list of sources and
potential controls and costs associated with those controls. It used
the control strategy analysis developed by the Central Regional Air
Planning Association (CenRAP) as the starting point for this
analysis.\74\ Texas also included additional sources from source types
not included in the CenRAP dataset. This work resulted in a list of
sources and potential controls for reducing SO<INF>2</INF> and
NO<INF>X</INF>, an estimate of the costs associated with each control,
and identification of the Area of Influences (AOIs) for each Class I
area.
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\74\ The Central States Air Resource Agencies (CenSARA) is a
regional planning organization (RPO) that was created in 1995 and
currently includes as members the states of Texas, Oklahoma,
Louisiana, Arkansas, Missouri, Kansas, Nebraska, and Iowa, as well
as the federally recognized tribes within the boundaries of these
states. CenSARA created CenRAP to coordinate activities associated
with the management of regional haze issues within the member states
and tribes. However, CenRAP has since been abolished and CenSARA
currently conducts regional haze and other air quality planning
activities for the CenSARA states.
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However, in selecting sources for the four-factor analysis, Texas
began by eliminating certain sources purely on the basis of cost before
the four statutory factors and the visibility benefit of controls were
considered and weighed. Moreover, Texas failed to evaluate potentially
cost-effective scrubber upgrades for sources with existing scrubbers
despite the potential for large emission reductions and visibility
benefits. Texas's overall approach in the selection of a set of sources
and controls for evaluation was unreasonable, which led to numerous
potentially cost-effective controls being dismissed or overlooked
altogether. This led to the selection of a control set that was not
appropriately refined, targeted, or focused on those sources that have
been identified as contributing to visibility impairment and have cost-
effective controls that could result in potentially significant
visibility benefits at the Class I areas impacted by Texas sources.
a. Texas's Cost-Effectiveness Threshold
Texas's approach in establishing and applying a cost-threshold was
unreasonable. Given the multitude of sources located within the State
with the potential to impact visibility, Texas narrowed down its list
of potential sources for which to conduct a four-factor analysis. While
we agree that it is appropriate for a State to narrow down the list of
sources for which to conduct a four-factor analysis, a State's
rationale in so doing must be reasonable. When selecting the sources to
conduct a four-factor analysis, Texas unreasonably eliminated sources
for which the cost of controls exceeded $2,700/ton. Texas's use of a
$2,700/ton threshold was unreasonable for several reasons including its
reliance on the Clean Air
[[Page 48163]]
Interstate Rule (CAIR) as a justification, its failure to consider the
four factors or take into consideration contributions to visibility
impairment in setting the threshold, and its failure to consider the
range of costs found reasonable by CenRAP. We discuss these points in
turn in the following paragraphs.
Texas used the analysis of potential cost of controls developed by
CenRAP as the starting point for the selection of sources to evaluate
in the four-factor analysis. CenRAP contracted with Alpine Geophysics
to conduct an evaluation of possible additional point-source add-on
controls for sources in CenRAP states with a Q/d >5.\75\ Alpine
Geophysics prepared cost estimates for potential add-on controls for
NO<INF>X</INF> and SO<INF>2</INF> reductions in 2005 dollars for point
sources in CenRAP states using AirControlNET,\76\ a database tool the
EPA released in 2006 to enable cost-benefit analyses of potential
emissions control measures and strategies. To narrow the list of
potential controls and sources, Texas eliminated controls with an
estimated cost-efficiency greater than $2,700/ton from any further
analysis and did so regardless of their potential visibility benefits.
Texas's justification for the selection of this value was a reference
to the fact that the cost associated with implementing CAIR was up to
$2,700/ton.\77\ However, EPA promulgated CAIR to address an entirely
different issue--the interstate transport of emissions from states that
contributed to unhealthy levels of ozone and particulate matter in
certain downwind states.\78\ The interstate transport program under CAA
section 110(a)(2)(D)(i)(I) is an entirely separate program from
regional haze, serving a different statutory purpose and involving the
consideration of a different set of factors.\79\ Thus, the costs
associated with CAIR were not developed with consideration of the four
statutory factors used to determine reasonable progress, or visibility
impairment in general, and therefore, shouldn't be relied upon to
eliminate sources from evaluation for potential visibility benefits. To
the extent a state relied on a cost threshold as part of its reasonable
progress analysis, such a cost threshold must be justified in a manner
consistent with the CAA's expressly stated goal of addressing sources
of visibility impairment to Class I areas.\80\ Because Texas's SIP
justified its selection of $2,700/ton by referencing costs associated
with a program developed to address issues unrelated to regional haze,
it failed to adequately justify why such a threshold is reasonable in
the context of addressing sources of visibility impairment to Class I
areas in Texas.
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\75\ Q/d is the ratio of annual emissions of a given pollutant
over distance to a Class I area and can be used to identify those
sources with the largest potential to impact visibility.
\76\ Lists of NO<INF>X</INF> and SO<INF>2</INF> controls meeting
cost thresholds ranging from $1,500/ton to $10,000/ton developed by
Alpine Geophysics are available in the docket for this action (See
spreadsheets titled ``nox_cost_ton__2_'' and ``so2_cost_ton'') under
Document ID EPA-R06-OAR-2014-0754-0013, Attachments 11 and 13.
\77\ See Texas Regional Haze SIP at 10-7. The SIP submittal is
available in the docket for this action under Document ID EPA-R06-
OAR-2014-0754-0002.
\78\ See generally 70 FR 25161 (May 12, 2005).
\79\ While CAIR, and its predecessor CSAPR, were evaluated for
BART alternatives under 40 CFR 51.308(e)(2), they were not designed
to address visibility impairment caused by regional haze.
Furthermore, the evaluation of CAIR and CSAPR as a BART alternative
did not consider costs or cost thresholds.
\80\ See, e.g., North Dakota v. EPA, 730 F.3d 750, 766 (8th Cir.
2013).
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Texas's application of the $2,700/ton cost threshold unreasonably
eliminated sources from consideration without evaluating the statutory
factors or taking into consideration whether requiring controls on
those sources could result in meaningful visibility improvement in
Class I areas. In the Texas Regional Haze SIP, the State's use of a
$2,700/ton threshold resulted in the state unreasonably overlooking
potentially cost-effective controls that would have had a meaningful
visibility improvement at the affected Class I areas. Given the large
number of Texas sources and their large geographic distribution,
Texas's failure to consider location and emissions data in applying a
cost threshold to eliminate controls from further analysis was
unreasonable. This is especially true for Texas, as its two Class I
areas (Guadalupe Mountains National Park and Big Bend National Park)
are located in far West Texas. In applying the $2,700/ton threshold,
Texas screened out all EGUs (the largest point sources) in West Texas
from consideration in a four-factor analysis. These EGUs in West Texas
also impact visibility in the Class I areas located in eastern New
Mexico (Salt Creek Wilderness Area, Carlsbad Caverns National Park,
White Mountain Wilderness Area, and Pecos Wilderness Area) and the
Class I area in Oklahoma (Wichita Mountains Wilderness Area). For
example, potential SO<INF>2</INF> controls for the Tolk Station located
in West Texas were estimated in the Alpine Geophysics analysis to cost
an average of approximately $3,100/ton and result in nearly 20,000 tpy
reduced across the two units.\81\ The Tolk facility is located
northwest of Lubbock and is in relatively close proximity to Class I
areas in Texas, New Mexico, and Oklahoma.\82\ The Tolk units were found
in the Alpine Geophysics analysis to each have a high Q/d \83\ for
SO<INF>2</INF> at multiple Class I areas,\84\ in particular at the
Guadalupe Mountains in Texas where the Q/d is 34.4 for Unit 171B and
31.4 for Unit 172B.
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\81\ Lists of SO<INF>2</INF> controls meeting cost thresholds
ranging from $1,500/ton to $10,000/ton developed by Alpine
Geophysics are available in the docket to this action (See
spreadsheet titled ``so2_cost_ton'') under Document ID EPA-R06-OAR-
2014-0754-0013, Attachment 13.
\82\ The Tolk facility is located approximately 546 km from Big
Bend (Texas), approximately 320 km from the Guadalupe Mountains
(Texas), approximately 178 km from Salt Creek (New Mexico),
approximately 277 km from the Carlsbad Caverns (New Mexico),
approximately 298 km from the White Mountains (New Mexico),
approximately 309 km from the Pecos Wilderness (New Mexico), and
approximately 354 km from the Wichita Mountains (Oklahoma).
\83\ Texas identified sources as ``high priority'' if they had
an emissions over distance equal to or greater than five (Q/d >= 5)
for one or more Class I areas. See Texas Regional Haze SIP at 4-3
and 10-7.
\84\ Based on the Alpine Geophysics Analysis, the Q/d for
SO<INF>2</INF> for the Tolk units is 32 for Unit 171B and 29.1 for
Unit 172B at the Wichita Mountains in Oklahoma; 21.1 for Unit 171B
and 19.2 for Unit 172B at Big Bend in Texas; 34.4 for Unit 171B and
31.4 for Unit 172B at the Guadalupe Mountains in Texas; and 14.9 for
Unit 171B and 13.5 for Unit 172B at Caney Creek in Arkansas.
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Beyond prematurely eliminating EGUs in West Texas, Texas's use of
the $2,700/ton threshold also unreasonably eliminated potentially cost-
effective SO<INF>2</INF> controls for other sources located in close
proximity to Arkansas and Oklahoma Class I areas with a high
SO<INF>2</INF> Q/d. This includes the Welsh Power Plant Unit 1,\85\
which was found in the Alpine Geophysics analysis to have a Q/d of 69.6
at Caney Creek and 34.2 at Upper Buffalo in Arkansas, 29.1 at the
Wichita Mountains in Oklahoma, and 27.1 at Hercules Glades in Missouri.
SO<INF>2</INF> wet scrubber controls for Welsh Unit 1 were estimated to
cost $2,852/ton and anticipated to result in approximately 10,500 tpy
reduced. As a result of the application of this $2,700/ton threshold,
potentially cost-effective controls were not evaluated at these and
other sources that may result in meaningful visibility benefits at
Texas's own Class I areas and Class I areas in surrounding states.
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\85\ The Welsh facility is located approximately 161 km from
Caney Creek and 332 km from Upper Buffalo (Arkansas) and
approximately 400 km from Wichita Mountains (Oklahoma).
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Finally, we note that CenRAP conducted a sensitivity analysis which
evaluated controls for sources with a Q/d>5 and cost-effectiveness up
to $10,000/ton. Based on that analysis, CenRAP suggested that a range
from $4,000 to $5,000/ton would be a reasonable threshold for controls
[[Page 48164]]
because of diminishing emission reductions as costs increase beyond
that range.\86\ While Texas otherwise relied heavily on analyses
performed by CenRAP, it is unclear from Texas's submission why it then
opted not to consider CenRAP's analysis when selecting their $2,700/ton
cost threshold, nor did Texas consider the specific impact of how their
selected threshold may have prematurely eliminated sources with
potential cost-effective and large visibility benefits.
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\86\ See ``Sensitivity Run Specifications for CenRAP
Consultation,'' available in the docket for this action under
Document ID EPA-R06-OAR-2014-0754-0013. See also
``so2_cost_ton.xls'' and ``nox_cost_ton_2_.xls,'' also available in
the docket for this action under Document ID EPA-R06-OAR-2014-0754-
0013.
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b. Scrubber Upgrades
The EPA's guidance for setting reasonable progress goals instructs
that States should focus on those sources that may have the greatest
impact on visibility at Class I areas. This is consistent with the
national goal established by Congress of remedying any existing
impairment of visibility in Class I areas due to manmade air pollution.
As part of its source selection, Texas also failed to consider
evaluating EGUs with existing SO<INF>2</INF> scrubbers for potential
SO<INF>2</INF> reductions in the four-factor analysis. Such failure to
consider these sources in the four-factor analysis was unreasonable
given the large projected emissions as shown in Table 1.
Table 1--SO2 Emissions at Texas EGUs With Existing Scrubbers
--------------------------------------------------------------------------------------------------------------------------------------------------------
SO2 emissions (tpy) *
CAMD/NEEDS/EIA verified Scrubber Scrubber --------------------------------------
Facility name Unit ID scrubber online year bypass 2018 CenRAP
2002 projection Change
--------------------------------------------------------------------------------------------------------------------------------------------------------
Oklaunion Power..................... 1 Wet Scrubber................ 1986 Y 3,751 7,101 3,350
Limestone........................... LIM1 Wet Scrubber................ 1985 Y 16,293 12,715 -3,578
Limestone........................... LIM2 Wet Scrubber................ 1986 Y 12,974 4,983 -7,991
W.A. Parish......................... WAP8 Wet Scrubber................ 1982 Y 3,948 4,512 564
Martin Lake......................... 1 Wet Scrubber................ 1977 Y 24,832 11,351 -13,481
Martin Lake......................... 2 Wet Scrubber................ 1978 Y 22,538 11,984 -10,554
Martin Lake......................... 3 Wet Scrubber................ 1979 Y 19,024 12,396 -6,628
Monticello.......................... 3 Wet Scrubber................ 1978 Y 22,889 11,882 -11,007
San Miguel.......................... SM-1 Wet Scrubber................ 1982 Y 13,167 6,550 -6,617
H.W. Pirkey Power................... 1 Wet Scrubber................ 1985 Y 19,476 19,478 2
Sandow.............................. 4 Wet Scrubber................ 1981 Y 23,305 8,409 -14,896
Gibbons Creek....................... 1 Wet Scrubber................ 1983 Y 10,816 2,652 -8,164
--------------------------------------
Total........................... 193,013 114,013 -79,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Emissions data from Texas Regional Haze SIP, Appendix 10.4b.
We note that the AirControlNET database does not include general
information for the cost and effectiveness of scrubber upgrades as the
cost and reductions from these potential upgrades are typically very
specific to the existing equipment and site-specific conditions. The
cost of scrubber upgrades at coal-fired power plants has been evaluated
in many other instances in both the context of BART and reasonable
progress for both the first and second planning periods for regional
haze. Based on what we have seen in other regional haze actions,
upgrading an underperforming SO<INF>2</INF> scrubber is generally very
cost-effective.\87\ At the time Texas conducted its analysis, many EGUs
were equipped with older vintage scrubbers and/or had scrubber bypasses
that divert a portion of the exhaust gas around the control equipment.
In some cases, excess scrubbing capacity is simply not being utilized.
Texas included many of these types of sources in the maps showing AOIs
and ``high priority'' sources for other state's Class I areas, as well
as in the table of sources within the Class I areas AOI, in their
correspondence with other states (see Appendix 4.2 of the Texas
Regional Haze SIP). However, Texas omitted these sources from their
source selection of SO<INF>2</INF> point sources and thus did not
consider them as part of the four-factor analysis without providing a
reasonable justification.
---------------------------------------------------------------------------
\87\ See, for instance, the North Dakota Regional Haze SIP:
scrubber upgrades for the Milton R. Young Station Unit 2 were
evaluated under BART and were found to cost $522/ton and scrubber
upgrades with coal drying for the Coal Creek Station Units 1 and 2
were evaluated under BART and found to cost $555/ton at each unit.
See the EPA's final action approving the SO<INF>2</INF> BART
determinations for the Coal Creek Station Units 1 and 2 and for the
Milton R. Young Station Unit 2 at 77 FR 20894 (April 6, 2012). See
also the Wyoming Regional Haze SIP: scrubber upgrades for Wyodak
Unit 1 were evaluated to address the RHR requirements under 40 CFR
51.309 and found to cost $1,167/ton. The EPA approved this portion
of the Wyoming Regional Haze SIP at 77 FR 73926 (December 12, 2012).
---------------------------------------------------------------------------
Furthermore, even with these existing SO<INF>2</INF> controls, some
of these EGUs are still among the largest SO<INF>2</INF> emitting
sources in the State and have large Q/ds. For example, the Martin Lake
facility had a Q/d for Guadalupe Mountains (958 km away) greater than
37 using the projected 2018 SO<INF>2</INF> emissions. Emissions at
Martin Lake unit 1 in the CenRAP emission inventory were projected to
decrease from 24,832 tpy in 2002 to 11,351 tpy in 2018. This is because
the 2018 projected emissions include predicted emission reductions due
to CAIR at many of these controlled facilities, suggesting some
increase in control efficiency, decreased bypass, and/or burning fuels
with a lower average sulfur content is already included in the 2018
projections. Thus, even starting with this conservatively lower figure,
upgrading the existing scrubber to 95 percent control efficiency would
result in an approximate emission reduction of an additional 7,000 tpy
beyond those reductions that were projected to occur due to CAIR.\88\
Scrubber upgrades across all three Martin Lake units could result in
emission reductions of approximately 21,000 tpy beyond the level of
control assumed in the 2018 projections. The EGUs Texas omitted from
consideration in its four-factor analysis represent approximately one-
third of the total
[[Page 48165]]
projected Texas EGU SO<INF>2</INF> emissions in 2018.\89\ This is a
significant fraction of Texas EGU emissions that were not analyzed for
potential emission reductions without a reasonable justification.
Additionally, SO<INF>2</INF> scrubber upgrade controls are typically
very cost-effective. This is because a scrubber can be upgraded by
reusing as many structural components and equipment in the existing
unit as possible, such as existing structural steel and absorber
shells, ducts, pumps, and compressors. A scrubber can be upgraded by
applying new scrubbing technology to improve its removal efficiency,
decrease operating costs, and improve operations and reliability for
much less than it would cost to replace it with a new scrubber. In some
cases, the overall removal efficiency of an existing scrubber can be
increased by simply decreasing or eliminating the amount of emissions
that bypass the scrubber \90\ and/or increasing the amount of reagent
used in the scrubber, which are relatively inexpensive ways to improve
the removal efficiency of a scrubber compared to installing a new
scrubber. Given the projected emissions of the sources shown in Table
1, the size of the impact from Texas emissions, and the source
apportionment data indicating the large impact from SO<INF>2</INF>
emissions from EGUs, we propose to find it was unreasonable for Texas
to not perform any analysis on these sources or at least request
additional information from the facilities concerning potential
scrubber upgrades.
---------------------------------------------------------------------------
\88\ Based on EPA Clean Air Markets Division (CAMD) annual
SO<INF>2</INF> emissions data and U.S. Energy Information
Administration (EIA) data on reported sulfur content and tonnages of
the fuels burned at Martin Lake Unit 1 in 2009-2013, scrubber
upgrades achieving SO<INF>2</INF> removal efficiency of 95 percent
are estimated to reduce SO<INF>2</INF> emissions to 3,706 tpy. The
difference between the CenRAP 2018 projected SO<INF>2</INF>
emissions for Martin Lake Unit 1 (11,351 tpy) and the estimated
SO<INF>2</INF> emissions resulting from scrubber upgrades (3,706
tpy) is 7,645 tpy. See the Excel file ``Coal vs CEM data 2009-
2013.xlsx,'' ``charts'' tab, cell ``N15'' found in our docket under
Document ID EPA-R06-OAR-2014-0754-0007, Attachment 17.
\89\ See Texas Regional Haze SIP, Appendix 10.4b.
\90\ Ways in which scrubber bypass can be decreased or
eliminated include adding fan capacity, upgrading the electrical
distribution system, and conversion to a wet stack.
---------------------------------------------------------------------------
2. Consideration of the Four Factors
As stated previously, in establishing a RPG for each Class I area
located within the state, Texas is required by CAA section 169A(g)(1)
and section 51.308(d)(1)(i)(A) to ``[c]onsider the costs of compliance,
the time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life of
any potentially affected sources, and include a demonstration showing
how these factors were taken into consideration in selecting the
goal.'' This requirement is often referred to as the reasonable
progress four-factor analysis. In considering the costs of compliance,
Texas made unreasonable assumptions that resulted in the overestimation
of the cost-effectiveness of controls and a failure to assess costs of
available controls.
a. Texas's Assumptions of SO<INF>2</INF> Control Efficiency of
Scrubbers
Pursuant to CAA section 169A(g)(1) and section 51.308(d)(1)(i)(A),
States must consider the costs of compliance. Texas's assumptions of
the control efficiency of controls led to an overestimation of the cost
of scrubber retrofits. The control efficiency of new scrubbers
evaluated by CenRAP and Texas, based on the data from AirControlNET,
was assumed to be 90 percent. SO<INF>2</INF> scrubber retrofits are
capable of achieving emission reductions of at least 95 percent for dry
scrubbers and 98 percent for wet scrubbers.\91\ Texas's assumption of
90 percent control efficiency materially affected its analysis due to
the large visibility impact of Texas point sources, and EGUs in
particular. For instance, the difference in emission reductions
assuming 90 percent control efficiency compared to 98 percent is 1,851
tons for Unit 1 and 1,891 tons for Unit 2 at Big Brown. These
additional reductions would have further reduced the estimated costs of
the controls to approximately $1,400/ton and increased the visibility
benefit anticipated due to controls. At Monticello Units 1 and 2, the
higher control efficiency would have resulted in an additional 1,500
tons reduced at a cost of $1,700/ton. Assuming 98 percent control
efficiency compared to 90 percent control efficiency at all the EGUs
Texas evaluated in the four-factor analysis would have resulted in an
additional 9,800 tons reduced. Therefore, Texas's assumptions of the
emission reductions due to controls and their consideration of cost led
to an overestimation of the costs of controls.\92\
---------------------------------------------------------------------------
\91\ See the Oklahoma Regional Haze FIP at 76 FR 81728, 81742
(Dec. 28, 2011).
\92\ Underestimation of emission reductions also resulted in an
underestimation of the visibility benefits.
---------------------------------------------------------------------------
b. Texas's Cost of Compliance Analysis Assumed Future CAIR Reductions
as a Baseline
Texas failed to consider how reliance on the 2018 emission
projections under CAIR impacted their source selection, estimated costs
of controls, and estimated visibility benefits of controls. A critical
decision point in performing the cost analysis for potential controls
is the determination of an emission baseline. Texas and CenRAP relied
on the IPM predictions to estimate 2018 emission levels for EGUs. Texas
identified that the majority of the emission reductions underlying the
predicted visibility improvements in 2018 resulting from controls
already in effect or scheduled to become effective will result from the
CAIR program in particular. The Integrated Planning Model (IPM)
analysis used by CenRAP predicted that due to CAIR compliance, by 2018,
EGUs in Texas would purchase approximately 125,000 tpy of emissions
allowances from out of state.\93\ IPM predicted that many EGUs in Texas
would reduce their emissions either through changes in coal, increased
efficiency of existing controls, or installation of new controls. Texas
also noted that there is uncertainty in the size and distribution in
emissions in the future projections and that no EGUs made an
enforceable commitment to any particular pollution control strategy and
preferred to retain the flexibility offered by the CAIR program.\94\
The CAIR program allows interstate trading of allowances and does not
put specific emission limits on specific sources. Texas notes that
because emission allowances can be purchased by EGUs, visibility
improvement may be less or more that that predicted by the CenRAP's
modeling. Nevertheless, Texas unreasonably utilized this future
projection of 2018 emissions as the starting point for its estimation
of emission reductions and the associated costs of additional controls
in its four-factor analysis.\95\ Although we acknowledge that CAIR is
now defunct and has been replaced by CSAPR, Texas presumed that those
results would be comparable under any program to replace CAIR.
---------------------------------------------------------------------------
\93\ CenRAP used the IPM (Version 2.19) that the EPA employed to
predict the emissions reductions expected from CAIR in 2018 and
Texas used the CenRAP analysis as their starting point in the four-
factor analysis. The IPM model predicts the effect of emission
trading programs considering economics, logistics, and the specific
regulatory environment for each EGU. The EPA released the results
and documentation for the IPM Version 2.19 in 2005.
\94\ See Texas Regional Haze SIP at section 10.5.
\95\ See Texas Regional Haze SIP at 10-7, 10-8, and 10-9. While
Texas relied on CAIR to satisfy the BART requirements for EGUs, BART
is only one component of a long-term strategy to make reasonable
progress for the first regional haze planing period. A state should
look beyond BART for additional reductions when assessing reasonable
progress.
---------------------------------------------------------------------------
The 2018 emission projections under CAIR that Texas relied on for
source selection assumed that sources such as W. A. Parish Units WAP5,
WAP6, and WAP7 and Welsh Units 2 and 3 would install SO<INF>2</INF>
controls to significantly reduce their annual SO<INF>2</INF> emissions
by 2018. However, it was unreasonable for Texas to rely on these
projected CAIR reductions for the baseline in their analysis because
there were no enforceable requirements to accompany these
SO<INF>2</INF> reductions. In assuming the
[[Page 48166]]
2018 emission projections under CAIR as the baseline in their analysis,
Texas assumed a starting point where scrubbers were already installed
and the only potential control measure considered for these units was
to ``repower'' at an extremely high cost that far exceeded the $2,700/
ton threshold Texas applied, leading Texas to omit the W. A. Parish and
Welsh units from their selection of sources to evaluate in the four-
factor analysis. However, similar to Big Brown and Monticello,
scrubbers were likely cost-effective for these units and should have
been considered for the units at Parish and Welsh. As shown in Table 2,
the emission baseline Texas used assumed that SO<INF>2</INF> emission
reductions under CAIR would be 45,447 tpy across the three W. A. Parish
units (approximately 80 percent reduction) and 21,129 tpy across the
two Welsh units (approximately 90 percent reduction). It was
unreasonable for Texas to omit consideration of scrubbers for Welsh and
Parish units simply because the 2018 emission projections used as their
baseline assumed scrubbers would already be in place in 2018 due to
CAIR. The use of this baseline resulted in large sources being left out
of the control set Texas evaluated in their four-factor analysis even
though the emission reductions were not enforceable and were based on
SO<INF>2</INF> controls that have never been installed. In its SIP,
Texas even acknowledged the uncertainties in its 2018 emissions
projections by its in depth review of an updated emission projection,
available at the time Texas was developing its SIP revision, that did
not predict scrubber upgrades or large emission reductions at the
Parish and Welsh Units.\96\ This highlights the uncertainty of
projections for specific units and the sensitivity of emission
projections to inputs in the projections, for instance, higher natural
gas prices. Texas should have recognized the flexibility in the CAIR
trading program and the resulting uncertainty in the projected
emissions and projected controls. In other words, it was unreasonable
for Texas to rely on unenforceable projected controls, and not to have
recognized that implementation of reasonable controls under the
Regional Haze Rule would likely not be in addition to anticipated
reductions due to CAIR predicted by IPM but would replace or complement
any controls predicted by IPM.
---------------------------------------------------------------------------
\96\ The 2018 emission projections Texas used as its baseline
were based on the Integrated Planning Model (IPM) Version 2.19;
however, there was also an updated version of IPM available for
review at the time Texas was developing its SIP (Version 3.0). Texas
provided an in-depth comparison of the two IPM runs in Appendix 7-2
of their SIP submittal. While the IPM 3.0 results estimated very
similar overall SO<INF>2</INF> emissions, IPM 3.0 estimated larger
reductions at Big Brown and Monticello and did not predict scrubber
installations or large emission reductions at the Parish and Welsh
units. See Texas Regional Haze SIP, at pg. 10-9 and Appendix 7-2, at
pg. 8.
\97\ We note that the difference in projected emissions for W.A.
Parish facility between IPM Versions 2.19 and 3.0 is 29,407 tons,
and the difference in projected emissions for the Welsh facility is
21,354 tons. See Texas Regional Haze SIP, Appendix 7-2, at pg.8.
Table 2--2002 SO2 Emissions vs. 2018 Projected SO2 Emissions Under CAIR \97\
----------------------------------------------------------------------------------------------------------------
2018 SO2
2002 SO2 emissions Projected SO2
Facility name Unit ID emissions projections under emissions
(tpy) * CAIR (Texas reductions under
baseline) (tpy) * CAIR (tpy)
----------------------------------------------------------------------------------------------------------------
W.A. Parish...................... WAP5 20,523 3,733 16,790
W.A. Parish...................... WAP6 17,863 3,809 14,054
W.A. Parish...................... WAP7 17,900 3,297 14,603
Welsh............................ 2 11,995 1,223 10,772
Welsh............................ 3 11,584 1,227 10,357
----------------------------------------------------------------------------------------------------------------
* Emissions data from Texas Regional Haze SIP, Appendix 10.4b.
Texas's use of 2018 projections also impacted the potential
emission reductions and cost of available controls for EGUs. For
example, Big Brown Unit 1's SO<INF>2</INF> emissions in 2002 were
43,413 tpy. The IPM predictions that were incorporated into the 2018
emission level assume that a greater than \1/3\ reduction in these
emissions will occur in response to CAIR by switching to a coal with a
lower sulfur content, resulting in a 2018 SO<INF>2</INF> emission level
of 23,142 tpy. Texas's cost-effectiveness calculation for post-
combustion controls on Big Brown Unit 1 was based on reducing that
projected 2018 SO<INF>2</INF> emission level of 23,142 tpy by 90
percent, resulting in a reduction of 20,828 tpy. This results in a cost
of $32,766,310/yr, or a cost-effectiveness calculation of $1,573/ton.
However, the installation of a scrubber would allow Big Brown
flexibility in fuel choice thus allowing the unit to continue to burn
the higher average sulfur fuel it currently burns, instead of moving to
the low sulfur coal predicted by IPM. There was no enforceable
commitment for these emission reductions at Big Brown with the company
preferring the flexibility afforded under CAIR and thus it was
unreasonable for Texas to rely on these projected reductions as a
starting point for evaluating controls for this and other EGUs without
consideration of how the uncertainty in 2018 IPM projections may impact
their analysis.
Big Brown Unit 1 SO<INF>2</INF> emissions in 2006 were 49,777
tons.\98\ The issue of scrubber efficiency aside, a reduction of 90
percent from these actual emission levels would result in an
SO<INF>2</INF> reduction of approximately 44,800 tpy. While the
numerator ($) in the cost-effectiveness metric of $/ton will increase
slightly beyond what was estimated by Alpine Geophysics due to an
increased sulfur loading to the scrubber, the denominator (tons) would
increase by more than 100 percent, thus improving (lowering) the
overall cost-effectiveness of controlling Big Brown Unit 1
significantly. Estimates for scrubbers at Monticello are similarly
impacted by the cost methodology used by Texas in estimating cost-
effectiveness on a cost-per-ton basis. Similarly, the visibility
benefits of controls estimated by Texas were based only on the
estimated additional emission reductions beyond what was already
estimated to occur under CAIR in 2018. Accounting for the full
reductions that would result from installation of the scrubbers based
on historical emissions at the time would result in larger emission
reductions and therefore, larger estimated visibility benefits from
controls.
---------------------------------------------------------------------------
\98\ 2006 was the most recent year for which complete annual
emissions data was available prior to Texas issuing the draft
Regional Haze SIP for public comment.
---------------------------------------------------------------------------
[[Page 48167]]
For these reasons, it was unreasonable for Texas to rely on the
2018 projections without consideration of uncertainty and how these
assumptions may impact their analysis. Texas should have recognized
that implementation of reasonable controls under the Regional Haze Rule
would likely not be in addition to anticipated reductions due to CAIR
predicted by IPM but would replace or complement any controls predicted
by IPM.
3. Weighing of the Four Statutory Factors and Visibility Benefits
After consideration of the four statutory factors and other
applicable factors, States must weigh the factors and include a
demonstration showing how these factors were taken into consideration
in establishing the goal as required under Section 51.308(d)(1)(i)(A)
and (d)(1)(ii). Texas unreasonably weighed the costs of compliance and
the visibility benefits of controls, which resulted in unreasonable
conclusions.
a. Cost of Compliance
Texas's use of annualized aggregate costs in determining whether
controls were necessary to make reasonable progress for the first
planning period was unreasonable and inconsistent with the CAA. In
looking at the costs of compliance as part of its four-factor analysis,
Texas stated that the total annualized aggregate cost of $324,300,000
was too high in light of the imperceptible visibility benefits of
controls.\99\ For reasons explained in section V.B.3.c, we find that
Texas's characterization and consideration of visibility benefits was
both flawed and unreasonable. Focusing on costs, the figure of
approximately $324 million reflects the annualized cost of controls on
the entire group of sources that Texas selected for analysis under the
four factors. As stated previously, states have flexibility in how they
consider the four factors; however, such flexibility must be exercised
in a reasonable manner. While determining that a total cost of $324
million was too high, Texas provided no context or support as to why
that figure is too high, and importantly, what range of costs would be
reasonable. This is especially problematic when considering that Texas
already applied a cost-effectiveness threshold of $2,700/ton to ``limit
the proposed controls group to cost effective measures'' \100\ and thus
eliminate sources for which they deemed controls as too costly. Thus,
pointing to the $324 million total annual cost as too expensive
seemingly contradicts Texas's determination that controls on these
sources are cost-effective. Rather, all that can be determined from
Texas's use of the aggregate annualized cost is that it represents the
sum total of the costs of controls for 45 units that impact one or more
Class I areas in Texas or nearby States and that Texas had previously
determined were cost effective as they were below its $2,700/ton cost-
threshold. As such, the way Texas relied on the annual aggregate cost
of controls was irrational and did not constitute a reasonable
consideration of the costs of compliance as required by the CAA and the
RHR.
---------------------------------------------------------------------------
\99\ See Texas Regional Haze SIP, Table 10-5.
\100\ See Texas Regional Haze SIP at 10-7.
---------------------------------------------------------------------------
b. Texas's Approach in Grouping Sources
The way Texas grouped sources led to unreasonable results when
weighing the factors--namely it included multiple sources that inflated
the total cost of controls without providing a corresponding reduction
in visibility impairment. Texas constructed a potential control set
consisting of a mix of large and small sources, located at various
distances from Class I areas, with a large geographical distribution.
While on its face, this selection of controls and sources appears broad
and comprehensive, in analyzing how Texas constructed its control set
and mixture of sources, we find several flaws and therefore find the
analysis unreasonable. Because of the variation in size, type, and
location of these sources, the potential to impact visibility and
potential visibility benefit from controls at a given Class I area can
vary greatly between the identified sources. This potential control set
identified by Texas included controls on sources that would likely
result in significant visibility benefits at several Class I areas
(such as sources with high emissions and tall stacks), but also
included controls on many sources with much less anticipated visibility
benefits (such as sources with lower emissions and shorter stacks,
located at greater distances to the Class I areas). Because Texas only
estimated the visibility benefit by grouping all the controls together,
it was not able to appropriately assess the potential benefit of
controlling a more refined grouping of sources with significant, and
potentially cost-effective, visibility benefits. While we are not
suggesting that Texas was required to weigh the four factors and
visibility benefits on a source-specific basis, the grouping of sources
like the Bryans Mill Plant and the Celanese Chemical Manufacturing
Plant together with sources like Big Brown unreasonably inflated the
total cost of controls without providing a corresponding reduction in
visibility impairment. Thus, Texas failed to adequately justify why
including sources with very dissimilar potential visibility benefits in
the same group was reasonable.
The significant visibility benefits of controls on some sources
being grouped together with controls on other sources that provided
little visibility benefit only served to increase the total annual cost
figures for the entire potential control set. For example, Texas
identified SO<INF>2</INF> controls at the two Big Brown units to be
approximately $1,500/ton, significantly less than its $2,700/ton
threshold. These controls were estimated to achieve greater than 40,000
tpy SO<INF>2</INF> emission reductions and would result in important
visibility benefits given that the Big Brown units have tall stacks and
a Q/d greater than 50 at surrounding Class I areas.\101\ Big Brown and
the other EGUs included in Texas's evaluated control set have Q/d
values greater than 5 at all ten Class I areas evaluated in Texas's
estimation of visibility benefits, and these emission reductions were
included in the estimation of potential visibility benefits at all ten
areas. In the same potential control set, Texas included SO<INF>2</INF>
controls at other sources with estimated costs similar or more
expensive than those at Big Brown, but with considerably lower
SO<INF>2</INF> emissions reductions and lower Q/d. For instance, in the
same control set Texas identified SO<INF>2</INF> controls at the Bryans
Mill Plant estimated to cost approximately $1,425/ton (similar to the
Big Brown units), but with estimated SO<INF>2</INF> emission reductions
of only approximately 1,330 tpy. The Bryans Mill Plant has a Q/d less
than 10 at any given surrounding Class I areas and thus the visibility
benefits of SO<INF>2</INF> controls on this source are anticipated to
be much lower than the visibility benefits of SO<INF>2</INF> controls
on Big Brown. In Texas's estimation of visibility benefits, emission
reductions at Bryans Mills Plant were only included in the estimation
of visibility benefits at Caney Creek (Q/d = 8.2). The Q/d values for
all other Class I areas were so low (less than 5) that Texas assumed
that no visibility benefit would result at these Class I areas from
reductions at the Bryans Mills Plant. Texas also included in the same
potential control set SO<INF>2</INF> controls at the Celanese Chemical
[[Page 48168]]
Manufacturing Plant that were estimated to be approximately $2,658/ton,
but with estimated SO<INF>2</INF> emission reductions of only
approximately 1,760 tpy. The Celanese Chemical Manufacturing Plant has
a Q/d less than 9 at any given surrounding Class I area and thus the
visibility benefits of this SO<INF>2</INF> control are anticipated to
be much lower than the visibility benefits of SO<INF>2</INF> controls
on Big Brown. In Texas's estimation of visibility benefits, emission
reductions at Celanese were only included in the estimation of
visibility benefits at Salt Creek (Q/d = 5.3) and Wichita Mountains (Q/
d = 8.8). The Q/d values for all other Class I areas were so low (less
than 5) that Texas assumed that no visibility benefit would result at
these Class I areas from reductions at the Celanese Chemical
Manufacturing Plant. Despite this evidence in the record of identified
cost-effective controls that result in large emission reductions and
large potential visibility benefits at multiple Class I areas, in
addition to source apportionment modeling identifying large impacts
from EGU sources, and in particular EGUs in northeast Texas, the
unreasonable manner in which the State grouped sources in weighing the
four factors resulted in controls at sources such as Big Brown, an EGU
in northeast Texas, being dismissed.
---------------------------------------------------------------------------
\101\ The Big Brown units have a Q/d of 67.6 for Unit 1 and 69
for Unit 2 at Caney Creek in Arkansas and a Q/d of 56.9 for Unit 1
and 58.1 for Unit 2 at Wichita Mountains in Oklahoma.
---------------------------------------------------------------------------
Additionally, the total annualized aggregate cost of $324,300,000
includes $53,500,000 associated with the cost of NO<INF>X</INF>
controls. However, visibility improvement due to reductions in nitrate
extinction are much less than the sulfate reductions at each Class I
area as shown in Table 3.
Table 3--Texas Estimated Reduction in Extinction
------------------------------------------------------------------------
Estimated reduction
in extinction (Mm-
Class I area 1)
---------------------
Sulfate Nitrate
------------------------------------------------------------------------
Big Bend.......................................... 0.847 0.032
Breton............................................ 0.465 0.005
Caney Creek....................................... 3.232 0.054
Carlsbad Caverns.................................. 1.014 0.023
Guadalupe Mountains............................... 1.014 0.023
Salt Creek........................................ 1.069 -0.081
Upper Buffalo..................................... 1.583 0.016
Wheeler Peak...................................... 0.121 0.000
White Mountain.................................... 0.850 0.014
Wichita Mountains................................. 2.722 0.408
------------------------------------------------------------------------
The reduction in nitrate extinction is less than 4 percent of the
sulfate reduction at each Class I area with the exception of Wichita
Mountains (15 percent). Despite this very small incremental reduction
in light extinction, Texas included costs of NO<INF>X</INF> emission
reductions, $53,500,000, in the aggregate costs for controls of which
represents more than 16 percent of the total aggregated cost of
controls. Thus, the inclusion of the costs associated with
NO<INF>X</INF> controls serves to increase the total aggregate cost but
does not result in significant visibility benefits compared to the
benefits that result for the SO<INF>2</INF> controls.
c. Texas's Evaluation of Potential Visibility Improvements
In considering whether compliance costs for sources were
reasonable, Texas weighed the total aggregated annual costs to the
emission reductions and estimated visibility improvement those sources
would achieve. While visibility is not an explicitly listed factor to
consider when determining whether additional controls are reasonable,
the purpose of the four-factor analysis is to determine what degree of
progress toward natural visibility conditions is reasonable. Therefore,
the EPA has interpreted the CAA and the RHR as allowing States to
consider visibility alongside the four statutory factors when
determining the emission reduction measures that are necessary to make
reasonable progress. However, while it is reasonable for a State to
consider visibility benefits, it is not free to do so in a manner that
is unreasonable or inconsistent with the requirements of the CAA. For
the reasons explained in the following paragraphs, we find that Texas's
consideration of visibility improvements was unreasonable and
inconsistent with the requirements of the CAA.
i. Texas's Use of Visibility Thresholds
The visibility thresholds selected by Texas to dismiss otherwise
meaningful visibility improvement provided for by the sources it
analyzed are inconsistent with the CAA. In evaluating and dismissing
the estimated visibility benefit from the entire control set it
identified, Texas states that the estimated benefit is not perceptible
(less than 1 dv) and that it is less than 0.5 dv, the screening
threshold used under BART requirements used to determine if a facility
contributes to visibility impairment. However, this 0.5 dv is not an
appropriate visibility threshold to use for the reasonable progress
analysis, given that the modeling inputs and metrics for determining
the visibility benefits for reasonable progress differ significantly
from modeling conducted for purposes of BART. For example, modeling
conducted for purposes of BART focused on the maximum anticipated
visibility impact from the source on a single day due to the short-term
maximum actual baseline emissions from a single facility, compared to
clean background conditions. On the other hand, the reasonable progress
analysis presented by Texas contemplates the visibility benefit to
degraded background conditions anticipated for an average tpy emission
reduction (as opposed to the impact from the total short-term maximum
emissions from the sources) averaged across the 20 percent worst days
at the Class I area(s) (which may not be the same days that are most
impacted by any particular source). By looking at average impacts over
an averaged number of days, the visibility benefits projected for a
reasonable progress analysis would be anticipated to be significantly
lower compared to maximum day impact metrics. Thus, using a 0.5 dv
threshold developed for evaluating the maximum impacts under BART as a
basis for dismissing potential controls in a reasonable progress
analysis is unreasonable. The FIP TSD associated with the 2014 Proposed
Rule provides a detailed discussion of the different metrics and
modeling typically used for BART and reasonable progress analyses.\102\
Furthermore, even in the context of BART we have stated that even
though the installation of BART may not result in a perceptible
improvement in visibility, the visibility benefit may still be
significant, as explained by the Regional Haze Rule:
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\102\ See Texas-Oklahoma Regional Haze FIP TSD, Appendix A,
pages A-35-A-39, A-75.
Even though the visibility improvement from an individual source
may not be perceptible, it should still be considered in setting
BART because the contribution to haze may be significant relative to
other source contributions in the Class I area. Thus, we disagree
that the degree of improvement should be contingent upon
perceptibility.\103\
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\103\ 70 FR 39104, 39130 (July 6, 2005).
As we stated in our final rule partially approving and partially
disapproving a portion of the Oklahoma Regional Haze SIP and
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promulgating an SO<INF>2</INF> BART FIP for Oklahoma sources:
Given that sources are subject to BART based on a contribution
threshold of no greater than 0.5 deciviews, it would be inconsistent
to automatically rule out additional controls where the improvement
in visibility may be less than 1.0 deciview or even 0.5 deciviews. A
perceptible visibility improvement is not a requirement of the BART
determination because visibility improvements that are not
perceptible may still be determined to be significant.\104\
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\104\ 76 FR 81728, 81739 (Dec. 28, 2011).
Thus, Texas's use of both perceptibility and the 0.5 dv threshold
developed for use in evaluating BART, as a basis for dismissing
potential
[[Page 48169]]
controls in a reasonable progress analysis is unreasonable.
ii. Visibility Benefits of Texas's Estimated Control Set
Texas's conclusions regarding the visibility benefits of their
control set at Big Bend and Guadalupe Mountains, and its determination
that those benefits were not significant enough to justify the cost of
controls, were unreasonable.
Texas estimated that their control set would result in 0.16 dv
visibility improvement at Big Bend. In estimating these deciview
improvements, Texas estimated that the evaluated control set would
result in a reduction in sulfate and nitrate extinction of 0.85 Mm-1
and 0.03 Mm-1, respectively.\105\ Texas only evaluated potential
controls to reduce NO<INF>X</INF> and SO<INF>2</INF> emissions from
point sources in their four-factor analysis and Texas determined that
point sources make up over 90 percent of the projected 2018 statewide
SO<INF>2</INF> emissions. Given the large reduction in extinction of
sulfate compared to nitrate, we focus our analysis on the projected
visibility benefits of SO<INF>2</INF> controls. All U.S. point sources
combined were projected by CenRAP to contribute 7.19 Mm-1 in sulfate
extinction at Big Bend. Of this 7.19 Mm-1 in extinction, CenRAP
projected that Texas point sources alone would be responsible for 3.24
Mm-1, or 45 percent of the U.S. point source sulfate extinction in
2018. The next largest contribution from a State to sulfate extinction
at Big Bend is 1.10 Mm-1 from all Louisiana point sources. Thus, the
estimated visibility benefits for the Texas control set represent a 26
percent reduction in visibility impairment from sulfate due to all
Texas point sources, and a 12 percent reduction in sulfate due to all
U.S. point sources. This is a significant reduction in visibility
impairment and represents significant progress towards the national
goal of eliminating manmade visibility impairment. As we discuss
elsewhere, these potential visibility benefits of controls are impacted
by the emission baseline assumption, control efficiency assumptions,
and other factors that lead to an underestimation in the visibility
benefits due to the applied controls.
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\105\ Texas RH SIP Appendix 10-4b, see ``Means'' tab.
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For Guadalupe Mountains, Texas estimated that the evaluated control
set would result in 0.22 dv visibility improvement by securing a
reduction in sulfate and nitrate extinction of 1.01 Mm-1 and 0.02 Mm-1,
respectively. All U.S. point sources combined were projected by CenRAP
to contribute 6.78 Mm-1 in sulfate extinction at Guadalupe Mountains.
Of this 6.78 Mm-1 in extinction, CenRAP projected that Texas point
sources alone would be responsible for 3.08 Mm-1, or 45 percent of the
U.S. point source sulfate extinction in 2018. The next largest
contribution from a State to sulfate extinction at GUMO is 0.47 Mm-1
from all Louisiana point sources. The estimated visibility benefits for
the Texas control set represent a 33 percent reduction in visibility
impairment from sulfate due to all Texas point sources, and a 15
percent reduction in sulfate due to all U.S. point sources.
Evaluating potential visibility benefits in Class I areas in nearby
States, Texas estimated that the evaluated control set would result in
0.36 dv visibility improvement at Wichita Mountains in Oklahoma. Texas
estimated that the evaluated control set would result in a reduction in
sulfate and nitrate extinction of 2.72 Mm-1 and 0.41 Mm-1, respectively
at Wichita Mountains. All U.S. point sources combined were projected by
CenRAP to contribute 21.74 Mm-1 in sulfate extinction, including 7.83
Mm-1 from Texas point sources, or 36 percent of the U.S. point source
sulfate extinction in 2018. The next largest contribution from a State
to sulfate extinction at WIMO is 2.16 Mm-1 from all Louisiana point
sources. The estimated visibility benefits for the Texas control set
represent a 35 percent reduction in visibility impairment from sulfate
due to all Texas point sources, and a 12.5 percent reduction in sulfate
due to all U.S. point sources. Similarly, the estimated visibility
benefits for the Texas control set represent a 19 percent reduction in
visibility impairment from nitrate due to all Texas point sources, and
a 7 percent reduction in nitrate due to all U.S. point sources.
Texas failed to provide a reasonable justification for why it did
not require the control measures other than to point to the aggregate
annual cost of controls and state that the visibility benefit would not
be perceptible. However, as discussed in the previous section, Texas's
consideration of the costs was also flawed. Based on the large
percentage of contribution from Texas point sources and the amount of
visibility impairment that would be addressed under Texas's proposed
control strategy, Texas failed to adequately demonstrate that it is not
reasonable to impose control measures on those sources.
iii. Texas's Use of Degraded Background Conditions
Texas estimated the visibility improvement of potential controls by
making comparisons to degraded background conditions instead of to
natural background conditions. However, this approach is not
reasonable, and the EPA has previously disapproved a regional haze SIP
submission for utilizing the same flawed approach. For example, North
Dakota's SIP used degraded, rather than natural background results in
what we determined to be a flawed analysis because it greatly
underestimates the visibility benefits of potential control options. As
we explained in the North Dakota SIP disapproval, this is true because
of the nonlinear nature of visibility impairment. In other words, as a
Class I area becomes more polluted, a source's contribution to changes
in impairment becomes geometrically less.\106\ In challenges to the SIP
disapproval, the 8th Circuit upheld EPA's decision to disapprove the
SIP because the SIP made comparisons to degraded background conditions
to assess visibility benefits. Specifically, the Court noted that ``the
goal of Sec. 169A is to attain natural visibility conditions in
mandatory Class I Federal areas, see 42 U.S.C. 7491(a)(1), and EPA has
demonstrated that the visibility model used by the State would serve
instead to maintain current degraded conditions.'' \107\ Because the
analysis Texas relied upon to evaluate visibility improvement uses
degraded background conditions, we propose to find Texas's
consideration and use of visibility improvement unreasonable and
inconsistent with the requirements of the CAA.
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\106\ 77 FR 20894, 20912 (quoting 70 FR 39124).
\107\ North Dakota v. EPA, 730 F.3d 750, 765-66 (8th Cir. 2013).
---------------------------------------------------------------------------
d. Texas's ``Order of Magnitude Estimate'' for Visibility Improvement
Texas produced an ``order of magnitude estimate'' of the visibility
improvements resulting from the level of aggregate emission reductions
that would result from its point source control strategy using
Particulate Matter Source Apportionment Technology (PSAT) results and
effectiveness ratios.\108\ Texas did not model the potential emission
reductions to estimate visibility benefits, but rather estimated the
benefits based on the results on the 2018 basecase CenRAP modeling and
a sensitivity run developed by CenRAP that included a large set of
emission reductions on sources throughout the CenRAP
[[Page 48170]]
states.\109\ This methodology assumes that all emission reductions
within a PSAT region and source category (EGU or non-EGU) have the same
effectiveness in reducing visibility impairment.\110\ For example,
emission reductions at non-EGU sources in the West Texas PSAT region
would be estimated to have the same effect on visibility, regardless of
location, like the Big Spring facility (330 km to Guadalupe Mountains)
and the Borger facility (524 km to Guadalupe Mountains). The estimated
effectiveness factor applied equally to all emission reductions at EGUs
located in the East Texas source region, including Sommers Deely Spruce
(440 km from Big Bend and 680 km from Guadalupe Mountains) and
Monticello (850 km from Big Bend and 920 km from Guadalupe Mountains).
Given the large difference in distances between these two facilities
and the Class I areas, it is reasonable to expect that the
effectiveness of emission reductions could vary greatly between the
two. We propose to find that given the variability in the distances
between sources and Class I areas, it was unreasonable for Texas not to
consider how its assumptions could result in underestimation of the
visibility benefit of controlling the sources it selected for
consideration in its four-factor analysis.
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\108\ The Comprehensive Air Quality Model with extensions (CAMx)
with PSAT is a tool used to provide source apportionment of
particulate matter species from primary sources to defined receptor
locations by geographic region and major source category.
\109\ See Texas RH SIP Appendix 10-2 and 10-4.
\110\ For PSAT modeling and control analysis, Texas was divided
into 3 regions (East Texas, West Texas, and Texas Gulf Coast). See
Figure 5-8 of Technical Support Document for CenRAP Emissions and
Air Quality Modeling to Support Regional Haze State Implementation
Plans (CenRAP TSD), available in the docket for this action under
Document ID EPA-R06-OAR-2014-0754-0014.
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C. Clarification of Our Basis for Disapproval of Texas's Calculation of
Natural Visibility Conditions
We are proposing to disapprove Texas's calculation of natural
visibility conditions. Section 51.308(d)(2)(iii) requires States to
calculate the natural visibility conditions for each Class I area
located within the State by estimating the degree of visibility
impairment existing under natural conditions for the most impaired and
least impaired days, based on available monitoring information and
appropriate data analysis techniques.
We explained the basis for our disapproval of Texas's calculation
of the natural visibility conditions for the Guadalupe Mountains and
Big Bend in the preamble of our 2014 Proposed Rule and in the preamble
of our 2016 Final Rule.\111\ While not specifically addressed in the
2016 stay opinion, statements made by the Fifth Circuit motions panel
appear to indicate disagreement with the EPA's disapproval of Texas's
calculation of natural visibility conditions at the Guadalupe Mountains
and Big Bend. Specifically, the court's opinion stated that the RHR
grants States considerable flexibility when they estimate natural
conditions and that EPA's natural visibility guidance expressly permits
States to use refined approaches for the calculation of natural
visibility and to identify other approaches that are more appropriate
for their own situations. We agree that our guidance and the RHR allow
states to develop an alternative approach to estimate natural
visibility conditions.\112\ The fact that States have the option of
calculating their own natural visibility conditions instead of using
the default natural conditions provided in the guidance is not at
issue. However, any such alternative approach must be supported and
documented. As we state in our guidance, States are ``free to develop
alternative approaches that will provide natural visibility conditions
estimates that are technically and scientifically supportable. Any
refined approach should be based on accurate, complete, and unbiased
information and should be developed using a high degree of scientific
rigor.'' \113\ Texas did not provide a technically and scientifically
supportable approach, specifically by not adequately supporting the
assumptions used in calculating ``refined'' estimates of natural
visibility conditions.
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\111\ 79 FR at 74830-74832 (2014 Proposed Rule) and 81 FR at
299-300, 325-326 (2016 Final Rule).
\112\ Guidance for Estimating Natural Visibility Conditions
Under the Regional Haze Rule, EPA-454/B-03-005, September 2003. See
also 51.308(d)(2)(iii).
\113\ Guidance for Estimating Natural Visibility Conditions
Under the Regional Haze Rule, EPA, September 2003, at 1-11.
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One alternative approach available to States is to develop and
justify the use of alternative estimates of natural concentrations of
fine particle components. Another option available to States is to use
the ``new IMPROVE equation'' that was adopted for use by the IMPROVE
Steering Committee in December 2005.\114\ This refined version of the
IMPROVE equation provided more accurate estimates (as compared to the
``old IMPROVE equation'') of some of the factors that affect the
calculation of light extinction. The default natural conditions in our
guidance \115\ were updated by the Natural Haze Levels II Committee
utilizing the new IMPROVE equation and included some refinements to the
estimates for the PM components.<SUP>116 117</SUP> These estimates are
referred to as the ``NCII'' default natural visibility conditions.
---------------------------------------------------------------------------
\114\ The IMPROVE program is a cooperative measurement effort
governed by a steering committee composed of representatives from
Federal agencies (including representatives from EPA and the federal
land managers) and regional planning organizations. The IMPROVE
monitoring program was established in 1985 to aid the creation of
Federal and State implementation plans for the protection of
visibility in Class I areas. One of the objectives of IMPROVE is to
identify chemical species and emission sources responsible for
existing anthropogenic visibility impairment. The IMPROVE program
has also been a key participant in visibility-related research,
including the advancement of monitoring instrumentation, analysis
techniques, visibility modeling, policy formulation and source
attribution field studies.
\115\ Guidance for Estimating Natural Visibility Conditions
Under the Regional Haze Rule, EPA-454/B-03-005, September 2003.
\116\ Pitchford, Marc, 2006, Natural Haze Levels II: Application
of the New IMPROVE Algorithm to Natural Species Concentrations
Estimates. Final Report of the Natural Haze Levels II Committee to
the RPO Monitoring/Data Analysis Workgroup. September 2006,
available at: <a href="https://vista.cira.colostate.edu/improve/Publications/GrayLit/029_NaturalCondII/naturalhazelevelsIIreport.ppt">https://vista.cira.colostate.edu/improve/Publications/GrayLit/029_NaturalCondII/naturalhazelevelsIIreport.ppt</a>.
\117\ The second version of the natural haze level II estimates
based on the work of the Natural Haze Levels II Committee is
available at: <a href="https://vista.cira.colostate.edu/Docs/IMPROVE/Aerosol/NaturalConditions/NaturalConditionsII_Format2_v2.xls">https://vista.cira.colostate.edu/Docs/IMPROVE/Aerosol/NaturalConditions/NaturalConditionsII_Format2_v2.xls</a>.
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Texas chose to derive a ``refined'' estimate of natural visibility
conditions rather than using the default NCII values.\118\ In
calculating natural visibility conditions, Texas used the new IMPROVE
equation and PM concentration estimates (i.e., the NCII values) for
most components, but assumed that 100 percent of the fine soil and
coarse mass concentrations in the baseline period is attributed to
natural causes and that the corresponding estimates in the NCII values
should be replaced. Texas did so without adequately demonstrating that
all fine soil and coarse mass measured in the baseline period can be
attributed to 100 percent natural sources. Anthropogenic sources of
coarse mass and fine soil in the baseline period could have included
emissions associated with paved and unpaved roads, agricultural
activity, and construction activities as well. We also note that the
impact from dust at Big Bend is less certain than at the Guadalupe
Mountains and a different assumption may be appropriate in estimating
natural conditions there. Furthermore, Texas itself concluded that it
cannot verify its own assumption that all fine soil and coarse mass
measured in the baseline period can be attributed to 100 percent
natural sources. Texas acknowledged that the information it cites to in
the Texas Regional Haze SIP does not quantify the percentage of
anthropogenic or natural
[[Page 48171]]
contributions to total coarse mass and fine dust, and that some portion
must be from human activity.\119\ We are proposing to disapprove
Texas's calculation of natural visibility conditions for the Guadalupe
Mountains and Big Bend because those calculations are based on the
technically indefensible assumption that there is 0 percent dust (CM
and soil) from human activity when Texas rightly concedes that some
impairment ``must be from some human activity.'' \120\
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\118\ See Chapter 5 and Appendix 5-2 of the Texas Regional Haze
SIP.
\119\ Appendix 5-2 of the Texas Regional Haze SIP at page 4
Texas states in its SIP that ``while some dust (CM and Soil) at both
of Texas' Class I areas must be from some human activity, the times
when human caused dust is likely to be more important at these sites
are on days with less visibility impairment than on the worst dust
impaired days.'' Texas goes on to conclude that ``for the sake of
the most and least impaired natural visibility estimates, to treat
100 percent of the CM and Soil concentrations measured at each of
its Class I areas as natural.'' See id.
\120\ See Appendix 5-2 of the Texas Regional Haze SIP at page 4.
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D. Clarification of Our Basis for Disapproval of Consultation Between
Texas and Oklahoma
In finalizing the RHR, we stated that ``successful implementation
of the regional haze program will involve long term regional
coordination among States,'' and that ``States will need to develop
strategies in coordination with one another, taking into account the
effect of emissions from one jurisdiction to air quality in another.''
\121\ We also noted that RPGs and long-term strategies are intricately
linked.\122\ The regulations bear this out. Section 51.308(d)(3)(i)
requires that States (in this case Texas) consult with other States if
its emissions are reasonably anticipated to contribute to visibility
impairment at that State's Class I area(s), and that Texas consult with
other States if those States' emissions are reasonably anticipated to
contribute to visibility impairment at the Guadalupe Mountains and Big
Bend. We commonly refer to this as the long-term strategy consultation.
Similarly, in developing the RPGs for its Class I area(s), Section
51.308(d)(1)(iv) requires that States (in this case Oklahoma) consult
with those States which may reasonably be anticipated to cause or
contribute to visibility impairment at their Class I area(s) (in this
case Wichita Mountains). We commonly refer to this as the reasonable
progress consultation. Section 51.308(d)(3)(ii) requires that if a
State's emissions (in this case Texas's emissions) cause or contribute
to impairment in another State's Class I area, it must demonstrate that
it has included in its regional haze SIP all measures necessary to
obtain its share of the emission reductions needed to meet the progress
goal for that Class I area. Section 51.308(d)(3)(iii) requires that
States (in this case Texas) document the technical basis, including
modeling, monitoring and emissions information, on which it is relying
to determine its apportionment of emission reduction obligations
necessary for achieving reasonable progress in each mandatory Class I
area it affects. This documentation is necessary so that the interstate
consultation process can proceed on an informed basis, and so that
downwind states can properly assess whether any additional upwind
emission reductions are necessary to achieve reasonable progress at
their Class I area(s).
---------------------------------------------------------------------------
\121\ 64 FR 35714, 35728 (July 1, 1999).
\122\ 64 FR at 35735 (July 1, 1999).
---------------------------------------------------------------------------
We explained the basis for our disapproval of Texas's consultation
with Oklahoma to address visibility impairment in the Wichita
Mountains, as required under section 51.308(d)(3)(i), in the preamble
of our 2014 Proposed Rule and in the preamble of our 2016 Final
Rule.\123\ We also explained the basis for our disapproval of
Oklahoma's consultation with Texas to address visibility impairment in
the Wichita Mountains, as required under section 51.308(d)(1)(iv), in
the preamble of our 2014 Proposed Rule and in the preamble of our 2016
Final Rule.\124\ As to EPA's disapproval of the consultation between
Texas and Oklahoma, the Fifth Circuit motions panel in the 2016 stay
opinion stated that ``EPA's disapproval seems to stem in large part
from its assertion that Texas had to conduct a source-specific analysis
and provide Oklahoma with that source-specific analysis.'' \125\ This
is incorrect. The basis for our disapproval of Texas's long-term
strategy consultation with Oklahoma was not, and is not, tied to
whether Texas conducted a source-specific analysis and provided
Oklahoma with that source-specific analysis. Rather, we are proposing
to disapprove Texas's long-term strategy consultation with Oklahoma
because it relied on and was informed by a flawed four-factor analysis
in which Texas analyzed and weighed the four reasonable progress
factors in a manner that is unreasonable and inconsistent with the
requirements of the CAA and the RHR. Similarly, we are proposing to
disapprove Oklahoma's reasonable progress consultation with Texas and
the RPG Oklahoma established for the Wichita Mountains. Oklahoma
unreasonably relied on and was informed by Texas's flawed four-factor
analysis that concluded no additional control measures were necessary
even though both States acknowledged Wichita Mountains suffers from
``significant anthropogenic impacts from Texas'' \126\ and cost-
effective controls were available. Given that impacts from Texas point
sources were several times greater than the impact from Oklahoma's own
point sources, Oklahoma and Texas did not adequately justify why
additional reductions from Texas sources were not necessary to address
impacts at the Wichita Mountains as part of the consultation process
required under the RHR.
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\123\ 79 FR at 74854-74856 (2014 Proposed Rule) and 81 FR at
300-301, 312-313 (2016 Final Rule).
\124\ 79 FR 74818, 74864-74872 (2014 Proposed Rule) and 81 FR
302-303, 312-313, 338, 339-343 (2016 Final Rule).
\125\ Texas, 829 F. 3d at 428.
\126\ See August 3, 2007 letter from ODEQ Executive Director
Steven Thompson to TCEQ Executive Director Glenn Shankle included in
Appendix 4-2 of Texas Regional Haze SIP.
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In determining its long-term strategy under section
51.308(d)(3)(iii), we believe that Texas had an obligation to conduct
an appropriate technical analysis and demonstrate through that
technical analysis (required under section 51.308(d)(3)(ii)), that it
provided its fair share of emission reductions to Oklahoma. Texas used
its flawed four-factor analysis to determine its ``share of the
emission reductions needed to meet the progress goal'' for the Wichita
Mountains and to inform its decision not to control any additional
sources, including those that impact visibility at the Wichita
Mountains. To the extent that Texas relied on its flawed four-factor
analysis to address the requirements of section 51.308(d)(3)(ii) and
51.308(d)(3)(iii), it did not develop and provide the information
necessary to determine the reasonableness of controls at those sources
in Texas that impact visibility at the Wichita Mountains or other Class
I areas. For the same reasons discussed in this section regarding the
bases for our disapproval of Texas's four-factor analysis, we are
proposing to find that Texas's demonstration failed to satisfy the
requirements under section 51.308(d)(3)(ii) and section
51.308(d)(3)(iii).
CenRAP source apportionment modeling results indicated that Texas
is a significant contributor to visibility impairment at the Wichita
Mountains.\127\ Point sources are the most significant contributors to
haze at the Wichita Mountains, and the largest contributing point
sources are Texas
[[Page 48172]]
EGUs. Texas SO<INF>2</INF> emissions were projected in 2018 to have the
largest visibility impacts, in terms of both absolute contribution to
extinction and percent contribution to total extinction, at the Wichita
Mountains in Oklahoma. Table 4 summarizes the percent of visibility
impairment at the Wichita Mountains from Oklahoma and nearby states
projected in 2018 based on the CenRAP modeling results.\128\
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\127\ See Appendix E of the Technical Support Document for
CENRAP Emissions and Air Quality Modeling to Support Regional Haze
SIP, included as Appendix 8-1 of the Texas Regional Haze SIP.
\128\ These model results include estimated reductions due to
the implementation of CAIR, other on-the-book federal and State
rules, and some assumptions for BART reductions in Oklahoma and
other states.
Table 4--Percent Contribution to Total Visibility Impairment at Wichita Mountains in 2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eastern U.S.
Texas (%) Oklahoma (%) Louisiana (%) Kansas (%) Arkansas (%) Missouri (%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Total Contribution, All 27.5 16.3 4.8 3.8 2.3 2.8 4.2
Pollutants.............................
Percent Point Source Contribution, All 14.0 3.9 3.4 1.4 1.3 1.7 3.2
Pollutants.............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Texas (all sources and pollutants) is projected to contribute 27.5
percent of the visibility impairment at the Wichita Mountains, compared
to 16.3 percent for Oklahoma sources, 4.8 percent from Louisiana
sources and 4.2 percent from sources in the Eastern U.S. Point sources
in Texas are projected to account for 14 percent of all visibility
impairment projected in 2018 at Wichita Mountains, compared to 3.9
percent from Oklahoma point sources, 3.4 percent from Louisiana point
sources and 3.2 percent from point sources in the Eastern U.S.
Oklahoma and Texas mutually acknowledged that Texas sources
significantly impact visibility at the Wichita Mountains in Oklahoma,
and that the impacts from point sources in Texas are several times
greater than the impact from Oklahoma point sources.\129\ Furthermore,
Oklahoma asserted in its consultations with Texas, and elsewhere in the
Oklahoma Regional Haze SIP, that the Wichita Mountains would remain
above the URP without additional reductions from Texas sources. During
consultation calls with Texas and other states, Oklahoma specifically
requested additional information on feasibility and cost of controls
for those facilities identified through the CenRAP process as having
available controls estimated to cost less than $5,000/ton and with the
potential to result in visibility improvements in the Wichita Mountains
due to their location and emissions.\130\ The cost-effectiveness of all
the Texas point sources identified by Oklahoma except one was below
$3,000/ton. Texas relied on the cost estimates developed by CenRAP and
shared with Oklahoma with respect to feasibility and costs of potential
controls for which Oklahoma specifically requested information. Texas
also identified that there is uncertainty in the size and distribution
in emissions in the future projections and that no EGUs made an
enforceable commitment to any particular pollution control strategy and
preferred to retain the flexibility offered by the CAIR program.\131\
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\129\ See e.g., March 25, 2008 letter from TCEQ Air Quality
Division Director Susana M. Hildebrand, P.E., to ODEQ Air Quality
Division Director Eddie Terrill included in Appendix 4-2 of Texas
Regional Haze SIP.
\130\ See document entitled, ODEQ Wichita Mountains consultation
(Aug. 16, 2007), available in the docket for this action under
Document ID EPA-R06-OAR-2014-0754-0030.
\131\ See Texas Regional Haze SIP at section 10.5.
---------------------------------------------------------------------------
In addition, Texas provided Oklahoma with information that other
sources with existing controls still have a large potential to impact
visibility and should be analyzed for control upgrades. Specifically,
Texas provided Oklahoma a letter on March 25, 2008, which included a
table that listed sources of ``particular interest to Wichita Mountains
due to their emissions and their positions within the area of
influence.'' \132\ However, Texas did not analyze the costs of controls
or corresponding visibility benefits of several of these sources even
though they identified them as a source of interest. Some of these
sources include EGUs at Martin Lake and Pirkey. In the case of Martin
Lake, the three units combined were projected to emit over 35,000 tpy
of SO<INF>2</INF>. SO<INF>2</INF> emissions from the Pirkey facility
were projected to be over 19,000 tpy. Given Texas's identification of
these sources, it was unreasonable for Texas not to provide any further
analysis and Texas and Oklahoma did not adequately justify why
additional reductions from these sources were not necessary to address
impacts at the Wichita Mountains as part of the consultation process
required under the RHR.
---------------------------------------------------------------------------
\132\ March 25, 2008 letter from TCEQ Air Quality Division
Director Susana M. Hildebrand, P.E., to ODEQ Air Quality Division
Director Eddie Terrill included in Appendix 4-2 of Texas Regional
Haze SIP.
---------------------------------------------------------------------------
Ultimately, Texas determined that no additional controls at its
sources were warranted during the first planning period to help achieve
reasonable progress at the Wichita Mountains, and Oklahoma did not
specifically request any additional reductions from Texas sources. As a
result, Oklahoma established RPGs for the Wichita Mountains that do not
reflect any reasonable emission reductions from Texas beyond those that
will be achieved by compliance with other requirements of the CAA. We
are proposing to disapprove Texas's long-term strategy consultation
with Oklahoma required under Section 51.308(d)(3)(i) because it relied
on and was informed by Texas's flawed four-factor analysis, as
discussed in Section V.B. Similarly, Oklahoma's reasonable progress
consultation with Texas required under Section 51.308(d)(1)(iv) and the
RPG Oklahoma established for the Wichita Mountains relied on Texas's
flawed four-factor analysis. We are proposing to disapprove those
portions of Oklahoma's Regional Haze SIP because they relied on and
were informed by Texas's flawed four-factor analysis, as discussed in
Section V.B. For the same reasons, we are proposing to find that
Texas's demonstration failed to satisfy the requirements under section
51.308(d)(3)(ii) and section 51.308(d)(3)(iii).
VI. Amending the FIP on Remand
We are proposing to amend the 2016 FIP by proposing to find that no
further federal action is needed to remedy the disapprovals of portions
of the Texas and Oklahoma Regional Haze SIPs. We are proposing to not
make changes to our recalculation in the 2016 FIP of the natural
visibility conditions on the 20 percent best and worst days for the
Guadalupe Mountains and Big Bend. We are also proposing to not make
[[Page 48173]]
changes to our recalculation in the 2016 FIP of the following metrics
that are dependent on the calculation of the natural visibility
conditions: the number of deciviews by which baseline visibility
conditions exceed natural visibility conditions for the Guadalupe
Mountains and Big Bend (i.e., our calculation of visibility impairment)
pursuant to section 51.308(d)(2)(iv)(A) and our recalculation of the
URPs for the 20 percent worst days for these Class I areas.
We are proposing to rescind the SO<INF>2</INF> emission limits
established in the 2016 FIP. Our 2016 FIP required SO<INF>2</INF>
emission limits for 15 coal-fired EGUs at eight power plants that
affect visibility at the Wichita Mountains Wilderness, Big Bend
National Park, and Guadalupe Mountains National Park. We required
emission limits consistent with scrubber upgrades and a compliance date
three years from the effective date of the 2016 Final Rule on the
following units: (1) Monticello 3; (2) Sandow 4; (3) Martin Lake Units
1, 2, and 3; and (4) Limestone Units 1 and 2. We further required
emission limits consistent with scrubber retrofits and a compliance
date five years from the effective date of the 2016 Final Rule on the
following units: (1) Big Brown Units 1 and 2; (2) Monticello Units 1
and 2; (3) Coleto Creek Unit 1; and (4) Tolk Units 171B and 172B.
Finally, we required an SO<INF>2</INF> emission limit for the San
Miguel unit based on the continued operation of scrubber upgrades it
had already installed, which the facility needed to comply with within
one year from the effective date of the 2016 Final Rule.
On remand, we revisited whether, in light of the Fifth Circuit's
2016 stay opinion, as well as several changes in circumstances, the FIP
should remain or be amended. In the interim period between the 2016
Final Rule and this proposal, several units for which we promulgated
emission limits in the 2016 Final Rule have shut down. These units are:
Sandow 4; \133\ Monticello Units 1, 2, and 3; \134\ and Big Brown Units
1 and 2.\135\ These shutdowns are permanent and enforceable because the
CAA permits for these units have been voided. These units may not
return to operation without going through CAA new source review
permitting and Title V operating permitting requirements. Therefore,
the EPA is proposing to rescind the SO<INF>2</INF> emission limits for
these units.
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\133\ 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.
\134\ 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.
\135\ 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.
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Furthermore, several units, including Martin Lake Units 1, 2, and
3, and Coleto Creek Unit 1 may be subject to emission limits under our
proposed BART FIP for Texas EGUs.\136\ If finalized, these emission
limits will provide for similar emission reductions and visibility
improvement that would have been achieved by the emission limits for
these units in the 2016 FIP. Therefore, we propose to find that no
further controls beyond BART should be required for Martin Lake Units
1, 2, and 3, and Coleto Creek Unit 1, and we propose to rescind the
SO<INF>2</INF> emission limits for these units.
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\136\ See 88 FR 28918, 28977 (May 4, 2023). In addition to the
units listed at Martin Lake and Coleto Creek, the 2023 Texas BART
action proposed emission limits for three units at the W.A. Parish
facility, two units at the Harrington facility, two units at the
Fayette facility, and one unit at the Welsh facility. We anticipate
finalizing the proposed 2023 Texas BART action before finalizing
this proposed Reasonable Progress action.
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After taking into account the Texas EGUs that have permanently shut
down in the intervening period and those that are subject to proposed
controls under our recently proposed Texas BART FIP, the remaining
units for which we required SO<INF>2</INF> limits in the 2016 FIP are
Limestone Units 1 and 2; Tolk Units 171B and 172B; and San Miguel Unit
1. With respect to these units, the EPA is proposing to rescind the
SO<INF>2</INF> emission limits. As explained above, several units in
Texas have shut down and the EPA recently proposed BART emission limits
for 12 units in Texas. Additionally, we took a voluntary remand on the
2016 Final Rule, in part, due to the motion panel's finding in its stay
opinion of the petitioners' likelihood of success on the merits. As to
the SO<INF>2</INF> emission limits imposed by the FIP portion of the
2016 Final Rule, the panel found that the EPA likely did not have the
authority to impose controls that could not be installed until after
the end of the planning period (in this case, beyond the end of the
first planning period, or 2018). We strongly disagree with the panel's
view that the RHR somehow constrains States or the EPA from imposing
controls that cannot be installed until after the end of the planning
period. Nevertheless, in response to the panel's opinion, we revised
the Regional Haze Rule in 2017 to clarify that for the second and
subsequent planning periods, states or the EPA can require controls
even if they cannot be installed until after the end of the planning
period.\137\ In addition, we previously found that San Miguel upgraded
its SO<INF>2</INF> scrubber system in 2010, 2011, 2012, and 2014 to
perform at the reasonably highest level that can be expected
(approximately 94 percent SO<INF>2</INF> removal efficiency) based on
the extremely high sulfur content of the coal being burned and the
technology available.\138\ In the 2016 FIP, we finalized an
SO<INF>2</INF> emission limit based on the continued operation of the
scrubber upgrades the facility had already performed and consistent
with recent monitoring data.\139\ As a result, we did not anticipate
that San Miguel would have to install any additional controls in order
to comply with the SO<INF>2</INF> emission limit we finalized.\140\ The
scrubber upgrades at San Miguel remain in place, and we do not
anticipate any increase in visibility impacts from the unit.
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\137\ See 40 CFR 51.308(f)(2)(i).
\138\ See ``Technical Support Document for the Cost of Controls
Calculations for the Texas Regional Haze Federal Implementation Plan
(Cost TSD)'' dated November 2014, pages 56-61. This is the Cost TSD
for the 2016 Texas-Oklahoma RP FIP and is available in the docket
for this action under Document ID EPA-R06-OAR-2014-0754-0008.
\139\ 79 FR at 74823 (footnote 26) and 81 FR at 332 (footnote
161).
\140\ 81 FR at 305.
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We propose to find that for these reasons, no additional emission
limits are necessary to make reasonable progress for the first planning
period. The EPA will also have an opportunity to evaluate Texas's
analyses and determinations for the Texas second planning period
SIP,\141\ including with respect to Limestone, Tolk, and San Miguel.
Because we are proposing to rescind the emission limits promulgated in
the 2016 FIP for the reasons explained in the preceding paragraphs, we
are proposing that it is not necessary to revise our four-factor
analysis.
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\141\ On July 20, 2021, Texas submitted its second planning
period Regional Haze SIP to the EPA. See ``2021 Regional Haze SIP
Revision'' 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>.
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While we are proposing to rescind the SO<INF>2</INF> emission
limits established in the 2016 FIP, we are proposing that it is not
necessary to revise the 2018 RPGs we calculated in the 2016 FIP.
Section 169B(e)(1) of the CAA directed EPA to promulgate regulations
that ``include[e] criteria for measuring `reasonable progress' toward
the national goal.'' Consequently, the regional haze regulations for
the first planning period direct states to develop RPGs for the most
and least impaired days to ``measure'' the progress that will be
achieved by the control measures in the
[[Page 48174]]
state's long-term strategy ``over the period of the implementation
plan.'' \142\ The RPGs represent the best estimate of the degree of
visibility improvement that is anticipated to result in the Class I
area at the end of the planning period taking into account the measures
included in the long-term strategy over the period of the SIP for that
planning period. For the first planning period, the RPGs allow for
comparisons between the progress that will be achieved by the state's
long-term strategy and the URP,\143\ and provide a benchmark for
assessing the adequacy of a state's SIP in 5-year periodic
reports.\144\ In the 2016 FIP, we calculated new 2018 RPGs for the 20
percent worst days and the 20 percent best days for the Guadalupe
Mountains, Big Bend, and the Wichita Mountains based on our technical
analysis in that FIP.\145\ However, it is now five years past the end
of the first planning period. Given the timing of this action, revising
the RPGs for 2018 would not further the purpose or intent behind
establishing the RPGs for the first planning period. Furthermore, as we
discussed in the preceding paragraphs, in a separate proposed rule
recently published in the Federal Register,\146\ we proposed
SO<INF>2</INF> emission limits for 12 Texas EGUs under the BART
requirements, some of which are the same EGUs for which we promulgated
SO<INF>2</INF> emission limits in the 2016 FIP. Additionally, several
Texas EGUs have shut down including some of the same units addressed in
the 2016 FIP. In evaluating the Texas and Oklahoma Regional Haze SIPs
for the second planning period,\147\ we will have an opportunity to
evaluate these States' four-factor analyses for the second planning
period, including the 2028 RPGs adopted by the States. For these
reasons, we are proposing to find that it is not necessary or practical
at this point in time for the EPA to make further changes to the 2018
RPGs.
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\142\ 40 CFR 51.308(d)(1).
\143\ 40 CFR 51.308(d)(1)(ii).
\144\ 40 CFR 51.308(g)-(h).
\145\ 81 FR at 347, see Table 9.
\146\ See 88 FR 28918 (May 4, 2023).
\147\ Texas submitted its Regional Haze SIP for the second
planning period to EPA on July 20, 2021, and Oklahoma submitted its
Regional Haze SIP for the second planning on August 9, 2022.
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As described in further detail below, we find that the EPA's
proposed revision to the FIP would not result in interference with any
applicable CAA requirements and would be consistent with CAA section
110(l). We note that, on the face of this action, the rescission of the
emission limits could lead to increases in emissions of SO<INF>2</INF>
over what was anticipated in the 2016 Final Rule. The 2016 FIP imposed
emission limits on 15 EGUs located at eight different facilities.
However, since that action was promulgated, six of the EGUs covered by
the 2016 FIP have permanently shut down and retired. Due to these
shutdowns, there are no longer emissions from these six EGUs. As a
result, the proposed rescission of these SO<INF>2</INF> emission limits
will have no effect, and the emissions from these sources will be lower
than anticipated in the 2016 FIP. In addition, the EPA recently
proposed source-specific BART limits for four of these EGUs that, if
finalized, would impose similar limitations on SO<INF>2</INF>
emissions.
For the remaining five EGUs (two EGUs located at the Limestone
facility, two EGUs located at the Tolk facility, and one EGU located at
San Miguel facility),\148\ the proposed rescission of the emission
limits, which were judicially stayed from taking effect, is not
anticipated to interfere with any applicable requirements under the
CAA. First, the geographic areas where the five EGUs are located are
not part of a nonattainment area for any National Ambient Air Quality
Standards (NAAQS).\149\ The Limestone facility is located in a county
adjacent to the Freestone/Anderson SO<INF>2</INF> nonattainment area.
However, at the time the EPA designated this area as nonattainment, we
used dispersion modeling to identify nearby areas that contributed to
the violation of the NAAQS.\150\ Based on this evaluation, we found
that emissions from the Limestone facility did not contribute to the
violation of the SO<INF>2</INF> NAAQS. Additionally, since that time,
the Big Brown facility, which was the primary source causing the NAAQS
violations in the Freestone/Anderson SO<INF>2</INF> nonattainment area,
has shut down, and the EPA made a Clean Data Determination in 2021
finding that the area is currently attaining the 1-hour SO<INF>2</INF>
NAAQS.\151\
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\148\ The SO<INF>2</INF> emission limit we are proposing to
rescind for the San Miguel facility is based on SO<INF>2</INF>
scrubber system upgrades that the facility had already installed
prior to the promulgation of the 2016 FIP. The SO<INF>2</INF>
emission limit we required for San Miguel was based on the emission
rate the facility was already meeting and thus we do not expect that
our proposed rescission of this emission limit would result in an
increase in SO<INF>2</INF> emissions from this facility.
\149\ The Limestone facility is located in Limestone County, the
Tolk facility is located in Lamb County, and the San Miguel facility
is located in Atascosa County. None of these counties are part of a
nonattainment area for any NAAQS.
\150\ See Technical Support Document for the Designation
Recommendations for the 2010 Sulfur Dioxide National Ambient Air
Quality Standards (NAAQS)--Supplement for Four Areas in Texas Not
Addressed in June 30, 2016, Version, Docket No EPA-HQ-OAR-2014-0464,
at pg. 15-16 (Nov. 29, 2016), available in the docket for this
action.
\151\ 86 FR 26401 (May 14, 2021).
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Second, there are no approved attainment demonstrations in other
areas of the State or outside of the state that rely on the
SO<INF>2</INF> emission limits for these five EGUs to achieve
attainment of any of the NAAQS. At this time, the areas that may be
potentially impacted by our rescission of the SO<INF>2</INF> emission
limits for Limestone, Tolk, and San Miguel are all attaining the 2010
1-hour SO<INF>2</INF> NAAQS, 2006 PM<INF>2.5</INF> NAAQS, and 2012
PM<INF>2.5</INF> NAAQS.<SUP>152 153</SUP> Additionally, rescinding the
emission limits will not alter how these sources have been operating
and thus the EPA does not anticipate that emission levels from these
sources will increase such that we would expect exceedances of, or
interference with, the SO<INF>2</INF> and PM<INF>2.5</INF> NAAQS to
occur in the future in the areas where these sources are located.
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\152\ Since SO<INF>2</INF> is a precursor pollutant for fine
particulate matter (PM<INF>2.5</INF>), we also address whether
withdrawal of the FIP emission limits would interfere with
attainment of the PM<INF>2.5</INF> NAAQS.
\153\ As we noted in the final rule promulgating the 2010 1-hour
SO<INF>2</INF> NAAQS, a significant fact for ambient SO<INF>2</INF>
concentrations is that stationary sources are the predominant
emission sources of SO<INF>2</INF> and the peak, maximum
SO<INF>2</INF> concentrations that may occur are most likely to
occur nearer the parent stationary source. 75 FR 35520, 35557 (June
22, 2010).
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Finally, the proposed rescission of the FIP provisions would not
interfere with the ``applicable requirements'' of the regional haze
program. This section explains how the proposed FIP revision will
comply with applicable regional haze requirements and general
implementation plan requirements. As such, our rescission of these FIP
provisions will not interfere with the CAA requirements for regional
haze, including the reasonable progress and long-term strategy
provisions of the regional haze program.
VII. Proposed Action
We are proposing disapproval of the portions of the Texas Regional
Haze SIP and Oklahoma Regional Haze SIP we previously disapproved in
our 2016 Final Rule.
With respect to the Texas Regional Haze SIP, we are proposing
disapproval of the portions of the Texas Regional Haze SIP addressing
the following Regional Haze Rule requirements contained in 40 CFR part
51: \154\
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\154\ We are also proposing disapproval of 30 TAC 116.1510(d).
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<bullet> Section 51.308(d)(1) regarding the RPGs for the Guadalupe
Mountains and Big Bend;
<bullet> Section 51.308(d)(1)(i)(A) regarding the four-factor
analysis;
[[Page 48175]]
<bullet> Section 51.308(d)(1)(i)(B) regarding the requirement to
calculate the emission reduction measures needed to achieve the URP for
the Guadalupe Mountains and Big Bend for the period covered by the SIP;
<bullet> Section 51.308(d)(1)(ii) regarding the requirement to
demonstrate, based on the factors in Section 51.308(d)(1)(i)(A), that
the progress goal adopted by Texas is reasonable;
<bullet> Section 51.308(d)(2)(iii) regarding the calculation of
natural visibility conditions for the Guadalupe Mountains and Big Bend
for the most impaired and least impaired days;
<bullet> Section 51.308(d)(2)(iv)(A) regarding the calculation of
the number of deciviews by which baseline conditions exceed natural
visibility conditions for the Guadalupe Mountains and Big Bend for the
most impaired and least impaired days;
<bullet> Section 51.308(d)(3)(i) regarding Texas's long-term
strategy consultations with Oklahoma in order to develop coordinated
emission management strategies to address visibility impacts at the
Wichita Mountains;
<bullet> Section 51.308(d)(3)(ii) regarding the requirement for
Texas to secure its share of reductions necessary to achieve the RPGs
for the Guadalupe Mountains, Big Bend, and the Wichita Mountains;
<bullet> Section 51.308(d)(3)(iii) regarding the requirement for
Texas to document the technical basis for its long-term strategy for
the Guadalupe Mountains, Big Bend, and the Wichita Mountains;
<bullet> Section 51.308(d)(3)(v)(C) regarding Texas's emission
limitations and schedules for compliance to achieve the RPGs for the
Guadalupe Mountains, Big Bend, and the Wichita Mountains.
We are also proposing disapproval of the portions of the Oklahoma
Regional Haze SIP addressing the following Regional Haze Rule
requirements contained in 40 CFR part 51:
<bullet> Section 51.308(d)(1) regarding the RPGs for the Wichita
Mountains;
<bullet> Section 51.308(d)(1)(i)(A) regarding the four-factor
analysis;
<bullet> Section 51.308(d)(1)(i)(B) regarding the requirement to
consider the URP for the Wichita Mountains and the emission reduction
measures needed to achieve it for the period covered by the SIP;
<bullet> Section 51.308(d)(1)(ii) regarding the requirement to
demonstrate, based on the factors in Section 51.308(d)(1)(i)(A), that
the rate of progress for the SIP to attain natural conditions by 2064
is not reasonable and that the progress goal adopted by Oklahoma is
reasonable;
<bullet> Section 51.308(d)(1)(iv) regarding the requirement for
Oklahoma to consult with Texas with respect to the visibility impact of
Texas sources at the Wichita Mountains.
We are proposing to find that no further federal action is needed
to remedy the proposed disapprovals of these portions of the Texas and
Oklahoma Regional Haze SIPs. We are proposing to rescind the
SO<INF>2</INF> emission limitations and the associated monitoring,
reporting, and recordkeeping requirements we established in the 2016
FIP for Texas EGUs. We are also proposing that it is not necessary to
revise the four-factor analysis or the numeric 2018 RPGs we established
in the 2016 FIP for the Guadalupe Mountains, Big Bend, and the Wichita
Mountains. Finally, we are proposing to find that our amendments to the
2016 FIP are consistent with CAA section 110(l) because they will not
interfere with any applicable requirement concerning attainment or
reasonable further progress (as defined in section 7501 of this title),
or any other applicable requirements of the CAA.
VIII. Environmental Justice Considerations
The EPA defines environmental justice (EJ) as ``the fair treatment
and meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' \155\ The EPA further defines the term ``fair treatment''
to mean that ``no group of people should bear a disproportionate burden
of environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \156\ Recognizing the
importance of these considerations to local communities, the EPA
conducted an environmental justice screening analysis around the
location of the facilities associated with this action to identify
potential environmental stressors on these communities and the
potential impacts of this action. However, the EPA is providing the
information associated with this analysis for informational purposes
only. The information provided herein is not a basis of the proposed
action.
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\155\ See <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
\156\ Id.
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The EPA conducted the screening analyses using EJScreen, an EJ
mapping and screening tool that provides the EPA with a nationally
consistent dataset and approach for combining various environmental and
demographic indicators.\157\ The EJScreen tool presents these
indicators at a Census block group (CBG) level or a larger user-
specified ``buffer'' area that covers multiple CBGs.\158\ An individual
CBG is a cluster of contiguous blocks within the same census tract and
generally contains between 600 and 3,000 people. EJScreen is not a tool
for performing in-depth risk analysis, but is instead a screening tool
that provides an initial representation of indicators related to EJ and
is subject to uncertainty in some underlying data (e.g., some
environmental indicators are based on monitoring data which are not
uniformly available; others are based on self-reported data).\159\ For
informational purposes, we have summarized EJScreen data within larger
``buffer'' areas covering multiple block groups and representing the
average resident within the buffer areas surrounding the eight
facilities for which we are proposing to rescind emission limits.
EJScreen environmental indicators help screen for locations where
residents may experience a higher overall pollution burden than would
be expected for a block group with the same total population in the
U.S. These indicators of overall pollution burden include estimates of
ambient particulate matter (PM<INF>2.5</INF>) and ozone concentration,
a score for traffic proximity and volume, percentage of pre-1960
housing units (lead paint indicator), and scores for proximity to
Superfund sites, risk management plan (RMP) sites, and hazardous waste
facilities.\160\ EJScreen also provides information on demographic
indicators, including percent low-income, communities of color,
linguistic isolation, and less than high school education.
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\157\ The EJSCREEN tool is available at <a href="https://www.epa.gov/ejscreen">https://www.epa.gov/ejscreen</a>.
\158\ See <a href="https://www.census.gov/programs-surveys/geography/about/glossary.html">https://www.census.gov/programs-surveys/geography/about/glossary.html</a>.
\159\ In addition, EJSCREEN relies on the five-year block gro
[…truncated; see source link]Indexed from Federal Register on July 26, 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.