Notice2026-19496
Notice of Availability for Public Comment; Reconsideration of Air Plan Disapproval; Texas; Control of Air Pollution From Visible Emissions and Particulate Matter
Primary source
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Published
September 24, 2026
Issuing agencies
Environmental Protection Agency
Abstract
On August 20, 2020, the State of Texas, through the Texas Commission on Environmental Quality (TCEQ), submitted a state implementation plan (SIP) to the Environmental Protection Agency (EPA). The SIP submission addressed emissions during planned maintenance, startup, and shutdown (MSS) activities for certain electric generating units (EGUs) and included requirements intended to address visible emissions (opacity) and particulate matter (PM) emissions during planned MSS activities. These requirements were included in eight Agreed Orders (AOs) issued by TCEQ to the affected EGUs, which were provided in the 2020 SIP submission. The EPA disapproved the 2020 SIP submission on December 20, 2024, after determining that the requirements contained in these AOs did not meet the Clean Air Act's (CAA) enforceability requirements or the requirement that emission limitations must apply on a continuous basis. The EPA subsequently granted reconsideration of the disapproval on May 11, 2026. Through this notice of availability, the EPA is providing an opportunity for the public to provide additional information to the Agency during the reconsideration process. Since the EPA disapproved the 2020 SIP submission, TCEQ has rescinded four of the eight AOs. The EPA is soliciting public comments on the impact of these recissions on the EPA's prior evaluation of the SIP submission as well as any other information that would further inform the Agency's reconsideration of the 2024 disapproval action.
Full Text
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<title>Federal Register, Volume 91 Issue 184 (Thursday, September 24, 2026)</title>
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[Federal Register Volume 91, Number 184 (Thursday, September 24, 2026)]
[Notices]
[Pages 60616-60618]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19496]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R06-OAR-2021-0029; FRL-12218-03-R6]
Notice of Availability for Public Comment; Reconsideration of Air
Plan Disapproval; Texas; Control of Air Pollution From Visible
Emissions and Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability for public comment.
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SUMMARY: On August 20, 2020, the State of Texas, through the Texas
Commission on Environmental Quality (TCEQ), submitted a state
implementation plan (SIP) to the Environmental Protection Agency (EPA).
The SIP submission addressed emissions during planned maintenance,
startup, and shutdown (MSS) activities for certain electric generating
units (EGUs) and included requirements intended to address visible
emissions (opacity) and particulate matter (PM) emissions during
planned MSS activities. These requirements were included in eight
Agreed Orders (AOs) issued by TCEQ to the affected EGUs, which were
provided in the 2020 SIP submission. The EPA disapproved the 2020 SIP
submission on December 20, 2024, after determining that the
requirements contained in these AOs did not meet the Clean Air Act's
(CAA) enforceability requirements or the requirement that emission
limitations must apply on a continuous basis. The EPA subsequently
granted reconsideration of the disapproval on May 11, 2026. Through
this notice of availability, the EPA is providing an opportunity for
the public to provide additional information to the Agency during the
reconsideration process. Since the EPA disapproved the 2020 SIP
submission, TCEQ has rescinded four of the eight AOs. The EPA is
soliciting public comments on the impact of these recissions on the
EPA's prior evaluation of the SIP submission as well as any other
information that would further inform the Agency's reconsideration of
the 2024 disapproval action.
DATES: Written comments must be received on or before October 26, 2026.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0029, 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
the person listed under the FOR FURTHER INFORMATION CONTACT section.
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="https://www.regulations.gov">https://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: Mr. Michael Feldman, State Planning
and Implementation Branch, Air and Radiation Division, EPA Region 6
Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270; telephone
number: (214) 665-9793; email address: <a href="/cdn-cgi/l/email-protection#482e2d242c2529266625212b20292d24082d3829662f273e"><span class="__cf_email__" data-cfemail="9cfaf9f0f8f1fdf2b2f1f5fff4fdf9f0dcf9ecfdb2fbf3ea">[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, the use of ``we,''
``us,'' or ``our'' is intended to refer to the EPA. We use multiple
abbreviations and terms in this document. While this list may not be
exhaustive, for ease of reading and for reference purposes, the EPA
defines the following terms and acronyms here:
List of Acronyms
AEL--Alternative Emission Limitation
AO--Agreed Order
CAA--Clean Air Act
EGU--Electric Generating Unit
ESP--Electrostatic Precipitator
MSS--Maintenance, Startup, and Shutdown
NAAQS--National Ambient Air Quality Standard(s)
PM--Particulate Matter
RTC--Response to Comments
SIP--State Implementation Plan
SSM--Startup, Shutdown, and Malfunction
TAC--Texas Administrative Code
TCEQ--Texas Commission on Environmental Quality
Table of Contents
I. Executive Summary
A. What action is the EPA taking?
B. What is the legal authority and what are the requirements?
II. Background
A. Texas's 2020 SIP Submission and Background
B. Summary of the EPA's Bases for the 2024 Disapproval
C. Petition for Reconsideration
III. Request for Public Comment
I. Executive Summary
A. What action is the EPA taking?
The EPA is providing notice and opportunity for public comment to
inform the Agency's process of reconsidering the December 20, 2024,
disapproval action (89 FR 104043). See section III of this preamble for
more information.
B. What is the legal authority and what are the requirements?
The EPA issued its December 20, 2024, disapproval action \1\ after
notice of its proposal and public comment \2\ and in accordance with
CAA section 110 and the Agency's implementing regulations regarding SIP
submission at 40 CFR part 51, subpart F. The applicable SIP
requirements for the 2020 SIP submission and specific bases for the
2024 disapproval are provided in the applicable proposed (89 FR 71237,
Sept. 3, 2024) and final rule (89 FR 104043, Dec. 20, 2024) as well as
under section II of this preamble. The EPA granted the petition for
reconsideration based on its authority under the Administrative
Procedures Act (APA).
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\1\ 89 FR 104043 (Dec. 20, 2024).
\2\ 89 FR 71237 (Sept. 3, 2024).
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II. Background
A. Texas's 2020 SIP Submission and Background
The State made a SIP submission to the EPA on August 20, 2020,
intended to address emissions from certain sources during planned MSS
events. To address these emissions, the State adopted and submitted for
inclusion in its SIP AOs for eight coal-fired power plants (comprised
of thirteen units) equipped with electrostatic precipitators (ESPs) as
the PM control device, four of which TCEQ has rescinded since the EPA's
2024 disapproval.<SUP>3 4</SUP> The State
[[Page 60617]]
developed the AOs to impose source-specific alternative requirements
for visible emissions (opacity) and particulate matter during
identified periods of planned MSS activities. For all other periods of
operation, the affected sources would remain required to comply with
the existing emission limitations set forth in the Texas SIP,
specifically Title 30 of the Texas Administrative Code (TAC) sections
111.111 and 111.153(b). The 2020 SIP submission references but does not
revise 30 TAC Chapter 111 regulations, sections 111.111 and 111.153(b),
which contain State rules for opacity and particulate matter, and which
were originally approved into the State's SIP in 1972.\5\
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\3\ The AOs included the following eight facilities: (1)
Southwestern Electric Power Company (SWEPCO) H.W. Pirkey Power
Plant; (2) Lower Colorado River Authority (LCRA) Sam Seymour Fayette
Power Project; (3) Luminant Generation Company, LLC Martin Lake
Steam Electric Station; (4) NRG Texas Power, LLC Limestone Electric
Generating Station; (5) San Miguel Electric Cooperative, Inc. San
Miguel Electric Plant; (6) Southwestern Public Service Company (SPS)
Harrington Station in Potter County; (7) Texas Municipal Power
Agency (TMPA) Gibbons Creek Steam Electric Station; and (8) Public
Service Company of Oklahoma (PSCO) Oklaunion Power Station.
\4\ In May 2025, TCEQ revoked the AOs for the following four
facilities as the sources have shutdown, are no longer operating, or
have transitioned to natural gas as fuel for power generation: (1)
TMPA Gibbons Creek Steam Electric Station; (2) PSCO Oklaunion Power
Station; (3) SPS Harrington Station; and (4) SWEPCO H.W. Pirkey
Power Plant.
\5\ Texas first promulgated rules for the control of visible
emissions (opacity) and particulate matter emissions for inclusion
in its SIP on January 28, 1972, and the EPA first approved those
rules into the SIP on May 31, 1972 (37 FR 10895). The rules have not
substantively changed since their original approval as part of the
SIP.
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As noted, the SIP submission at issue in this action raised issues
related to emissions during MSS. The term MSS has considerable overlap
with the events the EPA refers to as startup, shutdown, and malfunction
(SSM).\6\ Issues associated with SSM are discussed at length in a SIP
Call that the EPA issued to States in 2015 (``2015 SSM SIP Action''),
where the EPA found that certain SIP provisions were inconsistent with
CAA sections 110(a)(2)(A) and 302(k) due to how automatic exemption
provisions excluded applicability of emission limitations during SSM
periods.\7\ On March 1, 2024, the D.C. Circuit Court of Appeals
partially remanded and vacated the 2015 SSM SIP Action.\8\ As is
relevant here, the Court vacated the 2015 SSM SIP Action with respect
to SIP provisions that contain automatic exemptions for emissions
during SSM events.\9\ The Court's opinion stated that while emission
limitations must be continuous, the EPA must determine that it is
``necessary or appropriate'' for an emissions restriction in a SIP to
meet the definition of ``emission limitation'' for the continuity
requirement to apply.
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\6\ The term SSM refers to startup, shutdown or malfunction at a
source. It does not include periods of maintenance at such a source.
An SSM event is a period of startup, shutdown or malfunction during
which there may be exceedances of the applicable emission
limitations and thus excess emissions. See 80 FR 33840, 33843 (June
12, 2015).
\7\ See 80 FR 33840.
\8\ Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77.
\9\ The EPA had considered automatic exemptions for emissions
during other modes of operation such as maintenance to pose the same
legal deficiency.
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Because emission limitations must be continuous,\10\ they cannot
include gaps or periods during which sources are not required to limit
their emissions and thus, for example, cannot include exemptions for
emissions during periods of operation such as MSS. The EPA interprets
the CAA to allow SIP provisions to include Alternative Emission
Limitations (AELs) that apply to sources during specific modes of
operation during which the source cannot meet an otherwise applicable
emission limitation, such as may be the case during MSS periods.
However, the generally applicable emission limitation and any AELs must
together constitute enforceable standards that apply on a continuous
basis to meet the CAA definition of ``emission limitation.'' The August
20, 2022, SIP submission from Texas included new AELs imposed through
the AOs that would apply during MSS periods in lieu of the otherwise
applicable numerical opacity and particulate matter limits.
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\10\ CAA sections 110(a)(2)(A) and 302(k).
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B. Summary of the EPA's Bases for the 2024 Disapproval
The EPA previously identified several concerns with Texas's 2020
SIP submission in the 2024 disapproval and accompanying proposal.\11\
The EPA found that it was ``necessary or appropriate'' for the relevant
PM and opacity limitations (the combination of the existing limits in
30 TAC Chapter 111 and the new requirements established in the AOs) to
meet the definition of ``emissions limitation.'' The Agency determined
that the combination of limits was not continuous because: (1) there
was no limit in the frequency of startup or shutdown events; (2) the
submission did not address the feasibility or availability of any
specific measures to minimize emissions during startup or shutdown; (3)
the AOs were not practically enforceable due to ambiguities that made
it unclear as to what procedures an operator must follow to be in
compliance during startup and shutdown and at what point in the startup
or shutdown process the facility must switch from compliance with the
AO to compliance with 30 TAC 111.111(a)(1) and 30 TAC 111.153(b) as
required for routine operation; and (4) the AOs did not include any
work practices that the sources were required to comply with during
periods of planned online or offline maintenance activities. The EPA
also found that the AOs were not enforceable as required by CAA section
110(a)(2)(A) because: (1) the AOs did not provide for adequate
monitoring, recordkeeping and reporting; (2) the conditions in the AOs
were too subjective to provide for practical enforceability; and (3)
the AOs lacked specificity and clarity as to the start and duration of
startup and shutdown periods. The EPA also noted that the 2020 SIP
submission did not sufficiently address CAA section 110(l)
noninterference requirements for the attainment and maintenance of the
NAAQS. The detailed evaluation of these issues can be found in the
proposal and further explained in the response to comments in the final
rule.\12\
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\11\ 89 FR 104043; 89 FR 71237.
\12\ 89 FR 104043; see also 89 FR 71237.
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Due to these concerns, the EPA determined in its 2024 disapproval
that the requirements contained in the AOs provided in the 2020 SIP
submission did not meet the CAA's enforceability requirement or the
requirement that emission limitations must apply on a continuous basis.
C. Petition for Reconsideration
In October 2025, the State of Texas and industry submitted a
petition for administrative reconsideration of the 2024 disapproval to
the EPA.\13\ The October 2025 petition identified as grounds for
reconsideration that the rulemaking did not reflect the current
Administration's policy views, relied on modeling information that was
not made available to stakeholders and public commenters prior to the
comment deadline, and lacked a statutory basis. The EPA granted the
October 2025 petition for reconsideration on May 11, 2026.\14\ As part
of the reconsideration process, the EPA is publishing this notice of
availability for public comment to
[[Page 60618]]
inform the Agency's reconsideration of the 2024 disapproval.
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\13\ The agency is treating the petition as a petition for
rulemaking under the APA, 5 U.S.C. 553(e). Certain industry groups
and the State of Texas also filed a petition for review in the Fifth
Circuit Court of Appeals, Business Coalition for Clean Air et al. v.
EPA, No. 25-60077 (5th Cir. 2025).
\14\ See letter dated May 11, 2026, from the EPA Region 6
Regional Administrator, Scott Mason IV, to the Texas Attorney
General Ken Paxton, granting the October 2025 petition for
reconsideration, available in the docket for this notice.
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III. Request for Public Comment
As stated in section I.A of this preamble, the EPA is providing
notice and opportunity for public comment as part of our
reconsideration process. The EPA is soliciting public comments on the
impacts of TCEQ's recissions of four of the eight AOs on the Agency's
prior evaluation of the SIP submission on as well as any other
information that would further inform the EPA's reconsideration of the
2024 disapproval action. All relevant information and documentation,
including for the proposed rule and final rule, as well as information
received during the proposal's comment period, are available in the
docket for this document (Docket No. EPA-R06-OAR-2021-0029).
Dated: August 26, 2026.
Walter Mason,
Regional Administrator, Region 6.
[FR Doc. 2026-19496 Filed 9-23-26; 8:45 am]
BILLING CODE 6560-50-P
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