Proposed Rule2025-09293
Air Plan Approval; Texas and Oklahoma; Texas Regional Haze Plans for the First and Second Implementation Periods and Five-Year Progress Report; Oklahoma Regional Haze Plan for the First Implementation Period
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 23, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve regional haze State Implementation Plan (SIP) revisions submitted by the Texas Commission on Environmental Quality (TCEQ), dated March 20, 2014, and July 20, 2021, as satisfying applicable requirements under the Clean Air Act (CAA or Act) and EPA's Regional Haze Rule (RHR). Additionally, the EPA is proposing to approve portions of the 2009 Texas Regional Haze SIP submission and portions of the 2010 Oklahoma Regional Haze SIP submission that relate to reasonable progress requirements for the first planning period from 2007 through 2018. Finally, the EPA is also withdrawing its 2023 proposed disapprovals regarding Texas's and Oklahoma's first planning period SIPs and its 2024 proposed action regarding Texas's second planning period SIP. The EPA is taking this action pursuant to sections 110 and 169A of the Act.
Full Text
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<title>Federal Register, Volume 90 Issue 99 (Friday, May 23, 2025)</title>
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[Federal Register Volume 90, Number 99 (Friday, May 23, 2025)]
[Proposed Rules]
[Pages 22166-22198]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09293]
[[Page 22165]]
Vol. 90
Friday,
No. 99
May 23, 2025
Part II
Environmental Protection Agency
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40 CFR Part 52
Air Plan Approval; Texas and Oklahoma; Texas Regional Haze Plans for
the First and Second Implementation Periods and Five-Year Progress
Report; Oklahoma Regional Haze Plan for the First Implementation
Period; Proposed Rule
Federal Register / Vol. 90 , No. 99 / Friday, May 23, 2025 / Proposed
Rules
[[Page 22166]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2025-0197; FRL-12217-01-R6]
Air Plan Approval; Texas and Oklahoma; Texas Regional Haze Plans
for the First and Second Implementation Periods and Five-Year Progress
Report; Oklahoma Regional Haze Plan for the First Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and withdrawal of proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve regional haze State Implementation Plan (SIP) revisions
submitted by the Texas Commission on Environmental Quality (TCEQ),
dated March 20, 2014, and July 20, 2021, as satisfying applicable
requirements under the Clean Air Act (CAA or Act) and EPA's Regional
Haze Rule (RHR). Additionally, the EPA is proposing to approve portions
of the 2009 Texas Regional Haze SIP submission and portions of the 2010
Oklahoma Regional Haze SIP submission that relate to reasonable
progress requirements for the first planning period from 2007 through
2018. Finally, the EPA is also withdrawing its 2023 proposed
disapprovals regarding Texas's and Oklahoma's first planning period
SIPs and its 2024 proposed action regarding Texas's second planning
period SIP. The EPA is taking this action pursuant to sections 110 and
169A of the Act.
DATES: Written comments must be received on or before June 23, 2025.
Withdrawal: As of May 23, 2025, the proposed rule published October
15, 2024, at 89 FR 83338 is withdrawn, and the proposed disapprovals
for portions of Texas and Oklahoma SIPs included as part of the
proposed rule published on July 26, 2023, at 88 FR 48152 are withdrawn.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2025-0197, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, please contact
Michael Feldman, 214-665-9793, <a href="/cdn-cgi/l/email-protection#9adcfff6fef7fbf4b4d7f3f9f2fbfff6daffeafbb4fdf5ec"><span class="__cf_email__" data-cfemail="f3b5969f979e929dddbe9a909b92969fb3968392dd949c85">[email protected]</span></a>. 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://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Michael Feldman, U.S. Environmental
Protection Agency, Region 6, Air and Radiation Division, SO<INF>2</INF>
and Regional Haze Section (ARSH), 1201 Elm Street, Suite 500, Dallas,
Texas 75270, 214-665-9793, <a href="/cdn-cgi/l/email-protection#dd9bb8b1b9b0bcb3f390b4beb5bcb8b19db8adbcf3bab2ab"><span class="__cf_email__" data-cfemail="da9cbfb6beb7bbb4f497b3b9b2bbbfb69abfaabbf4bdb5ac">[email protected]</span></a>. We encourage the
public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please call
or email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. What action is EPA proposing?
On March 19, 2009, Texas submitted a revision to its SIP to address
regional haze for the first planning period (2009 Plan). Texas made
this SIP submission to satisfy the requirements of the CAA's regional
haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308.
The EPA is proposing to approve the portions of Texas's 2009 Plan which
the EPA previously disapproved related to certain reasonable progress
requirements under 40 CFR 51.308(d)(1) through (3).\1\ The disapproval
was subsequently vacated by the Fifth Circuit. The EPA is also
proposing to approve the portions of Oklahoma's first planning period
SIP that the State submitted in 2010 (2010 Plan) that address certain
requirements under 40 CFR 51.308(d)(1). EPA's disapproval of these
portions of the Oklahoma plan was also vacated by the Fifth Circuit as
part of the same action that vacated portions of our disapproval of
Texas's 2009 Plan.
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\1\ The BART requirements for EGUs were disapproved in a
separate action in 2012. See 77 FR 33642 (June 7, 2012). EPA
promulgated a Federal Implementation Plan (FIP) to address these
requirements in 2017 and revised it in 2020. See 82 FR 48324
(October 17, 2017) and 85 FR 49170 (Aug.12, 2020) As such this
action does not address BART for EGUs in Texas.
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On March 20, 2014, Texas submitted its five-year progress report as
a SIP revision (2014 Plan) to satisfy the requirements of 40 CFR
51.308(g) and (h). The EPA is proposing to approve Texas's 2014 Plan.
On July 20, 2021, Texas submitted a revision to its SIP to address
regional haze for the second planning period (2021 Plan). Texas made
this SIP submission to satisfy the requirements of the CAA's regional
haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308.
The EPA is proposing to approve the 2021 Plan.
II. Background and Regional Haze Rule Requirements
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\2\ The CAA
establishes as a national goal the ``prevention of any future, and the
remedying of any existing, impairment of visibility in mandatory Class
I Federal areas which impairment results from manmade air pollution.''
\3\
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\2\ CAA section 169A. Areas statutorily designated as mandatory
Class I Federal 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. CAA section 162(a). There are 156 mandatory Class I areas.
The list of areas to which the requirements of the visibility
protection program apply is in 40 CFR part 81, subpart D.
\3\ CAA section 169A.
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Regional haze is visibility impairment that is produced by a
multitude of anthropogenic sources and activities which are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and their precursors (e.g., sulfur
dioxide (SO<INF>2</INF>), nitrogen oxides (NO<INF>X</INF>), and, in
some cases, volatile organic compounds (VOC) and ammonia
(NH<INF>3</INF>)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM<INF>2.5</INF>), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the
[[Page 22167]]
perception of clarity and color, as well as visible distance.\4\
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\4\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (b\ext\) is a metric used for
expressing visibility and is measured in inverse megameters
(Mm<SUP>-1</SUP>). Light extinction can be simpler to use in
calculations than deciviews, since it is not a logarithmic function.
The formula for the deciview is 10 ln (b\ext\)/10 Mm-1). 40 CFR
51.301.
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To address regional haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both States in
which Class I areas are located and states ``the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility'' in a Class I area to periodically submit SIP revisions
to address such impairment. CAA section 169A(b)(2); \5\ see also 40 CFR
51.308(b) and (f) (establishing submission dates for iterative regional
haze SIP revisions); 64 FR 35714, 35768 (July 1, 1999).
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\5\ The RHR expresses the statutory requirement for States to
submit plans addressing out-of-State Class I areas by providing that
States must address visibility impairment ``in each mandatory Class
I Federal area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d) and (f).
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A. Regional Haze Rule Requirements for the First Planning Period
Much of the focus in the first implementation period of the
regional haze program, which ran from 2007 through 2018, was on
satisfying States' Best Available Retrofit Technology (BART)
obligations. First implementation period SIPs were additionally
required to contain long-term strategies for making reasonable progress
toward the national visibility goal, of which BART is one component.
The core required elements for the first implementation period SIPs
(other than BART) are laid out in 40 CFR 51.308(d). Those provisions
required that States containing Class I areas establish reasonable
progress goals (RPGs) that are measured in deciviews and reflect the
anticipated visibility conditions at the end of the implementation
period including from implementation of States' long-term strategies.
The first planning period RPGs were required to provide for an
improvement in visibility for the most impaired days over the period of
the implementation plan and ensure no degradation in visibility for the
least impaired days over the same period. In establishing the RPGs for
any Class I area in a State, the State was required to consider four
statutory factors: the costs of compliance, the time necessary for
compliance, the energy and nonair quality environmental impacts of
compliance, and the remaining useful life of any potentially affected
sources.\6\
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\6\ CAA section 169A(g)(1); 40 CFR 51.308(d)(1).
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States were also required to calculate baseline (using the five
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help States
assess the amount of progress they are making towards the national
visibility goal over time in each Class I area.\7\ The 1999 RHR also
provided that States' long-term strategies must include the
``enforceable emissions limitations, compliance, schedules, and other
measures as necessary to achieve the reasonable progress goals.'' \8\
In establishing their long-term strategies, States are required to
consult with other States that also contribute to visibility impairment
in a given Class I area and include all measures necessary to obtain
their shares of the emission reductions needed to meet the RPGs.\9\
Section 51.308(d) also contains seven additional factors States must
consider in formulating their long-term strategies, 40 CFR
51.308(d)(3)(v), as well as provisions governing monitoring and other
implementation plan requirements.\10\
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\7\ 40 CFR 51.308(d)(1)(i)(B) and (d)(2). The EPA established
the URP framework in the 1999 RHR to provide ``an equitable
analytical approach'' to assessing the rate of visibility
improvement at Class I areas across the country. The starting point
for the URP analysis is 2004 and the endpoint was calculated based
on the amount of visibility improvement that was anticipated to
result from implementation of existing CAA programs over the period
from the mid-1990s to approximately 2005. Assuming this rate of
progress would continue into the future, the EPA determined that
natural visibility conditions would be reached in 60 years, or 2064
(60 years from the baseline starting point of 2004). However, the
EPA did not establish 2064 as the year by which the national goal
must be reached. 64 FR 35714, 35731-32 (July 1, 1999). That is, the
URP and the 2064 date are not enforceable targets but are rather
tools that ``allow for analytical comparisons between the rate of
progress that would be achieved by the State's chosen set of control
measures and the URP.'' 82 FR 3078, 3084 (January 10, 2017).
\8\ 40 CFR 51.308(d)(3).
\9\ 40 CFR 51.308(d)(3)(i) and (ii).
\10\ 40 CFR 51.308(d)(4).
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Finally, the 1999 RHR required States to submit periodic progress
reports--SIP revisions due every five years that contain information on
States' implementation of their regional haze plans and an assessment
of whether anything additional is needed to make reasonable progress,
see 40 CFR 51.308(g) and (h)--and to consult with the Federal Land
Manager(s) \11\ (FLMs) responsible for each Class I area according to
the requirements in CAA section 169A(d) and 40 CFR 51.308(i).
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\11\ The EPA's regulations define ``Federal Land Manager'' as
``the Secretary of the department with authority over the Federal
Class I area (or the Secretary's designee) or, with respect to
Roosevelt-Campobello International Park, the Chairman of the
Roosevelt-Campobello International Park Commission.'' 40 CFR 51.301.
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B. Regional Haze Rule Requirements for the Second Planning Period
On January 10, 2017, the EPA promulgated revisions to the RHR, (82
FR 3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The reasonable progress requirements as revised
in the 2017 rulemaking (referred to here as the 2017 RHR Revisions) are
codified at 40 CFR 51.308(f). For additional background on the 2017 RHR
revisions, please refer to section III of the preamble to the 2017 RHR
revisions.\12\ The following is an abbreviated history and background
of the regional haze program and 2017 Regional Haze Rule as it applies
to the current action.
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\12\ Section III of the 2017 RHR is titled ``Overview of
Visibility Protection Statutory Authority, Regulation, and
Implementation'' 82 FR 3078, 3081, January 10, 2017.
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Under the CAA and EPA's regulations, all 50 States, the District of
Columbia, and the U.S. Virgin Islands are required to submit regional
haze SIPs satisfying the applicable requirements for the second
implementation period of the regional haze program by July 31, 2021.
Each State's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I areas.\13\ To this end, 40 CFR 51.308(f) lays out the
process by which States determine what constitutes their long-term
strategies, with the order of the requirements in 40 CFR 51.308(f)(1)
through (3) generally mirroring the order of the steps in the
reasonable progress analysis \14\ and
[[Page 22168]]
paragraphs (f)(4) through (6) containing additional, related
requirements.
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\13\ CAA section 169A(b)(2)(B).
\14\ The EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in 51.308(d), ``tracked the actual planning
sequence.'' (82 FR 3078, 3091, January 10, 2017).
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Broadly speaking, a State first must identify the Class I areas
within the State and determine the Class I areas outside the State in
which visibility may be affected by emissions from the State. These are
the Class I areas that must be addressed in the State's long-term
strategy.\15\ For each Class I area within its borders, a State must
then calculate the baseline (five-year average period of 2000-2004),
current, and natural visibility conditions (i.e., visibility conditions
without anthropogenic visibility impairment) for that area, as well as
the visibility improvement made to date and the ``uniform rate of
progress'' (URP).
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\15\ See 40 CFR 51.308(f) and (f)(2).
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The URP is the linear rate of progress needed to attain natural
visibility conditions, assuming a starting point of baseline visibility
conditions in 2004 and ending with natural conditions in 2064. This
linear interpolation is used as a tracking metric to help States assess
the amount of progress they are making towards the national visibility
goal over time in each Class I area.\16\ Each State having a Class I
area and/or emissions that may affect visibility in a Class I area must
then develop a long-term strategy that includes the enforceable
emission limitations, compliance schedules, and other measures that are
necessary to make reasonable progress in such areas. A reasonable
progress determination is based on applying the four factors in CAA
section 169A(g)(1) to sources of visibility impairing pollutants that
the State has selected to assess for controls for the second
implementation period. Additionally, as further explained below, the
RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five ``additional
factors'' \17\ that States must consider in developing their long-term
strategies.\18\
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\16\ See 40 CFR 51.308(f)(1).
\17\ The five ``additional factors'' for consideration in 40
CFR51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that States must
consider and apply to sources in determining reasonable progress.
\18\ See 40 CFR 51.308(f)(2).
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A State evaluates potential emission reduction measures for those
selected sources and determines which are necessary to make reasonable
progress. Those measures are then incorporated into the State's long-
term strategy. After a State has developed its long-term strategy, it
then establishes RPGs for each Class I area within its borders by
modeling the visibility impacts of all reasonable progress controls at
the end of the second implementation period, i.e., in 2028, as well as
the impacts of other requirements of the CAA. The RPGs include
reasonable progress controls not only for sources in the State in which
the Class I area is located, but also for sources in other States that
contribute to visibility impairment in that area. The RPGs are then
compared to the baseline visibility conditions and the URP to ensure
that progress is being made towards the statutory goal of preventing
any future and remedying any existing anthropogenic visibility
impairment in Class I areas.\19\ There are additional requirements in
the rule, including FLM consultation, that apply to all visibility
protection SIPs and SIP revisions.\20\
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\19\ 40 CFR 51.308(f)(2) and (3).
\20\ See e.g., 40 CFR 51.308(i).
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While States have discretion to choose any source selection
methodology that is reasonable, whatever choices they make should be
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that
a State's SIP submission include ``a description of the criteria it
used to determine which sources or groups of sources it evaluated.''
The technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance metrics, trajectory analyses, residence time analyses, and/or
photochemical modeling, must also be appropriately documented, as
required by 40 CFR 51.308(f)(2)(iii). Once a State has selected the set
of sources, the next step is to determine the emissions reduction
measures for those sources that are necessary to make reasonable
progress for the second implementation period.\21\ This is accomplished
by considering the four factors--``the costs of compliance, the time
necessary for compliance, and the energy and nonair quality
environmental impacts of compliance, and the remaining useful life of
any existing source subject to such requirements.'' \22\ The EPA has
explained that the four-factor analysis is an assessment of potential
emission reduction measures (i.e., control options) for sources; ``use
of the terms `compliance' and `subject to such requirements' in section
169A(g)(1) strongly indicates that Congress intended the relevant
determination to be the requirements with which sources would have to
comply to satisfy the CAA's reasonable progress mandate.'' \23\ Thus,
for each source it has selected for four-factor analysis,\24\ a State
must consider a ``meaningful set'' of technically feasible control
options for reducing emissions of visibility impairing pollutants.\25\
The EPA has also explained that, in addition to the four statutory
factors, States have flexibility under the CAA and RHR to reasonably
consider visibility benefits as an additional factor alongside the four
statutory factors.\26\ Ultimately, while States have discretion to
reasonably weigh the factors and to determine what level of control is
needed, 40 CFR 51.308(f)(2)(i) provides that a State ``must include in
its implementation plan a description of . . . how the four factors
were taken into consideration in selecting the measure for inclusion in
its long-term strategy.''
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\21\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA section 169A(g)(1). However, in addition to
four-factor analyses for selected sources, groups of sources, or
source categories, a State may also consider additional emission
reduction measures for inclusion in its long-term strategy, e.g.,
from other newly adopted, on-the-books, or on-the-way rules and
measures for sources not selected for four-factor analysis for the
second planning period.
\22\ CAA section 169A(g)(1).
\23\ 82 FR 3078, 3091 (January 10, 2017).
\24\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires States to
evaluate individual sources. Rather, States have ``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.'' 82 FR
3078, 3088 (January 10, 2017).
\25\ Id. at 3088.
\26\ See, e.g., ``Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule'' (December 2016), Docket Number EPA-HQ-OAR-2015-0531, U.S.
Environmental Protection Agency at 186.
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As explained above, 40 CFR 51.308(f)(2)(i) requires States to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a State's long-term strategy and in its SIP. If the outcome
of a four-factor analysis is that an emissions reduction measure is
necessary to make reasonable progress towards remedying existing or
preventing future anthropogenic visibility impairment, that measure
must be included in the SIP.
The characterization of information on each of the factors is also
subject to the documentation requirement in 40 CFR 51.308(f)(2)(iii).
The reasonable progress analysis is a technically complex exercise, and
also a flexible one that provides States with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility,
[[Page 22169]]
40 CFR 51.308(f)(2)(iii) plays an important function in requiring a
State to document the technical basis for its decision making so that
the public and the EPA can comprehend and evaluate the information and
analysis the State relied upon to determine what emission reduction
measures must be in place to make reasonable progress. The technical
documentation must include the modeling, monitoring, cost, engineering,
and emissions information on which the State relied to determine the
measures necessary to make reasonable progress. Additionally, the RHR
at 40 CFR 51.3108(f)(2)(iv) separately provides five ``additional
factors'' \27\ that States must consider in developing their long-term
strategies: (1) emission reductions due to ongoing air pollution
control programs, including measures to address reasonably attributable
visibility impairment; (2) measures to reduce the impacts of
construction activities; (3) source retirement and replacement
schedules; (4) basic smoke management practices for prescribed fire
used for agricultural and wildland vegetation management purposes and
smoke management programs; and (5) the anticipated net effect on
visibility due to projected changes in point, area, and mobile source
emissions over the period addressed by the long-term strategy.
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\27\ The five ``additional factors'' for consideration in 40 CFR
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that States must
consider and apply to sources in determining reasonable progress.
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Because the air pollution that causes regional haze crosses State
boundaries, 40 CFR 51.308(f)(2)(ii) requires a State to consult with
other States that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I area. If a
State, pursuant to consultation, agrees that certain measures (e.g., a
certain emission limitation) are necessary to make reasonable progress
at a Class I area, it must include those measures in its SIP.\28\
Additionally, the RHR requires that States that contribute to
visibility impairment at the same Class I area consider the emission
reduction measures the other contributing States have identified as
being necessary to make reasonable progress for their own sources.\29\
If a State has been asked to consider or adopt certain emission
reduction measures, but ultimately determines those measures are not
necessary to make reasonable progress, that State must document in its
SIP the actions taken to resolve the disagreement.\30\ Under all
circumstances, a State must document in its SIP submission all
substantive consultations with other contributing States.\31\
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\28\ 40 CFR 51.308(f)(2)(ii)(A).
\29\ 40 CFR 51.308(f)(2)(ii)(B).
\30\ 40 CFR 51.308(f)(2)(ii)(C).
\31\ 40 CFR 51.308(f)(2)(ii)(C).
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Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures States have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' \32\ For the second implementation period, the RPGs are set
for 2028. Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii). While States are not legally obligated to achieve
the visibility conditions described in their RPGs, 40 CFR
51.308(f)(3)(i) requires that ``[t]he long-term strategy and the
reasonable progress goals must provide for an improvement in visibility
for the most impaired days since the baseline period and ensure no
degradation in visibility for the clearest days since the baseline
period.''
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\32\ 82 FR 3078, 3091 (January 10, 2017).
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RPGs may also serve as a metric for assessing the amount of
progress a State is making towards the national visibility goal. To
support this approach, the RHR requires States with Class I areas to
compare the 2028 RPG for the most impaired days to the corresponding
point on the URP line (representing visibility conditions in 2028 if
visibility were to improve at a linear rate from conditions in the
baseline period of 2000-2004 to natural visibility conditions in 2064).
If the most impaired days RPG in 2028 is above the URP (i.e., if
visibility conditions are improving more slowly than the rate described
by the URP), each State that contributes to visibility impairment in
the Class I area must demonstrate, based on the four-factor analysis
required under 40 CFR 51.308(f)(2)(i), that no additional emission
reduction measures would be reasonable to include in its long-term
strategy.\33\ To this end, section 51.308(f)(3)(ii) requires that each
State contributing to visibility impairment in a Class I area that is
projected to improve more slowly than the URP provide ``a robust
demonstration, including documenting the criteria used to determine
which sources or groups [of] sources were evaluated and how the four
factors required by paragraph (f)(2)(i) were taken into consideration
in selecting the measures for inclusion in its long-term strategy.''
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\33\ 40 CFR 51.308(f)(3)(ii).
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Section 51.308(f)(6) requires States to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements under this section apply either to States with Class I
areas within their borders, States with no Class I areas but that are
reasonably anticipated to cause or contribute to visibility impairment
in any Class I area, or both. Compliance with the monitoring strategy
requirement may be met through a State's participation in the
Interagency Monitoring of Protected Visual Environments (IMPROVE)
monitoring network, which is used to measure visibility impairment
caused by air pollution at the 156 Class I areas covered by the
visibility program.\34\ All States' SIPs must provide for procedures by
which monitoring data and other information are used to determine the
contribution of emissions from within the State to regional haze
visibility impairment in affected Class I areas, as well as a statewide
inventory documenting such emissions.\35\ All States' SIPs must also
provide for any other elements, including reporting, recordkeeping, and
other measures, that are necessary for States to assess and report on
visibility.\36\
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\34\ 40 CFR 51.308(f)(6), (f)(6)(i) and (iv).
\35\ 40 CFR 51.308(f)(6)(ii), (iii), and (v).
\36\ 40 CFR 51.308(f)(6)(vi).
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Section 51.308(f)(5) requires a State's regional haze SIP revision
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through
(5) so that the plan revision due in 2021 will serve also as a progress
report addressing the period since submission of the progress report
for the first implementation period. The regional haze progress report
requirement is designed to inform the public and the EPA about a
State's implementation of its existing long-term strategy and whether
such implementation is in fact resulting in the expected visibility
improvement.\37\ To this end, every State's SIP revision for the second
implementation period is required to assess changes in visibility
conditions and describe the status of implementation of all measures
included in the State's long-term strategy, including BART and
reasonable progress emission reduction measures from the first
implementation period, and the resulting emissions reductions.\38\
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\37\ See 81 FR 26942, 26950 (May 4, 2016), 82 FR 3078, 3119
(January 10, 2017).
\38\ 40 CFR 51.308(g)(1) and (2).
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Clean Air Act section 169A(d) requires that before a State holds a
public hearing on a proposed regional haze SIP revision, it must
consult with the appropriate FLM or FLMs; pursuant to that
consultation, the State must include a summary of the FLMs' conclusions
and recommendations in
[[Page 22170]]
the notice to the public. Consistent with this statutory requirement,
the RHR also requires that States ``provide the [FLM] with an
opportunity for consultation, in person and at a point early enough in
the State's policy analyses of its long-term strategy emission
reduction obligation so that information and recommendations provided
by the [FLM] can meaningfully inform the State's decisions on the long-
term strategy.'' \39\ For the EPA to evaluate whether FLM consultation
meeting the requirements of the RHR has occurred, the SIP submission
should include documentation of the timing and content of such
consultation. The SIP revision submitted to the EPA must also describe
how the State addressed any comments provided by the FLMs.\40\ Finally,
a SIP revision must provide procedures for continuing consultation
between the State and FLMs regarding the State's visibility protection
program, including development and review of SIP revisions, five-year
progress reports, and the implementation of other programs having the
potential to contribute to impairment of visibility in Class I
areas.\41\
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\39\ 40 CFR 51.308(i)(2).
\40\ 40 CFR 51.308(i)(3).
\41\ 40 CFR 51.308(i)(4).
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III. What regional haze SIPs are being addressed in this proposal?
A. Texas's First Planning Period SIP and Five-Year Progress Report SIP
Texas submitted its regional haze SIP for the first implementation
period to the EPA on March 31, 2009 (2009 Plan). The EPA issued a
limited disapproval of Texas's 2009 Plan on June 7, 2012, due to its
reliance on the Clean Air Interstate Rule (CAIR) to address BART
requirements for Texas electric generating units (EGUs).\42\ Two years
later, the EPA proposed a rule to partially approve and partially
disapprove Texas's 2009 Plan on December 16, 2014; \43\ however, due to
a related ruling from the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit),\44\ the EPA could not
finalize the December 2014 proposal in its entirety. As such, the EPA's
obligations for the first implementation period for Texas's regional
haze SIP were addressed in two separate actions.\45\
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\42\ 77 FR 33642 (June 7, 2012).
\43\ 79 FR 74818 (December 16, 2014).
\44\ EME Homer City Generation, L.P v. EPA, 795 F.3d 118 (D.C.
Cir. 2015).
\45\ 81 FR 296 (January 5, 2016); 82 FR 48324 (October 17,
2017), affirmed and supplemented in 85 FR 49170 (August 12, 2020).
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One action, finalized on January 5, 2016, addressed the first
planning period regional haze requirements in Texas except for BART
requirements for EGUs (2016 Final Rule).\46\ The 2016 Final Rule
partially approved and partially disapproved Texas's 2009 Plan.
Specifically, we disapproved the following requirements:
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\46\ 81 FR 296 (January 5, 2016). In July 2016, the 5th Circuit
Court of Appeals issued a stay of the action. Texas v. EPA, 829 F.3d
405 (5th Cir. 2016). Subsequent to the stay opinion, the EPA
requested and the court granted EPA's motion for a partial voluntary
remand.
<bullet> Section 51.308(d)(1)(i)(A), regarding Texas's
reasonable progress four factor analysis.
<bullet> Section 51.308(d)(1)(i)(B), regarding Texas's
calculation of the emission reductions needed to achieve the URPs
for the Guadalupe Mountains and Big Bend National Parks.
<bullet> Section 51.308(d)(1)(ii), regarding Texas's RPGs for
the Guadalupe Mountains and Big Bend National Parks.
<bullet> Section 51.308(d)(2)(iii), regarding Texas's
calculation of the natural visibility conditions for the Guadalupe
Mountains and Big Bend National Parks.
<bullet> Section 51.308(d)(2)(iv)(A) regarding Texas's
calculation of natural visibility impairment.
<bullet> Section 51.308(d)(3)(i) regarding Texas's long-term
strategy consultation.
<bullet> Section 51.308(d)(3)(ii) regarding Texas securing its
share of reductions in other States' RPGs.
<bullet> Section 51.308(d)(3)(iii) regarding Texas's technical
basis for its long-term strategy.
<bullet> Section 51.308(d)(3)(v)(C), regarding Texas's emissions
limitations and schedules for compliance to achieve the RPGs.
We approved the 2009 Plan as to the other regional haze rule
requirements under 40 CFR 51.308(d)(1) through (4), 40 CFR 51.308(i),
as well as Texas's BART determinations and BART rules for non-EGUs as
required under 40 CFR 51.308(e). As discussed in more detail in section
III.B of this document, we also addressed an outstanding portion of
Oklahoma's first planning period SIP (2010 Plan) related to the
requirements under 40 CFR 51.308(d)(1) due to potential impacts from
Texas sources on Oklahoma's Class I area. Specifically, we disapproved
the portion of Oklahoma's 2010 Plan that addressed 40 CFR 51.308(d)(1),
with the exception of the minimum progress requirement under 40 CFR
51.308(d)(1)(vi), which we approved. To address the deficiencies in the
SIPs, we also promulgated a FIP as part of the 2016 Final Rule that,
among other things, established SO<INF>2</INF> emission limits for 15
EGUs located at eight coal-fired power plants in Texas.
The 2016 Final Rule was challenged in the U.S. Court of Appeals for
the Fifth Circuit (Fifth Circuit), and was stayed by the court on July
15, 2016.\47\ In the court's published stay opinion, the court
determined that the Petitioners in that case showed a likelihood of
success on the merits that the EPA acted arbitrarily and capriciously
in both its disapproval of a portion of Texas's 2009 Plan and also in
promulgating a FIP to address said deficiencies, which included
SO<INF>2</INF> emission limits on 15 units at eight coal-fired power
plants in Texas. Considering the stay, the EPA requested a partial
voluntary remand of the 2016 Final Rule, which was granted by the Fifth
Circuit on March 22, 2017.\48\ On July 26, 2023, the EPA proposed a
rule to address the remanded 2016 Final Rule (2023 RP Proposal).\49\ In
the 2023 RP Proposal, the EPA proposed to disapprove the same portions
of the Texas and Oklahoma SIPs which had been previously disapproved in
the 2016 Final Rule, in certain instances supplementing and clarifying
our rationale for disapproval and, in others, incorporating our
original bases for disapproval.\50\ Additionally, in the 2023 RP
Proposal, the EPA proposed to amend the FIP portion of the 2016 Final
Rule, by rescinding the control measures it previously promulgated for
15 EGUs in Texas.\51\
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\47\ Texas v. EPA, 829 F.3d 405, 411 (5th Cir. 2016).
\48\ Texas v. EPA, Case No. 16-60118, Order (March 22, 2017).
\49\ 88 FR 48152 (July 26, 2023).
\50\ 88 FR 48152, 48159 (July 26, 2023).
\51\ 88 FR 48152, 48159 (July 26, 2023).
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During remand proceedings, notably while working to respond to the
public comments received on the 2023 Proposals, the EPA became aware
that key documents in the administrative record of the 2016 Final Rule
were no longer in the EPA's possession. As such, on September 3, 2024,
the EPA filed a motion for voluntary vacatur, acknowledging that the
administrative record no longer contained information required by the
Federal Rules of Appellate Procedure and the Clean Air Act for judicial
review of the EPA's partial SIP disapprovals and FIPs.\52\ The Fifth
Circuit granted the EPA's motion for partial voluntary vacatur on
December 17, 2024, vacating the SIP disapproval and FIP portions of the
2016 Final Rule.\53\
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\52\ Respondents' Motion for Voluntary Vacatur, Texas v. EPA,
Case No. 16-60118 (September 3, 2024).
\53\ Texas v. EPA, Case No. 16-60118, Order (December 17, 2024).
Because the EPA's motion for vacatur was specific to the SIP
disapprovals and the FIPs and the Fifth Circuit granted this motion,
the court vacated the disapproval and FIP portions of the 2016 Final
Rule, leaving the approvals intact. Thus, we are leaving our prior
approvals in place and not reconsidering or reopening those
determinations in this action.
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[[Page 22171]]
The second action, finalized on October 17, 2017, and affirmed and
supplemented on August 12, 2020, promulgated a FIP to address the BART
requirements for Texas EGUs for which we disapproved back in 2012.\54\
The FIP established an intrastate SO<INF>2</INF> Trading Program that
served to satisfy SO<INF>2</INF> BART requirements for Texas EGUs and
relied on CSAPR participation as a NO<INF>X</INF> BART alternative for
Texas EGUs. The EPA is not addressing BART requirements for Texas EGUs
in this action.\55\
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\54\ See 82 FR 48324 (October 17, 2017); 85 FR 49170 (August 12,
2020).
\55\ In 2023, the EPA proposed to reconsider its 2020 BART FIP
for EGUs. See 88 FR 28918 (May 4, 2023). The proposed 2023 has not
been finalized and the 2020 final FIP is still in place.
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On March 24, 2014, Texas submitted its five-year progress report as
a SIP revision (2014 Plan) under 40 CFR 51.308(g) and (h). The EPA is
subject to a consent decree deadline of December 15, 2026, to act on
Texas's 2014 Plan.\56\
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\56\ Our Children's Earth Foundation v. Regan, Case 1:23-CV-
02848, Consent Decree (May 31, 2024).
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B. Oklahoma's First Planning Period SIP
Oklahoma submitted its regional haze SIP revision on February 19,
2010 (2010 Plan). We finalized a partial approval and partial
disapproval of that submittal on December 28, 2011, but did not act on
the portions of the SIP that addressed reasonable progress as required
by 40 CFR 51.308(d)(1). We deferred consideration of the reasonable
progress requirements because to properly assess whether Oklahoma had
satisfied these requirements, we first needed to evaluate and act upon
the regional haze SIP revision submitted by the State of Texas.\57\ On
December 16, 2014, we proposed to disapprove the portion of the
Oklahoma regional haze SIP that addressed 40 CFR 51.308(d)(1), with the
exception of the minimum progress requirement under 40 CFR
51.308(d)(1)(vi), which we approved.\58\ The disapproval stemmed from
consideration of impacts from Texas sources in establishing the
reasonable progress goals for Wichita Mountains. In that same proposed
action, we proposed a FIP for both Texas and Oklahoma. Specific to
Oklahoma, the FIP proposed to reset Oklahoma's RPGs based on our
proposed finding that the controls we proposed for the Texas FIP also
served to cure the defects in these sections of Oklahoma's regional
haze SIP as well, thus satisfying the FIP obligation stemming from our
proposed disapproval of portions of the Oklahoma SIP. The proposed
partial disapproval and FIP for Oklahoma were finalized with our
concurrent FIP for Texas (2016 Final Rule).\59\
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\57\ 76 FR 81728 (December 28, 2011). In this earlier action, we
also disapproved the SO<INF>2</INF> BART determinations for six EGUs
at three power plants in Oklahoma and promulgated a FIP that
established SO<INF>2</INF> emission limits for these EGUs.
Subsequently, we approved a SIP revision from Oklahoma addressing
the BART requirements for two EGUs at one power plant and removed
the FIP requirements for this facility. 79 FR 12944 (March 7, 2014).
\58\ 79 FR 74818 (December 16, 2014).
\59\ 81 FR 296 (January 5, 2016).
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However, as discussed in section III.A. of this document, the Fifth
Circuit granted the EPA's motion for voluntary vacatur on December 17,
2024, vacating the SIP disapprovals and FIP portions of the 2016 Final
Rule for Oklahoma and Texas.\60\ Because the EPA's 2016 Final Rule SIP
disapprovals and FIPs were vacated, the EPA now has an outstanding
obligation to act on those portions of Oklahoma's first planning period
SIP that address 40 CFR 51.308(d)(1), with the exception of 40 CFR
51.308(d)(1)(vi) which we previously approved. We provide our
evaluation of those requirements in section V.B of this document.
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\60\ Texas v. EPA, Case No. 16-60118, Order (December 17, 2024).
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C. Texas's Second Planning Period SIP
In accordance with CAA sections 169A and the RHR at 40 CFR
51.308(f) and (i), on July 20, 2021, Texas submitted a SIP revision to
address its regional haze obligations for the second implementation
period, which runs through 2028 (2021 Plan). Texas made its 2021 Plan
available for public comment on October 9, 2020. Texas received and
responded to public comments and included the comments and responses to
those comments in their submission.
IV. Withdrawal of the 2023 RP Proposed Disapprovals
As previously discussed, EPA's 2016 Final Rule SIP disapprovals and
FIPs were vacated by the Fifth Circuit. Therefore, the EPA now has an
outstanding obligation to act on those portions of Texas's first
planning period SIP, which we are proposing to act on in this action.
The 2016 Final Rule 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) regarding setting RPGs, with
the exception of section 51.308(d)(1)(iv). Because the Fifth Circuit's
order vacated the SIP disapprovals and FIPs, the EPA's 2023 RP Proposal
can no longer stand, as that proposed action either relied upon the
2016 Final Rule or proposed to modify portions of the rule that have
since been vacated by the court. As such, the EPA is now proposing to
withdraw the 2023 proposed disapprovals. Commenters who would like the
EPA to consider any comments submitted on the 2023 RP Proposal, 88 FR
48152 (July 26, 2023), must resubmit such comments during the comment
period for this proposed action.\61\
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\61\ The rulemaking docket for the now withdrawn action is
available under Docket ID EPA-R06-OAR-2014-0754 at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
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V. The EPA's Evaluation and Proposed Action on The First Planning
Period Regional Haze SIPs
In this action, we are proposing to approve those portions of the
Texas and Oklahoma first planning period SIPs that were vacated by the
Fifth Circuit. Specifically, the EPA is now acting on the portions of
the Texas 2009 Plan SIP addressing the following requirements:
<bullet> Section 51.308(d)(1)(i)(A) and 51.308(d)(1)(ii),
regarding Texas's consideration of the four statutory factors in
establishing its reasonable progress goals for the Guadalupe
Mountains and Big Bend National Parks;
<bullet> Section 51.308(d)(1)(i)(B), regarding Texas's
calculation of the emission reductions needed to achieve the uniform
rates of progress for the Guadalupe Mountains and Big Bend National
Parks;
<bullet> Section 51.308(d)(2)(iii), regarding Texas's
calculation of natural visibility conditions for the Guadalupe
Mountains and Big Bend National Parks;
<bullet> Section 51.308(d)(2)(iv)(A), regarding Texas's
calculation of the number of deciviews by which baseline conditions
exceed natural visibility conditions for the Guadalupe Mountains and
Big Bend National Parks;
<bullet> Section 51.308(d)(3)(i), regarding consultation
requirements with other States where emissions from Texas are
reasonably anticipated to contribute to visibility impairment in any
Class I area located in another State or States;
<bullet> Section 51.308(d)(3)(ii), regarding Texas securing its
share of reductions necessary to achieve the reasonable progress
goals at impacted Class I areas in other States;
<bullet> Section 51.308(d)(3)(iii), regarding Texas's
documentation of its technical basis for which it is relying on to
determine its apportionment of emission reductions necessary for
those Class I areas in other States for which it affects; and
<bullet> Section 51.308(d)(3)(v)(C), regarding Texas's emission
limitations and schedules for compliance to achieve the reasonable
progress goals.
Similarly, we are also addressing the portion of Oklahoma's first
planning period SIP addressing section
[[Page 22172]]
51.308(d)(1) \62\ which we previously disapproved.\63\
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\62\ Excluding the portion addressing section 51.308(d)(1)(vi),
which we previously approved.
\63\ 79 FR 74818 (December 16, 2014).
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In support of this proposed action, the EPA's evaluation takes into
account the requirements of the CAA and RHR, and the published stay
opinion from the Fifth Circuit which outlined that Petitioners had a
strong likelihood of success on the merits in showing that EPA was
arbitrary and capricious and exceeded its statutory authority in
partially disapproving the Texas and Oklahoma plans and replacing
portions of them with a FIP. Because Texas considered the four factors
and otherwise met the outstanding first planning period rule
requirements contained in section 51.308(d), we are now proposing
approval of Texas's 2009 Plan. Approval of the 2009 SIP is further
warranted due to BART obligations for EGUs that have been addressed
since 2017 and affirmed in 2020.\64\ The EPA also notes that emission
reductions and improvements in visibility have far exceeded the
reductions and improvements contemplated in the 2009 Plan and that the
Fifth Circuit weighed the improvements in monitored visibility
exceeding the goals in its 2016 stay opinion. Finally, because our
previous disapproval of portions of Oklahoma's 2010 Plan were largely
contingent on our disapproval of portions of Texas's 2009 Plan, we are
also proposing to approve the portion of Oklahoma's 2010 Plan that
addresses section 51.308(d)(1).\65\
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\64\ See 82 FR 48324 (October 17, 2017); 85 FR 49170 (August 12,
2020).
\65\ Excluding the portion addressing section 51.308(d)(1)(vi),
which we previously approved.
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A. Texas's 2009 Plan
1. Calculations of Natural Visibility Conditions and Uniform Rate of
Progress
As required by section 51.308(d)(2)(i) and (iii) of the Regional
Haze Rule, and in accordance with EPA's 2003 Natural Visibility
Guidance,\66\ Texas calculated baseline (which were current at the
time) \67\ and natural visibility conditions for its two Class I areas,
Big Bend National Park (Big Bend) and Guadalupe Mountains National Park
(Guadalupe Mountains), on the most impaired and least impaired days.
The EPA previously found that Texas satisfied the requirement under 40
CFR 51.308(d)(2)(i) to calculate baseline visibility conditions, and as
stated earlier in this action, we are not reconsidering or reopening
that determination. The EPA is now proposing to approve Texas's 2009
Plan, including the requirement to calculate natural visibility
conditions under 40 CFR 51.308(d)(2)(iii). Additionally, and stemming
from the approval of Texas's calculation of natural visibility
conditions, the EPA is proposing to find that Texas satisfied the
requirements of 40 CFR 51.308(d)(2)(iv)(A) \68\ with respect to the
calculation of natural visibility impairment at Big Bend and Guadalupe
Mountains and 40 CFR 51.308(d)(1)(i)(B) for calculating the uniform
rate of improvement (URP) for Big Bend and Guadalupe Mountains.
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\66\ Guidance for Estimating Natural Visibility Conditions Under
the Regional Haze Rule, EPA-454/B-03-005, September 2003.
\67\ Because this was the first planning period of the regional
haze program, baseline visibility conditions and current visibility
conditions were the same.
\68\ In the 2017 RHR Revision, the EPA modified the regulation
containing the requirement for States to calculate natural
visibility conditions. The requirement under 40 CFR
51.308(d)(2)(iv)(A) is now found at 40 CFR 51.308(d)(2)(iv).
---------------------------------------------------------------------------
Under 40 CFR 51.308(d)(2)(iii), States must determine natural
visibility conditions for the most impaired and least impaired days for
the Class I areas located in the State. While the Regional Haze Rule
requires States to calculate natural visibility conditions for those
Class I areas located in the State, the rule does not require that
natural visibility conditions be calculated in a specific manner, thus
providing States with discretion so long as that discretion is
reasonable. The rule simply requires that States base such calculations
on available monitoring information and appropriate data analysis
techniques. To assist States in calculating natural visibility
conditions, the EPA issued guidance that provided default natural
conditions for the 20% most impaired and 20% least impaired days for
each Class I area based on the original IMPROVE equation. However, the
guidance also explained that States are allowed to use a ``refined''
approach or alternative approaches to the guidance defaults to estimate
the values that characterize the natural visibility conditions of their
Class I areas.\69\ The default natural conditions in our 2003 guidance
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.\70\ These estimates are referred to as the ``NC II''
default natural visibility conditions. Texas started with this refined
version of default natural visibility conditions, but altered the
parameters concerning the contributions of coarse mass and fine soil by
assuming that 100% of the fine soil and coarse mass concentrations in
the baseline period should be attributed to natural causes and that the
corresponding estimates in the NC II values should be replaced.\71\ For
the 20% most impaired days, the TCEQ calculated natural visibility
conditions for Big Bend and the Guadalupe Mountains of 10.09 dv and
12.26 dv, respectively. For the 20% least impaired days, the TCEQ
calculated that natural visibility conditions for Big Bend and the
Guadalupe Mountains of 2.19 dv, and 2.10 dv, respectively.\72\
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\69\ Guidance for Estimating Natural Visibility Conditions Under
the Regional Haze Rule, EPA-454/B-03-005, September 2003).
\70\ This information is included in our docket for this action
and is also available at <a href="https://vista.cira.colostate.edu/Improve/rhr-archived-data/">https://vista.cira.colostate.edu/Improve/rhr-archived-data/</a>.
\71\ 2009 Texas Regional Haze Plan, at 5-5--5-6.
\72\ 2009 Texas Regional Haze Plan, at 5-3--5-6.
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Texas's 2009 Plan included an appendix with technical documents to
support its decision to assume that 100% of the fine soil and coarse
mass concentrations should be attributed to natural sources. These
robust technical documents provided a detailed analysis and explanation
of the land cover of the surrounding desert landscape, which consists
primarily of highly erodible soils; the prevalence of dust storms; the
general lack of potential anthropogenic sources of coarse mass and soil
in the area surrounding the Class I areas; and the fact that the
monitors, especially the Big Bend monitor, are located in areas that
have restrictions in place to minimize human impact on its desert
environment.\73\ For these reasons, we propose to find that Texas's
refined calculation of natural visibility conditions for both Big Bend
and Guadalupe Mountains was reasonable and well within the discretion
afforded to States in developing SIPs.\74\ Furthermore, Texas points
out that, consistent with the approach followed for the first planning
period--which focused on the 20% haziest days rather than the 20% of
days with the greatest anthropogenic visibility impairment as EPA now
requires for second planning period and subsequent SIPs--the 20%
haziest days may involve days in which natural sources of visibility
impairment play a large factor.\75\ Thus, it is not
[[Page 22173]]
unreasonable for Texas to assume that given the surrounding desert
landscape and scarcity of anthropogenic sources that natural sources of
fine soil and coarse mass dominated visibility impairment. Accordingly,
we are proposing to approve Texas's calculation of natural visibility
conditions as required by 40 CFR 51.308(d)(2)(iii).
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\73\ See Texas's 2009 Plan, appendix 5-2.
\74\ Texas's 2009 Plan also notes that to the extent its
approach over-estimates the percentage of coarse mass and fine soil
that is natural, the approach it relied on to estimate organic
carbon is likely an underestimation and thus more than compensate
for any over-estimation in coarse mass or fine soil. See 2009 Plan,
appendix 5-2.
\75\ As explained in the 2017 revisions to the RHR, the approach
followed for the first implementation period involved selecting the
least and most impaired days as the monitored days with the lowest
and highest actual deciview levels regardless of the source of the
particulate matter causing the visibility impairment. While the EPA
approved SIPs using this approach for the first implementation
period, the 2017 revisions to the RHR explained that for the most
impaired days an approach focusing on anthropogenic impairment is
more appropriate because it will more effectively track whether
states are making progress in controlling anthropogenic sources.
Because the 1999 RHR rule text already refers to the 20 percent most
impaired days, we did not propose to change that wording. In the
preamble to the proposal, we made clear that going forward, we would
interpret ``most impaired days'' to mean those with the greatest
anthropogenic visibility impairment, as opposed to the 20 percent
haziest days. 82 FR 3078, 3101 (January 10, 2017).
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Section 51.308(d)(2)(iv)(A) requires States to calculate the number
of dv by which baseline conditions exceed natural visibility conditions
for the most impaired and least impaired days for each Class I area
located within the State. The natural visibility impairment is
calculated by subtracting the natural visibility calculation from the
baseline visibility calculation. In Chapter 5 of the 2009 Plan, Texas
calculated the number of dv by which baseline conditions exceed natural
visibility conditions for the most impaired and least impaired days and
at Big Bend and the Guadalupe Mountains. This information is summarized
below:
Table 1--Texas Class I Areas Natural and Baseline Visibility Impairment
------------------------------------------------------------------------
Haze index (deciviews)
Class I Area -------------------------------
Most impaired Least impaired
------------------------------------------------------------------------
Estimate of Natural Visibility Conditions
------------------------------------------------------------------------
Big Bend................................ 10.09 2.19
Guadalupe Mountains..................... 12.26 2.10
------------------------------------------------------------------------
Baseline Visibility Conditions (2000-2004)
------------------------------------------------------------------------
Big Bend................................ 17.30 5.78
Guadalupe Mountains..................... 17.19 5.95
------------------------------------------------------------------------
Estimate of Extent Baseline Exceeds Natural Visibility Conditions
------------------------------------------------------------------------
Big Bend................................ 7.21 3.59
Guadalupe Mountains..................... 4.93 3.85
------------------------------------------------------------------------
Because we are proposing to approve the calculation of natural
visibility conditions and we previously approved Texas's calculation of
baseline visibility conditions, we are proposing to approve Texas's
calculation of the number of deciviews by which baseline conditions
exceed natural conditions for the most impaired and least impaired days
at the Texas Class I areas, under 40 CFR 51.308(d)(2)(iv)(A).
Section 51.308(d)(1)(i)(B) requires that States analyze and
determine the rate of progress needed to attain natural visibility
conditions by the year 2064. Also, in establishing its RPGs, States
must consider the uniform rate of improvement in visibility and the
emission reduction measures needed to achieve it for the period covered
by the SIP. To calculate this rate of progress, the State must compare
baseline visibility conditions to natural visibility conditions in the
mandatory Federal Class I area and determine the uniform rate of
visibility improvement (measured in deciviews) that would need to be
maintained during each implementation period to attain natural
visibility conditions by 2064. The TCEQ analyzed and determined the URP
needed to reach natural visibility conditions by the year 2064. Also,
in establishing its RPGs, the TCEQ considered the uniform rate of
improvement in visibility and the emission reduction measures needed to
achieve this rate for the period covered by the SIP. In Chapter 10 of
the 2009 Plan, Texas compared the baseline visibility conditions to the
natural visibility conditions for Big Bend and the Guadalupe Mountains,
and determined the URP needed to attain natural visibility conditions
by 2064.\76\ The TCEQ constructed the URP by plotting a straight
graphical line from the baseline level of visibility impairment to the
level of visibility conditions representing natural conditions in 2064
for both Big Bend and the Guadalupe Mountains.\77\ The first benchmark
year is 2018 and the calculated improvement required to attain the
desired rate of progress is 1.7 dv for Big Bend and 1.2 dv for
Guadalupe Mountains.\78\ Using the baseline visibility values and
natural visibility values discussed above, the TCEQ calculated the URP
for Big Bend to be 0.12 dv/year, and that for the Guadalupe Mountains
to be 0.08 dv/yr.\79\ The information is summarized in the table below:
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\76\ 2009 Plan, at 10-1--10-3.
\77\ 2009 Plan, at 10-1--10-3
\78\ 2009 Plan, at 10-1--10-3.
\79\ 2009 Plan, at 10-1--10-3.
[[Page 22174]]
Table 2--Texas Summary of Uniform Rate of Progress
------------------------------------------------------------------------
Guadalupe
Visibility metric Big bend (dv) mountains (dv)
------------------------------------------------------------------------
Baseline Conditions..................... 17.30 17.19
Natural Visibility...................... 10.09 12.26
Total Improvement by 2064............... 7.21 4.93
Uniform Rate of Progress (dv/year)...... 0.12 0.08
Improvement Needed by 2018.............. 1.7 1.2
------------------------------------------------------------------------
The EPA finds Texas's analysis to be reasonable. Therefore, because
Texas correctly followed the procedures for analyzing and determining
the rate of progress needed to attain natural visibility conditions by
the year 2064 consistent with the requirements of the Regional Haze
Rule, the EPA is proposing to approve Texas's calculation of the rate
of progress needed to attain natural visibility conditions by the year
2064 as required by 40 CFR 51.308(d)(1)(i)(B).
Additionally, in Chapter 10 of the 2009 Plan, Texas provided a
table showing the additional improvement needed to meet the uniform
rate of progress for the planning period covered and the estimated
emission reductions necessary to achieve it.\80\
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\80\ 2009 Plan, at 10-10. We note that the table provided in
Texas's 2009 Plan appears to reflect estimates of visibility
benefits from an earlier draft of the Texas Regional Haze SIP. In
that draft SIP, the TCEQ estimated the visibility benefit from a
certain set of controls to be 0.05 dv at each Class I area. Updating
these calculations with TCEQ's final estimation of the visibility
benefit from the TCEQ control set of 0.16 dv at Big Bend and 0.22 dv
at Guadalupe Mountains yields revised amounts of 1,100,000 tons of
SO<INF>2</INF> and NO<INF>X</INF> reductions at a cost of
$2,000,000,000 for Big Bend, and 250,000 tons of SO<INF>2</INF> and
NO<INF>X</INF> reductions at a cost of $440,000,000 for Guadalupe
Mountains. 2009 Plan, at 10-6, 10-9 to 10-10. See also, <a href="https://wayback.archive-it.org/414/20210529054132/https://www.tceq.texas.gov/assets/public/implementation/air/sip/haze/4HazeSIPcompare_rev.pdf">https://wayback.archive-it.org/414/20210529054132/https://www.tceq.texas.gov/assets/public/implementation/air/sip/haze/4HazeSIPcompare_rev.pdf</a>.
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Because we find Texas's consideration of the uniform rate of
improvement and the emission reduction measures needed to achieve it
for period covered the by SIP as required by RHR reasonable, we are
proposing to approve Texas's 2009 Plan as to the requirements in 40 CFR
51.308(d)(1)(i)(B).
2. RPGs and Visibility Improvements
Under 40 CFR 51.308(d)(1), States with Class I areas are required
to establish goals that provide for reasonable progress toward
achieving natural visibility conditions. In establishing an RPG, a
State must consider the four statutory factors outlined in CAA Section
169(A)(g)(1), ``the costs of compliance, the time necessary for
compliance, the energy and nonair 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.'' The reasonable
progress goals established by the State must provide for an improvement
in visibility for the most impaired days over the period of the
implementation plan and ensure no degradation in visibility for the for
least impaired days over the same period.
As required by 40 CFR 51.308(d)(1), Texas established reasonable
progress goals (RPGs) for its two Class I areas, Big Bend and Guadalupe
Mountains. In Chapter 10 of its SIP, Texas explained that its RPGs were
derived from the CENRAP \81\ modeling and reflect emissions reductions
programs already in place, including assumed reductions under the Clean
Air Interstate Rule (CAIR) \82\ and additional refinery SO<INF>2</INF>
reductions as a result of EPA's refinery consent decrees. The following
tables summarize the RPGs Texas established for its two Class I
areas.\83\
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\81\ 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 the Central Regional Air Planning
Association (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. Since CENRAP was the entity which
conducted technical analyses during the first planning period, this
notice references CENRAP when discussing Texas's 2009 Plan and
Oklahoma's 2010 Plan.
\82\ CAIR required certain States, including Texas, to reduce
emissions of SO<INF>2</INF> and NO<INF>X</INF> that significantly
contribute to downwind nonattainment of the 1997 NAAQS for fine
particulate matter and ozone. See 70 FR 25152 (May 12, 2005).
\83\ 2009 Plan, at 10-1--10-4.
Table 3--Texas Class I Areas 20 Percent Worst Days
----------------------------------------------------------------------------------------------------------------
Improvement in
Class I Area Baseline (dv) RPG for 2018 visibility
(dv) (dv)
----------------------------------------------------------------------------------------------------------------
Big Bend........................................................ 17.3 16.6 0.7
Guadalupe Mountains............................................. 17.2 16.3 0.9
----------------------------------------------------------------------------------------------------------------
Table 4--Texas Class I Areas 20 Percent Least Impaired Days
----------------------------------------------------------------------------------------------------------------
Improvement in
Class I Area Baseline (dv) RPG for 2018 visibility
(dv) (dv)
----------------------------------------------------------------------------------------------------------------
Big Bend........................................................ 5.8 5.6 0.2
Guadalupe Mountains............................................. 5.9 5.7 0.2
----------------------------------------------------------------------------------------------------------------
[[Page 22175]]
Based on the results of Texas's required reasonable progress four-
factor analysis (described in the following paragraph), and the results
of the CENRAP modeling, the TCEQ adopted the CENRAP modeled 2018
visibility conditions as the RPGs for the Big Bend and Guadalupe
Mountains Class I areas. The TCEQ established a RPG of 16.6 dv for Big
Bend and 16.3 dv for Guadalupe Mountains for the 20% most impaired days
for 2018. This represents a 0.7 dv and 0.9 dv improvement in visibility
over the baseline conditions at Big Bend and Guadalupe Mountains,
respectively.
As part of establishing the RPGs for Big Bend and Guadalupe
Mountains in its first planning period SIP revision, Texas conducted a
control strategy analysis to inform its consideration of the four
statutory factors. As part of its analysis, Texas assessed the costs of
potential controls and reductions for Texas point sources at ten Class
I areas, including the two Texas Class I areas and those in nearby
States, such as the Wichita Mountains Wilderness Area (Wichita
Mountains) in Oklahoma. Texas focused its control strategy analysis on
emissions of SO<INF>2</INF> and NO<INF>X</INF> from point sources.
Texas focused on point sources of SO<INF>2</INF> and NO<INF>X</INF> as
these sources are the main anthropogenic pollutants that affect
visibility at Class I areas in Texas based on source apportionment
modeling conducted by CENRAP.\84\ Having narrowed the scope of the
control analysis to emissions of SO<INF>2</INF> and NO<INF>X</INF> from
point sources, Texas then developed a list of potential controls and
costs associated with those controls to inform the four-factor
analysis, using the CENRAP control strategy analysis as the starting
point.\85\ Texas adjusted CENRAP's analysis for Texas sources based on
additional information and past experience. Texas also added some
additional carbon black sources, which were not included in the CENRAP
analysis. This work resulted in a list of potential add-on controls for
reducing SO<INF>2</INF> and NO<INF>X</INF> at Texas point sources.
Sources with potential control strategy costs greater than $2,700 per
ton SO<INF>2</INF> or NO<INF>X</INF> were initially screened out to
limit the population to potential sources with relatively cost-
effective control strategies. Then, to better capture the point sources
that the State believed were likely to contribute to visibility
impairment at Class I areas, Texas screened out potential controls and
sources using several different methods including a Q/d \86\ (using
estimated projected 2018 base annual emissions) of less than five, an
area of influence (AOI) analysis, and any source with predicted 2018
emissions of less than 100 tons per year.\87\ The final list of sources
and potential controls resulted in the evaluation of SO<INF>2</INF>
controls at 13 facilities \88\ and NO<INF>X</INF> controls at 15
facilities.\89\ Further information about the types of controls
considered, as well as the associated emission reductions and costs are
detailed in appendix 10-1 of Texas's 2009 Plan.
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\84\ 2009 Plan, at 10-2; appendix 10-1.
\85\ 2009 Plan, at 10-4.; 2009 Plan, appendix 10-1. CENRAP
contracted with Alpine Geophysics to conduct an evaluation of
possible additional point-source add-on controls for sources in
CENRAP States. The Alpine Geophysics evaluation relied on AirControl
NET, a database tool the EPA released in 2006 to enable cost benefit
analyses of potential emissions control measures and strategies.
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.
\86\ 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.
\87\ Texas also excluded additional NO<INF>X</INF> controls on
cement kilns from consideration, as it concluded it had already
required all the measures it had determined reasonable to control
NO<INF>X</INF> emissions from these sources in the latest Dallas-
Fort Worth ozone SIP revision.
\88\ SO<INF>2</INF> sources considered were Sommers Deely
Spruce, Bryans Mill Plant, Big Brown, Coleto Creek Plant, Chemical
Manufacturing, Deer Park Plant, Houston Plant, Como Plant, Waha
Plant, Monticello, and three carbon black facilities (Big Spring,
Borger, and Echo).
\89\ NO<INF>X</INF> sources considered were Sommers Deely
Spruce, Texarkana Mill, Guadalupe Compressor Station, Fayette Power
Project, Big Brown, Pampa Plant, Chemical Manufacturing, Tolk,
Limestone, Sandow, Guardian Industries, Harrington Station, Martin
Lake, Monticello, and Works No. 4.
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Texas then calculated the total cost of SO<INF>2</INF> and
NO<INF>X</INF> controls and the resulting emission reductions by
summing the individual costs of the identified controls. Texas's
control set for SO<INF>2</INF> had an estimated cost of approximately
$270,800,000 and a projected reduction of 155,873 tpy. Texas's control
set for NO<INF>X</INF> point sources had an estimated cost of
$53,500,000 and a projected reduction of 27,132 tpy. Using CENRAP's
modeling as a starting point, Texas also estimated the additional
visibility benefit that would result in 2018 from controlling the
sources it identified. The additional visibility benefit considered by
Texas was beyond that already accounted for in the CENRAP modeling for
2018, which included the on-the-books controls, including CAIR/BART,
for each State in the CENRAP region.
Using the above control strategy analysis, Texas then considered
and weighed the four statutory factors in determining the
reasonableness of additional controls and selecting the RPGs for Big
Bend and Guadalupe Mountains. As part of the four-factor analysis,
Texas identified the cost of compliance as the key factor.\90\ With
respect to the cost of compliance, Texas found that at a total
estimated cost of over $300 million and with no perceptible visibility
benefit, it was not reasonable to implement any additional
controls.\91\ 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. Texas
noted that the time necessary for compliance was not a critical factor
for the determination of applicable additional controls for Texas
sources, and that to the extent energy impacts were quantifiable for a
particular control, they were included in its cost estimates.\92\
Additionally, Texas did not assume any limited useful equipment
life.\93\
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\90\ 2009 Plan, at 10-7.
\91\ 2009 Plan, at 10-7.
\92\ 2009 Plan, at 10-8.
\93\ 2009 Plan, at 10-8.
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The RPGs established by Texas provided for an improvement in
visibility conditions for the most impaired days over the first
planning period and ensured no degradation in visibility for the least
impaired days over the same period. Additionally, Texas's SIP included
a demonstration showing how these factors were taken into consideration
in selecting the goal. As outlined in the Fifth Circuit's 2016 stay
opinion, the court determined that Petitioners had a likelihood of
success on the merits in demonstrating that the EPA's prior disapproval
of Texas's 2009 Plan and the EPA's FIP was unreasonable and thus
arbitrary and capricious. We therefore find Texas's decision to focus
the analysis of the four statutory factors on emissions of
NO<INF>X</INF> and SO<INF>2</INF> from point sources to be reasonable,
as the CENRAP modeling results and the TCEQ's analysis in Chapter 11
and appendix 10-1 of the Texas 2009 Plan indicate that the predominant
anthropogenic pollutants that affect Texas Class I areas are largely
due to sulfate and nitrate, primarily from point sources. We also find
that TCEQ adequately considered the four factors. Neither the CAA nor
the RHR rule specify the specific amount of progress that States are
required to make as part of establishing their reasonable progress
goal. Rather, the purpose of the statute and RHR simply requires States
to achieve ``reasonable'' progress, not maximal progress, toward
Congress's natural visibility goal. Additionally, we find that Texas
was reasonable in determining that no further emission
[[Page 22176]]
reductions were necessary beyond what was accounted for in the CENRAP
modeling, which included the emission reductions which were anticipated
under the CAIR program (or its replacement). As discussed in the
following paragraphs, Texas SO<INF>2</INF> Trading Program and the
CSAPR NO<INF>X</INF> Program serve as replacements for the reductions
anticipated from the CAIR program.
Texas's 2009 Plan sought to satisfy SO<INF>2</INF> and
NO<INF>X</INF> BART requirements for EGUs, by relying on the finding in
place at the time that CAIR was better than BART, and that
participation in CAIR would satisfy these BART requirements for
participating EGUs.\94\ Chapter 10.5 of Texas's 2009 Plan discusses the
emission reductions that CAIR or its replacement will bring about
during the first planning period in terms of EGU emissions. Due to the
uncertainty in the amount of reductions that CAIR would bring about,
Texas relied on the Integrated Planning Model (IPM) projection. The IPM
projection estimated that Texas SO<INF>2</INF> emissions in 2018 would
be 350,000 tpy. Texas estimated that CAIR would bring about over
200,000 tpy of SO<INF>2</INF> reductions over the course of the first
planning period.\95\ These reductions are reflected in the projected
2018 visibility improvement in the CENRAP modeling relied upon to
establish the RPGs.
---------------------------------------------------------------------------
\94\ As mentioned earlier, because CAIR was vacated, the EPA
issued a limited disapproval of Texas's 2009 Plan on June 7, 2012,
due to its reliance on the Clean Air Interstate Rule (CAIR) to
address BART requirements for Texas EGUs.
\95\ Chapter 10.5 of Texas's 2009 Plan discusses the emission
reductions that CAIR or its replacement will bring about during the
first planning period in terms of EGU emissions.
---------------------------------------------------------------------------
In promulgating the Texas SO<INF>2</INF> Trading Program as a BART
alternative that satisfies the SO<INF>2</INF> BART requirements for
certain Texas EGUs, the EPA modeled it after the EPA's CSAPR
SO<INF>2</INF> Group 2 Trading Program.\96\ The CSAPR trading programs
were promulgated to replace CAIR. Because it was modeled after the
CSAPR SO<INF>2</INF> Group 2 Trading Program, the Texas SO<INF>2</INF>
Trading Program established a stringency level comparable to CSAPR in
Texas. Specifically, Texas's EGUs under CSAPR were estimated to be
around 317,100 tons per year whereas the Texas SO<INF>2</INF> Trading
Program created an assurance level set at 255,083 tons.\97\ In
addition, in our action promulgating the Texas SO<INF>2</INF> Trading
Program, the EPA also relied on CSAPR participation as a NO<INF>X</INF>
BART alternative for Texas EGUs.\98\ Thus, the current FIP in place
that satisfies BART requirements for EGUs in Texas is consistent with
the approach in the Texas's 2009 Plan that relied on emission
reductions under CAIR and ensures that the EGU emissions are kept below
a specified assurance level.
---------------------------------------------------------------------------
\96\ 85 FR 49170, 49181, 49184 (August 12, 2020).
\97\ 85 FR 49170, 49184 (August 12, 2020).
\98\ 82 FR 48328 (October 17, 2017).
---------------------------------------------------------------------------
Therefore, because Texas considered the four statutory factors in
establishing its reasonable progress goals for Big Bend and Guadalupe
Mountains National Park, the EPA is proposing that Texas's 2009 Plan
has met the requirements of 40 CFR 51.308(d)(1)(i)(A).
40 CFR 51.308(d)(1)(ii)
Additionally, under 40 CFR 51.308(d)(1)(ii), if the 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, the State must demonstrate, based on the four
factors, that the rate of progress to attain natural conditions by 2064
is not reasonable, and that the RPG adopted by the State is reasonable.
The State must also provide an assessment of the number of years it
would take to attain natural conditions if visibility improvement
continues at the rate of progress selected by the State as reasonable.
Texas's RPGs for the 20% worst days established a slower rate of
progress than the URP for Big Bend and the Guadalupe Mountains. Texas
calculated that under the rate of progress it selected as reasonable,
natural visibility conditions (as calculated by Texas) would not be
attained at Big Bend until 2155 and at the Guadalupe Mountains until
2081.\99\
---------------------------------------------------------------------------
\99\ Texas also included calculations based on the EPA's default
natural conditions, estimating attainment of natural visibility
conditions at the Big Bend in 2215 and Guadalupe Mountains in 2167
in appendix 10-3 of its regional haze SIP.
---------------------------------------------------------------------------
Texas submitted that the RPGs it established for Big Bend and the
Guadalupe Mountains on the 20% worst days were reasonable, and that it
was not reasonable to achieve the glide path in 2018. In support of
this conclusion, Texas reiterated the over $300 million cost of
compliance figure it calculated and the lack of visibility benefits it
estimated as part of its four-factor analysis. Texas also took other
factors into consideration in determining that it is not reasonable to
achieve the glide paths in 2018 and that the RPGs adopted by the State
were reasonable. Among these other factors, Texas specifically
indicated that the ability to meet the URP or make additional progress
towards reaching natural visibility conditions was impeded primarily by
the significant contribution of emissions from Mexico and other
international sources. As support, Texas included a discussion of the
pollutant contributions and the sources of visibility impairment at
these Class I areas (see section 10.6. and Chapter 11 of the 2009
Plan). This discussion showed that based on Particulate Matter Source
Apportionment Technology (PSAT) analysis conducted by CENRAP, 52
percent of the impairment at Big Bend and 25 percent of the impairment
at Guadalupe Mountains was from Mexico and areas further south.\100\
---------------------------------------------------------------------------
\100\ 2009 Plan, at 10-10.
---------------------------------------------------------------------------
In our prior disapproval of Texas's RPGs, we expressed concerns
with how Texas weighed the four factors, primarily as it related to
consideration of costs and visibility benefits. As mentioned
previously, the Fifth Circuit determined that the EPA's disapprovals
would likely be found to be arbitrary and capricious. The court also
determined that the Petitioners had a likelihood of success on the
merits of demonstrating that the EPA's FIP was unreasonable and likely
arbitrary and capricious. Specifically, the court noted that the EPA's
FIP would require a number of costly control measures to be installed
though the visibility conditions at the time were already better than
Texas's RPGs and the RPGs the EPA established in the FIP. Therefore,
the EPA is proposing to approve the portion of Texas's 2009 Plan
addressing the requirements of 40 CFR 51.308(d)(1)(ii).
Additionally, we agree with the TCEQ that emissions and transport
from Mexico and other international sources will limit the rate of
progress achievable on the 20% worst days and that efforts to meet the
goal of natural visibility by 2064 would require further emissions
reductions not only within Texas, but also large emission reductions
from international sources.\101\
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\101\ Given the impacts from international emissions and the
fact that the RHR did not allow States to adjust how the URP was
calculated to account for international emissions for the first
planning period, it was not reasonable at the time for Texas to
establish a reasonable progress goal consistent with the rate of
visibility improvement that would be needed to attain natural
conditions by 2064. Furthermore, the approach followed in the first
planning period for determining the URP for the most impaired days
involved selecting the most impaired days as the monitored days with
the highest actual deciview levels regardless of the source of the
particulate matter causing the visibility impairment.
---------------------------------------------------------------------------
EPA also notes that there has been an overall reduction in
emissions from the group of sources that Texas selected for evaluation
as part of its 2009 Plan. SO<INF>2</INF> emissions from this group in
2018 were at least 80,000 tons less than what was
[[Page 22177]]
projected. Overall, emissions in Texas were lower than projected for
2018 and consequently, monitored visibility data shows visibility
improvement exceeding what had been originally projected for 2018.\102\
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\102\ Monitoring of Protected Visual Environments (IMPROVE),
<a href="https://vista.cira.colostate.edu/Improve/rhr-summary-data/">https://vista.cira.colostate.edu/Improve/rhr-summary-data/</a>.
---------------------------------------------------------------------------
3. Requirements Related to the Long-Term Strategy
Section 51.308(d)(3) provides that Texas's long-term strategy
include enforceable emissions limitations, compliance schedules, and
other measures necessary to achieve the reasonable progress goals
established by States having mandatory Class I areas. There are a
number of requirements a State must meet when establishing its long-
term strategy. These requirements include: (1) States must consult with
downwind States to develop coordinated management strategies that
address regional haze visibility impairment; \103\ (2) where multiple
States cause or contribute to visibility impairment in a Class I area,
each State must demonstrate that it has put all measures necessary to
obtain its share of emission reductions needed to meet the progress
goal for the Class I area; \104\ (3) each State must provide and
document the technical basis on which the State is relying to determine
its share of emission reductions necessary to achieve reasonable
progress for each Class I area it affects; \105\ and (4) in formulating
their long-term strategies, States also have to consider the emissions
limitations and schedule for compliance to achieve the reasonable
progress goal.\106\
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\103\ 40 CFR 51.308(d)(3)(i).
\104\ 40 CFR 51.308(d)(3)(ii).
\105\ 40 CFR 51.308(d)(3)(iii) and (iv).
\106\ 40 CFR 51.308(d)(3)(v)(C).
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Section 51.308(d)(3)(i) requires that where Texas has emissions
that are reasonably anticipated to contribute to visibility impairment
in any mandatory Class I area located in another State or States, it
must consult with the other State(s) in order to develop coordinated
emission management strategies. In the 2009 Plan, Texas reviewed the
CENRAP modeling to assess which Class I areas in other States would be
impacted by Texas's emissions.\107\ Modeling indicated potential
impacts to several out of State Class I areas from Texas sources. As
evidenced in Chapter 4 and appendix 4 of Texas's 2009 Plan, Texas
conducted the requisite consultation with these States. Texas included
documentation of its calls and correspondence with the relevant States
from 2007 to 2008, prior to submitting its SIP in 2009. Texas's
consultation documentation confirms that no States disagreed with
Texas's approach to its long-term strategy. During consultation,
Louisiana determined that emissions from Texas do not contribute to
visibility impairment at the Breton Wilderness Class I area. Colorado
confirmed during consultation that the projected emissions reductions
in Texas's 2009 Plan would be adequate to meet Texas's apportioned part
of reductions necessary for Colorado to meet the RPGs for the Colorado
Class I areas. Based on the 2018 CENRAP projections, Missouri and
Arkansas established RPGs for their Class I areas that provide for a
slightly greater rate of improvement in visibility than needed to
attain the URP and determined that the projected emission reductions
from Texas sources included in the model were adequate for the States
to meet their respective RPGs. Regarding Oklahoma, Texas and Oklahoma
engaged in multiple conversations regarding Texas's potential impacts
to the Wichita Mountains Class I area. Stemming from those discussions,
Oklahoma requested that it be able to comment on best available control
technology (BACT) determinations for PSD sources that significantly
impact Wichita Mountains. Texas agreed to notify Oklahoma and the
relevant FLM whenever modeling indicated that a proposed source
significantly impacts Wichita Mountains. Throughout the consultation
process, Oklahoma did not request any additional reductions from Texas
and established a reasonable progress goal for Wichita Mountains that
did not anticipate further emission reductions beyond those
contemplated in Texas's 2009 Plan. For these reasons, as well as those
reasons articulated in section V.B, we propose to find that Texas has
satisfied the requirements of 40 CFR 51.308(d)(3)(i).
---------------------------------------------------------------------------
\107\ Texas First Planning Period Regional Haze SIP, page 4-2.
The relevant States are Colorado, Louisiana, New Mexico, Missouri,
Arkansas, and Oklahoma.
---------------------------------------------------------------------------
Section 51.308(d)(3)(ii) requires that if Texas 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)(ii) also
requires that since Texas participated in a regional planning process,
it must ensure it has included all measures needed to achieve its
apportionment of emission reduction obligations agreed upon through
that process. As discussed in the previous paragraphs, Texas consulted
with the States that it identified for which emissions from Texas are
reasonably anticipated to cause or contribute to visibility impairment
at a Class I area located in that State. Through these consultation
processes, none of the potentially impacted States requested that Texas
include any additional measures in its 2009 Plan, and each State
established RPGs that did not anticipate any additional emissions
reductions from Texas sources beyond those reflected in the CENRAP
modeling. For these reasons, we are proposing that Texas has met the
requirements of 40 CFR 51.308(d)(3)(ii).
Section 51.308(d)(3)(iii) requires that 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. It may meet this
requirement by relying on technical analyses developed by the regional
planning organization and approved by all State participants. Texas
relied on technical analyses developed by CENRAP and approved by all
State participants, but it also performed additional technical
analyses, based on Texas's expertise and knowledge of specific Texas
related information. These additional analyses thus built upon the work
of the regional planning organization in order to evaluate additional
controls. Additionally, Texas's 2009 Plan included emissions inventory
information as detailed in Chapter 7 and appendix 7-1. Texas's 2009
Plan also included a modeling assessment as detailed in Chapters 8 and
appendix 8-1 of its 2009 Plan. Given the extensive technical, modeling,
and monitoring information included and relied upon in Texas's 2009
Plan, we are proposing that Texas has met the requirements of 40 CFR
51.308(d)(3)(iii).
Section 51.308(d)(3)(v)(C) requires that, in developing its long-
term strategy, Texas consider emissions limitations and schedules of
compliance to achieve the RPGs. Texas determined that implementation of
existing and ongoing control measures was adequate to achieve the RPGs
established by it and other CENRAP States. As such, and for the reasons
articulated in section V.A of this document to support our proposed
approval of Texas's RPGs, we are proposing that Texas has met the
requirements of 40 CFR 51.308(d)(3)(v)(C), finding that additional
measures for Texas's long-
[[Page 22178]]
term strategy are unnecessary for this planning period.
4. Proposed Action
The regional haze program is made up of discrete planning periods
with the ultimate goal of eventually achieving natural visibility in
Class I areas. For each planning period, States must submit SIPs to
demonstrate that progress is being made towards the goal of natural
visibility, including a long-term strategy that contains measures that
are necessary to make reasonable progress. As previously stated, the
first planning period SIPs were due in 2007, and the planning period
ended in 2018. Given Texas's consideration of the statutory factors and
the explanation and justification outlined in the previous sections, we
are proposing to approve the portions of Texas's 2009 Plan addressing
the following requirements:
<bullet> Section 51.308(d)(1)(i)(A) and (d)(1)(ii), regarding
Texas's consideration of the four statutory factors in establishing
its reasonable progress goals for the Guadalupe Mountains and Big
Bend National Parks;
<bullet> Section 51.308(d)(1)(i)(B), regarding Texas's
calculation of the emission reductions needed to achieve the uniform
rates of progress for the Guadalupe Mountains and Big Bend National
Parks;
<bullet> Section 51.308(d)(2)(iii), regarding Texas's
calculation of natural visibility conditions for the Guadalupe
Mountains and Big Bend National Parks;
<bullet> Section 51.308(d)(2)(iv)(A), regarding Texas's
calculation of the number of deciviews by which baseline conditions
exceed natural visibility conditions for the Guadalupe Mountains and
Big Bend National Parks;
<bullet> Section 51.308(d)(3)(i), regarding consultation
requirements with other States where emissions from Texas are
reasonably anticipated to contribute to visibility impairment in any
Class I area located in another State or States;
<bullet> Section 51.308(d)(3)(ii), regarding Texas securing its
share of reductions necessary to achieve the reasonable progress
goals at impacted Class I areas in other States;
<bullet> Section 51.308(d)(3)(iii), regarding Texas's
documentation of its technical basis for which it is relying on to
determine its apportionment of emission reductions necessary for
those Class I areas in other States for which it affects; and
<bullet> Section 51.308(d)(3)(v)(C), regarding Texas's emission
limitations and schedules for compliance to achieve the reasonable
progress goals.
B. Oklahoma's 2010 Plan
As discussed in section III.B. of this document, the EPA finalized
a disapproval of the portions of Oklahoma's 2010 Plan addressing the
reasonable progress requirements of 40 CFR 51.308(d)(1) in our 2016
Final Rule. Because the SIP disapprovals and FIP portions of the 2016
Final Rule were vacated, the EPA now has an outstanding obligation to
evaluate and act on this portion of Oklahoma's 2010 Plan.
1. Establishment of RPGs and Visibility Improvement
For each mandatory Class I Federal area located within the State,
Oklahoma must establish goals (expressed in deciviews) that provide for
reasonable progress towards achieving natural visibility
conditions.\108\ The reasonable progress goals must provide for an
improvement in visibility for the most impaired days over the period of
the SIP and ensure no degradation in visibility for the least impaired
days over the same period.\109\
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\108\ 40 CFR 51.308(d)(1).
\109\ 40 CFR 51.308(d)(1).
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CENRAP modeling projected visibility conditions anticipated at the
Wichita Mountains in 2018.\110\ This was based on the emissions
reductions resulting from federal and State control programs that were
either in effect at the time or with mandated future-year emission
reduction schedules that predated 2018.\111\ Based on the results of
the four-factor analysis (discussed in the following paragraphs), the
results of the CENRAP modeling, and additional information developed by
CENRAP or obtained through direct consultations with States anticipated
to impact visibility at Wichita Mountains, the ODEQ decided to adopt
the CENRAP modeled 2018 visibility conditions as the RPGs for the
Wichita Mountains Class I area.\112\ The ODEQ established an RPG of
21.47 dv for the Wichita Mountains for 2018 for the 20% worst
days.\113\ This represents a 2.33 dv improvement in visibility over a
baseline of 23.81 dv.\114\ The ODEQ's RPG for the 20 percent worst days
and 20 percent least impaired days are shown in Tables 5 and 6, which
are based on information from Tables IX-2 through IX-4 of Oklahoma's
2010 Plan.
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\110\ 2010 Plan, at 104.
\111\ 2010 Plan, at 104.
\112\ 2010 Plan, at 104-107.
\113\ 2010 Plan, at 104-106.
\114\ 2010 Plan, at 104-106.
Table 5--Oklahoma Class I Area Reasonable Progress Goals on 20% Worst Days
----------------------------------------------------------------------------------------------------------------
Projected 2018 Improvement
Oklahoma Class I area Baseline visibility (RPG) projected by 2018
conditions (dv) (dv) using RPG (dv)
----------------------------------------------------------------------------------------------------------------
Wichita Mountains........................................ 23.81 21.47 2.33
----------------------------------------------------------------------------------------------------------------
Table 6--Oklahoma Class I Area Comparison of Reasonable Progress Goal to
Baseline Conditions on 20% Least Impaired Days
------------------------------------------------------------------------
Baseline visibility Projected 2018
Oklahoma Class I area conditions (dv) visibility (dv)
------------------------------------------------------------------------
Wichita Mountains............... 9.78 9.23
------------------------------------------------------------------------
As shown in Tables 5 and 6 of this document, the ODEQ's modeled RPG
for the 20% worst days shows an improvement in visibility of 2.33 dv at
the Wichita Mountains in 2018 and the modeled RPG for the 20% least
impaired days shows an improvement of 0.54 dv from the baseline period.
In establishing a reasonable progress goal for any mandatory Class
I area, the State must consider four statutory factors. These factors
are the costs of compliance, the time necessary for compliance, the
energy and nonair quality environmental impacts of
[[Page 22179]]
compliance, and the remaining useful life of any potentially affected
sources. The State must then demonstrate how these factors were taken
into consideration in selecting the goal.
In its 2010 Plan, the ODEQ determined that sulfate and nitrate were
the primary pollutants contributing to visibility impairment within
Oklahoma, and that a large portion of these pollutants would come from
point sources.\115\ As such, Oklahoma evaluated potential control
measures for point sources of SO<INF>2</INF> and NO<INF>X</INF>. To
evaluate any additional control measures necessary for reasonable
progress, the ODEQ initially relied on the same CENRAP analysis that
Texas in part relied on. In considering the CENRAP analysis, Oklahoma
found that it included certain controls that were already installed,
prohibitively costly, technically infeasible, or otherwise
unreasonable. As a result, the ODEQ conducted its own analysis that
refined the CENRAP analysis for certain sources within Oklahoma. The
full list of sources considered can be found in Table IX-5 of
Oklahoma's 2010 Plan.
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\115\ 2010 Plan, 94-97; 107-114; appendix 4-2 of 2010 Plan.
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In considering the cost of compliance, the ODEQ relied on the
control analysis performed by CENRAP as well as its knowledge of
particular facilities and experience with implementing ozone reduction
strategies.\116\ In considering the time necessary for compliance, the
ODEQ determined that any such controls would have to be installed and
in operation by 2018.\117\ It did not identify any detrimental nonair
quality environmental impacts associated with any controls considered,
and any energy impacts were factored into the cost of controls.\118\ In
considering the remaining useful life of any potentially affected
sources, the ODEQ stated that none of the sources considered for
additional emission reductions had indicated plans to shut down.\119\
Based on the above analysis of the four factors, the ODEQ concluded
that retrofitting the identified point sources of NO<INF>X</INF> and
SO<INF>2</INF> would impose unreasonable costs for negligible
visibility improvement.\120\ The ODEQ reasoned that most of the largest
sources of SO<INF>2</INF> and NO<INF>X</INF> were already being
controlled through BART, consent decrees or other regulatory
mechanisms; already had adequate controls in place; or are located too
far from the Wichita Mountains, and therefore, have too little
visibility impact to justify the cost of additional controls.\121\
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\116\ 2010 Plan, 109-113; appendix 4-2 of 2010 Plan.
\117\ 2010 Plan, 109-113.
\118\ 2010 Plan, 109-113.
\119\ 2010 Plan, 109-113.
\120\ 2010 Plan, 109-113.
\121\ 2010 Plan, 109-113.
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The RPGs established by Oklahoma provided for an improvement in
visibility conditions for the most impaired days over the first
planning period and ensured no degradation in visibility for the least
impaired days over the same period. Thus, the ODEQ's RPGs for Wichita
Mountains are consistent with the requirement in the RHR that they
provide for an improvement in visibility for the most impaired days
over the period of the SIP and ensure no degradation in visibility for
the least impaired days over the same period. Additionally, Oklahoma's
2010 Plan included a demonstration showing how these factors were taken
into consideration in selecting the goal. As outlined in the Fifth
Circuit's 2016 stay opinion, the court stated that the EPA's prior
disapproval of Oklahoma's 2010 Plan stemmed in large part from concerns
that the EPA had with Texas's analysis in establishing its RPGs--
concerns that the Court said were likely arbitrary and capricious.
Because we are now proposing to approve Texas's 2009 Plan, we therefore
propose to approve the RPGs established by Oklahoma. Specifically, we
find that Oklahoma's decision to focus the analysis of the four
statutory factors on emissions of NO<INF>X</INF> and SO<INF>2</INF>
from point sources to be reasonable, as the CENRAP modeling results and
the ODEQ's analysis in sections V.F and VIII of the Oklahoma's 2010
Plan indicate that sulfate and nitrate are the predominant pollutants
that affects the visibility on the worst 20% days at the Wichita
Mountains, and comes primarily from point sources. Oklahoma considered
the four statutory factors as required by 40 CFR 51.308(d)(1)(i)(A) in
evaluating the major point sources of both SO<INF>2</INF> and
NO<INF>X</INF>. The ODEQ analyzed the cost of compliance by reviewing
the cost information previously developed by CENRAP and made changes to
the cost information based on its knowledge of the facilities. Oklahoma
focused on moderate cost controls for sources likely to contribute to
visibility impairment at the Wichita Mountains. In considering the time
necessary for compliance, the ODEQ determined that any such controls
would have to be installed and in operation by 2018. It did not
identify any detrimental nonair quality environmental impacts
associated with any controls considered, and any energy impacts were
factored into the cost of controls. In considering the remaining useful
life of any potentially affected sources, the ODEQ stated that none of
the sources considered for additional emission reductions had indicated
plans to shut down. Furthermore, the ODEQ also considered the CENRAP
modeling results, which indicated that Oklahoma point sources
contribute only approximately 3.0 Mm<SUP>-1</SUP> of the total 86.56
Mm<SUP>-1</SUP> of light extinction projected at Wichita Mountains in
2018.\122\ Based on the 2016 Stay Opinion, the fact that Oklahoma
considered the four factors, the relative lack of visibility impact
from in-State point sources, and the fact that emissions from point
sources were also being reduced through satisfying BART requirements,
we agree with the ODEQ's conclusion that additional control measures
are unnecessary, and therefore, propose that the requirements of 40 CFR
51.308(d)(1)(i)(A) have been met.
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\122\ 2010 Plan, 96-100.
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2. Uniform Rate of Progress and Analysis of RPGs
In establishing a reasonable progress goal for any mandatory Class
I Federal area within the State, Oklahoma must analyze and determine
the rate of progress needed to attain natural visibility conditions by
the year 2064.\123\ To calculate this rate of progress (URP), Oklahoma
must compare baseline visibility conditions to natural visibility
conditions in the mandatory Federal Class I area and determine the
uniform rate of visibility improvement (measured in deciviews) that
would need to be maintained during each implementation period in order
to attain natural visibility conditions by 2064. In our previous final
rulemaking in 2011, we found that the ODEQ appropriately calculated the
URP for Wichita Mountains.\124\ Therefore, the only portion of 40 CFR
51.308(d)(1)(i)(B) that we address is Oklahoma's requirement to
consider the emission reduction measures needed to achieve the URP when
establishing the RPG for Wichita Mountains. Section 51.308(d)(1)(ii)
provides that for the period of the SIP, if Oklahoma establishes a 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.
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\123\ 40 CFR 51.308(d)(1)(i)(B).
\124\ 76 FR 81728 (December 28, 2011).
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[[Page 22180]]
To calculate the URP, the ODEQ compared baseline visibility
conditions to natural visibility conditions at the Wichita Mountains
Class I area and determined the linear rate of visibility improvement
(in deciviews) that would have to be maintained during each
implementation period in order to attain natural visibility conditions
by 2064. Using a baseline of 23.81 dv and a natural visibility value of
7.53 dv for the 20 percent worst days, the ODEQ calculated the URP to
be 16.28 dv, as depicted by Table 7 of this document, which is adapted
from Table III-9 of the SIP:
Table 7--Wichita Mountains Visibility Improvement Calculations
------------------------------------------------------------------------
------------------------------------------------------------------------
Baseline Conditions.......................... 23.81 dv.
Natural Visibility........................... 7.53 dv.
Total Improvement by 2064.................... 16.28 dv.
Improvement by 2018 at Uniform Rate of 3.80 dv.
Progress.
Uniform Rate of Progress..................... 0.27 dv/year.
2018 RPG..................................... 21.47 dv.
Improvement by 2018 under Oklahoma's RPG..... 2.33 dv.
URP in 2018.................................. 20.01 dv.
Improvement Projected by 2018 Using 2018 RPG. 2.33 dv.
------------------------------------------------------------------------
After considering the URP, the results of the CENRAP modeling and
the four reasonable progress factors, the ODEQ determined that meeting
the URP goal for 2018 was not reasonable.\125\ In its 2010 Plan, the
ODEQ explained that the CENRAP control case sensitivity evaluation
projected that visibility at Wichita Mountains would be improved by an
additional 0.75 dv on the worst 20% days over what the ODEQ projected
as its RPG of 21.47 dv for 2018, if controls were implemented at the
sources that met CENRAP's combination of baseline emissions, potential
for cost-effective add-on controls, and location (21.47-20.72 =
0.75).\126\ This projected improvement would not be sufficient to meet
the URP. Furthermore, the ODEQ noted that most of the improvement
projected by the CENRAP analysis would come from controls on sources
outside of Oklahoma. As such, Oklahoma adopted the 2018 projected
visibility conditions from the CENRAP photochemical modeling as the
RPGs for the 20% best days and 20% worst days for the Wichita
Mountains. The ODEQ calculated that under the selected rate of
progress, Wichita Mountains would attain natural visibility conditions
in 2102.
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\125\ 2010 Plan, 107-114.
\126\ 2010 Plan, 109. ODEQ mistakenly referred to an estimated
visibility of 20.97 dv for the control scenario instead of the
correct value of 20.72 dv. See correspondence from ODEQ (Lee Warden)
to EPA (Michael Feldman) on 7/14/2014.
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We propose to approve the ODEQ's demonstration that it is not
reasonable to meet the URP for Wichita Mountains for this planning
period based on its reliance on the CENRAP analysis and modeling
projections. As explained earlier in our discussion of 40 CFR
51.308(d)(1)(i)(A), Oklahoma considered the four statutory factors and
established RPGs that provided for visibility improvement at Wichita
Mountains over the course of the first planning period. Neither the CAA
nor the RHR rule specify the specific amount of progress that States
are required to make as part of establishing their reasonable progress
goal. In our prior disapproval of Oklahoma's 2010 Plan, while we agreed
that further emissions reductions from Oklahoma sources beyond BART
were not necessary to make reasonable progress, we expressed the
concern that the consultation process with Texas failed to provide
Oklahoma with the information necessary to determine the reasonable
reductions from its sources given the anticipated impacts from Texas
sources at Wichita Mountains. This resulted in Oklahoma being unable to
consider all the emission reductions needed to meet or approach the
URP. As mentioned previously, the Fifth Circuit determined that the
EPA's disapproval as to this point would likely be found to be
arbitrary and capricious. Specifically, the 2016 Stay Opinion
highlighted that neither RHR nor the Clean Air Act explicitly require
upwind States to provide downwind States with specific types of
information. Given the volume of analysis produced by CENRAP, and the
fact that the EPA has never before disapproved the consultation between
States under the Regional Haze Rule, the court determined that the
Petitioners had a likelihood of success on the merits of demonstrating
that EPA's disapproval of the RPGs that Oklahoma established was
arbitrary and capricious. As previously discussed, Oklahoma considered
the four statutory factors in establishing its RPGs for Wichita
Mountains, which provided for improvements in visibility over the
course of the first planning period based on emission reductions due to
BART requirements from Oklahoma sources as well as emission reductions
from Texas sources that were included in the CENRAP modeling as
discussed in section V.A of this document. Oklahoma showed that further
emission reductions from Oklahoma sources was not projected to achieve
the URP, and after extensive consultation with Texas, Oklahoma
determined that additional emission reductions from Texas sources were
not necessary to meet the RPG it established. For these reasons, we are
proposing that the requirements of 40 CFR 51.308(d)(1)(i)(B) and
51.308(d)(1)(ii) have been met.
Additionally, the EPA notes that there has been an overall
reduction in emissions from the group of sources that Texas selected
for evaluation as part of its 2009 Plan. Overall, Texas emissions were
lower than projected for 2018 and consequently, monitored visibility
data shows visibility improvement exceeding what had been originally
projected for 2018.
3. Reasonable Progress Consultation
In developing the reasonable progress goal for Wichita Mountains,
Oklahoma must consult with those States which may reasonably be
anticipated to cause or contribute to visibility impairment in the
Class I area.\127\ In any situation in which Oklahoma cannot agree with
another such State or group of States that a goal provides for
reasonable progress, Oklahoma must describe in its submittal the
actions taken to resolve the disagreement.\128\ In reviewing Oklahoma's
SIP submittal, the Administrator will take this information into
account in determining whether its goal for visibility improvement
provides for reasonable progress towards natural visibility
conditions.\129\
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\127\ 40 CFR 51.308(d)(1)(iv).
\128\ 40 CFR 51.308(d)(1)(iv).
\129\ 40 CFR 51.308(d)(1)(iv).
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[[Page 22181]]
In its 2010 Plan, the ODEQ identified several States that were
projected through visibility modeling to contribute more than 1 Mm-1 of
light extinction at the Wichita Mountains in 2018 and invited these
States to consult. It conducted four consultations.\130\ It directed
its first consultation to the tribal leaders in Oklahoma and their
environmental managers, on August 14, 2007.\131\ The ODEQ held the next
three consultations as conference calls with representatives from
CENRAP, the EPA, the U.S. Fish and Wildlife Service, Arkansas, Iowa,
Kansas, Louisiana, Minnesota, Missouri, Nebraska, and Texas.\132\ The
ODEQ received written responses from the Arkansas Department of
Environmental Quality, the TCEQ, and the Missouri Department of Natural
Resources.\133\
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\130\ 2010 Plan, 115, appendix 10-1.
\131\ 2010 Plan, 115, appendix 10-1.
\132\ 2010 Plan, 115, appendix 10-1.
\133\ Copies of these letters can be found in appendix 10-1 of
the 2010 Plan.
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In terms of the consultation process between Texas and Oklahoma
specifically, the States exchanged a series of letters in 2007 and
2008.\134\ On August 3, 2007, the ODEQ sent a letter to the TCEQ in
which it noted that despite significant planned reductions in
SO<INF>2</INF> and NO<INF>X</INF> emissions from sources in Oklahoma
and Texas, the Wichita Mountains was not projected to meet the URP. The
ODEQ requested that the TCEQ require new and modified PSD sources to
conduct analyses of their impacts on visibility at the Wichita
Mountains and that the ODEQ be given an opportunity to review and
comment on BACT determinations for proposed projects likely to have a
certain impact on visibility at the Wichita Mountains. On October 15,
2007, the TCEQ sent a response to the ODEQ, agreeing that modeling
showed emissions from Texas to be a significant source of visibility
impairment at the Wichita Mountains. The TCEQ also noted, however, that
significant reductions from Texas will be realized in the next several
years. In response to the ODEQ's specific request for the opportunity
to comment on BACT for new and modified major sources, the TCEQ stated
that it welcomed comment during the public review and comment period
and would notify FLMs and the ODEQ if modeling were to indicate that a
proposed source might significantly impact the Wichita Mountains.
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\134\ Appendix 10-1 of the 2010 Plan.
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Several months after this initial exchange of letters, the two
States again exchanged letters. On March 25, 2008, following comments
made by us and the federal land managers on Texas's draft Regional Haze
SIP, the TCEQ sent a letter to the ODEQ regarding emissions that affect
the Wichita Mountains. The TCEQ provided a copy of the PSAT modeling
results developed by CENRAP indicating the contribution for each source
area to visibility impairment at the Wichita Mountains. The TCEQ stated
in the letter that PSAT modeling indicated that the probable impacts of
Texas sources at the Wichita Mountains will be reduced by 2018 due to
expected emission reductions from current and planned controls. The
TCEQ then requested concurrence from Oklahoma on this assessment and a
verification that Oklahoma was not depending on any additional
reductions from Texas sources in order to meet the RPG for the Wichita
Mountains. On May 12, 2008, the ODEQ sent a response to the TCEQ in
which it noted that it concurred with the information the TCEQ had
provided. The ODEQ stated that it had developed its RPG for the worst
20% days for the Wichita Mountains through the CENRAP deliberations and
that its RPG did not anticipate emission reductions beyond those that
Texas already planned to implement and upon which CENRAP modeling
studies have relied.
We agree with the ODEQ's approach for identifying those States with
sources that may impact visibility at the Wichita Mountains and its
decision to invite those States to consult. Through the consultation
process, the ODEQ was able to gain additional information regarding the
potential impacts from nearby States. We also find that Oklahoma
reasonably determined that additional reductions from Arkansas,
Louisiana, Missouri, and Iowa were not necessary for reasonable
progress based on the projected impacts from those States as
demonstrated by the CENRAP modeling results.\135\
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\135\ 2010 Plan, Table VIII-10.
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In terms of its consultation with Texas, as discussed earlier in
this document, the 2016 Stay Opinion explained that the Petitioners had
a likelihood of success on the merits in determining that our
disapproval of the 2010 Plan based on the consultation with Texas was
arbitrary and capricious. We note that the States engaged in extensive
discussions regarding impacts from Texas sources at Wichita
Mountains.\136\ The RHR does not specify what is required of States
during the consultation process or dictate a specific outcome in terms
of agreeing upon a reasonable progress goal. Rather, it explains the
steps States must take in the event that States disagree over whether a
goal established for a particular Class I area does not provide for
reasonable progress. In such situations, a State must describe in its
submittal the actions taken to resolve the disagreement. As described
above, the ODEQ ultimately established an RPG that did not anticipate
additional reductions from Texas sources. As such, there was not a
disagreement between the States. While both states agreed that there
would be impacts from Texas sources at Wichita Mountains, they also
agreed that there would be emission reductions from both Texas and
Oklahoma sources and improvement in visibility at Wichita
Mountains.\137\ Because Texas and Oklahoma engaged in consultation and
agreed on the RPG established by Oklahoma for Wichita Mountains, we
find that Oklahoma's consultation process with Texas was adequate. For
these reasons, we propose that the requirements of 40 CFR
51.308(d)(1)(iv) have been met.
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\136\ Appendix 10-1 of the 2010 Plan.
\137\ Appendix 10-1 of the 2010 Plan.
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4. Impact on Areas of Indian Country
Following the U.S. Supreme Court decision in McGirt v. Oklahoma,
140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested
approval under section 10211(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public
Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to
administer in certain areas of Indian country (as defined at 18 U.S.C.
1151) the State's environmental regulatory programs that were
previously approved by the EPA outside of Indian country. The State's
request excluded certain areas of Indian country further described
below. In addition, the State only sought approval to the extent that
such approval was necessary for the State to administer a program in
light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185
(D.C. Cir. 2014).\138\
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\138\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA,
States have the authority to implement a SIP in non-reservation
areas of Indian country in the State, unless there has been a
demonstration of tribal jurisdiction. Under the D.C. Circuit's
decision, the CAA does not provide authority to States to implement
SIPs in Indian reservations.
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The EPA has approved Oklahoma's SAFETEA request to administer all
of the State's EPA-approved environmental regulatory programs in the
requested areas of Indian country. As requested by Oklahoma, the EPA's
approval under SAFETEA does not include Indian country lands, including
rights-of-way running through the same, that: (1) qualify as Indian
allotments, the Indian
[[Page 22182]]
titles to which have not been extinguished, under 18 U.S.C. 1151(c);
(2) are held in trust by the United States on behalf of an individual
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a)
acquired that fee title to such land, or an area that included such
land, in accordance with a treaty with the United States to which such
Tribe was a party, and (b) never allotted the land to a member or
citizen of the Tribe (collectively ``excluded Indian country lands'').
The EPA's approval under SAFETEA expressly provided that to the
extent the EPA's prior approvals of Oklahoma's environmental programs
excluded Indian country, any such exclusions are superseded for the
geographic areas of Indian country covered by the EPA's approval of
Oklahoma's SAFETEA request.\139\ The approval also provided that future
revisions or amendments to Oklahoma's approved environmental regulatory
programs would extend to the covered areas of Indian country (without
any further need for additional requests under SAFETEA).
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\139\ The EPA's prior approvals relating to Oklahoma's SIP
frequently noted that the SIP was not approved to apply in areas of
Indian country (except as explained in the D.C. Circuit's decision
in ODEQ v. EPA) located in the State. Such prior expressed
limitations are superseded by the EPA's approval of Oklahoma's
SAFETEA request.
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As explained above, the EPA is proposing to approve portions of the
Oklahoma 2010 Plan that relate to reasonable progress requirements for
the first planning period from 2007 through 2018, which will apply
statewide. Consistent with the D.C. Circuit's decision in ODEQ v. EPA
and with the EPA's SAFETEA approval, these SIP revisions will apply to
areas of Indian country as follows: (1) pursuant to the SAFETEA
approval, the SIP revisions will apply to all Indian country In the
State of Oklahoma other than the excluded Indian country lands as
described above; and (2) pursuant to the D.C. Circuit's decision in
ODEQ v. EPA, the SIP revisions will also apply to any Indian allotments
or dependent Indian communities that are located outside of any Indian
reservation and over which there has been no demonstration of tribal
authority.
5. Proposed Action
For the reasons described in sections V.A and V.B, we are proposing
to approve the portion of the Oklahoma regional haze SIP that addressed
the requirements of 40 CFR 51.308(d)(1)(i) through (v).
C. Texas's 2014 Progress Report SIP Revision (2014 Plan)
Each State is required to submit a progress report that evaluates
progress towards the RPGs for each Class I area within the State and
for each Class I area outside the State which may be affected by
emissions from within the State. 40 CFR 51.308(g). In addition, the
provisions of 40 CFR 51.308(h) require States to submit, at the same
time as the progress report, a determination of the adequacy of the
State's existing regional haze implementation plan.\140\ The progress
report for the first planning period is due five years after submittal
of the initial regional haze SIP and must take the form of a SIP
revision. Texas submitted its first periodic progress report SIP on
March 24, 2014 (2014 Plan). The 2014 Plan assessed visibility progress
toward the 2018 RPGs for two Class I areas in Texas: Big Bend and
Guadalupe Mountains National Parks. The 2014 Plan also assessed
visibility progress for 12 other Class I areas in six other States that
may be affected by emissions from within Texas through collaboration
with the Central Regional Air Planning Association (CENRAP):\141\ Caney
Creek and Upper Buffalo Wilderness Areas in Arkansas; Great Sand Dunes
Wilderness Area in Colorado; Breton Wilderness Area in Louisiana;
Carlsbad Caverns National Park, Bosque del Apache, Salt Creek, Wheeler
Peak, and White Mountain Wilderness Areas in New Mexico; Hercules
Glades and Mingo Wilderness Areas in Missouri; and Wichita Mountains
Wilderness Area in Oklahoma.
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\140\ The Regional Haze Rule requires States to provide in the
progress report an assessment of whether the current
``implementation plan'' is sufficient to enable the States to meet
all established RPGs under 40 CFR 51.308(g). The term
``implementation plan'' is defined for purposes of the Regional Haze
Rule to mean any SIP, FIP, or Tribal Implementation Plan. As such,
the Agency may consider measures in any issued FIP as well as those
in a State's regional haze plan in assessing the adequacy of the
``existing implementation plan'' under 40 CFR 51.308(g) and (h).
\141\ The CENRAP is a collaborative effort of tribal
governments, State governments and various federal agencies
representing the central States (Texas, Oklahoma, Louisiana,
Arkansas, Kansas, Missouri, Nebraska, Iowa, Minnesota; and tribal
governments included in these States) that provided technical and
policy tools for the central States and tribes to comply with the
EPA's Regional Haze regulations. Due to lack of funding, CENRAP
subsequently ceased to function, and States now communicate through
the Central States Air Resource Agencies (CenSARA) with the other
States that were part of CENRAP.
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1. Control Measures
Section 51.308(g)(1) requires a description of the status of
implementation of control measures included in the first planning
period regional haze SIP for achieving reasonable progress goals for
Class I areas both within and outside the State. Section 51.308(g)(2)
requires a summary of the emissions reductions achieved from
implementing the control measures in the first planning period regional
haze SIP. Chapter 2 of Texas's 2014 Plan provides a summary of control
measures and emissions reductions that were achieved from implementing
those control measures included in their first planning period SIP.
As discussed previously in this document, Texas relied on
participation in CAIR to satisfy the NO<INF>X</INF> and SO<INF>2</INF>
BART requirements for BART-eligible EGUs.\142\ In the 2014 Plan and its
associated appendix E,\143\ Texas provides information on emission
allowances under CAIR compared to annual EGU emissions. The 2014 Plan
also outlined the status of other measures mentioned in its 2009 Plan
including the status of EGU controls for Texas ozone nonattainment
areas, and the Mass Emissions Cap-and-Trade (MECT) Program in the
Houston-Galveston-Brazoria ozone nonattainment area. The EPA proposes
that the requirements regarding reporting the status of implementation
of measures and estimation of emissions reductions from implementation
of those measures for the first implementation period have been met.
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\142\ CAIR was subsequently remanded and replaced by CSAPR,
which led to EPA issuing a limited disapproval of Texas's 2009
Regional Haze SIP due to its reliance on CAIR. However, at the time
that Texas submitted the progress report in 2014, all sources that
were covered by CAIR continued to comply with the requirements of
the program as CSAPR was vacated and subject to pending legal
challenges.
\143\ See Table 2-6 in Texas's 2014 Plan (page 2-7).
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2. Visibility Conditions and Changes
Section 51.308(g)(3) requires, for each Class I area within a
State, an assessment of the following visibility conditions and
changes, with values for most impaired and least impaired days
expressed in terms of five-year averages of these annual values:
current visibility conditions for the most and least impaired days;
difference between current visibility conditions for the most impaired
and least impaired days and baseline visibility conditions; and, change
in visibility impairment for the most impaired and least impaired days
over the past five years. Texas provided this information in Chapter 3
of its 2014 Plan. Texas reported the annual average visibility from the
2011 IMPROVE report for the 20 percent best (least
[[Page 22183]]
impaired) and 20 percent worst (most impaired) days at Big Bend and
Guadalupe Mountains National Parks.\144\ The State calculated the
change in visibility between five-year average baseline visibility
conditions from 2000-2004 and the five-year average visibility
conditions for 2007-2011 (the most recent period at the time of the
progress report). The results were tabulated for the 20 percent best
and worst days and then compared to the 2018 RPGs to determine the
amount of visibility improvement achieved.\145\
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\144\ The most and least impaired days in the RHR for the first
planning period refers to the average visibility impairment
(measured in dv) for the 20 percent of monitored days in a calendar
year with the highest and lowest amount of visibility impairment,
respectively, averaged over a five-year period (see 40 CFR 51.301).
In this notice, when we refer to ``best days'' we mean ``least
impaired'' and when we refer to ``worst days'' we mean ``most
impaired.''
\145\ See Figures 5-1 and 5-2 of the 2014 Plan (pages 5-2 and 5-
3).
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The TCEQ reported that Big Bend and Guadalupe Mountains showed
improved visibility from the 2000-2004 baseline to the most recent
period available (2007-2011) at the time of the 2014 Plan's submittal
during the 20 percent worst days.\146\ Both Class I areas also showed
improvement from the baseline period on the 20 percent best days and
satisfied the goal of no visibility degradation for the first
implementation period. The progress report showed that the visibility
at Big Bend and Guadalupe Mountains during the 2007-2011 period were
0.6 and 1.9 dv, respectively, below the 2000-2004 baseline for the 20
percent worst days and 0.2 and 1.0 dv, respectively, below the baseline
for the 20 percent best days as reflected in Tables 8 and 9.\147\
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\146\ Progress reports for the first implementation period used
specific terms to describe time-periods. ``Baseline visibility
conditions'' refers to conditions during the 2000 to 2004 time-
period. ``Current visibility conditions'' refers to the most recent
five-year average data available at the time the State submitted its
progress report for public review. ``Past five years'' refers to the
five-year average previous to the five years used for ``current
visibility conditions.''
\147\ See Figures 3-1 and 3-2 of the 2014 Plan (pages 3-3 to 3-
4).
Table 8--Visibility at Texas Class I Areas for the 20 Percent Worst Days
[Five-year avg.]
----------------------------------------------------------------------------------------------------------------
Baseline Most recent
Class I area (2000-2004) (2007-2011) minus baseline
(dv) (dv) (dv)
----------------------------------------------------------------------------------------------------------------
Big Bend National Park.......................................... 17.3 16.7 -0.6
Guadalupe Mountains National Park............................... 17.2 15.3 -1.9
----------------------------------------------------------------------------------------------------------------
* A negative sign indicates a reduction from the baseline.
Table 9--Visibility at Texas Class I Areas for the 20 Percent Best Days
[Five-year avg.]
----------------------------------------------------------------------------------------------------------------
Baseline Most recent Most recent
Class I area (2000-2004) (2007-2011) minus baseline
(dv) (dv) (dv)
----------------------------------------------------------------------------------------------------------------
Big Bend National Park.......................................... 5.8 5.6 -0.2
Guadalupe Mountains National Park............................... 5.9 4.9 -1.0
----------------------------------------------------------------------------------------------------------------
* A negative sign indicates a reduction from the baseline
When comparing the 2018 RPGs with the observed 2007-2011 five-year
visibility trends for the 20 percent worst days in the progress report,
both national parks are achieving the visibility improvement needed to
meet the 2018 RPGs established in the Texas 2009 Plan. Big Bend's
visibility improved to almost match its 2018 RPG of 16.6 dv and
Guadalupe Mountains already realized more visibility improvement than
needed to meet its 2018 RPG of 16.3 dv. The EPA thus proposes to
conclude that the State has adequately addressed the applicable
provisions under 40 CFR 51.308(g)(3) with respect to the visibility
conditions at Texas Class I areas.
3. Emissions Tracking
Section 51.308(g)(4) requires an analysis tracking the change for
the previous five years in emissions of pollutants, identified by type
of source or activity, contributing to visibility impairment from all
sources and activities within the State. In Chapter 4 of its 2014 Plan,
Texas provides statewide emissions summaries for several source
categories for inventory years 2005 (updated), 2008, and 2011.\148\
Texas evaluated statewide trends in total emissions for NO<INF>X</INF>,
SO<INF>2</INF>, and PM<INF>2.5</INF> as compared to the modeled
projections for 2018. Figure 4-1 of the 2014 Plan shows a graphic
comparison of these inventory years against the modeled projections.
For all pollutants, actual emissions remained below the model
projections (determined by a straight line between 2002 and 2018). The
EPA proposes to conclude that the State has adequately addressed the
applicable provisions under 40 CFR 51.308(g)(4) regarding emissions
tracking because the State compared the most recent updated emission
inventory data for key visibility impairing pollutants across Texas
available at the time of progress report development with the baseline
emissions used in the modeling for the regional haze plan.
---------------------------------------------------------------------------
\148\ 2014 Progress Report SIP Tables 4-1 through 4-3.
---------------------------------------------------------------------------
4. Assessment of Anthropogenic Changes Impeding Visibility Progress
Section 51.308(g)(5) requires an assessment of any significant
changes in anthropogenic emissions that have occurred over the past
five years that have limited or impeded progress in reducing pollutant
emissions and improving visibility. The State indicated in its 2014
Plan \149\ that there were no significant changes in anthropogenic
emissions within or outside the state that limited or impeded progress
in reducing pollutant emissions and improving visibility at Big Bend or
Guadalupe Mountains National Parks. Both national parks showed overall
downward trends in visibility impairment on the worst days. The
[[Page 22184]]
State's analysis of categorized emission inventories from 2005 to 2011
presented in the progress report show that no significant increases in
emissions within the state are occurring to impede visibility
improvement or adversely affect the two Class I areas in Texas. In the
2014 Plan, Texas identifies that visibility at both Texas Class I areas
is impacted by emissions from Mexico and that no recent information is
available to assess changes in international emissions. Texas also
requested that the EPA initiate efforts to secure international
emission reductions to further improve visibility at the Texas Class I
areas. The State also reported that no significant anthropogenic
emission changes occurred in other States over the past five years to
limit or impede visibility in Texas. As evidence to support this, the
TCEQ reported that the IMPROVE sites at Class I areas in the States of
New Mexico, Colorado, and Wyoming, east to the Atlantic Ocean (except
for sites near the Canadian border) show reductions in visibility
impairment on the 20 percent most impaired days. The TCEQ reported
these downward trends in visibility impairment as proof that sources
which contribute to visibility impairment in Texas were absent of major
changes in emissions that would otherwise limit or impede visibility in
Texas Class I areas. The EPA agrees with Texas's conclusion that there
have been no significant changes in emissions of visibility impairing
pollutants which have limited or impeded progress in reducing emissions
and improving visibility in Class I areas during the first planning
period pursuant to 40 CFR 51.308(g)(5).
---------------------------------------------------------------------------
\149\ See Page 5-9 of the 2014 Plan.
---------------------------------------------------------------------------
5. Assessment of Current Strategy To Meet RPGs
Section 51.308(g)(6) requires an assessment of whether the
implementation plan elements and strategies are sufficient to enable
Texas, or other states with Class I areas affected by emissions from
Texas, to meet all their established RPGs for the first planning
period. The EPA views this requirement as a qualitative assessment, in
light of emissions and visibility trends and other readily available
information, as to whether Class I areas affected by the state were on
track to meet their 2018 RPGs. In its 2014 Plan, the TCEQ determined
that the strategies outlined in the 2009 Plan were sufficient to enable
Texas and other states with Class I areas affected by emissions from
Texas to meet all established RPGs. The evaluation set forth in the
2014 Plan for the Class I areas in Texas was based on the controls and
RPGs established in the 2009 Plan. The TCEQ assessed the strategies in
the 2009 Plan based upon projected emissions and modeling results. The
2014 Plan showed that the 2005-2011 emission trends for SO<INF>2</INF>,
NO<INF>X</INF>, and PM, which are the main contributing pollutants to
regional haze in Texas, decreased by 261,003 tpy SO<INF>2</INF>,
212,107 tpy NO<INF>X</INF>, and 29,335 tpy PM<INF>2.5</INF>, and
215,716 tpy PM<INF>10</INF>. Based on available monitored data at the
time, comparing the Texas 2018 RPGs with the observed five-year 2007-
2011 visibility trends for the 20 percent worst days indicated that
both Texas Class I areas had, or nearly had, achieved the visibility
improvement needed to meet the 2018 RPGs established in the 2009
SIP.\150\ In the 2014 Plan, the TCEQ identified that sources in Texas
also impact 12 other Class I areas in six other states.\151\ The TCEQ
compared the 2018 RPGs to the monitored visibility at these areas on
the 20 percent worst days for the five-year average trends from the
2000-2004 baseline, 2002-2006, and 2007-2011 periods.\152\ The EPA
proposes to find that the State adequately addressed the applicable
provisions under 40 CFR 51.308(g)(6) regarding the strategy assessment.
In its 2014 Plan, Texas describes the improving visibility trends and
provides an overview of emission reductions to support the
determination that the regional haze plan is sufficient to meet the
2018 RPGs for Class I areas in the State and Class I areas in other
States impacted by Texas emissions.
---------------------------------------------------------------------------
\150\ 2014 Progress Report, Chapter 5.
\151\ Data was marked as unavailable for Breton Wilderness in
Louisiana by TCEQ.
\152\ 2014 Progress Report (pages 5-5 to 5-8).
---------------------------------------------------------------------------
6. Review of Visibility Monitoring Strategy
Section 51.308(g)(7) requires that States conduct a review of the
current visibility monitoring strategy and make any modifications to
the strategy as necessary. The monitoring strategy for regional haze in
Texas relies upon participation in the IMPROVE \153\ network, which is
the primary monitoring network for regional haze nationwide. The
IMPROVE network provides a long-term record for tracking visibility
improvement or degradation. As discussed in the 2014 Plan, Texas
currently relies on data collected through the IMPROVE network to
satisfy the regional haze monitoring requirements. The TCEQ reported
observed visibility data annually for Big Bend and Guadalupe Mountains
National Parks to the EPA from the IMPROVE dataset and tracked the
annual visibility index at both Class I areas for comparison of
baseline, current, and natural conditions. The TCEQ continues to track
these visibility trends at these sites and identified no future changes
in this network. The EPA proposes to conclude that the State has
adequately addressed the applicable provision under 40 CFR 51.308(g)(7)
for a visibility monitoring strategy.
---------------------------------------------------------------------------
\153\ See 64 FR 35714, 35715 (July 1, 1999). Data from IMPROVE
show that visibility impairment caused by air pollution occurs
virtually all the time at most national parks and wilderness areas.
The average visual range in many Class I areas (i.e., national parks
and memorial parks, wilderness areas, and international parks
meeting certain size criteria) in the western United States is 100-
150 km, or about one-half to two-thirds of the visual range that
would exist without anthropogenic air pollution. In most of the
eastern Class I areas of the United States, the average visual range
is less than 30 km, or about one-fifth of the visual range that
would exist under natural conditions.
---------------------------------------------------------------------------
7. Determination of Adequacy of Existing Implementation Plan
At the same time a State is required to submit a progress report to
the EPA under 40 CFR 51.308(g), States must also make a declaration of
adequacy regarding the existing implementation plan under 40 CFR
51.308(h). Pursuant to 40 CFR 51.308(h), Texas provided a negative
declaration under 40 CFR 51.308(h)(1) stating that no additional
controls were necessary during the first implementation period and that
the existing 2009 Plan is adequate for continued progress toward the
established RPGs for the Class I areas in Texas and for Class I areas
in other States impacted by Texas emissions. Texas made this
determination based on the analysis conducted showing the emission
reductions and visibility improvement trends as detailed in the
preceding sections. For the reasons discussed in section V.A of this
document, we are proposing to approve Texas's 2009 Plan. In section V.A
of this document, we explain why Texas's conclusion that additional
measures are not necessary to meet the 2018 goals. Therefore, we are
proposing to approve Texas's negative declaration that no further
revisions to the 2009 Plan are necessary under 40 CFR 51.308(h)(1).
8. Consultation With Federal Land Managers
Section 40 CFR 51.308(i) requires the State to provide the
designated FLMs with an opportunity for in-person consultation at least
sixty days prior to holding any public hearings on a SIP revision for
the first implementation period. Texas consulted with FLMs on June 19,
2013. The FLM comment period was from June 19, 2013, to August 20,
2013, and comments were posted to the TCEQ website in August 2013.
Texas held a public hearing on
[[Page 22185]]
September 24, 2013. Texas considered and responded to all comments from
FLMs, the EPA, and the public. The EPA proposes to conclude that Texas
has adequately satisfied the applicable FLM consultation provisions
under 40 CFR 51.308(i).
9. Proposed Action
For the reasons set forth in section V.C of this document, the EPA
is proposing to approve Texas's 2014 Plan as satisfying the progress
report SIP requirements for the first planning period contained in 40
CFR 51.308(g), (h), and (i).
VI. Withdrawal of 2024 Proposed Partial Approval and Partial
Disapproval
On July 20, 2021, the TCEQ submitted the 2021 Plan to address the
State's regional haze obligations for the second planning period, which
runs through 2028, in accordance with CAA sections 169A and the RHR at
40 CFR 51.308(f). On October 15, 2024, the EPA proposed to partially
approve and partially disapprove the 2021 Plan under the CAA and the
RHR for the program's second implementation period. In that action, the
EPA proposed to find that Texas's 2021 Plan did not meet all the
Regional Haze requirements for the second planning period.
Specifically, the EPA proposed to disapprove the elements of the 2021
Plan related to requirements contained in 40 CFR 51.308(f)(2), (f)(3),
and (i). The EPA proposed to approve the elements of the 2021 Plan
related to requirements contained in 40 CFR 51.308(f)(1), (f)(4),
(f)(5) \154\ and (f)(6). The action received several adverse comments.
In this notice of proposed rulemaking, the EPA is withdrawing our
October 16, 2024, proposed partial approval and partial disapproval of
Texas's 2021 Plan.\155\ We are now proposing to fully approve Texas's
2021 Plan, based on a change in policy as first articulated in the
recent second planning period action for West Virginia \156\ as
discussed in section VII.A of this document. Commenters who would like
the EPA to consider any comments submitted on the October 16, 2024,
proposed rule must resubmit such comments during the comment period for
this proposed action.\157\
---------------------------------------------------------------------------
\154\ 40 CFR 51.308(f)(5) requires that the second planning
period SIP revision address the requirements listed in paragraphs
(g)(1) through (5).
\155\ 89 FR 83338 (October 15, 2024).
\156\ 90 FR 16478 (April 18, 2025).
\157\ The rulemaking docket for the now withdrawn action is
available under Docket ID EPA-R06-OAR-2021-0539 at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
---------------------------------------------------------------------------
VII. The EPA's Evaluation and Proposed Action on Texas's 2021 Plan
A. The EPA's Rationale for Proposing Approval
The EPA is proposing to approve Texas's submission because we have
determined that Texas's 2021 Plan for the second planning period meets
the applicable statutory and regulatory requirements. In this proposed
action, the EPA notes that it is the Agency's policy, as announced in
the EPA's recent proposed approval of the West Virginia Regional Haze
SIP,\158\ that where visibility conditions for a Class I area impacted
by a State are projected to be below the URP in 2028, and the State has
considered the four statutory factors, the State has presumptively
demonstrated reasonable progress for the second implementation period
for that area. The EPA acknowledges that this reflects a change in
policy as to how the URP should be used in the evaluation of regional
haze second planning period SIPs. However, the EPA finds that this
policy better aligns with the purpose of the statute and RHR, which is
achieving ``reasonable'' progress, not maximal progress, toward
Congress's natural visibility goal.
---------------------------------------------------------------------------
\158\ 90 FR 16478 (April 18, 2025).
---------------------------------------------------------------------------
In developing the regulations required by CAA section 169A(b), the
EPA established the concept of the uniform rate of progress, or URP,
for each Class I area. The URP is determined by drawing a straight line
from the measured 2000-2004 baseline conditions (in deciviews) for the
20% most impaired days at each Class I area to the estimated 20% most
impaired days natural conditions (in deciviews) in 2064. From this
calculation, a URP value can be calculated for each year between 2004
and 2064. For each Class I area, there is a regulatory requirement to
compare the projected visibility impairment (represented by the
reasonable progress goal, or ``RPG'') at the end of each planning
period to the URP (e.g., in 2028 for the second planning period).\159\
40 CFR 51.308(f)(1)(vi). If the projected RPG is above the URP, then an
additional ``robust demonstration'' requirement is triggered for each
state that contributes to that Class I area.\160\
---------------------------------------------------------------------------
\159\ We note that RPGs are a regulatory construct that we
developed to address statutory mandate in section 169B(e)(1), which
required our regulations to include ``criteria for measuring
`reasonable progress' toward the national goal.'' Under 40 CFR
51.308(f)(3)(ii), RPGs measure the progress that is projected to be
achieved by the control measures a State has determined are
necessary to make reasonable progress. Consistent with the 1999 RHR,
the RPGs are unenforceable, though they create a benchmark that
allows for analytical comparisons to the URP and mid-implementation-
period course corrections if necessary. 82 FR 3091-3092 (January 10,
2017).
\160\ 40 CFR 51.308(f)(3)(ii).
---------------------------------------------------------------------------
In this proposed action, the EPA is proposing to approve Texas's
2021 Plan because the State evaluated potential additional measures,
considered the four statutory factors, and the visibility conditions
for affected Class I areas are anticipated to be below the 2028 URP,
thus supporting the State's decision regarding reasonable progress for
the second planning period.
The EPA has the discretion and authority to change policy. In FCC
v. Fox Television Stations, Inc., the U.S. Supreme Court plainly stated
that an agency is free to change a prior policy and ``need not
demonstrate . . . that the reasons for the new policy are better than
the reasons for the old one; it suffices that the new policy is
permissible under the statute, that there are good reasons for it, and
that the agency believes it to be better.'' 566 U.S. 502, 515 (2009)
(referencing Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). See also Perez v.
Mortgage Bankers Assn., 135 S. Ct. 1199 (2015). As stated above, the
EPA believes that its new policy here better aligns with the purpose of
the statute and RHR, which is achieving ``reasonable'' progress, not
maximal progress, toward Congress's natural visibility goal.
In the 2017 RHR Revisions, the EPA addressed the role of the URP as
it relates to a State's development of its second planning period
SIP.\161\ Specifically, in response to comments suggesting that the URP
should be considered a ``safe harbor'' and relieve States of any
obligation to consider the four statutory factors, the EPA explained
that the URP was not intended to be such a safe harbor.\162\ The EPA
summarized such comments as follows:
---------------------------------------------------------------------------
\161\ 82 FR 3078 (January 10, 2017).
\162\ 82 FR 3078, 3099 (January 10, 2017).
---------------------------------------------------------------------------
Some commenters stated a desire for corresponding rule text dealing
with situations where RPGs are equal to (``on'') or better than
(``below'') the URP or glidepath. Several commenters stated that the
URP or glidepath should be a ``safe harbor,'' opining that states
should be permitted to analyze whether projected visibility conditions
for the end of the implementation period will be on or below the
glidepath based on on-the-books or on-the-way control measures, and
that in such cases a four-factor analysis should not be required.'' Id.
Other comments indicated a similar approach, such as ``a somewhat
[[Page 22186]]
narrower entrance to a `safe harbor,' by suggesting that if current
visibility conditions are already below the end-of-planning-period
point on the URP line, a four-factor analysis should not be required.''
Id. The EPA was clear in its response: ``We do not agree with either of
these recommendations.'' The EPA explained its position as follows:
``The CAA requires that each SIP revision contain long-term strategies
for making reasonable progress, and that in determining reasonable
progress states must consider the four statutory factors. Treating the
URP as a safe harbor would be inconsistent with the statutory
requirement that states assess the potential to make further reasonable
progress towards natural visibility goal in every implementation
period.'' Id. (footnote omitted).
However, so long as a State considers the four factors, neither the
CAA nor the RHR prohibit the presumption that a Class I area below the
URP is achieving reasonable progress. Indeed, we think such a policy
better aligns with the statutory goal while recognizing the
considerable improvements in visibility impairment that have been made
by a wide variety of State and federal programs in recent decades.
The EPA's determinations are described in more detail in following
portions of section VII of this document.
B. Identification of Class I Areas
Section 169A(b)(2) of the CAA requires each state in which any
Class I area is located or ``the emissions from which may reasonably be
anticipated to cause or contribute to any impairment of visibility'' in
a Class I area to have a plan for making reasonable progress toward the
national visibility goal. The RHR implements this statutory requirement
at 40 CFR 51.308(f), which provides that each state's plan ``must
address regional haze in each mandatory Class I Federal area located
within the State and in each mandatory Class I Federal area located
outside the State that may be affected by emissions from within the
State,'' and paragraph (f)(2), which requires each state's plan to
include a long-term strategy that addresses regional haze in such Class
I areas.
The EPA concluded in the 1999 RHR that ``all [s]tates contain
sources whose emissions are reasonably anticipated to contribute to
regional haze in a Class I area,'' \163\ and this determination was not
changed in the 2017 RHR. Critically, the statute and regulation both
require that the cause-or-contribute assessment consider all emissions
of visibility impairing pollutants from a state, as opposed to
emissions of a particular pollutant or emissions from a certain set of
sources.
---------------------------------------------------------------------------
\163\ 64 FR 35714, 35721 (July 1, 1999).
---------------------------------------------------------------------------
To address 40 CFR 51.308(f), Texas identified the two mandatory
Class I areas within its borders, Big Bend National Park (Big Bend) and
Guadalupe Mountains National Park (Guadalupe Mountains). Both parks are
located in west Texas. Big Bend National Park (Big Bend) is in Brewster
County and borders the Rio Grande and Mexico. Guadalupe Mountains
National Park (Guadalupe Mountains) is in Culberson County and borders
New Mexico. Both are managed by the National Park Service.
In addition to the two Class I areas in Texas, the TCEQ conducted
area of influence analyses (AOIs) paired with emissions-over-distance
(Q/d) analyses for 11 Class I areas in other states including
Louisiana, Arkansas, Colorado, Missouri, Oklahoma, and New Mexico. The
AOIs were generated using ammonium sulfate and ammonium nitrate
extinction-weighted residence times (EWRT).\164\ The Class I areas
included in the analysis from Texas and neighboring states are
presented in Table 10, which is taken from Table 7-3: Class I Areas
included in AOI Analyses of the 2021 Texas Regional Haze Plan.\165\
---------------------------------------------------------------------------
\164\ 2021 Plan at 7-6. Extinction-weighted residence time is
calculated from the time that a particular back-trajectory from a
Class I area spent in the grid square containing the individual
emission source of interest (residence time) weighted by the
extinction coefficient for the visibility precursor (sulfate and
nitrate).
\165\ For the purposes of the AOI analysis, Carlsbad Caverns was
represented by data from the Guadalupe Mountains National Park
monitor. See 2021 Texas Regional Haze Plan at 1-5.
Table 10--Class I Areas Included in AOI Analyses of the 2021 Texas Regional Haze Plan
----------------------------------------------------------------------------------------------------------------
Site Code State County Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Big Bend National Park........ BIBE1................ TX 48043 29.3027 -103.178
Breton Island................. BRIS1................ LA 22075 30.10863 -89.76168
Caney Creek................... CACR1................ AR 05113 34.4544 -94.1429
Great Sand Dunes.............. GRSA1................ CO 08003 37.7249 -105.5185
Guadalupe Mountains National GUMO................. TX 48109 31.833 -104.8094
Park.
Hercules-Glades............... HEG1................. MO 29213 36.6138 -92.9221
Mingo......................... MING1................ MO 29207 36.9717 -90.1432
Rocky Mountain National Park.. ROMO1................ CO 08069 40.2783 -105.5457
Salt Creek.................... SACR1................ NM 35005 33.4598 -104.4042
Upper Buffalo Wilderness...... UPBO1................ AR 05101 35.8258 -93.203
Wheeler Peak.................. WHPE1................ NM 35055 36.5854 -105.42
White Mountain................ WHIT1................ NM 35027 33.4687 -105.5349
Wichita Mountains............. WIMO1................ OK 40031 34.7323 -98.713
----------------------------------------------------------------------------------------------------------------
The EPA finds that Texas's identification of out of state Class I
areas Texas sources potentially affect was reasonable. While we
previously raised some concerns in our now-withdrawn 2024 proposal
about Texas not specifically identifying the Bosque del Apache (BOAP)
Class I area in New Mexico, Texas's 2021 Plan did identify multiple
Class I areas in New Mexico, including the Salt Creek Wilderness Area
and the White Mountain Wilderness Area. BOAP is further west than the
Class I areas Texas considered, and further from Texas, resulting in
larger distance (d) from Texas sources and lower Q/d values that would
not have resulted in any additional sources being selected for further
evaluation using the four statutory factors. Upon further review of
Texas's 2021 Plan, the EPA is proposing that Texas adequately addressed
the elements of 40 CFR 51.308(f) and (f)(2) regarding identification of
Class I areas within the State and outside the State that may be
affected by emission from within Texas.
[[Page 22187]]
C. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
Section 51.308(f)(1) requires states to determine the following for
``each mandatory Class I Federal area located within the State'':
baseline visibility conditions for the most impaired and clearest days,
natural visibility conditions for the most impaired and clearest days,
progress to date for the most impaired and clearest days, the
differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for states to propose adjustments to the URP line for a Class I
area to account for visibility impacts from anthropogenic sources
outside the United States and/or the impacts from wildland prescribed
fires that were conducted for certain, specified objectives.\166\
---------------------------------------------------------------------------
\166\ 40 CFR 51.308(f)(1)(vi)(B).
---------------------------------------------------------------------------
In Chapter 4 of the 2021 Texas Regional Haze Plan, Texas determines
and presents the baseline, natural, and current visibility conditions
for both the 20 percent most anthropogenically impaired days and the 20
percent clearest days for the State's two Class I Areas consistent with
the EPA's RHR and guidance. In the 2021 Texas Regional Haze Plan, Texas
used visibility data from IMPROVE monitoring sites to calculate
baseline visibility conditions. Consistent with the RHR, Texas
calculated baseline visibility based on data from 2000-2004. For Big
Bend specifically, baseline visibility conditions are based on valid
data for 2001 through 2004 because 2000 did not meet completeness
criteria.\167\ Baseline visibility indices for Big Bend and Guadalupe
Mountains are presented in the 2021 Texas Regional Haze Plan in Table
4-4. In our review, we identified that the information provided by
Texas in Chapter 4 of its 2021 Regional Haze Plan as to the baseline
and current conditions on the 20 percent clearest days is inconsistent
with the IMPROVE monitoring data and information presented in Chapter
8. Based on the information in Table 8-42 of the 2021 Regional Haze
Plan, Texas identifies the correct data set for where this information
is located but presents the incorrect data in Chapter 4. Based on the
data source that Texas identified in Chapter 8, we present information
in Tables 11-13 consistent with information in Chapter 8 of its Plan
and the IMPROVE monitoring data.\168\
---------------------------------------------------------------------------
\167\ See 2021 Texas Regional Haze Plan at 4-4.
\168\ <a href="https://views.cira.colostate.edu/fed/">https://views.cira.colostate.edu/fed/</a>. See also 2020 Data
Completeness Memo, Table 1.
Table 11--Estimate of Baseline Visibility Conditions (2000-2004) for
Class I Areas in Texas
------------------------------------------------------------------------
Most impaired haze Clearest haze index
Class I area index (dv) (dv)
------------------------------------------------------------------------
Big Bend.................... 15.57 5.78
Guadalupe Mountains......... 14.60 5.92
------------------------------------------------------------------------
Using the revised IMPROVE algorithm \169\ and the methodology
described in the 2018 Visibility Tracking Guidance, Texas determined
natural visibility conditions for Big Bend and Guadalupe Mountains,
presented in Table 4-3 of the 2021 Plan, and included in the following
Table 12.
---------------------------------------------------------------------------
\169\ Marc Pitchford et al., Revised Algorithm for Estimating
Light Extinction from IMPROVE Particle Speciation Data, J. Air &
Waste Mgmt. Ass'n 1326, 1326-1336 (2007), <a href="https://doi.org/10.3155/1047-3289.57.11.1326">https://doi.org/10.3155/1047-3289.57.11.1326</a>.
Table 12--Estimate of Natural Visibility Conditions for Class I Areas in
Texas
------------------------------------------------------------------------
Most impaired haze Clearest haze index
Class I area index (dv) (dv)
------------------------------------------------------------------------
Big Bend.................... 5.33 1.62
Guadalupe Mountains......... 4.83 0.99
------------------------------------------------------------------------
The current visibility conditions, which are based on 2014-2018
monitoring data, are presented in the 2021 Plan in Table 4-5 with
corrected values included in the following Table 13.
Table 13--Estimate of Current Visibility Conditions (2014-2018) for Class I Areas in Texas
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Most impaired haze index Clearest haze index
Class I area (dv) (dv)
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Big Bend....................................................... 14.06 5.17
Guadalupe Mountains............................................ 12.64 4.73
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While the 2021 Plan does not specifically present the differences
between current visibility conditions and natural visibility conditions
as well as the progress to date, we include these calculations using
the corrected information in the following Tables 14 and 15.
[[Page 22188]]
Table 14--Progress to Date (Differences Between Baseline and 2014-2018
Current Conditions) for Class I Areas in Texas
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Class I area Most impaired (dv) Clearest haze (dv)
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Big Bend.................... 1.51 0.61
Guadalupe Mountains......... 1.96 1.19
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Table 15--Differences Between 2014-2018 Current and Natural Conditions
for Class I Areas in Texas
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Class I area Most impaired (dv) Clearest haze (dv)
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Big Bend.................... 8.73 3.55
Guadalupe Mountains......... 7.81 3.74
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The RHR allows states the option to adjust the 2064 glidepath
endpoint to account for both international anthropogenic and certain
prescribed fire impacts at Class I areas. EPA's 2018 Visibility
Tracking Guidance \170\ provides recommendations to assist states in
satisfying their obligations under 40 CFR 51.308(f)(1); specifically,
in developing information on baseline, current, and natural visibility
conditions, and in making optional adjustments to the URP to account
for the impacts of international anthropogenic emissions and prescribed
fires.\171\
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\170\ The 2018 Visibility Tracking Guidance references and
relies on parts of the 2003 Tracking Guidance: ``Guidance for
Tracking Progress Under the Regional Haze Rule,'' which can be found
at <a href="https://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf">https://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf</a>.
\171\ See 82 FR 3078, 3103-05 (January 10, 2017).
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Texas used its own CAMx modeling to adjust the URP to account for
international anthropogenic emissions consistent with one of the
approaches identified in EPA's 2018 Visibility Tracking Guidance.\172\
Specifically, Texas performed a brute force ``zero-out'' model run in
combination with other model runs. As explained in greater detail in
the 2020 Ramboll modeling report, this approach generally involves at
least two or three model runs: one ``base case'' run (2016 in this
case) with all emissions, one future base case run (2028 in this case)
with all the future case emissions, and one with anthropogenic
emissions from outside of the U.S. removed from the future base case
simulation ``zero-out''.\173\ The difference between these simulations
provides an estimate of the air quality impact due to the international
anthropogenic emissions.\174\ Texas's adjusted URP for Big Bend and
Guadalupe Mountains are presented in Figures 8-28 and 8-29 of its 2021
Texas Regional Haze Plan. Texas's adjusted URP in 2028 on the 20% most
impaired visibility days is 14.38 deciviews for Big Bend and 12.81 for
Guadalupe Mountains.\175\ In the EPA's September 2019 Availability of
Modeling Data and Associated Technical Support Document for the EPA's
Updated 2028 Visibility Air Quality Modeling memorandum \176\ (EPA 2019
Modeling TSD), the EPA used 2028 modeling results to quantify the
international impacts at Class I areas on the 20% most
anthropogenically impaired days. The results for Big Bend and Guadalupe
Mountains provided for in Texas's modeling are within the range of 2028
adjusted glidepath values provided for in the EPA 2019 Modeling
TSD.\177\
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\172\ 2018 Visibility Tracking Guidance at pg. 20.
\173\ Ramboll Final Report: Regional Haze Modeling to Evaluate
Progress in Improving Visibility (June 25, 2020).
\174\ 2018 Visibility Tracking Guidance at pg. 20; Ramboll Final
Report: Regional Haze Modeling to Evaluate Progress in Improving
Visibility (June 25, 2020), pg. 27.
\175\ 2021 Texas Regional Haze Plan, Table 8-43 at 8-59 and
Table 8-46 at 8-67.
\176\ Availability of Modeling Data and Associated Technical
Support Document for the EPA's Updated 2028 Visibility Air Quality
Modeling. <a href="https://www.epa.gov/visibility/technical-support-document-epas-updated-2028-regional-haze-modeling">https://www.epa.gov/visibility/technical-support-document-epas-updated-2028-regional-haze-modeling</a>. The EPA Office of Air
Quality Planning and Standards, Research Triangle Park (September
19, 2019).
\177\ EPA 2019 Modeling TSD at 54, 56, and Table 5-2 at 59.
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The EPA finds that the visibility condition calculations for the
two Texas Class I Areas meet the requirements of 40 CFR 51.308(f)(1).
Therefore, the EPA proposes to approve the portions of the 2021 Texas
Regional Haze Plan relating to 40 CFR 51.308(f)(1).
D. Long-Term Strategy for Regional Haze
1. Four Factor Analysis
Each state having a Class I area within its borders or emissions
that may affect visibility in a Class I area must develop a long-term
strategy for making reasonable progress towards the national visibility
goal.\178\ The long-term strategy ``must include the enforceable
emissions limitations, compliance schedules, and other measures that
are necessary to make reasonable progress, as determined pursuant to
(f)(2)(i) through (iv).'' \179\ The amount of progress that is
``reasonable progress'' is based on consideration of the four statutory
factors in CAA section 169A(g)(1) in an evaluation of potential control
options for sources of visibility impairing pollutants, which is
referred to as a ``four-factor'' analysis. After considering the four
statutory factors, all measures that are determined to be necessary to
make reasonable progress must be in the long-term strategy.
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\178\ CAA section 169A(b)(2)(B).
\179\ 40 CFR 51.308(f)(2).
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Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the
sources to be evaluated for emission reduction measures. The RHR
provides states flexibility in selecting sources, and to that end, 40
CFR 51.308(f)(2)(i) requires States to provide a description of the
criteria it used to determine which sources or groups of sources it
will consider for potential four-factor control analysis. A threshold
question at this step is which visibility impairing pollutants will be
analyzed. Texas focused on NO<INF>X</INF> and SO<INF>2</INF> emissions
from point sources in its control strategy analysis for the second
planning period. Texas explained these are the main anthropogenic
pollutants that affect visibility at Class I areas in Texas and Class I
areas in neighboring states. Texas further stated that, ``on an
individual basis, point sources are the largest contributors to
SO<INF>2</INF> and NO<INF>X</INF>,'' and thus
[[Page 22189]]
Texas elected to focus on point sources in this planning period.\180\
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\180\ 2021 Texas Regional Haze Plan at 7-3.
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To determine the necessary emission reductions measures, a state
must first select the sources to evaluate. Texas's source selection
methodology relied on a two-step approach. As the first step for source
selection, Texas developed NO<INF>X</INF> and SO<INF>2</INF> areas of
influence (AOIs) for thirteen \181\ Class I areas (in Texas and nearby
states) to identify areas that may contain sources of NO<INF>X</INF>
and SO<INF>2</INF> that were expected to contribute to visibility
impairment at these areas. The AOIs are graphical representations of
the extinction weighted residence time (EWRT), which combines air flow
patterns with ammonium sulfate and ammonium nitrate extinction measured
at IMPROVE monitors at the Class I areas on the 20% most impaired days.
At the second step, Texas then applied a Q/d threshold for
NO<INF>X</INF> and for SO<INF>2</INF> of greater than or equal to five
to point sources located within the geographical area of the selected
AOI threshold.\182\ Following this methodology, Texas selected 18
sources for further analysis of controls for either NO<INF>X</INF>
emissions, SO<INF>2</INF> emissions, or both depending on whether the
source had a Q/d over 5 for either NO<INF>X</INF> or SO<INF>2</INF> and
was within the relevant AOI.\183\ Put another way, if a source was
within the AOI and above the Q/d threshold for NO<INF>X</INF>, this
triggered analysis for potential control retrofit or production changes
for that pollutant. If an emissions unit triggered analysis for both
NO<INF>X</INF> and SO<INF>2</INF>, control strategies for both
pollutants were analyzed separately and concurrently.
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\181\ As discussed previously in section IV.C. of this document,
the monitor for Guadalupe Mountains also serves as the monitor for
Carlsbad Caverns in New Mexico.
\182\ To calculate the Q/d for point sources, the TCEQ used 2028
projected emissions (Q in tons per year) and distance from the Class
I area monitor to the source (d in kilometers). For non-EGUs, Texas
estimated 2028 future year emissions from 2016 reported emissions
from the State of Texas Air Reporting System (STARS) coupled with
growth factors developed by the consulting firm, Eastern Research
Group, Inc. (ERG) See 2021 Texas Regional Haze Plan at 7-9. For
EGUs, the TCEQ used data from the Eastern Regional Technical
Advisory Committee (ERTAC) to estimate EGU projections for 2028. See
2021 Texas Regional Haze Plan at 7-9. Additional information that
Texas used in developing its 2021 Plan is available in the docket
for this action.
\183\ 2021 Plan, at 7-2--7-9.
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Texas conducted analyses that evaluated potential emission
reduction measures using the four statutory factors for 15 out of the
18 selected sources.\184\ For EGUs, Texas considered and evaluated dry
sorbent injection (DSI) at a 90% control efficiency, spray dryer
absorber (SDA) at a 95% control efficiency, and wet limestone scrubbing
systems (wet FGD) at a 98% control efficiency as potential
SO<INF>2</INF> control options, and selective catalytic reduction (SCR)
at a 98% control efficiency and selective non-catalytic reduction
(SNCR) at a 50% control efficiency as potential NO<INF>X</INF>
controls.\185\ For EGUs with existing SO<INF>2</INF> controls, Texas
considered and evaluated upgrading the control efficiency of the
existing controls to achieve a control efficiency of 95%.\186\ For non-
EGUs, Texas considered various NO<INF>X</INF> and SO<INF>2</INF>
control options depending on the type of source and whether it had
existing controls.\187\ For three of the sources, the Orange Carbon
Black Plant, the Oxbow Coke Calcining Plant, and the Streetman
Lightweight Aggregate Plant, Texas determined that there were no
technically feasible controls.\188\
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\184\ For one EGU, Oak Grove Steam Electric Station, Texas
determined that both units at the source already operated wet
limestone scrubbers that are achieving over 98 percent control
efficiency. Further information on the controls considered, and the
control analysis conducted can be found in appendix B of Texas's
2021 Plan.
\185\ 2021 Plan, appendix B at B-1.
\186\ 2021 Plan, appendix B at B-1 and B-5 to B-6.
\187\ 2021 Plan, appendix B at B-1.
\188\ 2021 Plan, appendix B at B-9 to B-11.
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In terms of the cost of compliance factor, Texas performed a cost
analysis for each control option determined to be technically feasible
for all selected EGUs and non-EGUs to arrive at a cost per ton of
emissions reduced for controls.\189\ The TCEQ estimated the capital
cost of air pollution control equipment or methods using the most
recent data available from Sargent and Lundy for EGUs without existing
controls, data and information from previous analyses for EGUs with
existing SO<INF>2</INF> controls, and cost data and information from
the EPA, literature, and a vendor for non-EGUs.\190\ Annual operating
and maintenance costs associated with the potential control measure
were estimated from the same data and information used for estimating
capital costs for each source.\191\ The annualized capital cost was
then summed with the annual operating cost for a control measure to
arrive at a final total annualized cost, for each potential control
option.\192\ After estimating total potential emission reductions of
each NO<INF>X</INF> and SO<INF>2</INF> control option using baseline
emissions for EGUs and non-EGUs, the total annualized cost was divided
by the tons of pollutant emissions reduced to estimate the cost per ton
of emissions reduced.
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\189\ 2021 Plan, 7-11 to 7-12, appendix B. Additional
information that Texas used in developing its 2021 Plan is available
in the docket for this action.
\190\ 2021 Plan, 7-11 to 7-12, appendix B.
\191\ 2021 Plan, 7-11 to 7-12.
\192\ 2021 Plan, 7-11 to 7-12.
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In terms of the time necessary for compliance factor, Texas
generally found that the time necessary for a single source to design,
build, and install SO<INF>2</INF> scrubbing technology is anticipated
to be about three years.\193\ Texas also found that the time needed to
build and commence operation of dry sorbent injection (DSI) technology
could be less given that scrubbing vessels would not need to be
constructed. Texas found that the time to design, build, and install
the various NO<INF>X</INF> control technologies would also be about
three years.\194\
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\193\ 2021 Plan at 7-13.
\194\ 2021 Plan at 7-13.
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In terms of the energy and nonair quality environmental impacts of
compliance factor, Texas included such impacts for a particular control
measure, to the extent quantifiable, in the cost estimates.\195\ In
terms of the remaining useful life factor, Texas also considered this
factor in as part of its cost estimates for potential control measures.
Specifically, the TCEQ considered the remaining useful life in
evaluating and selecting an appropriate capital recovery factor.\196\
The TCEQ evaluated annualized capital costs of control, and
subsequently total annualized costs and costs per ton, based on capital
recovery factors of five, 15, and 30 years.\197\ Texas ultimately
determined that a capital life of 15 years was a reasonable `mid-point'
given that some of the selected Texas EGUs could not reasonably be
expected to operate an additional 30 years and the difficulty in
estimating remaining source life for non-EGUs.\198\ Texas also
recognized that a capital life of five years may be too short since
most of the units selected for cost control analysis for this planning
period could reasonably be expected to continue to operate longer than
five years.\199\ Additional information and detail about Texas's
control strategy analysis and consideration of the four statutory
factors can be found in Chapter 7 and appendix B of Texas's 2021 Plan.
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\195\ 2021 Plan at 7-12, 7-14.
\196\ 2021 Plan at 7-12.
\197\ 2021 Plan at 7-12.
\198\ 2021 Plan at 7-12.
\199\ 2021 Plan at 7-12.
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After characterizing the four statutory factors, Texas weighed the
costs of compliance factor and projected visibility benefits of
potential controls. Although visibility impact is not one of the
factors required for consideration
[[Page 22190]]
under the CAA and the RHR, Texas opted to evaluate and consider the
visibility benefits from selected control measures evaluated in the
four-factor analysis by conducting photochemical sensitivity
modeling.\200\ Texas relied on both the total annualized costs of
controls in considering the costs of compliance, which it calculated
was over $200 million, and the lack of a perceptible improvement in
visibility at any Class I area, in determining that it was not
reasonable to include any additional control measures in its long-term
strategy to make reasonable progress.\201\
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\200\ 2021 Plan at 7-14 to 7-17.
\201\ 2021 Plan, 7-14 to 7-17.
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In accordance with EPA's new policy discussed in section VII.A of
this document, if a State has considered the four statutory factors and
visibility conditions at the Class I areas to which the State
contributes are below the 2028 URP, then the State has demonstrated
that it has made reasonable progress for the second planning period.
Further, as illustrated in Table 16 of this document, Texas's modeling
projects that visibility conditions at all Class I areas except
potentially one (discussed further in subsequent paragraphs) to which
Texas potentially contributes will be below the URP in 2028.\202\
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\202\ 2021 Plan, Table 8-43.
Table 16--Texas Modeling Visibility Projections for Class I Areas
----------------------------------------------------------------------------------------------------------------
Future year Future year
2028 Adjusted (2028) 20% (2028) 20%
Class I area (IMPROVE, ID, State) glidepath most impaired clearest days
(dv) days (dv) (dv)
----------------------------------------------------------------------------------------------------------------
Big Bend National Park (BIBE, TX)............................... 14.4 14.2 4.9
Guadalupe Mountains N.P. (GUMO, TX)............................. 12.8 12.2 4.5
Breton Island W.A. (BRIS, LA)................................... 19.8 18.3 11.3
Caney Creek W.A. (CACR, AR)..................................... 18.8
[…truncated; see source link]Indexed from Federal Register on May 23, 2025.
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.