Approval and Promulgation of Implementation Plans; Texas and Oklahoma; Regional Haze State Implementation Plans; Interstate Visibility Transport State Implementation Plan to Address Pollution Affecting Visibility and Regional Haze; Federal Implementation Plan for Regional Haze

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0754; FRL-9940-21-Region 6]

Approval and Promulgation of Implementation Plans; Texas and Oklahoma; Regional Haze State Implementation Plans; Interstate Visibility Transport State Implementation Plan to Address Pollution Affecting Visibility and Regional Haze; Federal Implementation Plan for Regional Haze

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is partially approving and partially disapproving a revision to the Texas State Implementation Plan (SIP) submitted on March 31, 2009, to address the regional haze requirements of the Clean Air Act (CAA). The EPA is partially approving this SIP revision as meeting certain requirements of the regional haze program, including the Best Available Retrofit Technology (BART) requirements for facilities other than Electric Generating Units (EGUs). The EPA is partially disapproving the Texas SIP revision for not adequately addressing other requirements of the regional haze program related to reasonable progress, the long-term strategy, and the calculation of natural visibility conditions. The EPA is promulgating a Federal Implementation Plan (FIP), which includes sulfur dioxide (SO

2

) emission limits for fifteen EGUs located at eight coal-fired power plants, to address these deficiencies.

In a previous rulemaking, the EPA had issued a limited disapproval of the Texas regional haze SIP with regard to Texas' reliance on the Clean Air Interstate Rule (CAIR), without promulgating a FIP. The EPA is not taking final action to address this deficiency at this time. The EPA is also disapproving portions of several separate infrastructure SIP revisions submitted by Texas for the purpose of addressing the requirements of the CAA regarding interference with other states' programs for visibility protection (interstate visibility transport) triggered by the issuance of the 1997 fine particulate matter (PM

2.5

) National Ambient Air Quality Standards (NAAQS), the 1997 ozone NAAQS, the 2006 PM

2.5

NAAQS, the 2008 ozone NAAQS, the 2010 Nitrogen Dioxide (NO

2

) NAAQS, and the 2010 SO

2

NAAQS. The EPA is deferring action at this time on promulgating a FIP to address these deficiencies.

Finally, the EPA is finalizing its proposed partial disapproval of a revision to the Oklahoma SIP submitted on February 19, 2010, to address the regional haze requirements of the CAA. Specifically, the EPA is disapproving portions of the Oklahoma SIP related to reasonable progress and the establishment of reasonable progress goals for the Class I area located within the state. The EPA is promulgating a FIP to address these deficiencies.

The EPA takes seriously its disapproval of SIPs, or portions thereof, and stands ready to work with the States to develop SIPs that would replace the Federal plans the EPA is promulgating today.

DATES:

This final rule is effective on February 4, 2016.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-EPA-R06-OAR-2014-0754. All documents in the docket are listed on the

http://www.regulations.gov

Web site. Although listed in the index, some information is not publicly available,

e.g.,

Confidential Business Information (CBI) or other information whose disclosure is restricted by statute therefore is not posted to regulations.gov. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically through

http://www.regulations.gov

or in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT:

Joe Kordzi at 214-665-7186; or

Kordzi.joe@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. Also throughout this document, when we refer to the Oklahoma Department of Environmental Quality (ODEQ), or the Texas Commission on Environmental Quality (TCEQ), we mean Oklahoma and Texas, respectively.

Table of Contents

I. Introduction

A. Our Proposed Action

B. Summary of Our Final Decision

1. Texas

2. Oklahoma Reasonable Progress Goals

3. Federal Implementation Plan

II. Summary and Analysis of Major Issues Raised by Commenters

A. General Comments

B. State and Federal Roles in the Regional Haze Program

C. Our Clarified Interpretation of the Reasonable Progress and Long-Term Strategy Requirements

D. Consideration of Visibility in the Reasonable Progress Analysis

E. Consultation Between Oklahoma and Texas

F. Source Category and Individual Source Modeling

G. Constitutional Law

H. Stay of Effective Date, Consolidated Appropriations Act, and Executive Orders 13405 and 13211

I. Controls in Addition to CAIR/CSAPR, and CSAPR Better Than BART

J. Installation of Controls Beyond the First Planning Period

K. Cost

L. Cost versus Visibility Benefit

M. Natural Conditions

N. Consistency With Our Other Regional Haze Actions

O. Modeling

P. Interstate Visibility Transport

Q. Disapproval of the Oklahoma and Texas Reasonable Progress Goals

R. International Emissions

S. Grid Reliability

T. Determination of Nationwide Scope and Effect

III. Final Action

A. Texas Regional Haze

B. Oklahoma Regional Haze

C. Interstate Visibility Transport

D. Federal Implementation Plan

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

VI. Judicial Review

I. Introduction

The purpose of Federal and state regional haze plans is to achieve a national goal, declared by Congress, of restoring and protecting visibility at 156 Federal Class I areas across the United States, most of which are national parks and wilderness areas with scenic vistas enjoyed by the American public. The national goal, as described in CAA Section 169A, is “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.” States are required to submit SIPs that ensure reasonable progress toward the national goal of remedying anthropogenic visibility impairment in Federal Class I areas, such as Big Bend National Park in Texas and the Wichita Mountains National Wildlife Refuge in Oklahoma.

In today's action, we are partially approving and partially disapproving portions of a SIP revision submitted by Texas to address the requirements of the regional haze program. Texas' regional haze SIP submittal included long-term strategies for making reasonable progress towards improving visibility at all Class I areas impacted by emissions from Texas sources and set reasonable progress goals for the two Class I areas

located within the state, the Big Bend and the Guadalupe Mountains National Parks. Texas addressed a key element of the regional haze program, the BART requirements, in part through reliance on CAIR. Specifically, for its EGUs, Texas relied on CAIR, which was issued in 2005, to meet the BART requirements for emissions of SO

2

and oxides of nitrogen (NO

X

). For particulate matter (PM) from its EGUs and for other categories of sources subject to the BART requirements, Texas concluded that no other BART controls were appropriate. Texas also considered whether additional measures beyond BART would be appropriate to ensure reasonable progress at its Class I areas and in Class I areas in nearby states, but concluded that no additional measures were needed to ensure reasonable progress. In its SIP submittal, Texas anticipated emissions reductions from CAIR, Federal mobile source standards, and other anticipated air pollution control requirements would adequately ensure reasonable progress toward improving visibility by 2018, the end of the first planning period.

We took partial action in 2012 on Texas' regional haze SIP submittal. In our 2012 action, we issued a limited disapproval of the SIP revision because of Texas' reliance on CAIR to satisfy SO

2

and NO

X

BART and to meet the long-term strategy requirements for its EGUs.

1

As explained in that action, our limited disapproval of Texas' regional haze SIP (and the SIPs of thirteen other states addressed in the 2012 action) was the result of a decision by the D.C. Circuit remanding CAIR to the EPA.

2

We concluded that because CAIR had been remanded and would remain in place only temporarily, we could not fully approve regional haze SIP revisions that relied on temporary reductions from CAIR. By issuing a limited disapproval rather than a full disapproval, however, we allowed Texas and these states to rely on CAIR for so long as CAIR was in place.

3

We addressed the resulting deficiencies in the regional haze SIPs of a number of the fourteen states through FIPs that relied on CAIR's successor, the Cross State Air Pollution Rule (CSAPR), to achieve improvements in visibility. However, we did not finalize a FIP for Texas in that action.

4

As a result, the deficiencies in Texas' regional haze SIP associated with its reliance on CAIR have not been addressed.

1

77 FR 33642 (June 7, 2012).

2

See North Carolina

v.

EPA,

531 F.3d 896 (D.C. Cir. 2008) (modified by 550 F.3d 1176).

3

77 FR at 33647.

4

77 FR at 33654 (explaining that the EPA was not finalizing a FIP for Texas in order to allow more time for the EPA to assess the SIP submittal from Texas addressing regional haze and noting that extra time was needed given “the variety and number of BART eligible sources and the complexity of the SIP”).

We are also disapproving several SIP revisions submitted by Texas to address the requirements of CAA Section 110(a)(2)(D)(i)(II) with respect to visibility. This provision of the CAA requires that each state's SIP have adequate provisions to prohibit in-state emissions from interfering with measures required to protect visibility in any other state. To address this requirement, the SIP must address the potential for interference with visibility protection caused by the pollutant (including precursors) to which the new or revised NAAQS applies. In its SIP submittals addressing these requirements, Texas indicated that its regional haze SIP fulfilled its obligation for addressing emissions that would interfere with measures required to be included in the SIP for any other state to protect visibility.

Finally, we are taking action on an element of the Oklahoma regional haze SIP submitted in February 2010. We previously issued a partial approval, and partial disapproval of the Oklahoma SIP in 2011, and promulgated a FIP to address the deficiencies that we had identified in our partial disapproval.

5

Our FIP required the installation of scrubber retrofits at six units, located at three facilities in Oklahoma in order to meet BART requirements.

6

Due to the special interrelationship of the visibility impairing transport of pollution between Texas and Oklahoma, we delayed action on the reasonable progress goals for the Wichita Mountains until we could review and evaluate Texas' SIP submittal. In today's action, we address the reasonable progress goals established by Oklahoma for this Class I area.

5

76 FR 81728.

6

76 FR 81728.

A. Our Proposed Action

When we reviewed the Oklahoma regional haze SIP, we noted that sources in Texas had significant impacts on visibility in the Wichita Mountains. Given the magnitude of these interstate impacts, we determined that the Oklahoma and Texas regional haze SIPs were interconnected, especially considering the relationship between upwind and downwind states in the reasonable progress and long-term strategy provisions of the Regional Haze Rule. Although we were able to act on the majority of Oklahoma's SIP at that time, we deferred action on Oklahoma's reasonable progress goals for the Wichita Mountains until we could first assess whether Texas had reasonably considered the potential for controls on those of its sources that were impacting visibility at the Wichita Mountains.

7

Having now reviewed the Texas regional haze SIP, it is clear that both Texas and Oklahoma acknowledged in their SIP submittals that sources in Texas have a large impact on visibility at the Wichita Mountains; indeed, the visibility impacts at this Class I area from Texas point sources are several times greater than the impacts from Oklahoma's own point sources.

7

76 FR 16177 (“[W]e believe that to properly assess whether Oklahoma has satisfied the reasonable progress requirements of Section 51.308(d)(1), we must review and evaluate Texas' submittal. We will do this in the course of processing the Texas [regional haze] SIP.”)

During the interstate consultation required by the Regional Haze Rule, Oklahoma and Texas discussed the significant contribution of sources in Texas to visibility impairment at the Wichita Mountains, but Texas concluded that no additional controls were warranted for its sources during the first planning period to ensure reasonable progress at the Wichita Mountains, or at its own Class I areas, the Big Bend and the Guadalupe Mountains National Parks. In reaching this conclusion, Texas relied on an analysis that obscured the benefits of potentially cost-effective controls on those sources or groups of sources with the largest visibility impacts in these Class I areas by inclusion of those controls with little visibility benefit, but which served to increase the total cost figures. This flawed analysis deprived Oklahoma of the information it needed to properly assess the reasonableness of controls on Texas sources during the consultation process and prevented Texas from properly assessing the reasonableness of controls to remedy visibility at Big Bend and the Guadalupe Mountains. As a result, Oklahoma established reasonable progress goals for the Wichita Mountains that did not reflect any emission reductions from Texas beyond those that will be achieved by compliance with other requirements of the CAA. Texas established reasonable progress goals for its own Class I areas based on a similar assessment.

Our proposed action on the Texas regional haze and interstate visibility transport SIP submittals and the Oklahoma regional haze SIP is discussed in detail in our notice of proposed rulemaking promulgated on

December 16, 2014.

8

In brief, we proposed to partially approve portions of the Texas regional haze SIP, including the determination by Texas that none of its non-EGU BART-eligible sources are subject to BART. We proposed to find, however, that Texas did not satisfy a number of requirements related to establishment of its reasonable progress goals and long-term strategy. We therefore proposed to disapprove Texas' reasonable progress goals. We proposed to disapprove Texas' calculation of natural visibility conditions and the uniform rates of progress for its two Class I areas. We proposed to disapprove the portions of SIP revisions separately submitted by Texas to meet the interstate visibility transport requirements for the 1997 PM

2.5

and ozone NAAQS, the 2006 PM

2.5

NAAQS, the 2008 ozone NAAQS, the 2010 NO

2

NAAQS, and the 2010 SO

2

NAAQS. These submittals relied on the Texas regional haze SIP which, in turn, relied on CAIR to achieve the necessary emissions reductions. We proposed to find that as CAIR had been replaced by CSAPR, and CSAPR was scheduled to go into effect in 2015, Texas could not rely on its regional haze SIP to ensure that emissions from Texas do not interfere with the measures to protect visibility in nearby states. In addition, we proposed disapproval of these SIP submittals based on our proposed conclusion that additional control of SO

2

emissions in Texas is needed to prevent interference with measures required to be included in the Oklahoma SIP to protect visibility.

8

79 FR 74818.

Finally, we also proposed to disapprove Oklahoma's reasonable progress goals for the Wichita Mountains because Oklahoma did not satisfy several of the requirements related to setting those goals. In assessing the measures necessary to achieve the uniform rate of progress, Oklahoma demonstrated that eliminating all emissions from Oklahoma sources would not be sufficient to meet the uniform rate of progress in 2018. Oklahoma realized that the efforts to meet natural visibility conditions would require emission reductions from other states. The work done by the Central Regional Air Planning Association (CENRAP) showed that SO

2

point sources in Texas were a significant contributor to haze at the Wichita Mountains. However, Oklahoma did not pursue this information in its consultations with Texas. As explained more fully in our proposed rule, we believe that the lack of development of critical information regarding reasonable reductions from Texas sources prevented Oklahoma from having adequate information to establish its reasonable progress goals for the Wichita Mountains. Oklahoma should have requested that Texas further investigate its sources, or requested additional reductions from Texas sources to ensure that all reasonable measures to improve visibility were included in Texas' long-term strategy and incorporated into the reasonable progress goals for the Wichita Mountains. We proposed to find that due to these flawed consultations, Oklahoma did not consider the emission reduction measures necessary to achieve the uniform rate of progress for the Wichita Mountains and did not adequately demonstrate that its reasonable progress goals were reasonable.

We proposed FIPs for Texas and Oklahoma to remedy these deficiencies. Our proposed Texas FIP included SO

2

emission limits on fifteen EGUs located at eight Texas facilities in order to make reasonable progress at the three Class I areas in Texas and Oklahoma. We estimate that our FIP will reduce the emissions of SO

2

from Texas sources by approximately 230,000 tons per year. We proposed that compliance with these emission limits be based on 30-Boiler-Operating-Day (BOD) averages.

9

The SO

2

emission limits were based on seven scrubber retrofits, seven scrubber upgrades, and the continued operation of an existing upgraded scrubber at the San Miguel power plant. We proposed that compliance with these limits be achieved within five years of the effective date of our final rule for the control assessments based on scrubber retrofits, and within three years of the effective date of our final rule for the control assessments based on scrubber upgrades. We proposed that compliance be achieved within one year for San Miguel.

9

We explained in our proposed rule that the BART Guidelines describe a boiler-operating-day “to be any 24-hour period between 12:00 midnight and the following midnight during which any fuel is combusted at any time at the steam generating unit.” See 70 FR 39172 (July 6, 2005). To calculate a 30 day rolling average based on the boiler-operating-day, the average of the last 30 “boiler-operating-days” is used.

We proposed new reasonable progress goals for 2018 for Big Bend and the Guadalupe Mountains in Texas and for the Wichita Mountains in Oklahoma that take into account the additional emission reductions required in our proposed FIP for Texas. We proposed new estimates of natural conditions for the two Class I areas in Texas and proposed new uniform rates of progress for these areas. We proposed to rely on CSAPR to satisfy the SO

2

and NO

X

BART requirements for EGUs in Texas. Finally, we proposed to rely on CSAPR and the SO

2

emission limits in our proposed FIP to address the deficiencies identified in Texas' infrastructure SIP revisions. Our proposed FIP for Oklahoma did not include any additional requirements on emission sources within Oklahoma.

Our electronic docket at

www.regulations.gov

contains Technical Support Documents (TSDs) and other materials that supported our proposal. Some information is protected as CBI and thus is not available to the public or posted electronically. Due to several requests from the public and due to the complex nature of our proposal, we provided for an extended public comment period, which closed on April 20, 2015.

B. Summary of Our Final Decision

Below we present a summary of the major points of our final decision regarding the Texas regional haze SIP, the portions of Texas SIP submittals addressing interstate visibility transport, and those parts of the Oklahoma regional haze SIP that we have not previously acted upon. We summarize which parts of the Texas and Oklahoma regional haze SIPs and the interstate visibility transport portions of Texas' SIP submittals we are disapproving, which parts are cured by our FIP, and which parts we are deferring action upon.

1. Texas

In this action, we are partially approving and partially disapproving portions of the SIP revision submitted by Texas to address the requirements of the regional haze program. We are also disapproving portions of several SIP revisions addressing the requirements of the CAA that prohibit air pollutant emissions from interfering with measures required to protect visibility in any other state, as described below.

a. Reasonable Progress Goals

We are finalizing our disapproval of Texas' reasonable progress goals for Big Bend and the Guadalupe Mountains. We have determined that Texas has not demonstrated that its reasonable progress goals provide for reasonable progress towards meeting the national visibility goal. Specifically, we find that Texas did not satisfy several of the requirements of the regional haze rule at 40 CFR 51.308(d)(1) (hereinafter referred to as § 51.308(d)) with regard to setting reasonable progress goals, most notably the requirement to reasonably consider

the four statutory reasonable progress factors under § 51.308 (d)(1)(i)(A) and the requirement to adequately justify reasonable progress goals that are less stringent than the uniform rate of progress under § 51.308 (d)(1)(ii).

At the outset and as we discussed in detail in our proposal, we find the set of potential controls identified by Texas and how it analyzed and weighed the four reasonable progress factors under § 51.308(d)(1)(i)(A) was inappropriate.

10

We are finalizing our determination that Texas' analysis was deficient and not approvable because the large control set it selected was not appropriately refined, targeted, or focused on those sources having the most significant and potentially cost-effective visibility benefits. We conclude this control set included controls on sources that would increase total cost figures, but would achieve very little visibility benefit. As discussed in our proposal, because Texas only estimated the visibility benefit of all the controls together, it was not able to assess the potential benefit of controlling those sources with the greatest visibility impacts, and potentially cost-effective controls. Therefore, the effects of those controls with the greatest visibility benefits were obscured by the inclusion of those controls with little visibility benefit. This only served to increase the total cost figure, making Texas' potential control set seem less attractive.

11

We therefore finalize our disapproval of the portions of the Texas regional haze SIP addressing the requirements of § 51.308 (d)(1)(i)(A), regarding Texas' reasonable progress four-factor analysis.

12

10

79 FR 74838.

11

79 FR 74838. Additionally, the analysis of potential controls in the Texas SIP did not include any consideration of the reasonableness of control upgrades or increased utilization of existing controls to reduce emissions at sources with large visibility impacts at nearby Class I areas. These controls were validated as especially cost-effective by the technical record for this FIP. At costs ranging from $368/ton to $910/ton, over 100,000 tpy of SO

2

emission reductions can be achieved from a small number of scrubber upgrades, resulting in very cost-effective visibility benefits at Texas Class I areas and Class I areas in other states.

12

The “four-factor analyses” or the “four factors” refers to the requirement in § 51.308(d)(1)(i)(A) that in establishing a reasonable progress goal a state must consider the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources, and include a demonstration showing how these factors were taken into consideration in selecting the goal.

We are also finalizing our disapproval of Texas' assessment of the emission reduction measures needed to achieve the uniform rate of progress for the period covered by the SIP, under § 51.308(d)(1)(i)(B). Although Texas correctly followed the procedures for analyzing and determining the rate of progress needed to attain natural visibility conditions by the year 2064, we find that Texas calculated this rate of progress on the basis of, and compared baseline visibility conditions to, a flawed estimation of natural visibility conditions for Big Bend and the Guadalupe Mountains.

13

As discussed in the section below, we are finalizing our disapproval of Texas' calculation of natural visibility conditions for Big Bend and the Guadalupe Mountains in this action.

13

79 FR 74833.

We also find that Texas failed to adequately justify reasonable progress goals that are less stringent than the uniform rate of progress under § 51.308(d)(1)(ii).

14

Although we agree with Texas that a rate of improvement necessary to attain natural visibility conditions by 2064 is not reasonable, we do not find that the rate of improvement that Texas has selected is reasonable, because we have determined that Texas' four-factor analysis and the analysis of emission measures needed to meet the uniform rate of progress does not meet the requirements of the Regional Haze Rule. We therefore finalize our disapproval of the reasonable progress goals for Big Bend and the Guadalupe Mountains under § 51.308(d)(1)(ii). In so doing, we rely on the specific directive in § 51.308(d)(1)(iii) that in determining whether the State's goal for visibility improvement provides for reasonable progress towards natural visibility conditions, the Administrator will evaluate the demonstrations developed by the State pursuant to paragraphs (d)(1)(i) and (ii).

14

79 FR 74843.

With regard to the requirement under § 51.308(d)(1)(iv) to consult with other states which may reasonably be anticipated to cause or contribute to visibility impairment at its Class I areas, we find that Texas appropriately identified those states with the largest impacts on Texas Class I areas and invited them for consultation. Based on our review of the CENRAP's source apportionment modeling and given the small modeled contributions from individual nearby states, especially when only considering anthropogenic sources that can be easily controlled in comparison with the size of impacts from Texas sources and international sources, we find that it was reasonable for Texas to have focused the analysis of additional controls on sources within Texas. We agree with Texas' determination that it was not reasonable to request additional controls from other states at this time. Therefore, we are finalizing our determination that Texas has satisfied the requirement under § 51.308(d)(1)(iv).

Under § 51.308(d)(1)(vi), Texas may not adopt a reasonable progress goal that represents less visibility improvement than is expected to result from implementation of other requirements of the CAA during the applicable planning period. As discussed in our proposal, we find that Texas' reasonable progress goals for 2018, based on the CENRAP model projections, represent at least as much visibility improvement as was expected to result from implementation of other requirements of the CAA (

i.e.,

requirements other than regional haze) during the applicable planning period.

15

In this action we are finalizing our approval of the portion of the Texas regional haze SIP addressing the requirement under § 51.308(d)(1)(vi).

15

79 FR 74833.

b. Calculations of Baseline and Natural Visibility Conditions

As required by § 51.308(d)(2)(i) of the Regional Haze Rule, Texas calculated baseline/current conditions for its two Class I areas, Big Bend and the Guadalupe Mountains, on the most impaired and least impaired days. Texas calculated baseline visibility conditions for Big Bend and the Guadalupe Mountains using available monitoring data over the 2000-2004 period and the new IMPROVE equation, as discussed in our proposal.

16

We are finalizing our approval that Texas has satisfied the baseline visibility requirements of § 51.308(d)(2)(i).

16

79 FR 74832.

Under § 51.308(d)(2)(iii), Texas must determine natural visibility conditions for the most impaired and least impaired days for the Class I areas in the state. Our guidance

17

provides default natural conditions for the 20% worst and 20% best days for each Class I area based on the original IMPROVE equation. As documented in our guidance, 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.

18

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.

19

These estimates are referred to as the “NC II” default natural visibility conditions. Texas chose to derive a “refined” estimate of natural visibility conditions rather than using the default NC II values. Texas started with this refined version of default natural visibility conditions, but further altered some of its 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. We are finalizing our determination that Texas has not adequately demonstrated that all coarse mass and fine soil measured in the baseline period can be attributed to 100% natural sources and we are therefore disapproving Texas' calculated natural visibility conditions under § 51.308(d)(2)(iii). We are also finalizing our disapproval of the portion of the Texas SIP that addresses the requirement to calculate the number of deciviews by which baseline conditions exceed natural conditions for the best and worst visibility days at the Texas Class I areas, under § 51.308(d)(2)(iv)(A). Because the calculation relies on the determination of natural visibility conditions, which we are disapproving, we must also disapprove Texas' calculation of the level of visibility impairment above natural conditions.

17

Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Rule, EPA-454/B-03-005, September 2003.

18

States are “free to develop alternative approaches that will provide natural visibility conditions estimates that are technically and scientifically supportable. Any refined approach should be based on accurate, complete, and unbiased information and should be developed using a high degree of scientific rigor.” Guidance for Estimating Natural Visibility Conditions Under

the Regional Haze Rule, EPA- 454/B-03-005, September 2003, p 1-11

19

The second version of the natural haze level II estimates based on the work of the Natural Haze Levels II Committee is available at:

http://vista.cira.colostate.edu/Docs/IMPROVE/Aerosol/NaturalConditions/NaturalConditionsII_Format2_v2.xls.

c. Long-Term Strategy

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, it must consult with that state in order to develop coordinated emission management strategies. Texas also must consult with any other state having emissions that are reasonably anticipated to contribute to visibility impairment in any mandatory Class I area within it (we have discussed this consultation requirement above). Texas and Oklahoma agreed that visibility impairment at the Wichita Mountains due to emissions from sources in Texas is significant and that the impacts from point sources in Texas are several times greater than the impact from Oklahoma point sources. Furthermore, the ODEQ asserted in its consultations with the TCEQ, and elsewhere in its regional haze SIP, that it would not be able to reach natural visibility by 2064 without additional reductions from Texas sources. Oklahoma and Texas discussed the significant contribution of sources in Texas to visibility impairment at the Wichita Mountains during the interstate consultation process required by the Regional Haze Rule. The results of the CENRAP analysis demonstrated that Texas point sources, and in particular EGUs in northeast Texas, have large visibility impacts at the Wichita Mountains and that cost-effective controls were potentially available for some of these sources. Ultimately, Texas unreasonably determined that no additional controls were warranted for its sources during the first planning period to help achieve reasonable progress at the Wichita Mountains. In analyzing whether additional controls should be required for some of its sources under the long-term strategy provisions of the Regional Haze Rule, Texas relied on the same flawed analysis discussed above that it relied on to evaluate additional controls under the reasonable progress provisions to address visibility impairment at Texas' own Class I areas. Texas' analytical approach obscured the contributions of individual sources that Texas' own analysis indicated could be cost-effectively controlled. This deprived Oklahoma of the information it needed to properly assess whether there were reasonable controls for Texas sources and to properly establish reasonable progress goals for the Wichita Mountains that included the resulting emission reductions. We are therefore finalizing our disapproval of the portion of the Texas regional haze SIP addressing the requirement in § 51.308(d)(3)(i) to “consult with the other State(s) in order to develop coordinated emission management strategies.”

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 our proposal, we find that the technical analysis developed by CENRAP and supplemented by Texas did not provide the information needed to evaluate the reasonableness of controls on those sources with the greatest potential to impact visibility at the Wichita Mountains.

20

Texas' “share of the emission reductions needed to meet the progress goal” for the Wichita Mountains was not properly established because of the inadequacies in its technical analyses, which compromised its consultations with Oklahoma. We are finalizing our determination that Texas did not develop an adequate technical basis to inform consultations with Oklahoma in order to develop coordinated management strategies and to identify reasonable reductions from its sources. As a result, we find that Texas did not incorporate those reasonable reductions into its long-term strategy. For these reasons we are finalizing our determination that Texas did not adequately meet the requirement in § 51.308(d)(3)(ii).

20

79 FR 74857.

Section 51.308(d)(3)(iv) requires that Texas identify all anthropogenic sources of visibility impairment considered by it in developing its long-term strategy. We proposed to find that Texas' 2002 and 2018 emission inventories are acceptable and that it satisfies § 51.308(d)(3)(iv) and today, we take final action to approve that finding. However, under § 51.308(d)(3)(iii), Texas must 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. Texas addressed this requirement mainly by relying on technical analyses developed by CENRAP and approved by all state participants, but it also performed an additional analysis building upon the work of CENRAP in order to evaluate additional controls under the reasonable progress and long-term strategy provisions of the Regional Haze Rule. As discussed in our proposal, we find that this additional analysis was inadequate because the large control set Texas selected was not appropriately refined, targeted, or focused on those sources having significant and potentially cost-effective visibility benefits and did not provide the information necessary to determine the reasonableness of controls at those

sources in Texas that have the greatest visibility impacts at the Wichita Mountains.

21

Therefore, we are finalizing our disapproval of the portion of the Texas regional haze SIP that addresses the requirement in § 51.308(d)(3)(iii) to document the technical basis on which the state is relying to determine its apportionment of emission reduction obligations necessary for achieving reasonable progress at the Wichita Mountains.

21

79 FR 74833.

In developing its long-term strategy, the state must consider a number of factors identified in § 51.308(d)(3)(v)(A)-(G). In this action, for the reasons discussed in our proposal,

22

we are approving several portions of the Texas regional haze SIP as adequately addressing the following provisions of § 51.308(d)(3)(v): (A) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI (Reasonably Attributable Visibility Impairment); (B) measures to mitigate the impacts of construction activities; (D) source retirement and replacement schedules; (E) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (F) enforceability of emissions limitations and control measures; and (G) 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. However, we are disapproving the portion of the Texas regional haze SIP addressing paragraph (C) of § 51.308(d)(3)(v), the requirement to consider emissions limitations and schedules for compliance to achieve the reasonable progress goals. As discussed in depth elsewhere in this document and in our separate Response to Comment (RTC) document, we have determined that Texas' analysis is inadequate because it does not provide the information necessary to determine the reasonableness of controls at those sources in Texas that significantly impact visibility at the Wichita Mountains in Oklahoma, or the Texas Class I areas. Therefore, we find that Texas did not properly consider the emissions limitations and schedules for compliance necessary to achieve reasonable progress at its Class I areas or the Wichita Mountains Class I area in Oklahoma.

22

79 FR 74862.

d. Monitoring Strategy and Other Requirements

Section 51.308(d)(4) requires that the Texas regional haze SIP contain a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I areas within the state. This monitoring strategy must be coordinated with the monitoring strategy required in 40 CFR 51.305 for RAVI. Compliance with this requirement may be met through participation in the IMPROVE network. Since the monitors used for the Guadalupe Mountains and Big Bend are IMPROVE monitors, we have determined that Texas has satisfied this requirement.

23

Section 51.308(d)(4)(i) requires the establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goals to address regional haze for all mandatory Class I areas within the state are being achieved. We approve of Texas' determination under this section that the IMPROVE network monitors that are already in place are adequate to assess Texas' reasonable progress goals.

23

79 FR 74863.

Section 51.308(d)(4)(ii) requires that Texas establish procedures by which monitoring data and other information are used in determining the contribution of emissions from within Texas to regional haze visibility impairment at mandatory Class I areas both within and outside the state. The monitors at Big Bend and the Guadalupe Mountains are operated through the IMPROVE monitoring program, which is national in scope, and other states have similar monitoring and data reporting procedures, ensuring a consistent and robust monitoring data collection system. Section 51.308(d)(4)(iv) requires that the SIP must provide for the reporting of all visibility monitoring data to the Administrator at least annually for each mandatory Class I area in the state. Section 51.308(d)(4)(vi) also requires that Texas provide for other elements, including reporting, recordkeeping, and other measures, necessary to assess and report on visibility. We are finalizing our determination that Texas has met these requirements through participation in the IMPROVE program.

Section 51.308(d)(4)(v) requires that Texas maintain a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. Texas must also include a commitment to update the inventory periodically. As discussed in the proposal, Texas has provided in the SIP a baseline emission inventory, estimates of future emissions, and emissions for the most recent year for which data was available at the time the SIP was developed.

24

We approve the portion of the Texas regional haze SIP that addresses this requirement.

24

79 FR 74863.

We also approve Texas' coordination with the Federal Land Managers (FLMs) under 40 CFR 51.308(i). As detailed in our proposal, Texas has satisfied these requirements through communications with the FLMs, providing for review of the draft Texas regional haze SIP by the FLMs, and describing how all FLM comments were addressed in the SIP. Texas also provided procedures for continuing consultations.

25

25

79 FR 74864.

e. Best Available Retrofit Technology

We approve Texas' BART determinations for non-EGUs under 40 CFR 51.308(e). We are approving Texas' determination of which non-EGU sources in the state are BART-eligible and the determination that none of the state's BART-eligible non-EGU sources are subject to BART because they are not reasonably anticipated to cause or contribute to visibility impairment at any Class I areas. We reviewed the various modeling techniques utilized by the TCEQ in evaluating and screening out the BART-eligible non-EGU sources and we concur with the results of analysis.

26

We are approving the provisions in Texas' BART rules at 30 Tex. Admin. Code (TAC) 116.1500-116.1540, with the exception of 30 TAC 116.1510(d), which contains regulatory language addressing EGUs' reliance on CAIR to meet the BART requirements.

26

79 FR 74844.

However, we are not finalizing our proposed actions with regard to the state's BART-eligible EGU sources. As described above, we issued a limited disapproval of the Texas regional haze SIP in 2012 because of Texas' reliance on CAIR to meet certain requirements of the regional haze program. To address the deficiencies in Texas' plan arising from its reliance on CAIR to meet the SO

2

and NO

X

BART requirements for its EGUs, we proposed to substitute reliance on CSAPR. We previously determined that CSAPR would provide for greater reasonable progress than BART and established regulations that

allow certain states to rely on CSAPR to meet the SO

2

and NO

X

BART requirements for EGUs.

27

CSAPR has been subject to extensive litigation, however, and on July 28, 2015, the D.C. Circuit Court issued a decision upholding CSAPR but remanding without vacating the CSAPR emissions budgets for a number of states.

28

Specifically, the court invalidated a number of the Phase 2 ozone-season NO

X

budgets and found that the SO

2

budgets for four states resulted in over-control for purposes of CAA section 110(a)(2)(D)(i)(I)(i). Texas' ozone-season NO

X

budget and SO

2

budget are both involved with this remand, and we are currently in the process of determining the appropriate response to the remand. Given the uncertainty arising from the remand of Texas' CSAPR budgets, we have concluded that it would not be appropriate to finalize our proposed determination to rely on CSAPR as an alternative to SO

2

and NO

X

BART for EGUs in Texas at this time. We note that some of the sources for which we are finalizing SO

2

controls in this action are also potentially subject to the BART requirements. Should we determine in the future that it is necessary to perform source-specific BART determinations for these sources instead of relying on CSAPR, we anticipate that the SO

2

controls we are finalizing today, which are currently the most stringent available, will also be sufficient to satisfy the SO

2

BART requirement.

27

77 FR 33642.

28

EME Homer City Generation

v.

EPA,

79 F.3d 118 (D.C. Cir.).

In addition, we note that we proposed to approve Texas' determination that for its EGUs no PM BART controls were appropriate, based on a screening analysis of the visibility impacts from just PM emissions and the premise in our proposal that EGU SO

2

and NO

X

were covered separately by participation in CSAPR allowing consideration of PM emissions in isolation. Because of the CASPR remand and resulting uncertainty regarding SO

2

and NO

X

BART for EGUs, we have also decided not to finalize our proposed approval of Texas' PM BART determination. We will address PM BART for EGUs in Texas in a future rulemaking as well.

f. Interstate Visibility Transport

The EPA is also disapproving portions of several separate infrastructure SIP revisions submitted by Texas for the purpose of addressing the requirements of the CAA regarding interference with other states' programs for visibility protection (interstate visibility transport). Section 110(a) of the CAA directs states to submit a SIP that provides for the implementation, maintenance, and enforcement of each NAAQS, which is commonly referred to as an infrastructure SIP. Among other things, CAA 110(a)(2)(D)(i)(II) requires that SIPs contain adequate provisions to prohibit interference with measures required to protect visibility in other states. We have concluded that to meet the requirements of CAA section 110(a)(2)(D)(i)(II): (1) Texas may not rely on its regional haze SIP, which relied heavily upon CAIR, to ensure that emissions from Texas do not interfere with measures to protect visibility in nearby states and (2) additional control of SO

2

emissions in Texas is needed to prevent interference with measures required to be included in the Oklahoma SIP to protect visibility. Because the Texas regional haze SIP does not ensure that Texas emissions would not interfere with measures required to be included in the SIP for any other state to protect visibility, as required by section 110(a)(2)(D)(i)(II) of the Act, we are taking final action to disapprove portions of the Texas SIP submittals that address CAA provisions for prohibiting air pollutant emissions from interfering with measures required to protect visibility in any other state for the 1997 PM

2.5

, 2006 PM

2.5

, 1997 ozone, 2008 ozone, 2010 NO

2

, and 2010 SO

2

NAAQS. Specifically, we are disapproving portions of the following SIP submittals made by Texas for new or revised NAAQS:

• April 4, 2008: 1997 8-hour Ozone, 1997 PM

2.5

(24-hour and annual)

• May 1, 2008: 1997 8-hour Ozone, 1997 PM

2.5

(24-hour and annual)

• November 23, 2009: 2006 24-hour PM

2.5

• December 7, 2012: 2010 NO

2

• December 13, 2012: 2008 8-hour Ozone

• May 6, 2013: 2010 1-hour SO

2

We proposed to rely on CSAPR and the emission reductions required by our FIP for Texas to address these deficiencies in Texas' SIP submittals, but we have determined that it is not appropriate to finalize this determination at this time. Again, given the uncertainty following the D.C. Circuit Court's partial remand of the CSAPR budgets, we do not consider it appropriate to rely on CSAPR at this time to address the deficiencies on the Texas SIP, included those associated with interstate visibility transport obligation with respect to visibility. Therefore, this action does not finalize the portion of our proposed FIP addressing Texas' visibility transport obligations, as that portion of the FIP would have partially relied on CSAPR. We will address the visibility transport requirements for Texas in a future rulemaking, once the issues surrounding the partial remand are resolved.

2. Oklahoma Reasonable Progress Goals

We are taking final action to disapprove the reasonable progress goals established by Oklahoma, and we are approving one portion and disapproving the other portions of the Oklahoma regional haze SIP that address the requirements of § 51.308(d)(1). We find that Oklahoma's flawed consultation with Texas denied it the knowledge it needed—the extent to which cost-effective controls were available for those sources or groups of sources in Texas with the greatest potential to impact visibility at the Wichita Mountains—in order to properly construct its reasonable progress goal for the Wichita Mountains. Oklahoma and Texas discussed the significant contribution of sources in Texas to visibility impairment at the Wichita Mountains during the interstate consultation process required by the Regional Haze Rule. The results of the CENRAP analysis demonstrated that Texas point sources, and in particular EGUs in northeast Texas, have significant visibility impacts on the Wichita Mountains and that cost-effective controls were potentially available for some of these sources. However, Oklahoma did not pursue the point in its consultations with Texas under § 51.308(d)(1)(iv). Oklahoma did not have adequate information to establish its reasonable progress goal for the Wichita Mountains, and should have requested that the TCEQ further investigate these sources or requested additional reductions from Texas sources to ensure that all reasonable measures to improve visibility were included in Texas' long term strategy and incorporated into Oklahoma's reasonable progress goals for the Wichita Mountains. Furthermore, because of the flawed consultations with Texas, Oklahoma did not consider the emission reduction measures necessary to achieve the uniform rate of progress for the Wichita Mountains and did not adequately demonstrate that the reasonable progress goals it established were reasonable based on the four statutory factors under § 51.308(d)(1)(ii).

29

We therefore take final action to disapprove the reasonable progress goals as established by Oklahoma, and the portion of the Oklahoma regional haze SIP that addresses the requirements of

§ 51.308(d)(1)(i) through (v) with respect to Oklahoma's establishment of its reasonable progress goals for the Wichita Mountains.

29

79 FR 74871, 74872.

Under § 51.308(d)(1)(vi), Oklahoma may not adopt a reasonable progress goal that represents less visibility improvement than is expected to result from implementation of other requirements of the CAA during the applicable planning period. As discussed in our proposal, we find that Oklahoma's reasonable progress goals for 2018, based on the CENRAP model projections, represent at least as much visibility improvement as was expected to result from implementation of other requirements of the CAA (

i.e.,

requirements other than regional haze) during the applicable planning period.

30

In this action we are approving the portion of the Oklahoma regional haze SIP that addresses the requirement under § 51.308(d)(1)(vi).

30

79 FR 74870.

3. Federal Implementation Plan

As explained above, we have identified a number of deficiencies in the SIP revisions submitted by Texas and Oklahoma to address the CAA's regional haze requirements and are finalizing partial disapproval of those plans. Accordingly, in this action we are also finalizing a FIP to address the deficiencies identified by our partial Texas SIP disapproval, except for those identified in our prior disapproval of the provisions in the Texas SIP addressing the EGU BART requirements. In this rulemaking, we are also disapproving those portions of the Texas SIP addressing the interstate visibility transport provisions of section 110(a)(2)(D)(i)(II), and are also not finalizing a FIP to address these deficiencies.

a. Four-Factor Analysis

During our review of the reasonable progress and long-term strategy provisions of the Texas regional haze SIP, we realized that a more in-depth analysis of Texas sources was needed to determine whether additional measures should be required to ensure reasonable progress. Although our technical approach is more fully described in our proposal

31

and in our TSDs,

32

it can be summarized as follows:

31

79 FR 74873.

32

See Cost TSD and FIP TSD for detailed discussion of our technical approach.

• We used an analysis known as Q/d (

i.e.,

annual emissions divided by the distance between the source and Class I area) as an initial screening test on over 1,600 facilities in Texas to determine which of these sources have the greatest potential to impact visibility at Class I areas. We identified 38 facilities (many facilities had multiple units) that were potentially the largest contributors to visibility impairment at downwind Class I areas.

• We realized that, due to the particular challenges presented by the geographic distribution and number of sources in Texas and the ability of a full photochemical model to assess visibility impacts on the 20% worst days, CAMx photochemical modeling

33

was better technically suited to our needs than the more widely used CALPUFF model.

34

We therefore contracted to have CAMx source apportionment modeling performed to determine which, if any, of these facilities had significant impacts.

33

CAMx is a photochemical grid model (Comprehensive Air Quality Model with Extensions). CAMx model code and user's guide can be found at

http://www.camx.com/download/default.aspx.

Model code used in our analysis is available with the modeling files.

34

Note that our reference to CALPUFF encompasses the entire CALPUFF modeling system, which includes the CALMET, CALPUFF, and CALPOST models and other pre and post processors. The different versions of CALPUFF have corresponding versions of CALMET, CALPOST, etc. which may not be compatible with previous versions (

e.g.,

the output from a newer version of CALMET may not be compatible with an older version of CALPUFF). The different versions of the CALPUFF modeling system are available from the model developer at

http://www.src.com/verio/download/download.htm.

• The CAMx modeling revealed that a relative handful of the point sources in Texas (less than 1%) were responsible for a large percentage of the visibility impairment at impacted Class I areas.

• Based on our consideration of these modeled visibility impacts, we determined that nine facilities (with 21 units) merited further modeling to assess what the visibility benefits might be from requiring emission reductions at these units. We modeled high and low emissions scenarios that spanned the available control scenarios for each unit.

After identifying the sources with the largest visibility impacts at the three Class I areas of interest, and modeling the estimated visibility benefits corresponding to a robust range of potential controls, we considered whether controls on these sources would be necessary to ensure reasonable progress. As required by the CAA and the Regional Haze Rule, we took into account the following factors:

35

(1) Time necessary for compliance, (2) energy and non-air quality environmental impacts of compliance, (3) remaining useful life, and (4) the costs of compliance. This analysis is commonly referred to as a “four factor analysis.” Our Reasonable Progress Guidance

36

notes the similarity between some of the reasonable progress factors and the BART factors and suggests that the BART Guidelines be consulted regarding the consideration of costs, energy and non-air quality environmental impacts, and remaining useful life. We therefore relied upon our BART Guidelines for assistance in assessing the reasonable progress factors, as applicable.

35

CAA Section 169A(g), Section 51.308(d)(1)(i)(A).

36

Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Geographic Strategies Group, Research Triangle Park, NC. See section 5.0.

We noted that, with one exception,

37

the issues relating to three of these factors—compliance time, energy and non-air quality environmental impacts, and remaining useful life—were common to all of the units we analyzed. Specifically, with the exception of the two units at the Tolk facility, these three factors did not present any issues that would impact the selection of the controls we analyzed. As a result, we proceeded to analyze the remaining factor, the costs of compliance.

37

Our initial analysis of the Tolk facility indicated a potential shortage of water, meriting a special consideration of the energy and non-air quality environmental impacts of compliance.

A number of the sources with the largest visibility impacts had units with no current SO

2

controls. For each of these units, we analyzed Dry Sorbent Injection (DSI) at both a 50% control level and at either a 80% or 90% control level (depending on the type of particulate controls employed at the unit), thus bracketing our analyses between moderate and maximum levels of control. We also analyzed Flue Gas Desulfurization (FGD or “scrubbers”) at these units. For both Spray Dryer Absorption (SDA—a type of dry scrubber), and wet FGD scrubbers, we analyzed control levels slightly below the maximum level of control these technologies have been demonstrated as capable of achieving at other EGUs.

38

We then adapted our Integrated Planning Model (IPM)

39

cost algorithms that had been developed for DSI, SDA, and wet FGD and performed our cost analyses for potential controls on these units.

38

We analyzed SDA at 95% control with a floor of 0.06 lbs/MMBtu, and wet FGD at 98% control with a floor of 0.04 lbs/MMBtu.

39

Documentation regarding our IPM Model can be found here:

http://www2.epa.gov/airmarkets/power-sector-modeling.

Some of the units we analyzed were already fitted with underperforming

40

wet FGDs. For each of these units, we conducted control cost analyses for upgrading those scrubbers, using site-specific information obtained from the facilities under the authority provided by CAA section 114. Because the information we obtained was claimed as CBI, and our subsequent analyses that relied on it are also protected, we cannot share them with the public. However, our analyses were available for review by the affected facilities. Similarly, our responses to comments that incorporate information subject to CBI claims are in a separate document available to the CBI claimants that is part of the administrative record of this action but is not available for public review.

40

By “underperforming,” we mean scrubber systems that are meeting their permit limits, but are capable of achieving greater levels of control through increased utilization and optimization.

We also considered projected visibility benefits in our analysis. As we previously stated in proposing to take action on an Arizona regional haze SIP:

41

41

See 79 FR 9353 n.137. We also used the same reasoning in our final action on the Arizona regional haze SIP. See 79 FR 52420.

While visibility is not an explicitly listed factor to consider when determining whether additional controls are reasonable, the purpose of the four-factor analysis is to determine what degree of progress toward natural visibility conditions is reasonable. Therefore, it is appropriate to consider the projected visibility benefit of the controls when determining if the controls are needed to make reasonable progress.

Having identified the sources that have the greatest visibility impacts on the three Class I areas of interest, the visibility benefits that could be obtained by controlling those sources, and the costs of potential controls, we developed a strategy to determine which sources, if any, should be controlled under the reasonable progress and long-term strategy provisions of the CAA and Regional Haze Rule. To make this determination, we took into account the cost-effectiveness ($/ton of emissions removed) of the potential controls along with their projected visibility benefits. The ample precedent of other SIPs and FIPs has established a range of cost-effectiveness values within which controls have generally been required to meet provisions of the Regional Haze Rule. All of the new DSI, SDA, and wet FGD controls and upgraded scrubber controls we costed easily fell within this range. In fact, the highest cost-effectiveness value for the controls we analyzed was $3,221/ton for the Tolk Unit 172B SDA, a value that is less than the cost threshold adopted by Texas, after adjusting for the escalation of costs over time.

42

For sources other than Tolk, all of the controls we are requiring are more cost-effective than Texas' $2,700/ton threshold, even without an adjustment.

42

Texas used a $2,700/ton cost-effectiveness threshold, without regard to visibility benefit. While we found flaws in the way Texas established and used this threshold, it is illustrative of the cost-effectiveness of the controls required in this rulemaking. Conservatively escalating the $2,700/ton value from when it was first developed for the CAIR rule, which was finalized on March 10, 2005, to the time of our analysis, which was conducted in 2014, results in a value of $3,322/ton (i.e., the Chemical Engineering Plant Cost Index for 2005 = 468.2, and that for 2014 = 576.1; $2,700 × 576.1/468.2 = $3,322).

As explained above, due to the challenges presented by the geographic distribution and number of sources in Texas and the ability of a full photochemical model to assess visibility impacts on the 20% worst days, we determined that the CAMx photochemical model was best suited to our needs. While CALPUFF modeling was often used for assessing visibility benefits in other regional haze SIP actions, the large transport distances in Texas and our concerns about the technical capabilities of CALPUFF made the use of CALPUFF impractical.

43

As we have discussed in our FIP TSD and our separate RTC document, the results of our CAMx modeling cannot be directly compared to the results of CALPUFF modeling, which was used in the vast majority of other BART determinations and some reasonable progress determinations, because of differences between the models, model inputs, and metrics used.

44

Many of these differences result in CAMx modeled visibility impacts and benefits that are much lower than the CALPUFF modeled visibility impacts and benefits relied on in other actions. For a more thorough explanation of this complex issue, please refer to our FIP TSD and discussion in the RTC document. As a result, we were unable to rely on prior visibility analyses based on the use of CALPUFF in other actions as precedent for assessing the results of our CAMx visibility analysis in this action.

45

43

The TCEQ conducted BART screening modeling with CAMx for the majority of the BART-eligible sources in Texas. The TCEQ requested to use CAMx instead of CALPUFF because of the advantages of CAMx to evaluate many sources individually in one or two modeling runs and the technical advantages of CAMx over CALPUFF when large distances are involved. As discussed in a response to comment in the modeling section of this document, we approved the TCEQ's approach of using CAMx for BART screening in 2007.

44

See the Modeling section of the RTC document and our FIP TSD, beginning on page A-35, in which we explain why key differences in CALPUFF for BART and CAMx modeling for RP preclude the comparison of their respective results. Some of the major differences are: (1) CALPUFF uses maximum 24-hour emission rates, while CAMx uses annual average emission rates; (2) CALPUFF focuses on the day with the 98th percentile highest visibility impact from the source being evaluated, whereas CAMx focuses on the average visibility impacts across the 20% worst days regardless of whether the impacts from a specific facility are large or small; and (3) CAMx models all sources of emissions in the modeling domain, which includes all of the continental U.S., whereas CALPUFF only models the impact of emissions from one facility without explicit chemical interaction with other sources' emissions.

45

Many commenters alleging inconsistency with our previous actions failed to appreciate this point and attempt to compare directly CALPUFF results to CAMx modeled results.

To evaluate the projected visibility benefits of controls in our cost evaluation, we considered a number of metrics, such as change in deciviews under 2018 projected levels of air pollution at the three Class I areas and under estimated natural visibility conditions, change in light extinction, and change in the percentage of total light extinction.

46

We also considered the visibility benefit of emission reductions from recent actual emission levels versus CENRAP 2018 projected emission levels at these sources. As we discuss further in our FIP TSD and in responses in our RTC document, to provide context regarding the significance of individual source impacts, we compared the individual source impacts with CENRAP source apportionment modeling results for impacts from all emission sources within a state and impacts from all emission sources within a state within a specific source type. We also compared these individual source impacts to the impact levels used by the states for triggering consultation with another state about its overall impacts, and the estimated range of anticipated visibility benefits resulting from required controls in other actions.

47

Ultimately, after considering all four factors, we identified a set of reasonable controls for the first planning period for those sources with the largest visibility impacts that would provide for meaningful visibility improvements towards the goal of natural visibility conditions.

46

For a full discussion on our review of all the modeling results, and factors that we considered in evaluating and weighing all the results, precedents, and other policy concerns please see Appendix A of our FIP TSD.

47

See our FIP TSD at A-75.

After extending our public comment period from the original date of February 17, 2015, to an extended date of April 20, 2015, we considered and responded to thousands of comments both for and against our proposal, the

most significant of which we summarize in section II below. While these comments resulted in some adjustments to our cost-effectiveness estimates for our proposed scrubber upgrades, ultimately these changes were not so significant as to change our proposed control decision. After careful consideration of all of the comments and the information provided, we find that the units and the control levels should be finalized as proposed.

b. Final SO

2

Emission Limits

As discussed further in our FIP TSD,

48

our emission limits are based on the installation of scrubber retrofits, scrubber upgrades, and in the case of San Miguel, the continued operation of its already performed scrubber upgrade. Consistent with our proposal, the final FIP requires that the SO

2

emission limits contained in Table 1 below be met on a 30 BOD period basis.

48

See our FIP TSD, Section 4.4 and 4.5. Our Cost TSD develops the bases for the costs and emission limits.

Table 1—Final 30-Boiler-Operating-Day SO

2

Emission Limits

Unit

Final SO

2

emission

limit

(lbs/MMBtu)

Scrubber Upgrades:

Sandow 4

0.20

Martin Lake 1

0.12

Martin Lake 2

0.12

Martin Lake 3

0.11

Monticello 3

0.06

Limestone 2

0.08

Limestone 1

0.08

San Miguel *

0.60

Scrubber Retrofits:

Big Brown 1

0.04

Big Brown 2

0.04

Monticello 1

0.04

Monticello 2

0.04

Coleto Creek 1

0.04

Tolk 172B

0.06

Tolk 171B

0.06

* As we noted in our proposal, we do not anticipate that San Miguel will have to install any additional control in order to comply with this emission limit.

As we discuss in our proposal,

49

we find that five years is an adequate amount of time to allow for the installation of scrubber retrofits, and three years is an adequate amount of time to allow for the installation of scrubber upgrades. We also find that one year is an adequate amount of time for compliance for San Miguel, for which we do not anticipate the need for the installation of any additional equipment. We are therefore finalizing our requirements as proposed providing that compliance with the limits in Table 1 be achieved within:

49

79 FR 74823.

• Five years of the effective date of our final rule for Big Brown Units 1 and 2, Monticello Units 1 and 2, Coleto Creek Unit 1, and Tolk Units 171B and 172B.

• Three years of the effective date of our final rule for Sandow 4; Martin Lake Units 1, 2, and 3; Monticello Unit 3; and Limestone Units 1 and 2.

• One year of the effective date of our final rule for San Miguel.

c. Treatment of Potential Error in Scrubber Upgrade Efficiency Calculations

In the Cost TSD that accompanied our proposal, we discussed how we calculated the SO

2

removal efficiency of the units we analyzed for scrubber upgrades.

50

We noted that, due to a number of factors that we were unable to accurately quantify, our calculations of current removal efficiencies could contain some error. Based on the results of our scrubber upgrade cost analysis, however, we did not believe that any such errors, if present, would affect our proposed decision to require the scrubber upgrades because they were all cost-effective (low $/ton of emissions removed). In other words, were we to make reasonable adjustments in the additional tons removed under the FIP limits to account for any potential error in our calculation of current scrubber removal efficiencies, we would still propose to upgrade these SO

2

scrubbers. After considering comments and other information submitted by the facility owners in response to our proposal, and as discussed more fully in our responses to comments on cost in the RTC document and section III below, we continue to conclude that upgrading an underperforming SO

2

scrubber is one of the most cost-effective pollution control measures a coal-fired power plant can implement to improve visibility at Class I areas.

50

See Section 6 of our Cost TSD.

We also proposed that the units required to conduct scrubber upgrades must meet SO

2

emission limits based on 95% removal in all cases. This removal efficiency is below the upper end of what an upgraded wet SO

2

scrubber can achieve, which is 98-99%, as we noted in our Cost TSD. We also noted that a 95% removal efficiency assumption provides an adequate margin of error, such that all of the units should be able to comfortably attain the emission limits we proposed. However, for the operator of any unit that disagreed with us on this point, our proposal included a pathway for such operators to seek and for us to consider revised emission limits in this final action by submitting specific comments on the issue and taking other specific steps.

51

We did not receive any comments from an owner or operator that was interested in using this pathway to potentially obtain a modified SO

2

emission limit. While we remain open to discussions concerning this procedure, we are finalizing the emission limits and compliance schedule for the affected units as proposed.

51

79 FR 74885.

Similarly, to ensure that San Miguel can meet our final FIP emission limitation, we are finalizing the following compliance option for the owner and operator of San Miguel as an alternative to the final emission limit of 0.60 lbs/MMBtu based on a 30 day BOD average:

• Install a CEMS at the inlet of the scrubber system. The 30 BOD SO

2

average from the existing outlet CEMS must read at or below 6.0% (94% control) of a 30 BOD SO

2

average from the inlet CEMS.

By no later than its compliance date, San Miguel must inform us in writing of its decision to select this option for compliance. The FIP provides automatically for this compliance option and therefore if San Miguel chooses it, no SIP revision submittal is required from Texas.

d. Natural Conditions for the Texas Class I Areas

Consistent with our proposal and as discussed further in our FIP TSD,

52

we are finalizing the natural conditions for the Guadalupe Mountains and Big Bend as follows:

52

See discussion beginning on 79 FR 74885, and section 10 of our FIP TSD.

Table 2—Natural Conditions (NC II) for the Guadalupe Mountains and Big Bend

Class 1 Area

20% Best

days

(dv)

20% Worst

days

(dv)

Guadalupe Mountains

0.99

6.65

Big Bend

1.62

7.16

We recommend that the State of Texas re-evaluate the natural conditions for its Class I areas in its next regional haze SIP in consultation with us and the FLMs.

e. Calculation of Visibility Impairment for the Texas Class I Areas

Consistent with our proposal and as discussed further in our FIP TSD,

53

our final recalculated natural visibility conditions, and our calculation of visibility impairment for the Guadalupe Mountains and Big Bend are found in the table below. We recalculated the number of deciviews by which baseline visibility conditions exceed natural visibility conditions for these Class I areas pursuant to § 51.308(d)(2)(iv)(A). Specifically, in our calculations, we replaced Texas' calculations of natural visibility conditions for its Class I areas with the adjusted default values (NC II), as discussed in our proposal. We then determined the amount the baseline visibility values exceeded the natural visibility conditions to calculate visibility impairment for each area. We are finalizing the following estimates of visibility impairment for the Guadalupe Mountains and Big Bend:

53

See discussion beginning on 79 FR 74886, and section 11 of our FIP TSD.

Table 3—Revised Visibility Metrics for the Class I Areas in Texas

Class I Area

Most Impaired (dv)

Least Impaired (dv)

Baseline Visibility Conditions, 2000-2004

Big Bend

17.30

5.78

Guadalupe Mountains

17.19

5.95

Natural Visibility Conditions

Big Bend

7.16

1.62

Guadalupe Mountains

6.65

0.99

Extent Baseline Exceeds Natural Visibility Conditions

Big Bend

10.14

4.16

Guadalupe Mountains

10.54

4.96

f. Consideration of the Uniform Rates of Progress

Consistent with our proposal and as discussed further in our FIP TSD,

54

we are finalizing the uniform rates of progress for the 20% worst days for the Guadalupe Mountains and Big Bend contained in Table 4 below. Specifically, in our calculations, we replaced Texas' calculations of natural visibility conditions for its Class I areas with the adjusted default values (NC II), as discussed in our proposal, and we recalculated the uniform rates of progress as follows:

54

See discussion beginning on 79 FR 74886, and section 12 of our FIP TSD.

Table 4—Class I Area Uniform Rates of Progress

Class I Area

Baseline

conditions

Annual

improvement

needed to

meet URP

Visibility at 2018

Improvement needed by 2018

Natural

conditions

at 2064

(dv)

(dv)

(dv)

(dv)

(dv)

Big Bend

17.30

0.17

14.93

2.37

7.16

Guadalupe Mountains

17.19

0.18

14.73

2.46

6.65

g. Revised Reasonable Progress Goals for the Guadalupe Mountains and Big Bend

We are finalizing our technical analysis that was lacking in Texas' development of its reasonable progress goals for the Guadalupe Mountains and Big Bend. As discussed in our proposal and FIP TSD,

55

we are establishing new reasonable progress goals based on our technical analysis. The new reasonable progress goals are as follows:

55

See discussion beginning on 79 FR 74886, and section 13 of our FIP TSD.

Table 5—Reasonable Progress Goals for 2018 for the Guadalupe Mountains and Big Bend

Class I area

20% Best days

(dv)

20% Worst days

(dv)

Guadalupe Mountains

5.70

16.26

Big Bend

5.59

16.57

Our new reasonable progress goals for 2018 reflect only the additional estimated visibility benefit from the required controls anticipated to be in place by 2018, which are the scrubber upgrades. While the required scrubber retrofits will provide for additional visibility improvement at the Class I areas

56

that we consider necessary for reasonable progress towards natural visibility conditions, we do not anticipate these controls to be implemented until after 2018. As we note above, these estimates of future visibility conditions presume that CSAPR continues to be implemented and is a viable alternative to source-specific BART. As discussed above, given the uncertainty arising from the remand of some of the state CSAPR budgets, we have determined it would not be appropriate to finalize the portion of our FIP relying on CSAPR as an alternative to SO

2

and NO

X

BART for EGUs in Texas. Should additional BART controls be required for any of the BART-eligible EGUs and should those controls in combination with other requirements on EGUs achieve emission reductions as of 2018 that are materially different than the emission reductions considered in quantifying the reasonable progress goals in this action, these reasonable progress goals would have to be revised at the same time any additional BART controls are proposed.

56

Table 44 of our proposal (79 FR 74887) shows the additional visibility benefit anticipated from the scrubber retrofits. For Guadalupe Mountains, we estimate an additional 0.12 dv benefit on the 20% worst days based on 2018 projected background conditions resulting in a visibility goal of 16.14 dv if all required controls were in place by 2018. For Big Bend, we estimate an additional 0.09 dv benefit on the 20% worst days based on 2018 projected background conditions resulting in a visibility goal of 16.48 dv if all required controls were in place by 2018. We note that Table 45 provides the same visibility benefit estimates based on reducing recent actual emissions rather than 2018 CENRAP projected emission levels.

h. Revised Reasonable Progress Goals for the Wichita Mountains

We are finalizing our technical analysis that was lacking in Oklahoma's development of reasonable progress goals for the Wichita Mountains, including appropriate consideration of emission reduction measures in Texas that Oklahoma should have asked Texas explicitly to obtain during its consultations with Texas. We are establishing new reasonable progress goals, as discussed in more detail in our proposal and FIP TSD,

57

based on our technical analysis and accounting for the emission reductions required in Texas that we anticipate being in place by 2018. Consistent with our action regarding the Texas reasonable progress goals discussed in the previous section, our recalculated reasonable progress goals for 2018 in the table below reflect only the additional estimated visibility benefits from the required controls anticipated to be in place by 2018, which are the scrubber upgrades. While the required scrubber retrofits will provide for additional visibility improvement at the Class I areas,

58

we do not anticipate these controls to be implemented until after 2018. As we note above, these estimates of future visibility conditions presume that CSAPR is a viable alternative to source-specific BART. As discussed earlier in this document, given the uncertainty arising from the remand of some of the state CSAPR budgets, we have determined it would not be appropriate to finalize the portion of our FIP relying on CSAPR as an alternative to source-specific SO

2

and NO

X

BART for EGUs in Texas. Should additional BART controls in Texas ultimately be required for any of the BART-eligible EGUs and should those controls in combination with other requirements on EGUs achieve emission reductions as of 2018 that are materially different than the emission reductions considered in quantifying the reasonable progress goals for Oklahoma in this action, the reasonable progress goals would have to be revised at the same time any additional BART controls are proposed.

57

See discussion beginning on 79 FR 74886, and section 13 of our FIP TSD.

58

Table 44 of our proposal (79 FR 74887) shows the additional visibility benefit anticipated from the scrubber retrofits. For Wichita Mountains, we estimate an additional 0.30 dv benefit on the 20% worst days based on 2018 projected background conditions resulting in a visibility goal of 21.03 dv if all required controls were in place by 2018. We note that Table 45 provides the same visibility benefit estimates based on reducing recent actual emissions rather than 2018 CENRAP projected emission levels.

Table 6—Reasonable Progress Goals for 2018 for the Wichita Mountains

Class I Area

20% Best days

(dv)

20% Worst days

(dv)

Wichita Mountains

9.22

21.33

II. Summary and Analysis of Major Issues Raised by Commenters

We received both written and oral comments at the public hearings we held in Austin and Oklahoma City. We also received comments by the Internet and the mail. The full text of comments received from these commenters, except what was claimed as CBI, is included in the publicly posted docket associated with this action at

www.regulations.gov.

The CBI cannot be posted to

www.regulations.gov,

but is part of the record of this action. Our RTC document, which is also included in the docket associated with this action, provides detailed responses to all significant comments received, with the exception of those responses that rely on CBI and is a part of the administrative record for this action. The responses that rely upon CBI are in a separate document that is part of the record of this action but is not available for public review. In total, we received approximately 2,500 pages of significant comments. Below we provide a summary of the more significant comments received and a summary of our responses to them. Our RTC document is organized similarly to the structure present in this section (

e.g.,

Cost, Modeling, etc.). Therefore, if additional information is desired concerning how we addressed a particular comment, the reader should refer to the appropriate section in the RTC document.

A. General Comments

Comment:

We received 4,500 comments in support of our rulemaking, specifically regarding the requirements that Texas coal-fired EGUs reduce SO

2

emissions. These comments were from members representing various organizations, members of Congress, officials of government agencies, and members of the general public. At the public hearings in Austin, Texas, and Oklahoma City, Oklahoma, over 100 people expressed general support for the plan. The speakers at the public hearings included members of various organizations and members of the general public. Representatives of three Federal Land Management agencies also wrote comments in support of our action. Many of these same commenters also asked us to consider the impacts of NO

X

pollution and to consider additional coal-fired EGUs for control.

Response:

We thank the commenters for participating in the rulemaking and acknowledge their support of this action. We address NO

X

emissions in our modeling section below. We address the inclusion of additional coal-fired EGUs in our cost and modeling sections below.

Comment:

We received five comment letters and emails from citizens and a representative from one organization that stated general opposition.

Response:

These comments were too general to give us a basis for a specific response. Please see our detailed responses in this action and additional

detail in our RTC document, in which we provide substantial explanations and reasons for disapproving elements of the Texas and Oklahoma SIPs and finalizing our FIP.

Comment:

As a general matter, a number of commenters took issue with our usages of the terms “reasonable” and “significant” as used in our proposal and TSDs and contended they were inappropriate or extra-statutory terms.

Response:

We consider the general use of “reasonable” and “significant” in this action to be appropriate. The word “reasonable” is not extra-statutory in this action because it is part of the statutory term “reasonable progress,” see CAA ection 169A(g). In turn, “significant” may be used according to its ordinary meaning (as in our reference above to “significant comments”). This word is elsewhere employed consistent with our guidance and previous actions. See,

e.g.,

our Reasonable Progress Guidance at 3-2. These terms are generally used in rulemaking actions, including use by Texas and Oklahoma in their regional haze actions.

59

We use these terms appropriately throughout this rulemaking action, for example, when explaining it was “reasonable” to expect great variation in the effectiveness of emission reductions between two sources given the difference in distances between these two facilities and the Class I areas, or when describing CENRAP visibility modeling as demonstrating that a “significant” portion of the visibility impacts to Class I areas in a number of states on the worst 20% days for both 2002 and 2018 were attributable to Texas sources.

60

59

See, e.g.,

our proposal at 79 FR 74844 (noting our agreement with “Texas' determination that was not reasonable to request additional controls from other states at this time”) and 74823 (describing how Oklahoma's response to public comments on its regional haze SIP “acknowledged that sources in Texas had significant impacts on visibility in Wichita Mountains, but maintained that it did not have the regulatory authority to require emission reductions in other states”).

60

79 FR 74841 and 74854.

B. State and Federal Roles in the Regional Haze Program

Some commenters argued that our proposal to disapprove Texas' and Oklahoma's regional haze SIPs disregarded the primary role of the states under the CAA, the Regional Haze Rule, and relevant case law. We do not agree. Congress designed the CAA to provide for states to take the lead in developing SIPs but also required EPA to review SIPs for compliance with statutory and regulatory requirements. We recognize that states have the primary responsibility of drafting a SIP to address the requirements of the regional haze program. We also recognize that we have the responsibility of ensuring that the state plans, including regional haze SIPs, conform to the CAA requirements. We have determined that the Texas and Oklahoma SIPs do not meet certain elements of these Federal requirements and are accordingly partially disapproving these SIPs.

Additionally, our review of SIPs is not limited to a ministerial review and approval of a state's decisions. Some commenters argued that the principles of cooperative Federalism in the CAA require EPA to defer to states in their development of SIPs, so long as necessary statutory requirements are met. Commenters stated that our proposal ignores such limits and would impose FIPs that ignore the primary implementation role given to Texas and Oklahoma. We disagree with the commenters' arguments regarding cooperative Federalism. Under this framework, the CAA directs us to act if a state fails to submit a SIP, submits an incomplete SIP, or submits a SIP that does not meet the statutory requirements. Thus, the CAA provides us with a critical oversight role in ensuring that SIPs meet the CAA's requirements.

Commenters stated that Texas' plan was complete by operation of law, met all requirements, and that we had no authority to impose a FIP. We disagree. The commenters confuse the action of merely submitting a SIP and having it deemed complete with the action of submitting a SIP that complies with the applicable Federal requirements. We agree that the CAA gives each state flexibility in developing a SIP, but in doing so, it must ensure the SIP meets Federal requirements. We must review the state's SIP and determine whether it meets such Federal requirements. If it does not, we must disapprove it (or portions thereof), and adopt a FIP to address the disapproved parts. In undertaking such a review, we do not “usurp” the state's authority arbitrarily, as some commenters stated, but rather we ensure that such authority is reasonably exercised. In this instance, portions of the states' SIPs were not approvable for reasons discussed elsewhere in this document, the responses to comments, and the proposed rulemaking.

Some commenters argued that the appropriate remedy for a substantially inadequate plan under our Regional Haze Rule is periodic updates, as opposed to a FIP. We disagree. The Regional Haze Rule's requirements for comprehensive periodic revisions (

see

40 CFR 51.308(f)) and periodic progress reports (

see

40 CFR 51.308(g)) are very different from the authority to impose a FIP when there is a determination that a SIP is not approvable. As we have stated elsewhere, we have the authority and obligation to impose a FIP to fill in such gaps. The provisions of the Regional Haze Rule regarding states' ongoing responsibility to periodically revise their regional haze SIPs do not override this responsibility.

C. Our Clarified Interpretation of the Reasonable Progress and Long-Term Strategy Requirements

Several commenters criticized the aspect of our proposal that provided potential commenters and states with clarification regarding our interpretation of the reasonable progress and long-term strategy provisions found at 40 CFR 51.308(d)(1) and (3). Some of these commenters alleged that our proposal did not clarify an existing interpretation, but rather outlined a new one that was being applied to Texas and Oklahoma after the fact. They argued that the provisions in question require upwind states to include in their long-term strategy only those measures necessary to achieve the reasonable progress goals set by downwind states, regardless of whether the goals were based on sound analyses and adequate interstate consultation or reflect all reasonable control measures. Some commenters argued that upwind states have no obligation to conduct four-factor analyses with respect to downwind Class I areas at all. In essence, these commenters asserted that the only obligation that the CAA and Regional Haze Rule impose upon upwind states is a requirement to consult with their neighbors and make good on any commitments made during the consultation process. They further argued that their preferred interpretation is mandated by the plain language of the Regional Haze Rule, such that the interpretation laid out in our proposal is plainly erroneous and not entitled to judicial deference. Other commenters asserted the opposite. They agreed with our clarifications and argued that our interpretation of the provisions found at 40 CFR 51.308(d)(1) and (3) is not only reasonable, but mandated by the CAA and the plain language of the provisions themselves.

After carefully considering these comments, we stand by our clarified interpretation as outlined in the proposal. The alternative interpretations offered by some of the commenters are not in accord with the plain language of CAA sections 169A(b)(2) and (g)(1),

which require both upwind and downwind states to include in their SIPs “emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward the national goal” and to determine what controls are necessary to make reasonable progress by considering the four statutory factors. The commenters' view that upwind states are not required to conduct four-factor analyses for downwind Class I areas is inconsistent with Texas' own view of the requirements of the CAA and the Regional Haze Rule. Texas itself conducted a four-factor analysis for downwind Class I areas (albeit a flawed one) and stated in its own response-to-comments document that it was required to do so.

61

Indeed, the commenters' alternative interpretations are premised largely on a fundamental misunderstanding of the regional haze planning process. The commenters seem to suggest that states set their reasonable progress goals first and then determine what controls are necessary to achieve them. In their view, if a downwind state sets a reasonable progress goal that does not assume emission reductions from an upwind state, then the upwind state has no obligation to include control measures in its long-term strategy. Such an interpretation is not consistent with the CAA, our regulations and guidance, or how such analyses are conducted in reality. To set their reasonable progress goals, states consider the anticipated visibility conditions at a Class I area in a future year. In order to do so, they must first determine the level of emission reductions that will result once the control measures necessary to make reasonable progress are installed and estimate the visibility benefit anticipated from those reductions. In determining the control measures necessary to make reasonable progress, states must conduct four-factor analyses, considering costs and other factors. If an upwind state were not required to participate or if emission reductions from upwind sources were not considered in this process, there would be no way for downwind states to set reasonable progress goals that account for all reasonable control measures.

61

See, e.g.,

Appendix 2-2 to the Texas Regional Haze SIP at 24 (“Further, a four-factor analysis is

necessary

for the set of sources in the respective areas of influence that impact

each

of the Class I areas that Texas' emissions impact.”) (emphases added) (“The TCEQ has used the four-factor analysis,

as required,

for the set of Texas sources impacting Class I areas, to determine whether all reasonable reductions have been required.”) (emphasis added).

D. Consideration of Visibility in the Reasonable Progress Analysis

Comment:

Many commenters maintained that, unlike with BART, visibility is not one of the statutory or regulatory factors that states must consider in determining reasonable progress and setting reasonable progress goals. As a result, some commenters argued that EPA is not permitted to disapprove a state's four-factor analysis based on the manner in which a state considered visibility impacts or visibility benefits in determining reasonable progress. They argued that EPA's statutory role does not extend to dictating “how” a state considers the four factors, especially considering the flexibility states have when determining reasonable progress. Other commenters asserted that EPA placed too much weight on visibility, a non-statutory factor, in analyzing Texas' SIP and in promulgating a FIP. Some commenters alleged that states and EPA were barred from considering visibility in a reasonable progress analysis altogether. Several commenters suggested that, had we not considered visibility benefits when promulgating a FIP for Texas, we would not have required any SO

2

controls. One commenter cited to

WildEarth Guardians

v.

EPA

62

to support its contention that neither the CAA nor the Regional Haze Rule requires source-specific analysis in the determination of reasonable progress. Other commenters cited to

American Corn Growers Ass'n

v.

EPA

63

to support their assertion that we impermissibly isolated visibility as a factor and in so doing constrained authority Congress conferred on the states.

62

WildEarth Guardians

v.

EPA,

770 F.3d 919 (10th Cir. 2014).

63

Am. Corn Growers Ass'n

v.

EPA,

291 F.3d 1 (D.C. Cir. 2002).

Response:

We disagree with these comments. The commenters appear to be stating that states (or EPA when promulgating a FIP) either cannot or need not consider visibility in any way in determining reasonable progress and that we therefore must approve a state's reasonable progress goals and long-term strategy as long as all four mandatory reasonable progress factors are analyzed to some degree. This view is at odds with the overarching purpose of the CAA's visibility provisions. Congress declared as a national goal in CAA section 169A(a)(1) 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.” CAA section 169A(b)(2) required the Administrator to promulgate regulations to assure “reasonable progress toward meeting the national goal.” Thus, the entire purpose of the reasonable progress mandate is to achieve the national goal of natural visibility conditions at each Class I area.

CAA section 169A(g)(1) goes on to state that, in determining “reasonable progress,” states must consider 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.” This consideration is commonly referred to as the “four-factor analysis.”

64

The crux of the commenter's argument seems to be that, because this list of factors does not include visibility, states can ignore visibility altogether or, if they choose, consider it in any fashion they want.

64

Correspondingly, under § 51.308(d)(1) of the Regional Haze Rule, promulgated in response to this mandate, states must “establish goals (expressed in deciviews) that provide for reasonable progress towards achieving natural visibility conditions” for each Class I area within a state. Reasonable progress goals are interim goals that represent measurable, incremental visibility improvement over time toward the goal of natural visibility conditions. Section 51.308(d)(1)(i)(A) requires states to consider the four statutory factors when establishing their reasonable progress goals.

While we agree that visibility is not one of the four mandatory factors explicitly listed for consideration in CAA section 169A(g)(1) or 40 CFR 51.308(d)(1)(i)(A), the term “reasonable progress” itself means reasonable progress towards the national goal of natural visibility conditions. The Supreme Court has stated that, “[i]n determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. It is a `fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.' A court must therefore interpret the statute `as a symmetrical and coherent regulatory scheme' and `fit, if possible, all parts into an harmonious whole.' ”

65

65

FDA

v.

Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132-33 (2000) (quoting

Davis

v.

Michigan Dept. of Treasury,

489 U.S. 803, 809 (1989),

Gustafson

v.

Alloyd Co.,

513 U.S. 561, 569 (1995), and

FTC

v.

Mandel Brothers, Inc.,

359 U.S. 385, 389 (1959)).

To ensure a coherent regulatory scheme, we believe that states (or EPA when promulgating a FIP) can consider

visibility when determining reasonable progress in at least two ways. First, states can consider the visibility impacts of sources when determining what sources to analyze under the four-factor framework. CAA section 169A(b)(2) does not provide any direction regarding which sources or source categories a state should analyze when determining reasonable progress. Similarly, CAA section 169A(g)(1) refers to “any existing source subject to such requirements,” but unlike the BART provisions, does not identify which existing sources or source categories should be subject to reasonable progress requirements. Given this statutory ambiguity, we believe that allowing states to consider visibility impacts when determining the scope of the reasonable progress analysis is a reasonable interpretation of the statute “as a harmonious whole.” Accordingly, states can develop screening metrics that target those sources with the greatest visibility impacts for further analysis. Our 2007 guidance advocated this approach, and nearly all states, including Texas, used metrics like Q/d to consider the potential visibility impacts of their sources and screen out those sources with low visibility impacts.

66

We followed this same approach in our FIP by using both Q/d and a second metric based on a source's modeled percent contribution to total visibility impairment at impacted Class I areas. If states or we could not consider visibility impacts as a way of identifying which sources should be considered for additional controls, then states would have no rational way to differentiate between hundreds of sources that vary in distance from Class I areas, emit different visibility impairing pollutants in varying amounts, and are subject to diverse meteorological conditions that affect the transport of visibility-impairing pollutants. The result would be a cumbersome analysis encompassing hundreds of sources (or in the case of Texas, well over a thousand), many of which may have little if any impact on visibility in Class I areas. Congress could not have intended such an incongruous result.

66

For example, in VISTAS states, to select the specific point sources that would be considered for each Class I area, VISTAS first identified the geographic area that was most likely to influence visibility in each Class I area and then identified the major SO

2

point sources in that geographic area. The distance-weighted point source SO

2

emissions (Q/d) were combined with the gridded extinction-weighted back-trajectory residence times. The distance-weighted (Q/d) gridded point source SO

2

emissions were then multiplied by the total extinction-weighted back-trajectory residence times on a cell-by-cell basis and then normalized. VISTAS Area of Influence Analyses, 2007, is available in the docket for this action.

Second, once a universe of sources has been identified for analysis, we believe that states can consider the visibility improvement that will result from potential control options when weighing the four statutory factors. Allowing consideration of visibility improvement is appropriate for several reasons. Most importantly, it aligns with Congress' national goal, which is to remedy existing impairment of visibility in Class I areas. While section 169A(g)(1) of the CAA contains a list of factors states

must

consider when determining reasonable progress, we do not believe that list is exclusive. As the Eighth Circuit Court acknowledged in

North Dakota

v.

EPA,

states can take visibility improvement into account when evaluating reasonable progress controls so long as they do so in a reasonable way.

67

We have iterated this position in previous regional haze actions. For example, in our final rule on the Montana regional haze SIP, we stated, “We agree that visibility improvement is not one of the four factors required by CAA section 169A(g)(1) and 40 CFR 51.308(d)(1)(i)(A), however, it (along with other relevant factors) can be considered when determining controls that should be required for reasonable progress.”

68

Similarly, in our final rule on the Arizona regional haze SIP, we concluded that, “while visibility is not an explicitly listed factor to consider when determining whether additional controls are reasonable, the purpose of the four-factor analysis is to determine what degree of progress toward natural visibility conditions is reasonable. Therefore it is appropriate to consider the projected visibility benefit of the controls when determining if the controls are needed to make reasonable progress.”

69

67

North Dakota

v.

EPA,

730 F.3d 750, 766 (8th Cir. 2013).

68

77 FR 57864, 57899, 57901;

see also

Montana Proposed Rule, 77 FR 23988, 24062.

69

79 FR 9318 n.137 (finalized based on this same reasoning at 79 FR 52420); TX TSD at 7 n.6; FIP TSD at 12; 79 FR 74874.

Further, allowing states to consider visibility improvement alongside the four statutory factors ensures that only those cost-effective controls that will achieve reasonable visibility benefits are required during each phase towards the national goal. If states were not permitted to consider visibility improvement when conducting their control determinations, then states arguably would have to require all cost-effective controls during the first planning period (assuming no limiting energy or non-air quality environmental impacts) regardless of whether some of those controls would be far more beneficial than others.

70

Oddly, some of the commenters appear to be suggesting that, if we had not considered visibility benefits in our analysis, we would not have controlled certain sources. On the contrary, we decided not to require certain cost-effective controls in this planning period because they would not achieve as much benefit as other controls. If these commenters are correct and the consideration of visibility benefits is impermissible in a four-factor analysis, then we would have required all cost-effective controls, including those at the Parish and Welsh facilities.

70

We also note that practical implementation concerns could arise if a state as large and source-numerous as Texas required all cost-effective controls at once.

We also note that Congress did not provide any direction as to how states should consider “the costs of compliance” when determining reasonable progress. One permissible way a state could “consider” costs is to compare them to prospective benefits. In other words, we believe the first statutory factor is capacious enough to allow for a comparison of cost-effectiveness to visibility improvement. Finally, we note that our 2007 guidance explicitly permits states to consider other relevant factors when conducting a four-factor analysis,

71

and many states, including Texas, did so. In conclusion, we believe that states are permitted, but not required, to consider visibility improvement alongside the four statutory factors when making their reasonable progress determinations, with the important caveat that they must do so in a reasonable fashion.

71

“In determining reasonable progress, CAA Section 169A(g)(1) requires States to take into consideration a number of factors. However, you have flexibility in how to take into consideration these statutory factors and any other factors that you have determined to be relevant.” 2007 Guidance at 2-3, 4-2, and 5-1.

Some commenters alluded that visibility improvement is irrelevant to a four-factor analysis because Congress did not include it as one of the four factors, but did include it as a factor to be considered in determining BART. We do not find this reasoning to be persuasive. The sources that Congress subjected to the BART requirement (

i.e.,

sources grandfathered from the PSD requirement) were not necessarily sources that would have an impact on visibility impairment. As such, Congress included specific language in CAA sections 169A(b)(2)(A) and 169A(g)(2) to ensure that only those grandfathered sources that cause or contribute to visibility impairment and that would

result in visibility improvement if controlled would be required to install BART. On the other hand, the national goal of achieving natural visibility conditions is central to the notion of reasonable progress, so Congress had no need to include language regarding visibility improvement in CAA section 169A(g)(1).

We also disagree with the commenters that we cannot disapprove a state's SIP where the state has considered visibility improvement in an unreasonable fashion. As the Eighth Circuit explained in

North Dakota,

“[a]lthough the state was free to employ its own visibility model and to consider visibility improvement in its reasonable progress determinations, it was not free to do so in a manner that was inconsistent with the CAA.”

72

Like the State of North Dakota, Texas chose to evaluate visibility improvement alongside the four statutory reasonable progress factors, but did so in an unreasonable way. We discuss several ways that Texas' consideration of visibility improvement in its reasonable progress determinations was unreasonable elsewhere in this document, in our proposal, and in our Texas TSD.

73

One point worth mentioning here, however, is that Texas estimated the visibility improvement of potential controls by making comparisons to degraded background conditions instead of to natural background conditions, which is precisely the same mistake that North Dakota made.

74

The end result of this and other errors in Texas' analysis was that Texas unreasonably concluded that the total cost of additional controls was not worth the visibility benefits of those controls and that no additional controls were reasonable for this planning period.

75

We are appropriately disapproving this portion of Texas' SIP. The fact that Texas' decision to evaluate visibility improvement was “discretionary” does not mean that Texas was free to exercise that discretion in an unreasonable manner.

72

North Dakota,

730 F.3d at 766.

73

See

Section B.2 of the Texas TSD and Section V.C.3 of our proposal (79 FR 74818).

74

In contrast, Texas conducted a proper visibility analysis using natural background conditions elsewhere in its SIP when the state assessed the visibility impacts of its BART sources.

See

Texas Regional Haze SIP, Appendix 9-5 at 2-11 (“The source's HI [haze index] is compared to natural conditions to assess the significance of the source's visibility impact. EPA guidance lists natural conditions (bnatural) by Class I area in terms of Mm

−

1

(EPA, 2003b) and assumes clean conditions with no anthropogenic or weather interference. The visibility significance metric for evaluating BART sources is the change in deciview (del-dv) from the source's and natural conditions haze indices.”).

75

Texas concluded, “At a total estimated cost exceeding $300 million and no perceptible visibility benefit, Texas has determined that it is not reasonable to implement additional controls at this time.” Texas regional haze SIP at 10-7.

We note that the Tenth Circuit's decision in

WildEarth Guardians

v.

EPA

does not address the issues present in this case. There, the Tenth Circuit Court merely held that the CAA does not require a state to conduct a source-specific reasonable progress analysis. The Court did not hold that a state is free to conduct any type of analysis irrespective of whether or not the analysis is reasonable. Nor did the Court hold that the CAA prevents states or the EPA from conducting a source-specific analysis if that approach is determined to be appropriate.

Finally, we disagree with the commenter that we elevated visibility improvement to a place of primary importance, either in disapproving Texas' SIP or in promulgating our FIP. The flaws with Texas' consideration of visibility benefits were only one aspect of our disapproval. Moreover, we stated on multiple occasions in our proposal that we considered all four statutory factors in our analysis. Our analysis does not give greater weight to one factor over another; rather, we considered all four factors fully, revealing that the cost factor, which included visibility improvement consideration, was the most determinative in our decisions. The

American Corn Growers Ass'n

v.

EPA

case is inapposite. There, the D.C. Circuit Court faulted how EPA assessed the statutory fifth factor of visibility improvement in a BART determination (not a reasonable progress determination) by using a regional, multi-source, group approach to assessing the visibility improvement factor, while assessing the other four statutory BART factors on a source-specific basis. Here, not only is the analysis at issue not being performed under BART, but we did not give greater weight to our consideration of visibility improvement within the cost factor, or consider the cost factor in a different fashion from the other three reasonable progress factors.

Comment:

Some commenters stated that regional haze is the contribution of numerous emission sources to visibility impairment and that, while the contribution from any single source may be “insignificant,” the aggregate impact from all sources is significant. These commenters argued that, by using the Q/d screening metric, the EPA already took potential visibility impacts (and benefits of control) into account. They argued that the EPA cannot use visibility again during the four-factor analysis as an “off-ramp” to not control a source. Furthermore, the EPA should not break a facility down into its constituent parts because doing so can diminish each individual impact to the point where it becomes relatively insignificant. Such a “divide and exempt” approach is contrary to Congress' goal that Class I areas eventually return to natural visibility conditions. One commenter stated that the EPA should have conducted four-factor analyses for all 38 facilities identified in the Q/d analysis.

Response:

We agree that regional haze is, by definition, visibility impairment caused by numerous emission sources. We also agree that, while some sources may have very small visibility impacts, aggregate impacts can be significant. However, while there are undoubtedly thousands of sources within Texas that individually have small contributions to regional haze, there are also many sources that, even in isolation, have relatively large visibility impacts. In this first planning period, we identified the most significant sources that impact visibility, determined whether cost-effective controls were available for these sources, and balanced the costs of those controls against their visibility benefits. As we discussed in more detail above, if we had adopted the commenters' suggestion and controlled all large sources where cost-effective controls were available, we likely would have controlled many additional sources. Given the iterative nature of the regional haze program, we think that it was a reasonable approach to require only those cost-effective controls with the largest benefits this planning period. We expect that Texas will control additional sources, which by then will be the largest contributors to impairment, during future planning periods.

As we explain further in supporting documents, we also disagree with the commenter's suggestion that we should have screened only by using the Q/d metric. A Q/d analysis compares a source's emissions and distance to nearby Class I areas to provide an initial estimate of the potential visibility impacts of those sources. After conducting our Q/d analysis, we then used photochemical modeling to estimate the visibility impacts of this set of sources in a much more refined manner that accounts for chemistry, meteorological conditions, and stack parameters in addition to emissions and location. The results of our modeling indicated that a subset of 38 facilities were the primary contributors to visibility impairment at each Class I area. We then used the modeling results to narrow the group of sources further because it was reasonable to conduct a

full four-factor analysis only for the subset of sources with the largest facility-and unit-level visibility impacts, as described in detail in our supporting documents.

E. Consultation Between Oklahoma and Texas

Comment:

The regulations require that Texas' long-term strategy reflect the emission reductions requested and agreed to by the CENRAP states. EPA points to no flaws in the CENRAP regional planning process in which Texas and Oklahoma participated together. The EPA asserts that the TCEQ should have provided information necessary to identify reasonable reductions, which the Regional Haze Rule does not require. Oklahoma did not request additional controls on Texas sources or disagree with Texas' determination that no additional controls were warranted during the first planning period.

Nonetheless, the EPA arbitrarily disapproved the Texas consultation process with Oklahoma without reference to its rules, guidance, and prior SIP approvals. The proposal never details what information Oklahoma lacked in establishing its reasonable progress goals, and EPA must provide a more adequate explanation of how additional information would have changed Oklahoma's ultimate determination that additional controls on Texas sources would not move the Wichita Mountains perceptibly closer to its regional haze goals.

Response:

We disagree that participation alone in a Regional Planning Organization (RPO) process (here CENRAP) will always be enough to meet the requirements for consultation under the Regional Haze Rule. The rule does not negate the requirement that a state have a complete and technically adequate analysis so that consultations are well informed. The RPOs, such as CENRAP, provided technical analyses, including emission inventory development and air quality modeling to project future visibility conditions and additional information on sources of visibility impairment to facilitate consultations and support the development of the states' regional haze SIPs.

Although Texas participated in CENRAP, it retained the duty to do whatever additional analysis was necessary to fully address the requirements of the Regional Haze Rule for addressing its long-term strategy and setting its reasonable progress goals. While the long-term strategy requirements allow a state to rely on the RPO technical analysis, that is true only to the extent it provides the necessary information. A state must address any gaps in that analysis. For Texas, inadequate information existed not only for the reasonable progress analysis for its own Class I areas, but also for the long-term strategy development for addressing significant impacts at the Wichita Mountains. CENRAP was not required, nor did it provide state-specific analyses and information on the cost-effectiveness and visibility benefits of potential control strategies under consideration by each state to address the specific sources or groups of sources within that state that have the largest visibility impacts. Rather, CENRAP provided more general information on overall projected visibility conditions, potential controls and associated costs for some sources and the potential benefit of regional emission reductions to inform the development of potential control strategies that may require additional analysis.

76

For example, while the CENRAP analysis identified that impacts from EGUs in Texas were significant, it did not provide a refined analysis to fully assess the cost-effectiveness and visibility benefits of controlling those sources, including not providing information on the cost-effectiveness of scrubber upgrades for those sources with existing, underperforming scrubbers. As Texas states in its regional haze SIP, “While Texas participates in CENRAP and benefits from the technical work coordinated by the RPO, Texas has sole responsibility and authority for the development and content of its Regional Haze SIP.”

77

76

CENRAP conducted a control sensitivity analysis to evaluate the impact of point source emission reductions across all CENRAP states given a maximum dollar per control level of $5,000/ton; however, the results “were intended to be a starting point for control discussions that would require much greater refinement.” Technical Support Document for CENRAP Emissions and Air Quality Modeling to Support Regional Haze State Implementation Plans, September 12, 2007 at 2-37).

77

2009 Texas Regional Haze SIP at 3-1.

Recognizing that the information made available by CENRAP indicated the significant impact of Texas emissions and potential for cost-effective controls, Texas used the CENRAP analysis as a starting point, and performed supplemental analysis for both its reasonable progress and long-term strategy demonstrations. However, that additional technical analysis performed by Texas was flawed and therefore did not provide the type of information necessary to fully evaluate the reasonableness of controls at Texas sources with the largest potential to impact visibility at its own Class I areas and the Wichita Mountains. Allowing this lack of adequate information to continue was a critical misstep for ODEQ in setting its reasonable progress goals, and a critical misstep for Texas when determining its fair share of emissions reductions under the long-term strategy requirement. The plain language of the CAA requires that states consider the four factors used in determining reasonable progress in developing the technical basis for the reasonable progress goals both in their own Class I areas and downwind Class I areas. Such documentation is necessary so that interstate consultations can proceed on an informed basis, and so that downwind states can properly assess whether any additional upwind emissions reductions are necessary to achieve reasonable progress at their Class I areas. Therefore, Texas had an obligation to provide appropriate information to Oklahoma so it could establish a proper progress goal for the Wichita Mountains. Further, Texas had an obligation to conduct an appropriate technical analysis, and demonstrate through that analysis (required under paragraph (d)(3)(ii)), that it provided its fair share of emissions reductions to Oklahoma. In summary, Texas was required through the consultation process to provide Oklahoma the information it needed to establish its reasonable progress goals for the Wichita Mountains, and it failed to do so.

Comment:

Oklahoma possessed more than adequate information about impacts and potential controls but correctly decided it was not reasonable to request any further reductions from Texas sources during the first planning period. Oklahoma was in agreement with Texas on the goal and measures for the Wichita Mountains. EPA may disagree with that choice in hindsight and may wish Oklahoma's and Texas' agreement was different, but that is an unlawful basis for disapproving Oklahoma's reasonable progress consultation with Texas and disapproving Oklahoma's reasonable progress goals.

Response:

While we agree that Oklahoma possessed more than adequate information from the CENRAP analyses about impacts from Texas sources at a certain level of aggregation, and some knowledge concerning potential controls for some of these sources, we do not agree that it was reasonable for Oklahoma to stop at this point. Despite the information it did have, Oklahoma never explicitly asked Texas for reductions even though there was clear evidence from the CENRAP analyses that Texas sources, particularly EGUs in northeast Texas, were

significantly impacting the Wichita Mountains and that cost-effective controls were likely available on some of these sources.

The Regional Haze Rule required that Oklahoma use the consultation process under 40 CFR 51.308(d)(1)(iv) in the development of reasonable progress goals in tandem with Texas. Nevertheless, throughout the consultations, Oklahoma failed to explicitly request that Texas further investigate whether reasonable controls were available or that Texas reduce emissions from these significantly impacting sources to ensure that all reasonable measures to improve visibility were included in Texas' long-term strategy and incorporated into Oklahoma's reasonable progress goals for the Wichita Mountains. This failure resulted in the development of improper reasonable progress goals for the Wichita Mountains.

Comment:

Even if EPA's disapproval of Oklahoma's reasonable progress goals were authorized and supported, that disapproval does not allow EPA to disapprove Texas' long-term strategy. Regardless of EPA's view of Oklahoma's reasonable progress goals for the Wichita Mountains, it is undisputed that Texas' SIP includes the measures necessary to secure Texas' agreed-to apportionment of emission reductions to meet the reasonable progress goals for the Wichita Mountains established by Oklahoma, and thus EPA must approve Texas' SIP.

Response:

We disagree that disapproval of Oklahoma's reasonable progress goals for the Wichita Mountains does not allow us to disapprove Texas' long-term strategy. We are disapproving the Texas long-term strategy because the analysis underlying it is technically flawed. Because of these flaws, Texas' SIP submittal does not include all the measures necessary to secure its apportionment of the emission reductions needed to meet the progress goal that should account for all reasonable control measures for the Wichita Mountains, or its own Class I areas. We are disapproving the Oklahoma reasonable progress goals for the Wichita Mountains not because of the technically flawed Texas long-term strategy, but because Oklahoma's consultations with Texas were flawed, which prevented it from adequately developing its reasonable progress goals for the Wichita Mountains. Also, because Oklahoma's consultations with Texas were flawed, Oklahoma did not adequately consider the emission reduction measures necessary to achieve the uniform rate of progress for the Wichita Mountains and did not adequately demonstrate that the reasonable progress goals it established were reasonable based on the four statutory factors. See our previous responses concerning the comments on Texas allegedly meeting the “agreed-to apportionment.”

Comment:

EPA never raised any of the concerns it asserts and it never second-guessed the process or the data that the states were developing—as it does now, years after that process has been completed and on the eve of the next planning period. In truth, Texas and Oklahoma did exactly what EPA encouraged them to do.

Response:

Our task under the CAA is to review a SIP once it is formally submitted by the state and determine if it meets the CAA and our rules. There is no requirement in the CAA that we must review, evaluate, and comment on a state's proposed SIP revision before it is formally submitted to us. Nevertheless, we note that we sent comment letters to Texas and Oklahoma during their public comment periods, raising many of the issues presented herein. We stated that Texas should specifically demonstrate that it included all measures necessary to obtain its share of the emission reductions necessary for achieving reasonable progress in the Wichita Mountains and document its technical basis. Furthermore, we stated that the Texas reasonable progress/long-term strategy technical analysis raised concerns about whether it appropriately evaluated whether there were additional reasonable controls available to help reduce its impact on the Wichita Mountains. For Oklahoma, we stated it did not appear that ODEQ actually requested reductions from Texas and we urged Oklahoma to ensure Texas was aware of its sources' impact and encourage reductions as necessary. In both letters, we stated that additional concerns would surface during the review of the final SIP submittals.

Comment:

EPA's consultation disapprovals of Oklahoma and Texas are the first time EPA has disapproved a state regional haze consultation. This new approach of second-guessing regional agreements—years after they are reached and implemented—would undermine and chill the regional planning process, and discourage states from participating.

Response:

We disagree that this is a new approach on the consultation requirements and we also disagree that our position undermines or chills the regional planning process. While our regulations allow states to work together in RPOs, like CENRAP, this is not a stopping point for states to fall back on as a rationale not to meet the CAA and Regional Haze Rule. We have not disapproved other states' reasonable progress/long-term strategy consultation processes because the particular facts of the situation for Texas and Oklahoma did not arise. We believe our clarification that upwind states have an obligation to reasonably assess potential control measures to address impacts in Class I areas in downwind states will encourage states to work together to address regional haze.

F. Source Category and Individual Source Modeling

Comment:

EPA proposed to disapprove Texas' regional haze SIP because EPA determined that Texas was required to conduct a source-specific analysis of certain facilities to meet the reasonable progress requirements. EPA guidance and judicial precedent have stated that a source-specific analysis or source-by-source demonstration is not required to determine reasonable progress.

Response:

We disagree with these comments as our proposal to disapprove the SIP was decidedly not based on the supposed use of a source category-based analysis by Texas. Therefore, these comments have not accurately described the proposed basis of disapproval. We understand many of these comments arose because our proposal included a statement that “individual sources were not considered by the TCEQ.” This statement was not offered to propose a basis for disapproval, but we understand it is susceptible to being taken out of context (particularly in consideration of the comments received). It is perhaps more plain to state that individual sources were not

effectively

considered by the TCEQ. As our proposal and the Texas SIP itself make clear, Texas did, in fact, partially evaluate controls for certain individual sources. In evaluating these controls, Texas employed a large, superficially refined control set consisting of a mix of large and small sources from a number of different source categories located within varying distances of Class I areas. It did assess individual source data for some factors such that we do not necessarily agree with commenters who brand it a “source category analysis.”

Whatever its label, we proposed to disapprove Texas' reasonable progress analysis because it was flawed in several specific ways. A primary flaw was that the control set was over-inclusive. It included controls on sources that served to increase the total cost with little visibility benefit. As was

noted in our proposal,

78

Texas adopted this approach despite evidence in the record of identified source-specific, cost-effective controls that would have resulted in large emission reductions on certain EGUs, and despite source apportionment modeling that identified large impacts from EGU sources in northeast Texas. Our proposal explained that this approach obscured benefits that might be obtained from individual sources and only considered aggregated costs. As we also explained, the submitted analysis failed to study or consider scrubber upgrade candidates. It was accordingly under-inclusive of large, highly cost-effective emissions reductions that would lead to significant improvements in visibility. These points are validated by the technical record for this FIP.

78

79 FR 74838 (“[W]e believe that individual benefits were masked by the inclusion of those controls with little visibility benefit that only served to increase the total cost figures.”)

Therefore, whether the state's analysis is labelled a source category analysis, an analysis of multiple individual sources, or some hybrid, we conclude that it contained serious deficiencies that would materially affect the outcome of the state's SIP process. As a result, we conclude this component of the SIP requires disapproval.

Finally, it bears noting that the approach we have taken in our FIP to identifying appropriate controls does not dictate the approach that Texas or any other state must take to assess controls. Given Texas' size and the range of distances from point sources to Class I areas, the mix of controls at EGUs and other large point sources in the state, and the overall significance of the impacts from these point sources, we considered it appropriate to undertake a source specific analysis to avoid the potential for over-controlling sources.

79

In some circumstances, depending on the types of sources at issue, the impacts from these sources relative to other causes of visibility impairment, the types of controls under consideration, and other such factors, a source category approach can be appropriate. Ultimately, however, while there is flexibility in available analytical approaches, states cannot adopt an approach to reasonable progress, which by its nature overlooks cost-effective controls that would otherwise be viewed as being beneficial.

79

On this point, it also bears noting that Texas' EGUs operate within a state that is at least three times larger than 38 of the states and a full 60% larger than California, the next largest of the contiguous states.

Comment:

Because of guidance and precedent that “source category” analyses can be appropriate, individual sources or point sources cannot be subject to source-specific controls to meet reasonable progress. Individual sources can be subject to control for purposes of addressing BART or RAVI requirements but additional, source-specific controls may not lawfully be imposed.

Response:

We disagree with the argument that, because a source category analysis may be appropriate in some circumstances, sources cannot be subject to source-specific controls to ensure reasonable progress toward improving visibility. It is unclear how a state would develop a SIP containing “emission limits, schedules of compliance, and other measures may be necessary to make reasonable progress,” as required by CAA section 169(A)(b)(2), without the option of source-specific controls going forward. There is nothing in the visibility provisions of the CAA or the Regional Haze Rule suggesting otherwise.

Comment:

Information on FGD scrubber upgrades cannot be used to disapprove the SIP because that information was acquired through EPA's authority to obtain information under CAA section 114, but the state has no equivalent corresponding authority. EPA comment letters and communications in past years had not informed the state of the importance of analyzing scrubber upgrades.

Response:

Neither of these observations would justify our approving a flawed component of a SIP revision—in this case an analysis within that SIP revision—that, among other things, had unreasonably overlooked the option of FGD upgrades. Our 2005 BART rule discussed the state evaluation of scrubber upgrades in several places.

80

The technical information in our proposal validates FGD upgrades as an option that should have been considered, and we consider this technical record to have been reinforced and further validated with additional information and comments provided in support of the proposal. Even as we acknowledge that the TCEQ does not have authority (or any present delegation of authority) to request information under CAA section 114, this is not any kind of determinative limitation on the state's technical and regulatory capacities and tools for producing and developing information on an air pollution control measure such as FGD upgrades. Texas has engaged in air quality control planning and air pollution prevention under the CAA for decades, and the Texas agency or agencies responsible for SIP adoption and implementation are required to possess the necessary legal authority under state law to adopt and implement all SIP measures.

81

Consequently, in this case, the TCEQ bore the responsibility of developing or requesting information needed to properly assess scrubber upgrades. Lastly, as we state above, any past EPA comment letters would be intended to be helpful to the improvement of any SIP revision that is under development, but they do not constitute agency action on that SIP revision or constitute any assurance of positive action on that revision upon submission and review. Instead and as always, EPA has to formally discharge its responsibilities to review any SIP submittal under the provisions of CAA section 110(k). Accordingly, the issue of TCEQ's knowledge, notice, or lack thereof on FGD scrubber upgrades cannot be resolved in any way that would shield the SIP revision from this basis for disapproval.

80

See for instance 70 FR 39171: “You should evaluate scrubber upgrade options based on the 5 step BART analysis process.”

81

CAA section 110(a)(2)(E); 42 U.S.C. 7410(a)(2)(E) (requiring assurances of “. . . adequate, personnel, funding, and authority under State . . . law to carry out” SIP requirements); Section 2.1(c) of appendix V to 40 CFR part 51.

G. Constitutional Law

One commenter cited to the Commerce Clause, Fifth Amendment and Constitutional non-delegation principles in support of its contention that EPA should not be able to regulate sources under our regional haze program. We disagree with these comments. First, under the Commerce Clause, the commenter argues that we cannot regulate regional haze on the theory that regulated conduct—such as “carbon emissions” from coal-fired power plants—will have some effect on interstate commerce. We disagree with the comment because owners and operators of the Texas sources subject to this regional haze FIP are engaged in economic activities (the operation of coal-fired power plants) that cause haze-forming air pollution to travel into other states and substantially affect interstate commerce. Each of the Federal Class I areas receives substantial numbers of visitors, including those from out-of-state, each year. Our regulation of these sources of visibility impairing pollution pursuant to the CAA is squarely within the Federal government's Commerce Clause authority. Our regulation of emissions from coal-fired power plants, which cause and contribute to regional haze in multiple states, to fill a gap left by disapproval of a SIP seeks to fulfill

the regional haze provisions of the CAA, which in turn are constitutional exercises of Congress's power under the Commerce Clause of the U.S. Constitution.

Second, the commenter contends that our Regional Haze Rule suffers from a non-delegation problem. We disagree. The CAA's visibility provisions provide extensive intelligible principles that guide our exercise of discretion. CAA section 169A, as well as other provisions, required us to promulgate regulations directing the states to revise their SIPs to include emission limits and other measures as necessary to make “reasonable progress.”

82

Congress defined reasonable progress to be the consideration of four statutory factors, including cost and energy impacts.

83

Congress also directed our regulations to require BART for a specific universe of older sources, and again provided a set of statutory factors states must consider when determining what control technology constitutes BART.

84

These two sets of statutory factors, among several other provisions and definitions in CAA section 169A that provide specific instructions to EPA and states, clearly constitute intelligible principles under the framework set forth in the case cited by the commenter. The Regional Haze Rule, which we promulgated pursuant to the statutory mandate in CAA section 169A, reflects these same intelligible principles and has been upheld by the D.C. Circuit Court.

82

42 U.S.C. 7491(b)(2).

83

Id.

at 7491(g)(1).

84

Id.

at 7491(b)(2)(A) & (g)(2).

Third, a commenter claims that the EPA has commandeered the states in violation of the Fifth Amendment of the Constitution. We disagree with this comment. The U.S. Supreme Court has held that, “the Federal Government may not compel the states to implement Federal regulatory programs.”

85

The CAA in no way compels a state to implement Federal regulatory programs. The CAA, instead, authorizes the EPA to promulgate and administer a FIP if a state fails to submit an adequate SIP.

86

The EPA will implement the FIP, with no actions required by any part of the government of Texas.

85

Printz

v.

United States,

521 U.S. 898, 925 (1997).

86

42 U.S.C. 7410(c)(1)(A).

H. Stay of Effective Date, Consolidated Appropriations Act, and Executive Orders 13405 and 13211

Comment:

Any final action should stay the effectiveness and effective date of the action or establish a delayed effective date to allow for “judicial vetting” of EPA's determinations.

Response:

We have reviewed these requests and do not agree that taking these measures with our final rule would be appropriate. Our final rule initiates the effectiveness of the action to ensure the requirements of the CAA are carried into effect. This result is consistent with the CAA and with the regulatory rulemaking process more generally. We note that CAA section 307(d)(7)(B) allows, in limited fashion, for a stay of effectiveness of a rule during any proceeding for reconsideration, but this authority presupposes the rule's finalization, the rule's effectiveness, and the filing of an administrative petition for reconsideration. Making the rule effective also ensures the finality of the action “for purposes of judicial review.”

See

CAA section 307(b). Nothing in our response here limits or inhibits the filing of a petition for judicial review or the powers of a reviewing court.

Comment:

EPA should update both its atmospheric modeling platforms as part of the upcoming Appendix W rewrite and the cost manual in order to support reasonable future assessments of visibility impacts and appropriate control strategies consistent with the Committee Report associated with the Consolidated Appropriations Act of 2014.

Response:

As a general matter, wherever possible, we intend to follow the committee report instructions associated with the Consolidated Appropriations Act of 2014, even where not specifically incorporated by reference into the CAA itself. We are currently working to update our “Guideline on Air Quality Models” in appendix W to part 51 of title 40, Code of Federal Regulations, and we proposed updates on July 29, 2015. Also, as of the date of responding to this comment, we have proposed updates to chapters within our Control Cost Manual.

Comment:

One commenter stated that if we change the final rule to not include SO

2

reductions at one of the affected facilities, we must conduct an analysis under Executive Order 13045—Protection of Children from Environmental Health Risks and Safety Risks. Another commenter suggested that polluters need to reconsider a business model that burdens low income communities, especially those with minority populations, with the effects of air pollution, and urged that EPA is accountable to low income, underserved, and vulnerable communities in Texas that are constantly being ignored.

Response:

As explained more fully in a later section of this document and in our RTC document, Executive Order 13045 does not apply. To the extent our final rule limits emissions of SO

2,

this will also increase the level of environmental protection and beneficial effect on human health for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

Comment:

EPA has improperly avoided analyzing and evaluating potential energy-related impacts of the proposed rule on reliability and prices of electricity in Texas and the ERCOT region, despite Executive Order 13211 requiring such evaluation. The EPA is using a loophole in Executive Order 12866, despite meeting the cost and effect criteria and the order's purpose, to avoid evaluating the potential energy impacts of the proposed action as required by Executive Order 13211. Moreover, the proposed rule is inconsistent in claiming the rule is both of national scope and effect and not of general applicability. Additionally, CAA section 169A(g) requires that the state and the Administrator consider the energy and non-air quality environmental impacts of compliance when determining BART. Finally, citing ERCOT's recent report, the proposed FIP affects a significant portion of Texas' base load power generation fleet and the potential for adverse effects from the EPA's proposed rule is actually increased, not lessened, because the costs and impacts of the rule are focused within a smaller region. Therefore, regardless of Executive Order 13211 applicability, EPA should evaluate and consider the impacts of the proposed FIP on the reliability and price of electricity in Texas.

Response:

As explained more fully in a later section of this document and our RTC document, Executive Order 13211 does not apply as this action is not a rule of general applicability under Executive Order 12866. Our determination regarding this is not inconsistent with our determination that the rule is of national scope and effect, as these are different determinations that we fully evaluated under their respective standards, and are not directly comparable. Additionally, we did consider the commenter's concerns regarding grid reliability and price of electricity, as discussed more fully in the Grid Reliability section of this document, so we did not “utilize a loophole” in the applicability provisions of Executive Order 12866 to

avoid consideration of the concerns raised in this comment.

I. Controls in Addition to CAIR/CSAPR, and CSAPR Better Than BART

Comment:

Texas is the only state included in CSAPR for which EPA is issuing a FIP for reasonable progress. EPA proposed to issue a FIP that would replace Texas' reliance on CAIR to satisfy the BART requirement for EGUs with reliance on CSAPR. But EPA's proposal otherwise disregarded CSAPR's more stringent SO

2

and NO

X

emission budgets for Texas, as compared to CAIR, as well as the additional trading restrictions imposed by CSAPR. For all other states that have relied on either CAIR or CSAPR, EPA found such participation to satisfy the states' reasonable progress obligation for the first planning period for those sources. EPA should not require controls beyond BART for BART sources because it is reasonable to conclude that no additional emissions controls are necessary for BART sources in the first planning period.

Response:

As discussed elsewhere in this document, although we proposed to rely on CSAPR to address the BART requirements for EGUs in Texas, we are not finalizing that proposed action. On July 28, 2015, the D.C. Circuit Court issued its decision in

EME Homer City

87

upholding CSAPR but remanding without vacating a number of the Rule's state emissions budgets, including Texas' budgets. We are currently in the process of determining the appropriate response to the remand, and the extent to which the SO

2

and NO

X

CSAPR budgets for Texas will change is currently unknown. The uncertainties regarding the CSAPR SO

2

budgets are particularly relevant given our rule's focus on this pollutant.

88

Even assuming, however, that

EME Homer City

had not invalidated the CSAPR NO

X

and SO

2

budgets for Texas and that we were taking final action to address the BART requirements through reliance on CSAPR, we do not agree that we are prohibited from requiring controls beyond CSAPR for purposes of reasonable progress. We noted in 2005 that the determination that CAIR provided for greater reasonable progress than BART did not answer the question of whether more than CAIR would be required in a regional haze SIP.

89

87

EME Homer City Generation

v.

EPA,

795 F.3d 118 (D.C. Cir. 2015).

88

“In short, EPA's 2014 SO

2

emissions budgets for Texas, Alabama, Georgia, and South Carolina require each of those States to reduce emissions by more than the amount necessary to achieve attainment in

every

downwind State to which it is linked. The reductions on those four States are unnecessary to downwind attainment

anywhere.

Those emissions budgets are therefore invalid.”

EME Homer City,

at 129 (

citing EME Homer,

134 S. Ct. 1584, 1608-9 (2014)) (internal quotations omitted).

89

70 FR 39104, 39143.

Furthermore, such a simplistic comparison ignores the meaningful differences between Texas and the other states cited by commenters in which no controls on NO

X

and SO

2

from EGUs beyond CSAPR were required. As explained in our proposed rulemaking, allowing Texas to rely on CSAPR to meet its reasonable progress obligations is not appropriate, considering the large impact of Texas sources on visibility at Big Bend, the Guadalupe Mountains, and the Wichita Mountains and the availability of cost-effective controls even after considering CAIR/CSAPR's previously projected reductions.

Comment:

EPA should disapprove Texas' determination to exclude all BART-eligible sources from being subject to BART and EPA should do source by source BART for NO

X.

Further, if EPA does not finalize the proposed controls for reasonable progress, then EPA should do source by source BART for SO

2

. EPA's proposal to rely on CSAPR as an alternative to BART is unlawful for three reasons. First, EPA's proposal exempts sources from BART requirements without complying with the statutory prerequisites for such an exemption. Second, even if EPA could relieve the sources of the obligation to install BART controls, the “Better than BART” rule upon which EPA relies is flawed. Third, the “Better than BART rule” is no longer valid given the substantial changes in CSAPR allocations and compliance deadlines.

Response:

As discussed above, we are not finalizing our proposed action to rely on CSAPR to address BART due to the partial remand of CSAPR in

EME Homer City.

We will address the question of appropriate SO

2

and NO

X

BART limits for EGUs in Texas in a future rulemaking. Comments concerning the appropriateness of CSAPR as an alternative for BART in Texas are not relevant to this action. Additionally, we are finalizing the proposed controls for reasonable progress. Therefore, the comment that we should do source-by-source BART for SO

2

if the reasonable progress controls are not finalized is moot.

J. Installation of Controls Beyond the First Planning Period

Several comments assert that our FIP authority is limited to “filling the gaps” in a state's SIP submission. These commenters further contend that our FIP authority is limited by the scope of the SIP submission. Because the required reasonable progress goals should be met at the conclusion of the first planning period, the commenters' argument continues, our FIP authority is likewise limited to those controls that can be implemented by 2018. We disagree. Our authority to use a FIP to address a “gap” or “inadequacy” in a SIP refers to a “gap” in the plan's coverage of requirements contained in the statute and regulations, and is not limited to the specific “gap” left by the disapproved portions of the scope of action covered in the state's SIP submission, as commenters suggest.

90

90

See CAA Sections 110(c) and 303(y).

In this action, we are determining whether Texas has addressed the regional haze requirements set forth in the CAA and our implementing regulations. Our FIP determines that under a proper assessment of reasonable progress factors, additional controls for some sources in Texas are warranted for the first planning period. Regulatory delays created by a complex Texas submission and EPA actions regarding the state's regional haze requirements, including the time needed for EPA to assess the complex 2009 submission and the thousands of comments received on our proposed action, cannot provide an exemption from the CAA requirement to address regional haze. Nor can regulatory delays make additional delays excusable when the requisite CAA analysis concludes the controls are warranted at the earliest opportunity to make reasonable progress. Additionally, there is nothing in the CAA or the regional haze rules that constrains our FIP authority to only those controls that can be installed in the first planning period. While reasonable progress goals reflect that degree of visibility improvement attainable during the first planning period (which extends to 2018), as was indicated in our proposal, the long-term strategy requirements of the program by their very nature look beyond these interim goals to the state's “long term” approach to addressing regional haze and may include control measures and accompanying visibility improvements that extend beyond the first planning period.

91

The commenter's concerns center upon controls that are not accounted for in the numerical reasonable progress goals, but rather as we acknowledge, are part of the long-

term strategy and needed for reasonable progress.

91

79 FR 74874, citing Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program, Section 5.2. By statute, the long-term strategy for making reasonable progress may extend “ten to fifteen years.” CAA Section 169A(b)(2)(B); 42 U.S.C. 7491(b)(2)(B).

Comments also asserted that our proposed FIP disregards the “time necessary for compliance” factor of the reasonable progress analysis. As we discuss in detail in the RTC document, we are required by regulation to “

consider

” time necessary for compliance when establishing reasonable progress goals, and we satisfied this requirement by proposing reasonable progress goals that account only for those controls that can be fully installed within the first planning period, as is consistent with our Reasonable Progress Guidance.

92

For the scrubber retrofits that may require up to five years to fully install, we exercised our authority to propose a long-term strategy including emission limits that require controls that may not be operational during the planning period and therefore are not included in the reasonable progress goals. We also note that we expect that design and construction of the scrubber retrofits will begin within the planning period, in order to meet the five-year compliance date. This approach is consistent with other FIPs issued by EPA and takes into account the time engagement required to promulgate a FIP within a planning period and the significance of the CAA's contemplated ten to fifteen year long-term strategy.

92

See our Reasonable Progress Guidance, page 5-2: “It may be appropriate for you to use this factor to adjust the RPG to reflect the degree of improvement in visibility achievable within the period of the first SIP if the time needed for full implementation of a control measure (or measures) will extend beyond 2018.”

Other comments asserted that our requirement for controls outside of the planning period is inconsistent with previous FIPs. We disagree with this comment. First, we have proposed or promulgated FIPs requiring controls with compliance dates beyond the first planning period, including FIPs for Arkansas and Wyoming. The Oklahoma FIP includes requirements beyond the first planning period as the result of a stay during litigation. Further, we have applied the requirements of the regional haze program to ensure consistency in the requirements upon the sources subject to regulation. If we were to follow the commenters' arguments and fail to require application of necessary controls on Texas sources past the first planning period, those sources would be treated inconsistently with sources in other states that were required to apply the controls necessary to meet the CAA's requirement to address regional haze. We cannot agree to inconsistent application of necessary controls at Texas sources due to delays in promulgating a FIP or time-intensive installation schedules, but rather, we address these program requirements through the long-term strategy, which, as discussed above, allows for control strategies that can begin design and construction but cannot be completed within the planning period.

Several comments assert that our regulatory delays preclude EPA from imposing certain emission limitations that may not be achieved within the first planning period. Despite any delays in finalizing our action on the Texas SIP or in promulgating the FIP, we have a duty to act on the SIP and a duty to fulfill the regional haze requirements of the Act, including the authority to promulgate a FIP that imposes the controls required by the CAA where a SIP submission fails to do so. This duty and authority is not forfeited or constrained by delays, whatever their cause. We likewise disagree with commenters who c

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