Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan

Federal RegisterOct 17, 2017

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-R06-OAR-2016-0611; FRL-9969-07-Region 6]

Promulgation of Air Quality Implementation Plans; State of Texas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Pursuant to the Federal Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is finalizing a partial approval of the 2009 Texas Regional Haze State Implementation Plan (SIP) submission and a Federal Implementation Plan (FIP) for Texas to address certain outstanding requirements. Specifically, the EPA is finalizing determinations regarding best available retrofit technology (BART) for electric generating units (EGUs) in the State of Texas. To address the BART requirement for sulfur dioxide (SO

), the EPA is finalizing an alternative to BART that consists of an intrastate trading program addressing the SO

emissions from certain EGUs. To address the BART requirement for oxides of nitrogen (NO

), we are finalizing our proposed determination that Texas' participation in the Cross-State Air Pollution Rule's (CSAPR) trading program for ozone-season NO

qualifies as an alternative to BART. We are approving Texas' determination that its EGUs are not subject to BART for particulate matter (PM). Finally, we are disapproving portions of several SIP revisions submitted to satisfy the CAA requirement to address interstate visibility transport for six national ambient air quality standards (NAAQS): 1997 8-hour ozone, 1997 fine particulate matter (PM

2.5

) (annual and 24-hour), 2006 PM

2.5

(24-hour), 2008 8-hour ozone, 2010 1-hour nitrogen dioxide (NO

) and 2010 1-hour SO

. We are finding that the BART alternatives to address SO

and NO

BART at Texas' EGUs meet the interstate visibility transport requirements for these NAAQS.

DATES:

This final rule is effective on November 16, 2017.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2016-0611. 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:

Michael Feldman at

Feldman.Michael@epa.gov

or 214-665-9793

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Table of Contents

I. Background

A. Regional Haze

B. Interstate Transport of Pollutants That Affect Visibility

C. Previous Actions Related to Texas Regional Haze

II. Our Proposed Actions

A. Regional Haze

B. Interstate Transport of Pollutants That Affect Visibility

III. Summary of Our Final Decisions

A. Regional Haze

1. BART-Eligible Units

2. Subject-to-BART Sources

3. SO

BART

4. PM BART

5. NO

BART

B. Interstate Transport of Pollutants That Affect Visibility

C. Reasonable Progress

IV. Summary and Analysis of Major Issues Raised by Commenters

A. Comments on Relying on CSAPR for SO

BART or Developing an Intrastate SO

Trading Program

B. Comments on Source-Specific BART

C. Comments on EPA's Proposed SIP Disapprovals

D. Legal Comments

E. Comments on Identification of BART-Eligible Sources

F. Comments on PM BART

G. Comments on EPA's Source-Specific SO

BART Cost Analyses

H. Comments on EPA's Modeling

I. Comments on Affordability and Grid Reliability

V. SO

Trading Program and Its Implications for Interstate Visibility Transport, EGU BART, and Reasonable Progress

A. Background on CSAPR as an Alternative to BART Concept

B. Texas SO

Trading Program

1. Identification of Sources Participating in the Trading Program

2. Texas SO

Trading Program as a BART Alternative

C. Specific Texas SO

Trading Program Features

VI. Final Action

VII. Statutory and Executive Order Reviews

I. Background

A. Regional Haze

Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit PM

2.5

(

e.g.,

sulfates, nitrates, organic carbon (OC), elemental carbon (EC), and soil dust), and its precursors (

e.g.,

, NO

, and, in some cases, ammonia (NH

) and volatile organic compounds (VOCs)). Fine particle precursors react in the atmosphere to form PM

2.5

, which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that can be seen. PM

2.5

can also cause serious health effects and mortality in humans and contributes to environmental effects, such as acid deposition and eutrophication.

Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national parks and wilderness areas. In 1999, the average visual range

in many Class I areas (

i.e.,

national parks and memorial parks, wilderness areas, and international parks meeting certain size criteria) in the western United States was 100-150 kilometers, or about one-half to two-thirds of the visual range that would exist without anthropogenic air pollution. In most of the eastern Class I areas of the United States, the average visual range was less than 30 kilometers, or about one-fifth of the visual range that would exist under estimated natural conditions.

CAA programs have reduced some haze-causing pollution, lessening some visibility impairment and resulting in partially improved average visual ranges.

Visual range is the greatest distance, in kilometers or miles, at which a dark object can be viewed against the sky.

64 FR 35715 (July 1, 1999).

An interactive “story map” depicting efforts and recent progress by EPA and states to improve visibility at national parks and wilderness areas may be visited at:

http://arcg.is/29tAbS3.

CAA requirements to address the problem of visibility impairment are continuing to be addressed and implemented. In Section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any

existing man-made impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I Federal areas.

On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources,

i.e., “

reasonably attributable visibility impairment.”

These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Areas designated as mandatory Class I Federal areas consist of National Parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA, EPA, in consultation with the Department of Interior, promulgated a list of 156 areas where visibility is identified as an important value. 44 FR 69122 (November 30, 1979). The extent of a mandatory Class I area includes subsequent changes in boundaries, such as park expansions. 42 U.S.C. 7472(a). Although states and tribes may designate as Class I additional areas which they consider to have visibility as an important value, the requirements of the visibility program set forth in section 169A of the CAA apply only to “mandatory Class I Federal areas.” Each mandatory Class I Federal area is the responsibility of a “Federal Land Manager.” 42 U.S.C. 7602(i). When we use the term “Class I area” in this action, we mean a “mandatory Class I Federal area.”

45 FR 80084 (Dec. 2, 1980).

Congress added section 169B to the CAA in 1990 to address regional haze issues, and we promulgated regulations addressing regional haze in 1999.

The Regional Haze Rule revised the existing visibility regulations to integrate into the regulations provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-51.309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. States were required to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P (Regional Haze Rule).

See

40 CFR 51.308(b). EPA's regional haze regulations require subsequent updates to the regional haze SIPs. 40 CFR 51.308(g)-(i).

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often under-controlled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources

built between 1962 and 1977 procure, install and operate the “Best Available Retrofit Technology” (BART). Larger “fossil-fuel fired steam electric plants” are included among the BART source categories. Under the Regional Haze Rule, states are directed to conduct BART determinations for “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. The evaluation of BART for EGUs that are located at fossil-fuel-fired power plants having a generating capacity in excess of 750 megawatts must follow the “Guidelines for BART Determinations Under the Regional Haze Rule” at appendix Y to 40 CFR part 51 (hereinafter referred to as the “BART Guidelines”). Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. 40 CFR 51.308(e)(2) specifies how a state must conduct the demonstration to show that an alternative program will achieve greater reasonable progress than the installation and operation of BART. 40 CFR 51.308(e)(2)(i)(E) requires a determination under 40 CFR 51.308 (e)(3) or otherwise based on the clear weight of evidence that the trading program or other alternative measure achieves greater reasonable progress than would be achieved through the installation and operation of BART at the covered sources. Specific criteria for determining if an alternative measure achieves greater reasonable progress than source-specific BART are set out in 40 CFR 51.308(e)(3). Finally, 40 CFR 51.308(e)(4) states that states participating in CSAPR need not require BART-eligible fossil fuel-fired steam electric plants to install, operate, and maintain BART for the pollutant covered by CSAPR.

See

42 U.S.C. 7491(g)(7) (listing the set of “major stationary sources” potentially subject-to-BART).

Under section 110(c) of the CAA, whenever we disapprove a mandatory SIP submission in whole or in part, we are required to promulgate a FIP within two years unless the state corrects the deficiency and we approve the new SIP submittal.

B. Interstate Transport of Pollutants That Affect Visibility

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 section 110(a)(2)(D)(i)(II) requires that SIPs contain adequate provisions to prohibit interference with measures required to protect visibility in other states. This is referred to as “interstate visibility transport.” SIPs addressing interstate visibility transport are due to the EPA within three years after the promulgation of a new or revised NAAQS (or within such shorter period as we may prescribe). A state's failure to submit a complete, approvable SIP for interstate visibility transport creates an obligation for the EPA to promulgate a FIP to address this requirement.

C. Previous Actions Related to Texas Regional Haze

On March 31, 2009, Texas submitted a regional haze SIP to the EPA that included reliance on Texas' participation in the Clean Air Interstate Rule (CAIR) as an alternative to BART for SO

and NO

emissions from EGUs.

This reliance was consistent with the EPA's regulations at the time that Texas developed its regional haze plan,

but at the time that Texas submitted this SIP to the EPA, the D.C. Circuit had remanded CAIR (without vacatur).

The court left CAIR and our CAIR FIPs in place in order to “temporarily preserve the environmental values covered by CAIR” until we could, by rulemaking, replace CAIR consistent with the court's opinion. The EPA promulgated CSAPR, a revised multi-state trading program to replace CAIR, in 2011

(and revised it in 2012

). CSAPR established FIP requirements for a number of states, including Texas, to address the states' interstate transport obligation under CAA section 110(a)(2)(D)(i)(I). CSAPR requires affected EGUs in these states to

participate in the CSAPR trading programs and establishes emissions budgets that apply to the EGUs' collective annual emissions of SO

and NO

, as well as seasonal emissions of NO

. Following issuance of CSAPR, the EPA determined that CSAPR would achieve greater reasonable progress towards improving visibility than would source-specific BART in CSAPR states.

We revised the Regional Haze Rule to allow states that participate in CSAPR to rely on participation in the trading programs in lieu of requiring EGUs in the state to install BART controls.

CAIR required certain states, including Texas, to reduce emissions of SO

and NO

that significantly contribute to downwind nonattainment of the 1997 NAAQS for fine particulate matter and ozone. See 70 FR 25152 (May 12, 2005).

See

70 FR 39104 (July 6, 2005).

See North Carolina

EPA,

531 F.3d 896 (D.C. Cir. 2008),

modified,

550 F.3d 1176 (D.C. Cir. 2008).

76 FR 48207 (Aug. 8, 2011).

CSAPR was amended three times in 2011 and 2012 to add five states to the seasonal NO

program and to increase certain state budgets. 76 FR 80760 (December 27, 2011); 77 FR 10324 (February 21, 2012); 77 FR 34830 (June 12, 2012).

77 FR 33641 (June 7, 2012).

In the same action that EPA determined that states could rely on CSAPR to address the BART requirements for EGUs, EPA issued a limited disapproval of a number of states' regional haze SIPs, including the 2009 SIP submittal from Texas, due to the states' reliance on CAIR, which had been replaced by CSAPR.

The EPA did not immediately promulgate a FIP to address the limited disapproval of Texas' regional haze SIP in order to allow more time for the EPA to assess the remaining elements of the 2009 Texas SIP submittal. In December 2014, we proposed an action to address the remaining regional haze obligations for Texas.

In that action, we proposed, among other things, to rely on CSAPR to satisfy the NO

and SO

BART requirements for Texas' EGUs; we also proposed to approve the portions of the SIP addressing PM BART requirements for the state's EGUs. Before that rule was finalized, however, the D.C. Circuit issued a decision on a number of challenges to CSAPR, denying most claims, but remanding the CSAPR emissions budgets of several states to the EPA for reconsideration, including the Phase 2 SO

and seasonal NO

budget for Texas.

Due to potential impacts of the remanded budgets on the EPA's 2012 determination that CSAPR would provide for greater reasonable progress than BART, we did not finalize our decision to rely on CSAPR to satisfy the SO

and NO

BART requirements for Texas EGUs.

Additionally, because our proposed action on the PM BART provisions for EGUs was dependent on how SO

and NO

BART were satisfied, we did not take final action on the PM BART elements of Texas' regional haze SIP. In January 2016, we finalized action on the remaining aspects of the December 2014 proposal. That rulemaking was challenged, however, and in December 2016, following the submittal of a request by the EPA for a voluntary remand of the parts of the rule under challenge, the Fifth Circuit Court of Appeals remanded the rule in its entirety.

Id.

79 FR 74818 (Dec. 16, 2014).

EME Homer City Generation, L.P.

EPA,

795 F.3d 118, 132 (D.C. Cir. 2015).

81 FR 296 (Jan. 5, 2016).

Texas

EPA,

829 F.3d 405 (5th Cir. 2016).

On October 26, 2016, the EPA finalized an update to CSAPR to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS (CSAPR Update).

The EPA also responded to the D.C. Circuit's remand of certain CSAPR seasonal NO

budgets in that action. As to Texas, the EPA withdrew Texas's seasonal NO

budget finalized in CSAPR to address the 1997 ozone NAAQS. However, in that same action, the EPA promulgated a FIP with a revised seasonal NO

budget for Texas to address the 2008 ozone NAAQS.

Accordingly, Texas remains subject to the CSAPR seasonal NO

requirements.

81 FR 74504 (Oct. 26, 2016).

81 FR 74504, 74524-25.

On November 10, 2016, in response to the D.C. Circuit's remand of Texas's CSAPR SO

budget, we proposed to withdraw the FIP provisions requiring EGUs in Texas to participate in the CSAPR trading programs for annual emissions of SO

and NO

We also proposed to reaffirm that CSAPR continues to provide for greater reasonable progress than BART following our actions taken to address the D.C. Circuit's remand of several CSAPR emissions budgets. On September 21, 2017, we finalized the withdrawal of the FIP provisions for annual emissions of SO

and NO

for EGUs in Texas

and affirmed our proposed finding that the EPA's 2012 analytical demonstration remains valid and that participation in CSAPR as it now exists meets the Regional Haze Rule's criteria for an alternative to BART.

81 FR 78954.

Texas continues to participate in CSAPR for ozone season NO

. See final action signed September 21, 2017 available at

regulations.gov

in Docket No. EPA-HQ-OAR-2016-0598.

II. Our Proposed Actions

A. Regional Haze

On January 4, 2017, we proposed a FIP to address the BART requirements for Texas' EGUs. In that action, we proposed to replace Texas' reliance on CAIR with reliance on CSAPR to address the NO

BART requirements for EGUs.

This portion of our proposal was based on the CSAPR Update and our separate November 10, 2016 proposed finding that the EPA's actions in response to the D.C. Circuit's remand would not adversely impact our 2012 demonstration that participation in CSAPR meets the Regional Haze Rule's criteria for alternatives to BART.

We noted that we could not finalize this portion of our proposed FIP unless and until we finalized our proposed finding that the set of actions taken by the EPA in response to the D.C. Circuit's remand of certain CSAPR budgets would not adversely impact our prior determination that CSAPR provides for greater reasonable progress than BART. As noted in section I.C, on September 21, 2017, we finalized our proposed finding that EPA's 2012 analytical demonstration remains valid and that participation in CSAPR as it now exists meets the Regional Haze Rule's criteria for an alternative to BART.

82 FR 912, 914-15 (Jan. 4, 2017).

81 FR 74504 (Nov. 10, 2016).

Also as noted in section I.C, as part of our November 10, 2016 proposed action in response to the D.C. Circuit's remand of Texas' SO

CSAPR budget, we also proposed to withdraw the FIP provisions requiring EGUs in Texas to participate in the CSAPR trading programs for annual emissions of SO

and NO

In our January 4, 2017 proposed action on BART requirements for Texas EGUs, we accordingly proposed that because Texas would no longer be participating in the CSAPR program for SO

, and thus would no longer be eligible to rely on participation in CSAPR as an alternative to source-specific EGU BART for SO

under 40 CFR 51.308(e)(4), our regional haze FIP would need to include the identification of BART-eligible EGU sources, screening of sources to identify subject-to-BART sources, and source-by-source determinations of SO

BART controls as appropriate. For those EGU sources we proposed to find subject to BART, we proposed to promulgate source-specific SO

requirements. We also proposed to disapprove Texas' BART determinations for PM from EGUs. In place of these determinations, we proposed to promulgate source-specific PM BART requirements for EGUs that we proposed to find subject to BART. Previously, we proposed to approve the EGU BART determinations for PM in the Texas regional haze SIP and this proposal has never been withdrawn.

At that time, CSAPR was an appropriate alternative for SO

and NO

BART for EGUs. The Texas Regional Haze SIP included a pollutant-specific screening analysis for PM to

demonstrate that Texas EGUs were not subject to BART for PM. In a 2006 guidance document,

the EPA stated that pollutant-specific screening can be appropriate where a state is relying on a BART alternative to address both NO

and SO

BART.

81 FR 78954.

79 FR 74817, 74853-54 (Dec. 16, 2014).

See

discussion in Memorandum from Joseph Paisie to Kay Prince, “Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations,” July 19, 2006.

B. Interstate Transport of Pollutants That Affect Visibility

In our January 5, 2016 final action

we disapproved the portion of Texas' SIP revisions intended to address interstate visibility transport for six NAAQS, including the 1997 8-hour ozone and 1997 PM

2.5

That rulemaking was challenged, however, and in December 2016, following the submittal of a request by the EPA for a voluntary remand of the parts of the rule under challenge, the Fifth Circuit Court of Appeals remanded the rule in its entirety without vacatur.

In our January 4, 2017 proposed action we proposed to reconsider the basis of our prior disapproval of Texas' SIP revisions addressing interstate visibility transport under CAA section 110(a)(2)(D)(i)(II) for six NAAQS. We proposed that Texas' SIP submittals addressing interstate visibility transport for the six NAAQS were not approvable because they relied solely on Texas' 2009 Regional Haze SIP to ensure that emissions from Texas did not interfere with required measures in other states. Texas' Regional Haze SIP, in turn, relied on the implementation of CAIR as an alternative to EGU BART for SO

and NO

We proposed a FIP to fully address Texas' interstate visibility transport obligations for: (1) 1997 8-hour ozone, (2) 1997 PM

2.5

(annual and 24-hour), (3) 2006 PM

2.5

(24-hour), (4) 2008 8-hour ozone, (5) 2010 1-hour NO

and (6) 2010 1-hour SO

. The proposed FIP was based on our finding that our proposed action to fully address the BART requirements for Texas EGUs was adequate to ensure that emissions from Texas do not interfere with measures to protect visibility in nearby states in accordance with CAA section 110(a)(2)(D)(i)(II).

81 FR 296 (Jan. 5, 2016).

Specifically, we previously disapproved the relevant portion of these Texas' SIP submittals: 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

; December 13, 2012: 2008 8-hour Ozone; May 6, 2013: 2010 1-hour SO

(Primary NAAQS). 79 FR 74818, 74821; 81 FR 296, 302.

Texas

EPA,

829 F.3d 405 (5th Cir. 2016).

EME Homer City Generation, L.P.

EPA,

795 F.3d 118, 133-34 (D.C. Cir. 2015) (holding that SIPs based on CAIR were unapprovable to fulfill good neighbor obligations).

III. Summary of Our Final Decisions

A. Regional Haze

When we finalized a limited disapproval of Texas' 2009 regional haze SIP for its reliance on CAIR participation as a BART alternative, we did not immediately finalize a CSAPR-better-than-BART FIP for Texas, as we had proposed for Texas and ultimately finalized for twelve other states. Instead of finalizing a CSAPR-better-than-BART FIP for Texas, the EPA acknowledged that we needed more time to assess the Texas regional haze SIP in regard to aspects other than its reliance on CAIR as an alternative to BART.

As the EPA has continued to assess how best to address the regional haze obligations for Texas, Texas has not submitted a SIP revision to address the prior disapproval, so the EPA has a remaining obligation to address BART requirements for Texas EGUs.

77 FR 33641, 33654 (June 7, 2012).

After assessing how we should address BART for Texas EGUs, we believe that our initial 2011 proposal, to treat Texas like other similarly situated CSAPR states, was an appropriate and regionally consistent approach. As discussed above, in 2014, we proposed that CSAPR would satisfy the NO

and SO

BART requirements for Texas EGUs.

However, we did not finalize this part of the 2014 proposal in the action taken on January 5, 2016.

Given EPA's response to the D.C. Circuit remand of certain CSAPR emission budgets, we can no longer rely on CSAPR for Texas' SO

BART requirements. Based on comments we received in response to our January 2017 proposal, and giving particular weight to the views expressed by Texas, we are finalizing various determinations to ensure satisfaction of the BART requirement for EGUs in Texas. Of particular note, in making our final decision for the SO

BART requirement for EGUs, we centered our focus on a timely comment letter received from the Texas Commission on Environmental Quality (TCEQ) and the Public Utility Commission of Texas (PUC). This comment urged us to consider as a BART alternative the concept of emission caps using CSAPR allocations. We also received similar comments from Luminant and American Electric Power (AEP). Based upon the comments, we are proceeding to address the SO

BART requirement for EGUs under a BART alternative. The EPA finds that, because this BART alternative will result in SO

emissions from Texas EGUs that will be similar to emissions anticipated under CSAPR, the alternative is an appropriate approach for addressing Texas' SO

BART obligations.

79 FR 74817, 74823 (December 16, 2014) (“We propose to replace Texas' reliance on CAIR to satisfy the BART requirement for EGUs with reliance on CSAPR.”). This part of the 2014 proposal was not finalized in the action taken on January 5, 2016, that has since been remanded by the Fifth Circuit Court of Appeals. 81 FR 295.

Final action taken on January 5, 2016, that has since been remanded by the Fifth Circuit Court of Appeals. 81 FR 295.

Specifically, the BART alternative is justified “based on the clear weight of the evidence” that the alternative achieves greater reasonable progress than would be achieved through BART.

See

40 CFR 51.308(e)(2)(i)(E). The program is designed to accomplish environmental and visibility results by achieving emission levels that will be the same as or better than the emission levels that would have been obtained by state participation in the interstate CSAPR program as finalized and amended in 2011 and 2012, which EPA first deemed to be better than BART for NO

and SO

in a 2012 regulatory action.

The TCEQ and EPA recently signed a memorandum of agreement (MOA) to work together to develop a SIP revision addressing interstate visibility transport requirements and BART requirements for EGUs with a BART alternative trading program starting from CSAPR as allowed under the Regional Haze Rule (40 CFR 51.308(e)).

Texas envisions that the FIP measures that serve to satisfy this BART requirement will be replaced by a future SIP submission following the approach described in the MOA that may be approved as meeting the requirements of the CAA and the Regional Haze Rule. EPA policy consistently favors that states will exercise their SIP authority to avoid need for promulgation and continued implementation of measures under FIP authority. In the absence of a SIP to address the SO

BART requirement for Texas EGUs, however, EPA finds it necessary to address the requirement under its FIP authority, and the details of how this is addressed and the accompanying justification are further discussed below under Section III.A.3, “SO

BART.”

77 FR 33641 (June 7, 2012).

See Memorandum of Agreement Between the Texas Commission on Environmental Quality and the Environmental Protection Agency Regarding a State Implementation Plan to Address Certain Regional Haze and Interstate Visibility Transport Requirements Pursuant to Sections 110 and 169A of the Clean Air Act, Signed August 14, 2017.

The Regional Haze Rule requires that SIP or FIP measures be in place to ensure that BART is satisfied for all subject-to-BART EGUs and all haze-causing pollutants. For ease of summarization, we will detail the relevant final decisions for each of the haze-causing pollutants: PM, NO

, and SO

In our final decisions today, the relevant BART requirement for all BART-eligible coal-fired units and a number of BART-eligible gas- or gas/fuel oil-fired units will be encompassed by BART alternatives for NO

and SO

such that we do not deem it necessary to finalize subject-to-BART findings for these EGUs for these pollutants. The remaining BART-eligible EGUs not covered by the SO

BART alternative have been determined to be not subject to BART based on the methodologies utilizing model plants and CALPUFF modeling as described in our proposed rule and BART Screening technical support document (TSD). Therefore, we are approving the portion of the Texas Regional Haze SIP that addresses the BART requirement for EGUs for PM, we are relying upon Texas EGUs' continued participation in the CSAPR program to serve as a BART alternative for NO

, and we are promulgating an intrastate trading FIP to address the SO

BART requirements for EGUs.

In this action, we did not consider VOCs and ammonia among visibility-impairing pollutants for several reasons, as discussed in the TSD.

1. BART-Eligible Units

BART-eligible sources are those sources which have the potential to emit 250 tons per year or more of a visibility-impairing air pollutant, which were “in existence” on August 7, 1977 but not “in operation” before August 7, 1962, and whose operations fall within one or more of 26 specifically listed source categories.

As discussed in detail in our proposal and the BART FIP TSD, our analysis of BART-eligible EGUs started with the list of BART-eligible sources provided by TCEQ in the 2009 Texas Regional Haze SIP. Based on additional information from potential BART-eligible sources and the U.S. Energy Information Administration (EIA), we converted Texas' facility-specific BART-eligible EGU list to a unit-specific BART-eligible EGU list, eliminated those units that have retired, and verified the BART-eligibility of each remaining unit. We noted in our proposal that Texas' list omitted some sources that we had identified as BART-eligible. We are finalizing the identification of BART-eligible units as proposed. A “BART-eligible source” is the collection of BART-eligible units at a facility. Table 1 shows the list of EGUs in Texas that are BART-eligible:

40 CFR 51.301.

Dynegy purchased the Coleto Creek power plant from Engie in February, 2017. Note that Coleto Creek may still be listed as being owned by Engie in some of our supporting documentation which was prepared before that sale.

Table 1—Summary of BART-Eligible Units

Facility

Unit

Barney M. Davis (Talen/Topaz)

Big Brown (Luminant)

Cedar Bayou (NRG)

CBY1.

Cedar Bayou (NRG)

CBY2.

Coleto Creek (Dynegy

)

Dansby (City of Bryan)

Decker Creek (Austin Energy)

Fayette (LCRA)

Graham (Luminant)

Greens Bayou (NRG)

Handley (Exelon)

Harrington Station (Xcel)

061B.

Harrington Station (Xcel)

062B.

J T Deely (CPS Energy)

Jones Station (Xcel)

151B.

Jones Station (Xcel)

152B.

Knox Lee Power Plant (AEP)

Lake Hubbard (Luminant)

Lewis Creek (Entergy)

Martin Lake (Luminant)

Monticello (Luminant)

Newman (El Paso Electric)

Nichols Station (Xcel)

143B.

O W Sommers (CPS Energy)

Plant X (Xcel)

Powerlane (City of Greenville)

ST1.

Powerlane (City of Greenville)

ST2.

Powerlane (City of Greenville)

ST3.

R W Miller (Brazos Elec. Coop)

Sabine (Entergy)

Sim Gideon (LCRA)

Spencer (City of Garland)

Stryker Creek (Luminant)

ST2.

Trinidad (Luminant)

Ty Cooke (City of Lubbock)

V H Braunig (CPS Energy)

WA Parish (NRG)

WAP4.

WA Parish (NRG)

WAP5.

WA Parish (NRG)

WAP6.

Welsh Power Plant (AEP)

Wilkes Power Plant (AEP)

2. Subject-to-BART Sources

As discussed elsewhere, it is unnecessary to finalize the subject-to-BART determinations for BART-eligible sources that are covered by the BART alternatives for SO

and NO

. The BART alternatives cover both BART-eligible and non-BART eligible sources. This combination provides for greater reasonable progress than source-specific BART. Even if a unit were individually found to not be subject to BART, its participation in the BART alternative contributes to the finding that the program provides greater reasonable progress than BART. We note that all BART-eligible EGUs in Texas are either covered by the BART alternative or have screened out of being subject to BART. The section below that discusses our final SO

BART determination lists those units covered by the BART alternative program and identifies which of those units are BART-eligible. As discussed in section III.A.4 below, we are approving the portion of the 2009 Texas Regional Haze SIP that determined that no PM BART determinations are needed for BART-eligible EGUs in Texas.

For those BART-eligible EGUs that are not covered by the BART alternative for SO

, we are finalizing determinations that those EGUs are not subject-to-BART for NO

, SO

and PM as proposed, based on the methodologies utilizing model plants and CALPUFF modeling as described in our proposed rule and BART Screening TSD.

The following sources are determined to be BART-eligible, but not subject-to-BART:

Table 2—Sources Determined To Be BART-Eligible But Not Subject-to-BART for NO

, SO

, and PM

Facility

Units

Barney M. Davis (Talen/Topaz)

Cedar Bayou (NRG)

CBY1 & CBY2.

Dansby (City of Bryan)

Decker Creek (Austin Energy)

1 & 2.

Greens Bayou (NRG)

Handley (Exelon)

3, 4 & 5.

Jones (Xcel)

151B & 152B.

Knox Lee (AEP)

Lake Hubbard (Luminant)

1 & 2.

Lewis Creek (Entergy)

1 & 2.

Nichols Station (Xcel)

143B.

Plant X (Xcel)

Powerlane (City of Greenville)

ST1, ST2 & ST3.

R W Miller (Brazos Elec. Coop)

1, 2 & 3.

Sabine (Entergy)

2, 3, 4 & 5.

Sim Gideon (LCRA)

1, 2 & 3.

Spencer (City of Garland)

4 & 5.

Trinidad (Luminant)

Ty Cooke (City of Lubbock)

1 & 2.

V H Braunig (CPS Energy)

1, 2 & 3.

3. SO

BART

The BART alternative will achieve SO

emission levels that are functionally equivalent to those projected for Texas' participation in the original CSAPR program. The BART alternative applies the CSAPR allowance allocations for SO

The combination of the source coverage for this program, the total allocations for EGUs covered by the program, and recent and foreseeable emissions from EGUs not covered by the program will result in future EGU emissions in Texas that are similar to the SO

emission levels forecast in the 2012 better-than-BART demonstration for Texas EGU emissions assuming CSAPR participation. In line with the comment from the TCEQ/PUC, we are finalizing a BART alternative that will encompass the SO

BART requirements for coal-fired EGUs and a number of gas- and gas/fuel oil-fired EGUs under a program that will include the sources in the following table. See Section V.B for a discussion on identification of participating sources.

Table 3—Texas EGUs Subject to the FIP SO

Trading Program

Owner/operator

Units

BART-eligible

AEP

Welsh Power Plant Unit 1

Yes.

Welsh Power Plant Unit 2

Yes.

Welsh Power Plant Unit 3

No.

H W Pirkey Power Plant Unit 1

No.

Wilkes Unit 1 *

Yes.

Wilkes Unit 2 *

Yes.

Wilkes Unit 3 *

Yes.

CPS Energy

JT Deely Unit 1

Yes.

JT Deely Unit 2

Yes.

Sommers Unit 1 *

Yes.

Sommers Unit 2 *

Yes.

Dynegy

Coleto Creek Unit 1

Yes.

LCRA

Fayette/Sam Seymour Unit 1

Yes.

Fayette/Sam Seymour Unit 2

Yes.

Luminant

Big Brown Unit 1

Yes.

Big Brown Unit 2

Yes.

Martin Lake Unit 1

Yes.

Martin Lake Unit 2

Yes.

Martin Lake Unit 3

Yes.

Monticello Unit 1

Yes.

Monticello Unit 2

Yes.

Monticello Unit 3

Yes.

Sandow Unit 4

No.

Stryker ST2 *

Yes.

Graham Unit 2 *

Yes.

NRG

Limestone Unit 1

No.

Limestone Unit 2

No.

WA Parish Unit WAP4 *

Yes.

WA Parish Unit WAP5

Yes.

WA Parish Unit WAP6

Yes.

WA Parish Unit WAP7

No.

Xcel

Tolk Station Unit 171B

No.

Tolk Station Unit 172B

No.

Harrington Unit 061B

Yes.

Harrington Unit 062B

Yes.

Harrington Unit 063B

No.

El Paso Electric

Newman Unit 2 *

Yes.

Newman Unit 3 *

Yes.

Newman Unit 4 *

Yes.

* Gas-fired or gas/fuel oil-fired units.

This BART alternative includes all BART-eligible coal-fired units in Texas, additional coal-fired EGUs, and some additional BART-eligible gas and gas/fuel oil-fired units. Moreover, we believe that the differences in source coverage between CSAPR and this BART alternative are either not significant or, in fact, work to demonstrate the relative stringency of the BART alternative as compared to CSAPR (See Section V of this preamble for detailed information). This relative stringency can be understood in reference to the following points:

A. Covered sources under the BART alternative in this FIP represent 89%

of all SO

emissions from all Texas EGUs in 2016, and approximately 85% of CSAPR allocations for existing units in Texas.

In 2016, 218,291 tons of SO

were emitted from sources included in the program and 27,446 tons from other EGUs (11.1%).

B. The remaining 11% (100 minus 89) of 2016 emissions from sources not covered by the BART alternative come from gas units that rarely burn fuel oil or coal-fired units that on average are better controlled for SO

than the covered sources and generally are less relevant to visibility impairment. (A fuller discussion of this point is provided in Section V of this preamble.) As such, any shifting of generation to non-covered sources, as might occur if a covered source reduces its operation in order to remain within its SO

emissions allowance allocation, would result in less emissions to generate the same amount of electricity.

C. Furthermore, the non-inclusion of a large number of gas-fired units that rarely burn fuel oil reduces the amount of available allowances for units that would typically and collectively be expected to use only a fraction of CSAPR emissions allowances. Many of these sources typically emit at levels much lower than their allocation level. Sources not participating in the program may choose to opt in, thereby increasing the number of available allowances. This will serve to make the program more closely resemble CSAPR.

D. The BART alternative does not allow purchasing of allowances from out-of-state sources. Emission projections under CAIR and CSAPR showed that Texas sources were anticipated to purchase allowances from out-of-state sources.

See CAIR 2018 emission projections of approximately 350,000 tons SO

emitted from Texas EGUs compared to CAIR budget for Texas of 225,000 tons. See section 10 of the 2009 Texas Regional Haze SIP.

Based on these points, and borrowing to the greatest extent possible from the rules and program design of CSAPR, but applying them for Texas only, we are proceeding with the commenters', including the State of Texas', suggested consideration for SO

BART coverage for EGUs by means of a BART alternative under an intrastate trading program. As with any FIP, we also would welcome Texas submitting a future SIP, as discussed in the MOA, that meets the Regional Haze Rule and the Act's requirements so as to enable future withdrawal of this FIP-based BART alternative.

In 2014 we had originally proposed that CSAPR would satisfy the SO

BART requirement for Texas EGUs.

Although we never finalized that proposal, functionally, the final decision relies on substantially the same technical elements. In contrast to the 2014 proposal, however, we are not finalizing this SO

BART alternative as meeting the terms of 40 CFR 51.308(e)(4), as amended, because that regulatory provision, by its terms, provides BART coverage for pollutants covered by the CSAPR trading program in the State but on September 21, 2017, EPA finalized its proposed action to remove Texas from the CSAPR SO

trading program.

Instead we are relying on the BART alternative option provided under 40 CFR 51.308(e)(2). The BART alternative being finalized today is supported by our determination that the clear weight of the evidence is that the trading program achieves greater reasonable progress than BART. The BART alternative is designed to achieve SO

emission levels from Texas sources similar to the SO

emission levels that would have been achieved under CSAPR. By a quantitative and qualitative assessment of the operation of the BART alternative, we are able to conclude that emission levels will be on average no greater than the emission levels from Texas EGUs that would have been realized from the SO

trading program under CSAPR. (See Section V of this preamble for detailed information). Accordingly, by the measure of CSAPR better than BART, the SO

BART FIP for Texas' BART-eligible EGUs participating in the trading program will achieve greater reasonable progress than BART with respect to SO

. BART-eligible EGUs not participating in the program are demonstrated to not cause or contribute to visibility impairment, and we are finalizing our determination in this action that these units are not subject to BART.

See final action signed September 21, 2017 available at

regulations.gov

in Docket No. EPA-HQ-OAR-2016-0598.

The Regional Haze Rule at 40 CFR 51.308(e)(2)(iii) requires that the emission reductions from BART alternatives occur “during the period of the first long-term strategy for regional haze.” The SO

BART alternative that EPA is finalizing here will be implemented beginning in January 2019, and thus emission reductions needed to meet the allowance allocations must take place by the end of 2019. For the purpose of evaluating Texas's BART alternative, the end of the first planning period of the first long-term strategy for Texas is 2021. This is a result of recent changes to the regional haze regulation, revising the requirement for states to submit revisions to their long-term strategy from 2018 to 2021.

Therefore, the emission reductions from the Texas SO

trading program will be realized prior to that date and within the period of Texas' first long-term strategy for regional haze.

82 FR 3078 (Jan. 10, 2017).

In promulgating the regulatory terms and rules for implementing the BART alternative, we are mindful of the minimally required elements for a BART alternative emissions trading program that are specified in the provisions of 40 CFR 51.308(e)(2)(vi)(A)-(L). In general, these types of provisions are foundational, in a generic sense, to the establishment of allowance markets. CSAPR is a prominent example of such an allowance market, and by transferring and generally incorporating program rules and terms from the well-tested provisions of CSAPR we have ensured that the BART alternative will conform in detail and coverage to the breadth of provisions that are needed for an emissions trading program covered by a cap (See Section V of this preamble for additional discussion). To the extent that Texas would submit a future SIP revision under its SIP authority to implement SO

BART or an SO

BART alternative for its EGUs as described in the MOA to meet the Regional Haze Rule and CAA requirements, it may look to the provisions promulgated under FIP authority or it may examine its flexibilities and the extent of its

discretion regarding essential provisions detailed at 40 CFR 51.308(e)(2)(vi).

4. PM BART

In our January 2017 proposal, we proposed to disapprove Texas' technical evaluation and determination that PM BART emission limits are not required for any of Texas' EGUs. The Texas Regional Haze SIP included a pollutant-specific screening analysis for PM to demonstrate that Texas EGUs were not subject to BART for PM. This approach was consistent with a 2006 guidance document

in which the EPA stated that pollutant-specific screening can be appropriate where a state is relying on a BART alternative to address both NO

and SO

BART. Because we proposed to address SO

BART on a source-specific basis, however, Texas' pollutant-specific screening was not appropriate and we proposed source-specific PM BART emission limits consistent with existing practices and controls. In this final action, we are not finalizing source-specific SO

BART determinations. Instead, for the majority of Texas' BART-eligible EGUs, we are relying on BART alternatives for both SO

and NO

emissions. Therefore, we now conclude that Texas' pollutant-specific screening analysis was appropriate. All of the BART-eligible sources participating in the intrastate trading program have visibility impacts from PM alone below the subject-to-BART threshold of 0.5 deciviews (dv).

Furthermore, the BART-eligible sources not participating in the intrastate trading program screened out of BART for all visibility impairing pollutants. As such, we are approving the portion of the Texas Regional Haze SIP that determined that PM BART emission limits are not required for any Texas EGUs.

See

discussion in Memorandum from Joseph Paisie to Kay Prince, “Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations,” July 19, 2006.

Stryker Creek is covered by CSAPR for NO

and by the SO

trading program but was not included in the 2009 Regional Haze SIP. How Stryker Creek is screened out for PM is discussed below.

As we explained in the January 2017 proposal, the Texas Regional Haze SIP did not evaluate PM impacts from all BART-eligible EGUs. We have evaluated and determined this omission does not affect Texas' conclusion that no BART-eligible EGUs should be subject-to-BART for PM emissions. In our proposal, we identified several facilities as BART-eligible that Texas did not identify as BART eligible in the Texas Regional Haze SIP. Specifically, we identified the following additional BART-eligible sources: Coleto Creek Unit 1 (Dynegy), Dansby Unit 1 (City of Bryan), Greens Bayou Unit 5 (NRG), Handley Units 3,4, and 5 (Excelon), Lake Hubbard Units 1 and 2 (Luminant), Plant X Unit 4 (Xcel), Powerlane Units ST1, ST2, and ST3 (City of Greenville), R W Miller Units 1, 2, and 3 (Brazos Elec.), Spencer Units 4 and 5 (City of Garland), and Stryker Creek Unit ST2 (Luminant). In our proposal, we used CALPUFF modeling and a model-plant analysis and found that all of these facilities except Coleto Creek and Stryker Creek had impacts from NO

, SO

and PM below the BART screening level.

CALPUFF modeling showed that Stryker Creek Unit ST2 had a visibility impact of 0.786 dv from NO

, SO

and PM. However, Stryker Creek Unit ST2 is now covered by a BART alternative for NO

and SO

, so we evaluated the visibility impact of Stryker Creek Unit ST2's PM emissions alone. The CALPUFF modeling files and spreadsheets included in our proposal indicate that light extinction from PM (PM

Fine

and PM

Coarse

) is less than 1% of total light extinction at all Class I areas. Therefore, because the visibility impact of PM emissions from Stryker Creek Unit ST2 would be a small fraction of 0.786 dv (roughly 1%), the source is not subject to BART for PM under EPA's 2006 guidance.

EPA's Proposal screened out Dansby, Greens Bayou, Handley, Lake Hubbard, Plant X, Powerlane, R W Miller, and Spencer using CALPUFF direct modeling and Model Plants.

We also evaluated the potential visibility impact of PM emissions from Coleto Creek Unit 1 using the CAMx modeling that Texas used for PM BART screening of its EGU sources in its SIP.

Specifically, we evaluated the modeling results for two facilities (LCRA Fayette and Sommers Deely) with stack parameters similar to Coleto Creek's, but which are located closer to Class I Areas than Coleto Creek. Texas grouped the LCRA Fayette Facility in Group 2 of their PM screening modeling along with other sources and found that their maximum aggregate impacts at all Class I areas were less than 0.25 deciviews (dv). Texas also explicitly modeled the City Public Service Sommers Deely Facility's PM impacts. Maximum impacts at all Class I areas from Sommers Deely were less than 0.32 dv. To extend these model results to Coleto Creek, we used the Q/D ratio where Q is the maximum annual PM emissions

and D is the distance to the nearest receptor of a Class I area. If the Q/D ratio of Coleto Creek is smaller than the ratios for the two modeling results (Fayette and Sommers Deely) then Coleto Creek impacts can be estimated as less than the impacts of these source(s) and thus be screened out. We evaluated the closest Class I Areas (Big Bend, Guadalupe Mountains, Carlsbad, Wichita Mountains, and Caney Creek) and the Q/D ratios were: Coleto Creek (0.59-0.86), Fayette (4.25-6.1), and Sommers Deely (6.0-10.05).

The Q/D ratio for Fayette is 6 to 8 times larger than for Coleto Creek, while the Q/D ratio for Sommers Deely is 9 to 11.6 times higher than for Coleto Creek. Therefore, if we were to model the PM impacts from Coleto Creek, they would be an order of magnitude smaller than the impacts from these facilities, which are well below the threshold of 0.5 dv. Therefore, Coleto Creek is not subject to BART for PM emissions.

Environ Report—“Final Report Screening Analysis of Potential BART-Eligible Sources in Texas”, September 27, 2006; “Addendum 1—BART Exemption Screening Analysis”, Draft December 6, 2006; and “BARTmodelingparameters V2.csv”.

This is calculated by using the maximum daily PM

daily emission rate, adding the maximum daily PM

2.5

emission rate and then calculating the total emissions in tons per year if this max daily rate happened every day.

See

`Coleto_Creek_Screen_analysis.xlsx.'

In finalizing an approval of Texas' determinations regarding PM BART, we offer one additional note. We originally proposed to approve Texas' screening approach in 2014,

and our final action today essentially conforms to our technical evaluation in that proposal.

See

79 FR 74817, 74848 (Dec. 16, 2014).

5. NO

BART

We are finalizing our proposed determination that Texas EGUs' continued participation in the CSAPR program for interstate transport for ozone will serve as a BART alternative for NO

for EGUs in the State of Texas. Our action to address NO

BART for EGUs as it applies to Texas is based on two other recent rulemakings concerning CSAPR. The first is the rulemaking to update CSAPR to address interstate transport of ozone pollution with respect to the 2008 ozone NAAQS, which established a new ozone season budget for NO

emissions in Texas.

The second is the determination that CSAPR continues to be a better than BART alternative, on a pollutant specific basis, for states that participate in the CSAPR program as it now exists.

Because our FIP relies on CSAPR as a BART alternative for NO

for Texas EGUs, we are not required in this action to promulgate source-specific

BART determinations for those sources.

81 FR 74504 (Oct. 16, 2016).

See final action signed September 21, 2017 available at

regulations.gov

in Docket No. EPA-HQ-OAR-2016-0598.

We note that Texas may opt to use its SIP planning authority, as was noted in its 2009 Regional Haze SIP in a similar context, to address the NO

BART requirement for EGUs without relying on CSAPR. If Texas instead wishes to rely upon the CSAPR program to address the NO

BART requirement, it may submit a SIP revision to establish its reliance on the program to satisfy the requirement for NO

BART for EGUs. By using the SIP pathway, Texas would be exercising the primary responsibility for air pollution control that is embodied in the Act.

See

CAA section 101(a)(3). Recognizing that the 2009 Regional Haze SIP did not, by its terms, provide an approvable means to address the requirement, however, we are now required to exercise our FIP authority to address it.

We are therefore finalizing the determination as proposed.

As explained in our proposal, our ongoing authority and obligation to address the NO

BART requirement for Texas EGUs under CAA section 110(c) traces to EPA's limited disapproval of the 2009 Texas Regional Haze SIP in 2012 due to the State's reliance on the remanded and replaced CAIR as an alternative to NO

BART.

See also EME Homer City Generation, L.P.

EPA,

795 F.3d 118, 133-34 (D.C. Cir. 2015) holding that SIPs based on CAIR were unapprovable to fulfill good neighbor obligations.

B. Interstate Transport of Pollutants That Affect Visibility

We are finalizing our proposal to disapprove Texas' SIP revisions addressing interstate visibility transport under CAA section 110(a)(2)(D)(i)(II) for six NAAQS. As explained further in our proposal, Texas' infrastructure SIPs for these six NAAQS relied on the 2009 Regional Haze SIP, including its reliance on CAIR as an alternative to EGU BART for SO

and NO

to meet the interstate visibility transport requirements.

We are finalizing a FIP to fully address Texas' interstate visibility transport obligations for the following six NAAQS: (1) 1997 8-hour ozone, (2) 1997 PM

2.5

(annual and 24 hour), (3) 2006 PM

2.5

(24-hour), (4) 2008 8-hour ozone, (5) 2010 1-hour NO

and (6) 2010 1-hour SO

82 FR 912, 916 (Jan. 4, 2017).

An EPA guidance document (2013 Guidance) on infrastructure SIP elements states that CAA section 110(a)(2)(D)(i)(II)'s interstate visibility transport requirements can be satisfied by approved SIP provisions that the EPA has found to adequately address a state's contribution to visibility impairment in other states.

The EPA interprets interstate visibility transport to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

The 2013 Guidance lays out two ways in which a state's infrastructure SIP submittal may satisfy interstate visibility transport. One way is through a state's confirmation in its infrastructure SIP submittal that it has an EPA approved regional haze SIP in place. In the absence of a fully approved regional haze SIP, a demonstration that emissions within a state's jurisdiction do not interfere with other states' plans to protect visibility meets this requirement. Such a demonstration should point to measures that limit visibility-impairing pollutants and ensure that the resulting reductions conform with any mutually agreed emission reductions under the relevant regional haze regional planning organization (RPO) process.

See

“Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” included in the docket for this action.

See Id.,

at 33.

See Id.,

at 34, and 76 FR 22036 (April 20, 2011) containing EPA's approval of the visibility requirement of 110(a)(2)(D)(i)(II) based on a demonstration by Colorado that did not rely on the Colorado Regional Haze SIP.

To develop its 2009 Regional Haze SIP, TCEQ worked through its RPO, the Central Regional Air Planning Association (CENRAP), to develop strategies to address regional haze, which at that time were based on emissions reductions from CAIR. To help states in establishing reasonable progress goals for improving visibility in Class I areas, the CENRAP modeled future visibility conditions based on the mutually agreed emissions reductions from each state. The CENRAP states then relied on this modeling in setting their respective reasonable progress goals.

This FIP is adequate to ensure that emissions from Texas do not interfere with measures to protect visibility in nearby states because the BART FIP emission reductions are consistent with the level of emissions reductions relied upon by other states during consultation. The 2009 Texas Regional Haze SIP relied on CAIR to meet SO

and NO

BART requirements. Under CAIR, Texas EGU sources were projected to emit approximately 350,000 tpy of SO

. As discussed elsewhere, Texas EGU emissions for sources covered by the trading program will be constrained by the number of available allowances. Average annual emissions for the covered sources will be less than or equal to 248,393 tons with some year to year variability constrained by the number of banked allowances and number of allowances that can be allocated in a control period from the supplemental pool. Sources not covered by the program emitted less than 27,500 tons of SO

in 2016 and are not projected to significantly increase from this level. Any new units would be required to be well controlled and similar to the existing units not covered by the program, they would not significantly increase total emissions of SO

. Additionally, this FIP relies on CSAPR as an alternative to EGU BART for NO

, which exceeds the emissions reductions relied upon by other states during consultation. As such, this BART FIP is sufficient to address the interstate visibility transport requirement under CAA section 110(a)(2)(D)(i)(II) for the six NAAQS.

C. Reasonable Progress

This final action is part of the long-term strategy for Texas and will contribute to making reasonable progress toward natural visibility conditions at Texas' and downwind Class I areas. However, the EPA is not determining at this time that this final action fully resolves the EPA's outstanding obligations with respect to reasonable progress that resulted from the Fifth Circuit's remand of our reasonable progress FIP. We intend to take future action to address the Fifth Circuit's remand.

IV. Summary and Analysis of Major Issues Raised by Commenters

We received both written and oral comments at the public hearings we held in Austin. 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. We reviewed all public comments that we received on the proposed action. Below we provide a summary of certain comments and our responses. First, we provide a summary of all of the relevant technical comments we received and our responses to these comments. We do not consider some of the technical comments as relevant to the final action. For these comments we provide a brief summary of the comments and a discussion as to why they are not relevant. Second, we provide a summary below of the more significant legal comments with a summary of our responses. All of the legal comments we received that are relevant to our final

action are found in a separate document, titled the Legal Response To Comments (RTC) document. Therefore, if additional information is desired concerning how we addressed a particular legal comment, the reader should refer to the Legal RTC document. Third, we provide a summary of the more significant/relevant modeling related comments with a summary of our responses. The entirety of the modeling comments and our responses thereto are contained in a separate document titled the Modeling RTC document.

A. Comments on Relying on CSAPR for SO

BART or Developing an Intrastate SO

Trading Program

Comment:

We received comments from TCEQ that our proposed SO

controls for the coal-fired power plants represents more control than is necessary to satisfy BART. The EPA should consider an alternate control approach for these BART-affected units using source or system caps. Because the CSAPR level of control is better than BART, the EPA should have considered an equivalent control level in its BART analysis. For example, a potential alternative is the concept of system-wide emission caps using CSAPR allocations. A SO

system-cap approach for BART would be based on establishing a cap on all the BART subject units under common ownership and control based on CSAPR allocations to those specific units. System-wide caps for these BART subject units based on CSAPR allocations would provide flexibility while actually being more stringent than CSAPR because the companies would not have the ability to trade allocations with non-BART facilities or with companies in other states. Furthermore, the EPA has approved system-cap approaches under the TCEQ's Chapter 117 rules for NO

If such an approach using CSAPR allocations or some other similar variation can be demonstrated to be more stringent than CSAPR itself, then the EPA's CSAPR-is-better-than-BART determination should satisfy some of the demonstration requirements for BART alternatives. Even if not based on CSAPR allocations, the EPA should consider a source-cap or system cap approach as an alternative to unit-by-unit rate-based standards. Source and system cap strategies achieve equivalent reductions by setting mass-based limits (

e.g.,

ton per day) for a group of units derived from rate-based standards and baseline levels of activity for the units. In this context, the rate-based standards used to set the caps would be the emission rates determined to represent BART. These types of cap approaches allow companies to consider a broader range of alternative strategies. Under a FIP with only unit-by-unit rate-based limits, as proposed by EPA, such an alternative strategy would not be allowed and EPA would have to revise its FIP to allow the company to pursue the alternative. A similar approach using system-caps would provide additional flexibility for companies. If the EPA is averse to creating a system-cap trading program for a single state, an alternative would be to allow for a state system-cap trading program that would allow companies to trade between systems once the EPA has approved the state program.

We received a comment from American Electric Power (AEP) stating that in the proposed Texas BART FIP, EPA states that it encourages Texas to consider adopting SIP provisions that would allow EPA to fully approve the Regional Haze SIP with respect to Regional Haze and Interstate Visibility Transport. AEP also suggests that alternatively, Texas may also elect to satisfy its obligations by demonstrating an alternative. Although AEP views the most expeditious resolution for satisfying BART is finalization of CSAPR as a better-than-BART alternative, AEP would also welcome and support working with the State and EPA to develop a satisfactory BART compliance alternative. For example, AEP is open to consideration of a cap and trade program or other option for BART compliance. AEP is prepared to engage in such discussions as soon as possible.

We also received a comment from Luminant stating that the EPA can and should address BART for Texas, not through EPA-mandated controls on individual units but through one of several available BART alternatives that will ensure equivalent or greater benefits at far less costs, as demonstrated by EPA's own prior analyses of Texas EGUs' emissions. Among those available alternatives is EPA's original proposed BART plan for EGUs in Texas—reliance on Texas EGUs' participation in the CSAPR annual SO

and NO

trading programs as BART compliance. Since CSAPR became effective in 2015, SO

emissions from Texas EGUs have declined substantially and are well below the levels that EPA previously determined are “better-than-BART.” EPA itself calculated “major visibility improvements at Class I areas in and around Texas” from the CSAPR-for-BART alternative for Texas. The CSAPR-for-BART alternative remains the most expeditious and cost effective path for finalizing a BART solution for Texas EGUs. Indeed, EPA's only lawful path forward to finalize a BART FIP for Texas by the current September 9, 2017 deadline in EPA's consent decree with Sierra Club is to finalize a CSAPR-for-BART FIP for Texas EGUs, as EPA proposed to do in December 2014. That proposal was not withdrawn, remains a valid and defensible alternative, is supported by the record and prior EPA technical analyses, and has been fully vetted with substantial public review and comments.

Response:

Due to these comments requesting a BART alternative in lieu of source-specific EGU BART, we are finalizing an intrastate SO

trading program as an alternative to source-by-source BART and to meet the interstate visibility transport requirements. This program will provide the commenters, and other owners of covered EGUs, with many of the benefits that they attributed to CSAPR. The premise in the comment that Texas EGUs are subject to CSAPR's SO

trading program is no longer true, given our recent action to remove Texas from that trading program.

Hence, we cannot take the commenter's recommended action of addressing SO

BART through reliance on CSAPR.

See final action signed September 21, 2017 available at

regulations.gov

in Docket No. EPA-HQ-OAR-2016-0598.

B. Comments on Source-Specific BART

Comment:

We received a number of comments in favor or against our proposals regarding BART-eligibility status, subject-to-BART status, and source-specific BART technologies and emission limits. Some were general and some were very specific.

Response:

Due to the comments we received requesting a BART alternative in lieu of source-specific BART determinations, we are finalizing an intrastate SO

trading program as an alternative to source-by-source BART and to meet the interstate visibility transport requirements. As a consequence, we believe that it is not necessary to respond to comments concerning the merits of the proposed source-specific BART technologies and emission limits. Comments related to BART-eligibility status and subject-to-BART status are addressed elsewhere in this preamble.

C. Comments on EPA's Proposed SIP Disapprovals

Comment:

The root of EPA's flawed proposal is EPA's departure from the cooperative federalism principles underlying the Clean Air Act. The State of Texas developed its regional haze SIP

after years of work, technical analysis, and coordination with other States. For BART, Texas relied on the participation of Texas EGUs in CAIR and EPA's determination that CAIR was better-than-BART. EPA should have approved Texas's SIP at the time because it complied with all statutory requirements and was supported by EPA's own modeling. In no way does the Proposed Texas BART FIP—which starts over from scratch and creates an entirely new approach to BART for Texas EGUs—respect the State's primary role under the statute. At a minimum, to more closely align with the State of Texas's original choice to meet BART through a regional trading program, EPA should now finalize its prior proposal that CSAPR serve as a complete BART alternative for Texas EGUs.

Response:

Our action in 2012 to disapprove Texas' 2009 SIP submission due to its reliance on CAIR is not the subject of this rulemaking and we do not address here the comment opposing that final action. We agree that CSAPR continues to be available on a pollutant-specific basis as a BART alternative for participating states for those pollutants subject to trading by CSAPR program participation; hence, we are finalizing a determination that CSAPR is better than BART for NO

at Texas EGUs. However, the premise in the comment that Texas EGUs are subject to CSAPR's SO

trading program is no longer true, given our recent action to remove them from that trading program.

Hence, we cannot take the specific action recommended in this comment. Due to these comments requesting a BART alternative in lieu of source-specific EGU BART determinations, we are, however, finalizing a SO

trading program as an alternative to source-by-source BART and as meeting the interstate visibility requirements.

See final action signed September 21, 2017 available at

regulations.gov

in Docket No. EPA-HQ-OAR-2016-0598.

D. Legal Comments

We received comments addressing EPA's authority to promulgate a Federal Implementation Plan (FIP), the use of CSAPR as a better-than-BART alternative, cooperative federalism, deference to the State, the new Administration's policies, Executive Orders, and litigation. These comments, and the response to comments, can be found in the document titled Legal RTC in the docket for this action. Below is a summary of some of the more significant comments we received. For a detailed review of all legal comments and responses, we refer the reader to this separate document.

1. EPA's Obligation and Authority To Promulgate a FIP

Comment:

Texas' and industry's challenge to CSAPR does not relieve EPA of its mandatory duty to issue a source-specific BART FIP for Texas. Although EPA would have permitted Texas to rely on CSAPR's modest cap-and-trade program to avoid source-specific BART controls, Texas, Luminant, AEP, and Southwestern Public Service Company all chose to challenge CSAPR. They were ultimately successful in defeating EPA's inclusion of Texas in the program for SO

and ozone-season NO

. Ever since the D.C. Circuit remanded the Texas NO

and SO

budgets to EPA in July 2015, Texas has been on notice that source-specific BART could well be necessary to meet its BART obligations. Yet Texas has not put forward either a new interstate transport SIP to replace CSAPR or a new BART SIP to address the Regional Haze Rule.

Response:

We agree that we have a mandatory duty to address the BART requirements for Texas EGUs but we do not agree that we must address these requirements through a FIP establishing source specific BART limits. We understand the comment to be referencing the court action,

EME Homer City Generation

EPA,

795 F.3d 118 (D.C. Cir., July 28, 2015). At all times since the original submission of the 2009 Regional Haze SIP, Texas has been entitled to submit updated or new SIP revisions to address BART or interstate transport. A State is also entitled to submit a SIP that may be approved to replace a FIP after a FIP's promulgation. When and whether Texas has been “on notice” regarding a potential need for source-specific BART is not material to the present need to address the EGU BART requirements through either a SIP or FIP. We do note that the 2009 Regional Haze SIP stated, “The TCEQ will take appropriate action if CAIR is not replaced with a system that the US EPA considers to be equivalent to BART.” See 2009 SIP at 9-1. The 2009 SIP further acknowledged, “Some EGUs may become subject to BART pending resolution of the CAIR at the federal level.” See 2009 SIP at 9-17. As circumstances now apply to Texas (and, as this comment suggests, may have been earlier projected), the State can take appropriate action to develop a SIP to address the EGU BART and interstate visibility transport requirements. The TCEQ and EPA recently signed a MOA to work together to develop a SIP revision addressing interstate visibility transport requirements and BART requirements for EGUs with a BART alternative trading program starting from CSAPR.

However, without such a SIP, the Clean Air Act requires a promulgation of a FIP to address the outstanding BART and interstate transport requirements.

Comment:

Texas's decision to not meet the BART requirements for its EGUs through voluntary participation in CSAPR does not relieve EPA of its mandatory duty to issue a source-specific BART FIP for Texas. Even if Texas were willing to voluntarily incorporate EPA's invalidated CSAPR emission budgets into its SIP, the state cannot simply opt in and avoid source-specific BART. Because Texas cannot reverse course and adopt emissions budgets that it demonstrated were unnecessary, as a matter of law, and because the agency cannot achieve “all” of the CSAPR reductions by 2018 (the end of the first planning period), it cannot voluntarily adopt CSAPR.

Response:

We agree that we have a mandatory duty to address the BART requirement for Texas EGUs, but we do not agree that we must address it through a source-specific BART FIP. We understand this comment to refer to a hypothetical scenario based on the development and submission of a SIP by Texas providing for voluntary participation in CSAPR as a means of addressing the SO

and/or NO

BART requirements for Texas EGUs. The possibility of such an option was detailed in a June 27, 2016 memorandum entitled, “The U.S. Environmental Protection Agency's Plan for Responding to the Remand of the Cross-State Air Pollution Rule Phase 2 SO

Budgets for Alabama, Georgia, South Carolina and Texas.” That memorandum was provided and available to Texas and other states. Several other states have pursued this option, but Texas has not, and it is not within the scope of our proposal. We are not opining on the operation of state law or otherwise responding to this comment. We address the issue of whether emission reductions from a BART alternative must be achieved by 2018 in our response to another comment.

Comment:

EPA withdrawal of Texas from CSAPR does not relieve EPA of its mandatory duty to issue a source-specific BART FIP for Texas. After

having given Texas four months' notice of its intent to fully withdraw the state from the CSAPR program, and made clear the implication that there would no longer be any doubt that Texas sources would need to comply with source-specific BART obligations, EPA formally issued its proposal to withdraw its federal plan to include Texas in the CSAPR emissions trading program one month before issuing the BART proposal. 81 FR 78954 (Nov. 10, 2016). EPA again made clear the situation: “[I]f and when this [CSAPR withdrawal] proposal is finalized, Texas will no longer be eligible to rely on CSAPR participation as an alternative to certain regional haze obligations including the determination and application of source-specific SO

BART. Any such remaining obligations are not addressed in this proposed action and would be addressed through other state implementation plan (SIP) or FIP actions as appropriate.”

Id.

at 78,956. EPA has informed the U.S. District Court for the District of Columbia that it intends to finalize this proposal by October 31, 2017.

After challenging the state's inclusion in CSAPR for years, industry has done an about face in response to EPA's Texas BART Proposal and now opposes EPA's withdrawal of Texas from CSAPR. But EPA has gone on record that the agency does not currently have an analytical basis to support new CSAPR budgets for Texas. As EPA has noted, there was no such thing as a legally compliant CSAPR budget for Texas following the remand. Texas has had many years to submit a state SIP equivalent to CSAPR or other BART alternative to avoid source-specific BART, but Texas has taken no action to address its contribution to interstate pollution or regional haze.

Response:

We agree that we have a mandatory duty to address the BART requirement for Texas EGUs, but we do not agree that we must address it through a source-specific BART FIP. We also have a mandatory duty to address the interstate visibility transport requirements.

Comment:

We have strongly opposed the CSAPR-Better-than-BART rule since its inception. It is unlawful and unsupported by the scientific record. Legal challenges to EPA's rule which purports to authorize reliance on CSAPR to satisfy BART are currently pending in the D.C. Circuit Court of Appeals. Until the D.C. Circuit rules on the validity of the CSAPR-Better-than-BART rule, neither EPA nor Texas should assume that CSAPR is an appropriate substitute for BART.

Response:

The legal and technical determinations of the CSAPR-Better-than-BART rule are subject to judicial review under existing challenges and a separate administrative record, as indicated by the comment. Any challenges raised with regard to the present rulemaking and outside that litigation may be time-barred or directed to the wrong forum. As such, we do not believe that the incorporation of arguments from a brief filed with the D.C. Circuit concerning a separate regulatory determination warrants responses here, in this rulemaking, and that to offer responses here would suggest some basis for collateral, time-barred arguments that are out of the scope of this action.

Comment:

In addition to the legal uncertainty surrounding the national CSAPR-Better-than-BART rule, it is too late for Texas to rely on a BART alternative like CSAPR or any other program. Under EPA's Regional Haze Rule, any BART

alternative

must include a “requirement that all necessary emission reductions take place during the period of the first long-term strategy for regional haze”—

i.e.,

no later than 2018. There are no plans in place, or even in development, for any federal or state program that would ensure the necessary reductions take place by the end of the first planning period in 2018.

With the exception of a BART alternative approved for the Navajo Generating Station, which relied on the Tribal Authority Rule to provide additional flexibility, EPA has never proposed or approved a BART alternative that would allow the necessary emission reductions to be delayed past 2018. In

Texas

EPA,

829 F.3d 405 (5th Cir. 2016), Texas and industry persuaded the Fifth Circuit of a likelihood that EPA could not require controls beyond the first planning period for reasonable progress. While neither the statute nor regulation precludes emission reductions relative to

reasonable progress requirements

to occur beyond the planning period deadline, the

BART alternative requirements

contain a provision directly on point. Accordingly, emission reductions under a BART alternative must be implemented by the end of the first planning period.

Response:

The Regional Haze Rule at 40 CFR 51.308(e)(2)(iii) requires that the emission reductions from BART alternatives occur “during the period of the first long-term strategy for regional haze.” The SO

Therefore, the emission reductions from the Texas SO

trading program will be realized prior to that date and within the period of Texas' first long-term strategy for regional haze. Moreover, we expect that source owners in 2018 will already be taking steps, including appropriate source-level compliance planning (

e.g.,

purchase contracts for coal), to be ready for the compliance year beginning on January 1, 2019. Adding to this, the State has already experienced reductions in SO

emissions in response to market conditions and, to some extent, periods of compliance with CSAPR, including its allocations for SO

, when those measures were in effect or otherwise part of source owner planning considerations.

82 FR 3078 (Jan. 10, 2017).

We note that the BART alternative is projected to be implemented before any of the earlier-proposed compliance dates for source-specific SO

BART for coal-fired units.

The last year for which Texas EGUs must meet CSAPR requirements for SO

is 2016. We considered and decided not to make the Texas SO

trading program effective for 2017 because that would be unreasonably short notice to the affected EGUs in light of the late date in 2017 on which this action will become effective. We considered and decided not to make the program effective for 2018 because that also would be unreasonably short notice given that affected EGU owners should be allowed more than a few months to determine their strategy for compliance with the program in light of it having some features that are different from the CSAPR trading program they have been operating under until recently, for example the fact that they will no longer be able to purchase and use allowances from out-of-state EGUs.

Comment:

Adopting an emissions trading program for Texas that allows anywhere close to the tonnage of SO

permitted by the emissions caps in CSAPR would also fail to meet the substantive requirements for a BART alternative. While the D.C. Circuit is considering whether CSAPR meets these substantive requirements in the CSAPR-Better-than-BART litigation, Texas's situation is unique in that EPA has

actually completed a source-specific BART proposal that can be directly compared with the CSAPR program. Thus, even if the CSAPR-Better-than-BART rule is upheld as a national rule that EPA has the option of relying upon in certain states, and even if Texas were to join CSAPR or voluntarily adopt its budgets, it would be arbitrary for EPA to rely on CSAPR as a BART alternative without actually comparing the CSAPR or CSAPR-like program with its BART proposal. When comparing the two head-to-head, it is obvious as a practical matter that allowing Texas's coal-fired power fleet to essentially continue emitting the same levels of SO

as the status quo is not going to achieve equivalent visibility gains as the BART proposal would. As detailed in “EPA's Fact Sheet for the Open House on EPA's Clean Air Plan Proposal for Texas Regional Haze”, the proposed BART limits are expected to reduce emissions of SO

from 16 EGUs and would cut emissions from approximately 89 to 98 percent—a reduction of over 194,000 tons of SO

every year.

To satisfy the requirements for a BART “alternative,” an emissions trading program must make a technical demonstration that the trading program “will achieve greater reasonable progress [towards natural visibility] than would have resulted from the installation and operation of BART at all sources subject to BART.”

Id.

§ 51.308(e)(2)(i). Under EPA's regulations, if the distribution of emissions is different under an alternative program, a state “must conduct dispersion modeling” to determine differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days. The modeling only demonstrates “greater reasonable progress” if both of the following two criteria are met: (i) Visibility does not decline in any Class I area, and (ii) There is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas.

Id.

§ 51.308(e)(3).

Response:

The comment addresses the approvability of a hypothetical SIP offered to meet the requirements of 40 CFR 51.308(e)(2). First, we do not agree with the premise of the comment that merely proposed determinations of BART in the context of a possible FIP set a stringency threshold for a demonstration set forth in a hypothetical SIP. Proposed determinations are only proposals and the facts put forth to support those proposals are themselves subject to correction via public comment and new information. Second, we also do not agree with any extension of the commenter's assertion to a FIP. While the comment does not address all the pertinent requirements for a BART alternative, we have done so elsewhere in this preamble. For example, as allowed by the requirements for a BART alternative in § 51.308(e)(2)(i)(C), we are declining to conduct the analysis that would include making determinations of BART for each source subject to BART and we are instead exercising the exception allowed when the alternative measure “has been designed to meet a requirement other than BART (such as the core requirement to have a long-term strategy to achieve the reasonable progress goals established by States).”

Third, we disagree that 51.308(e)(3) applies to this action. Rather, we find justification for the BART alternative under the “clear weight of the evidence” that the trading program will provide greater reasonable progress than would be achieved through the installation and operation of BART at the covered sources. This means of validating a BART alternative, described by one Court as the “catch-all,” is permitted by 40 CFR 51.308(e)(2)(i)(E). We are allowed but not required to validate the BART alternative under the test set out in 40 CFR 51.308(e)(3). Although we are not applying that test here, we believe this intrastate trading program meets the intent of (e)(3). When promulgating the 2012 CSAPR-Better-than-BART rule, the EPA relied on an analysis showing that CSAPR would result in greater reasonable progress than BART under the test in 40 CFR 51.308(e)(3). In this action we are relying, in part, on that demonstration to show that the clear weight of evidence demonstrates that the SO

Trading Program will provide for greater reasonable progress than BART in Texas. This is based on a showing that the emissions in Texas under the BART alternative will be on average no greater than the emission levels from Texas EGUs that was forecast in the demonstration for Texas EGU emissions assuming CSAPR participation.

See 40 CFR 51.308(e)(2)(i)(C).

2. Statutory or Regulatory Text

Comment:

A state should be able to independently rely on EPA's CSAPR-is-better-than-BART determination if the state can demonstrate that a state-only program for EGUs is more stringent than CSAPR. While the TCEQ has not proposed any action to implement a Texas-only program for EGUs based in some way on CSAPR as a means of satisfying BART, and these comments in no way represent a commitment to propose such an action, the TCEQ should be able to rely on the EPA's CSAPR-is-better-than-BART determination to satisfy certain aspects of the BART alternative provisions in 40 CFR part 51, § 51.308(e)(2) if such a program can be demonstrated to be more stringent than CSAPR. Specifically, the state should be able to rely on the EPA's determination that CSAPR resulted in greater reasonable progress than source-specific BART to satisfy the requirements of § 51.308(e)(2)(i)(E) and (e)(3).

We acknowledge that other requirements of § 51.308(e)(2) would still need to be satisfied, such as monitoring, recordkeeping, reporting, and provisions for emission trading programs. While the CSAPR option is specifically listed at § 51.308(e)(4), the EPA's Regional Haze rules do not prohibit a state from relying on EPA's modeling demonstration that CSAPR resulted in greater reasonable progress when using an alternative under § 51.308(e)(2). If a state-only program is more stringent than CSAPR, for example a program based on CSAPR allocations but without interstate trading, requiring a state to conduct extensive modeling to demonstrate what the EPA has already demonstrated for a less stringent program is illogical and places an unnecessary and wasteful burden on states.

Response:

We agree with this comment. In response to this comment, our final FIP establishes an intrastate trading program that operates much like the CSAPR program did in Texas. This program is discussed in more detail elsewhere.

3. EPA's Reliance on CSAPR for NO

BART

Comment:

Agree with EPA's proposal regarding CSAPR as a BART alternative for NO

which is proposed for separate finalization. EPA could have followed the D.C. Circuit's directive and updated NO

(and SO

) budgets for Texas. EPA could have but declined to do so. EPA notes that finalization of CSAPR as better-than-BART for NO

is contingent on a separate finalization that the D.C. Circuit remands would not adversely impact 2012 demonstrations. Uncertainty in this proposal does not seem to be an issue for NO

and EPA is again basing a proposal on an action yet to be finalized.

Response:

Whether we were in a position to provide updated annual NO

and SO

budgets for Texas is not relevant to this rulemaking. Because Texas EGUs are required to continue

participation in CSAPR for ozone transport, which involves NO

trading, we are determining that the NO

BART requirement for EGUs continues to be met through our determination that CSAPR is better than BART.

We interpret the comment as supporting this action, even as it appears to criticize our reference to another proposed action, which has since been finalized, as part of the proposal for the NO

aspect of this action. Our proposed and finalized action for the NO

BART requirement addresses the Act's requirements for Texas. This action and our recent action to remove Texas EGUs from CSAPR's SO

trading program are distinct actions, but we have provided appropriate transparency and notice regarding how the proposed actions relate and have given careful consideration to comments received that have bearing on each of the actions.

Comment:

EPA's proposal is unlawful because it exempts sources from installing BART controls without going through the exemption process Congress prescribed. The visibility protection provisions of the Clean Air Act include a “requirement” that certain sources “install, and operate” BART controls. 42 U.S.C. 7491(b)(2)(A). Congress specified the standard by which sources could be exempted from the BART requirements, which is that the source is not reasonably anticipated to cause or contribute to a significant impairment of visibility in any Class I area. Appropriate federal land managers must concur with any proposed exemption. EPA has not demonstrated that any of the Texas EGUs subject to BART meet the standards for an exemption, nor has EPA obtained the concurrence of federal land managers. Therefore, EPA must require source-specific BART for each power plant subject to BART.

Response:

To the extent the comment is directed to the prior rules that determined and redetermined that CSAPR is better than BART and may be relied upon as an alternative to BART, we disagree that relying on CSAPR is in conflict with the CAA provision regarding exemptions from BART. In addition, the commenter's objection does not properly pertain to this action, but instead to our past action that established 40 CFR 51.308(e)(4). We believe this comment to fall outside of the scope of our action here. To the extent the comment objects to BART alternatives generally, we also disagree. In addition, that objection does not properly pertain to this action, but instead to our past regulatory action that provided for BART alternatives.

Comment:

Even if EPA could use a BART alternative without going through the statutory exemption process, the CSAPR-Better-than-BART Rule was fatally flawed, and even if it were valid in 2012, is now woefully outdated. EPA's regulations purport to allow the use of an alternative program in lieu of source-specific BART only if the alternative makes “greater reasonable progress” than would BART. 40 CFR 51.308(e)(2). To demonstrate greater reasonable progress, a state or EPA must show that the alternative program does not cause visibility to decline in any Class I area and results in an overall improvement in visibility relative to BART at all affected Class I areas.

Id.

§ 51.308(e)(3)(i)-(ii).

EPA compared CSAPR to BART in the Better-than-BART Rule by using CSAPR allocations that are more stringent than now required as well as by using presumptive BART limits that are less stringent than are actually required under the statute. Even under EPA's skewed 2012 comparison, CSAPR achieves barely more visibility improvement than BART at Big Bend and Guadalupe Mountains. The NO

emissions allowed under CSAPR from Texas EGUs are higher than would be allowed under BART. This was true even before EPA revised CSAPR to increase the emissions allocations for all Texas EGUs.

If it were assumed that the CSAPR-Better-than-BART Rule were valid in 2012, it is based on assumptions for both CSAPR and BART emissions which are now woefully outdated. The CSAPR-Better-than-BART Rule's reliance on presumptive BART emission limits is now outdated, given that EPA has issued or approved source-specific BART determinations for dozens of sources since 2012. In particular, for Texas sources, EPA has proposed SO

BART limits which are far below the presumptive BART limits EPA used in the Better-than-BART Rule. For units other than Martin Lake, EPA proposes SO

BART limits of 0.04 to 0.06 lbs/MMBtu, which are well below the presumptive SO

BART limit of 0.15 lbs/MMBtu; even at Martin Lake, EPA proposes limits of 0.11 to 0.12, which are still below presumptive BART for SO

Similarly, the CSAPR-Better-than-BART Rule is based on a version of CSAPR that no longer exists. Accordingly, any conclusion that EPA made in the 2012 Better than BART rule regarding whether CSAPR achieves greater reasonable progress than BART is no longer valid. Since 2012, EPA has significantly changed the allocations and the compliance deadlines for CSAPR. Of particular relevance here, after 2012, EPA dramatically increased the CSAPR allocations for every covered EGU in Texas. EPA later withdrew the February 21, 2012 rule revision, but issued a new rule that included both the changes in the February 21, 2012 rule as well as additional changes to state budgets.

By the time EPA finalized the Better-than-BART-Rule in June 2012, EPA had changed the state emissions budgets by tens of thousands of tons, yet EPA proceeded to finalize the Better-than-BART Rule based solely on the emissions budgets in the original, 2011 CSAPR rule. EPA also extended the compliance deadlines by three years, such that the phase 1 emissions budgets take effect in 2015-2016 and the phase 2 emissions budgets take effect in 2017 and beyond. Even more changes to CSAPR have occurred as a result of the D.C. Circuit's decision in

EME Homer City II Generation,

including the proposed withdrawal of Texas from the annual NO

and SO

trading programs. Given the large number of final BART determinations made since 2012, and the significant changes to CSAPR budgets since 2012, it is arbitrary and capricious to rely on the outdated assumptions about emissions which were made in the CSAPR-Better-than-BART Rule.

Response:

As we had proposed, our finalized determination that CSAPR participation will resolve NO

BART requirements for Texas EGUs is based on a separately proposed and finalized action. This comment falls outside of the scope of our action here.

Comment:

EPA's November 2016 “Sensitivity Analysis” purports to update its CSAPR-Better-than-BART analysis to show that CSAPR still makes greater reasonable progress than BART. We agree with EPA that the 2016 Sensitivity Analysis is not a proper legal basis for demonstrating that CSAPR makes greater reasonable progress than BART, because the 2016 analysis is merely a proposed rule. It would be unlawful to issue a final BART rule relying on CSAPR to satisfy the NO

BART requirements in the absence of a final rule demonstrating that the CSAPR Update makes greater reasonable progress than BART.

To demonstrate that CSAPR makes greater reasonable progress than BART, EPA must show that (1) visibility does not decline in any Class I area under CSAPR, and (2) there is an overall improvement in visibility, based on comparing the average differences between CSAPR and BART across all affected Class I areas. EPA's analysis falls well short of making such a

demonstration, as we noted in our prior comments on EPA's 2016 Sensitivity Analysis.

EPA's 2016 analysis is markedly different from the CSAPR-Better-than-BART Rule, which relied on quantitative modeling of electric power section emissions, using the Integrated Planning Model, and quantitative modeling of visibility at all affected Class I areas, using CAMx. Instead of updating that modeling, EPA's 2016 analysis consists of a back-of-the-envelope, qualitative discussion. This is wholly insufficient. There have been enormous changes in the electric power sector since EPA issued the Better-than-BART Rule in 2012, including changes in regulatory requirements (

e.g.,

CSAPR revisions, NAAQS updates, etc.) and changes in unit operations caused by changes in fuel prices, demand, etc. Given that EPA believed in 2012 that it was necessary to conduct quantitative modeling of power sector emissions and the visibility impacts of such emissions, EPA must update that modeling in order to prove that CSAPR still makes greater reasonable progress than BART.

EPA's failure to update the modeling upon which it relied in the 2012 Better than BART Rule is even more arbitrary given EPA's assumption, in the 2016 Sensitivity Analysis, that no trading of CSAPR allowances would occur across state lines. The Sensitivity Analysis uses “emissions that would occur if the state budgets are increased as proposed assuming that all of the additional allowances are used by sources in the respective state (

i.e.,

we did not re-model trading).” This assumption bears no relationship to reality, in which CSAPR—both the original rule, and the updated rule—expressly allows trading across state lines. EPA's failure to create a realistic depiction of the geographic distribution of emissions under the updated CSAPR budgets dooms its Sensitivity Analysis, as EPA must demonstrate that visibility does not decline in any Class I area. Trading across state lines can increase emissions from particular sources, which in turn can degrade visibility at particular Class I areas. Having failed to consider how inter-state trading will affect the distribution of emissions under CSAPR, EPA cannot possibly show that visibility will not decline in any Class I area under CSAPR.

Similarly, EPA failed to account for intra-state trading under CSAPR. Even assuming all changes in budgets would apply only within the affected state—that is, assuming interstate emissions trading did not change at all—EPA has not accounted for trading within the states. A 20% reduction in statewide emissions does not imply that each unit will reduce its emissions by 20%; indeed, some units could increase emissions while statewide emissions went down. EPA does not seem to have accounted for this in its analysis. Thus, even within EPA's scenario whereby no changes to reflect current conditions need to be made, EPA's

ad hoc

analysis fails to demonstrates that the “Better-than-BART” test above would be met because EPA has failed to account for changes in emissions distribution based on the altered budgets.

In addition, EPA cannot simply assume that the visibility improvement averaged across all Class I areas, 40 CFR 51.308(e)(3)(ii), will still be better under the updated CSAPR than under BART. Without updated visibility modeling, EPA has no data to demonstrate that the second prong of the BART alternative test will be met in spite of the substantial changes in coverage and budgets under CSAPR.

Response:

In part, the comment makes the point that this final action cannot rely on another action that has only been proposed. We agree with this aspect of the comment, but this part of the comment is no longer relevant because the other action has now been finalized. As we had proposed, our finalized determination that CSAPR participation will resolve NO

BART requirements for Texas EGUs is based on a separately proposed and now finalized action. This comment in its discussion of the 2016 sensitivity analysis and other particulars raises issues that are addressed in the record for that separately finalized action. This comment falls outside of the scope of our action here.

Comment:

Under the updated version of CSAPR, Texas will not have allowances for annual NO

emissions. Instead, Texas will have a CSAPR budget for NO

for only the ozone season, which runs a few months each year. But BART is not a seasonal requirement; BART requires continuous operation of pollution controls. “The determination of BART must be based on an analysis of the best system of continuous emission control technology available and associated emission reductions achievable for each BART-eligible source that is subject to BART within the State.” It violates EPA's regulations to use seasonal emissions reductions under CSAPR to satisfy the BART requirement to install and operate “continuous emission control technology.”

Response:

We disagree with this comment, but also note that it should not be directed to this action but rather to the past rulemaking determination that provided BART coverage for pollutant trading under CSAPR as specified at 40 CFR 51.308(e)(4). In any event, the argument that BART must be based on “continuous” control does not transfer to the application and operation of a BART alternative. Sources that would operate under an annual trading program that provides tons per year allocations for a unit are not necessarily applying “continuous” controls either. In fact, they are also free to operate seasonally or with intermittent use of controls so long as they operate within the allocation or purchase allowances whenever emissions may exceed that allocation. We necessarily disagree that EPA regulations would bar seasonal emissions reductions to satisfy requirements for a BART alternative.

4. Other CSAPR Comments

Comment:

The EPA should proceed to finalize CSAPR as a better-than-BART alternative not only as to NO

but also as to SO

In the Texas Regional Haze SIP, Texas relied on EPA's Regional Haze Rule that allows states to implement an alternative to BART as long as the alternative has been demonstrated to achieve greater reasonable progress toward the national visibility goal than BART. EPA made such a demonstration for CAIR and many states, including Texas, relied on CAIR's cap and trade programs as a BART alternative for EGU emissions of SO

and NO

in their SIP submittals. Following EPA's demonstration in 2005 that CAIR is better-than-BART and after Texas submitted the Regional Haze SIP, the D.C. Circuit Court remanded CAIR to EPA but ultimately did not vacate the CAIR rule. EPA approved certain States' SIPs that implemented CAIR as a BART alternative, yet, EPA did not do so for Texas.

CSAPR was issued to replace CAIR and because of EPA's action on CAIR, EPA subsequently withdrew reliance on CAIR as a BART alternative and finalized the demonstration that compliance with CSAPR is better than application of BART. This action occurred after Texas had submitted its SIP.

On December 16, 2014, EPA published a proposed FIP program to “replace reliance on CAIR with reliance on the trading programs of CSAPR as an alternative to BART for SO

and NO

emissions for EGUs.” The CSAPR rule had been challenged in the D.C. Circuit and the court held that EPA had over-controlled certain States' budgets and remanded the CSAPR rule without vacatur for further revision by EPA. In January 2016, EPA did not finalize BART controls for EGUs, citing

uncertainty. EPA issued the CSAPR Update on October 24, 2016 but did not revise SO

or NO

annual budgets for Texas.

EPA's Proposed FIP and the imposition of source-specific BART relies on the EPA's proposed rulemaking for the withdrawal of Texas from the CSAPR Phase 2 trading budgets for SO

. In November 2016, EPA published a proposal to withdraw the FIP provisions that required affected EGUs to participate in Phase 2 of the CSAPR trading programs for annual emissions of SO

and NO

purportedly to address a decision of the U.S. Court of Appeals for the District of Columbia Circuit that had remanded for further consideration the CSAPR Phase 2 SO

budgets for Texas and other states.

EPA's proposed withdrawal of Texas from the Phase 2 CSAPR program for SO

included a “sensitivity analysis” indicating that removal of Texas from the Phase 2 SO

budget trading program (and including the removal of the Florida trading program) would not adversely impact the demonstration that CSAPR participation continued to qualify as an alternative to compliance with BART, in other states that were relying on CSAPR for BART compliance.

EPA also noted that “[n]o changes to the Regional Haze Rule are proposed as part of the rulemaking.”

Id.

However, in support of this FIP proposal addressing Regional Haze, EPA notes that it, “had earlier proposed to rely on CSAPR participation to address these BART-related deficiencies in Texas' SIP submittals referencing its December, 2014 proposed FIP.” EPA did not address the D.C. Circuit Court's remand as directed.

The D.C. Circuit had remanded without vacatur the Phase 2 budgets in

EME Homer City Generation, L.P.

EPA, 795 F.3d 118

(D.C. Circuit 2015) and directed the EPA to reconsider the emission budgets and propose revised budgets. AEP said they did not support EPA's proposal to withdraw Texas from CSAPR, stating that the EPA had provided insufficient justification and explanation for the proposal and had not considered the impact on the trading market. AEP noted that the court had specifically not vacated the Phase 2 budgets due to concerns that such a decision would disrupt the trading markets. AEP also expressed concern that withdrawing Texas from CSAPR would impact the compliance strategies facilities have developed for compliance with BART, as BART eligible facilities had developed compliance strategies assuming BART compliance would be achieved through compliance with CSAPR. AEP said they supported the CSAPR trading programs because of their flexibility and administrative convenience, cost-effectiveness and the “remarkable reductions that have occurred across the electric utility industry.” AEP also considered EPA's analysis of the impact of sources in Texas on nonattainment areas in other states was inadequate and the explanation provided by EPA for its decision to change the initial determination was insufficient and potentially exposed Texas EGUs to future liability for the impact of PM

2.5

emissions on Madison County and other upwind locations. AEP concluded their comments on 81 FR 78954 by recommending the EPA finalize CSAPR as a compliance alternative to BART for SO

and revise the Phase 2 budgets, instead of withdrawing Texas from CSAPR.

The D.C. Circuit requires EPA to propose acceptable budgets consistent and confirm that those budgets are a BART alternative and allow Texas to remain in the CSAPR trading program. Source specific controls, then, would no longer be necessary since CSAPR as a BART alternative would provide a more cost-effective, less burdensome and flexible program for compliance with Texas' visibility obligations.

By EPA's reliance on the proposed withdrawal of Texas from the CSAPR trading program for SO

as the basis for the proposed Texas BART FIP, EPA is illegally proposing BART controls on facilities premised on a proposed rule. Buttressing the proposed FIP on a proposed-not-yet-finalized rule is inconsistent with the APA. EPA seems concerned with uncertainty created by the remand yet, this action by EPA creates its own uncertainty with regard to whether the proposed withdrawal will be finalized as proposed. The APA requires that an agency provide notice and an opportunity to comment on proposed rules. 5 U.S.C. 553(c). An agency must be open to taking comments and responding to them. This necessarily requires that EPA must consider comments from the public

before

finalizing a proposed rule. In fact, the comment period for the proposed withdrawal of Texas from the SO

CSAPR budgets ended

after

the date of the proposed BART FIP. Clearly, EPA gave itself no opportunity to consider public comment on the proposed withdrawal prior to relying on it as if it were final as proposed to justify the need for proposing source-specific BART. EPA's actions demonstrate that it had no intention of accepting public comment and had already made up its mind that the proposal would be finalized as proposed, a direct contravention of the APA.

Response:

Several contentions provided by this commenter are relevant to the action withdrawing Texas from Phase 2 CSAPR program budget, but given the finalization of that action they are not relevant to this action. We are required to address the BART requirements for both pollutants under our CAA FIP authority, in the absence of an approvable SIP. We are finalizing our proposal that NO

BART is met by continued participation in CSAPR and we are finalizing a BART alternative to address the SO

BART requirement. The BART alternative applies the CSAPR allowance allocations for SO

We do not agree with the commenter's suggestion that we were not open to the consideration of comments in our proposed action or in any related actions in violation of the APA. Moreover, the assertion that EPA had made up its mind that any proposal would be finalized as proposed regardless of comments that might be offered is not correct. For efficiency and because of time constraints, our proposal for the NO

aspect of this action was based on a scenario of later finalization of the CSAPR remand response rule, but that does not mean that we did not fairly consider all comments on the CSAPR remand response rule or pre-decided the outcome of that rule. Our final decisions in this action reflect the final CSAPR remand rule, and consideration of comments on our proposal for this action.

Comment:

Recommend the CSAPR budgets be revised. Revising the CSAPR budgets is supported by actual SO

emissions. The Texas EGU SO

and NO

emissions have steadily decreased and have fallen well below 2017 CSAPR budgets. These emissions are well below the original better-than-BART budgets for SO

. EPA's determinations that CSAPR is better-than-BART is still valid and supported even if emissions were increased.

We anticipate that EPA may respond that a September 9, 2017 Consent Decree deadline (derived from a case in which the EGUs were not party) did not permit time to consider comments before proposing the Texas BART FIP.

Clearly, the most expeditious approach would be for EPA to revise the invalid Phase 2 CSAPR budgets for Texas and propose that reliance on the revised budgets satisfies BART compliance. Any delays in addressing Texas' BART obligations are the result of EPA not establishing an acceptable CAIR or CSAPR program, and EPA's refusal to revise CSAPR Phase 2 budgets and not Texas' failure to agree to accept invalid CSAPR budgets. In fact, the D.C. Circuit instructed EPA to act “promptly” in revising the budgets.

Additionally, EPA's attempt to comply with a court deadline does not justify noncompliance with the APA. With its current proposal (Texas BART FIP), EPA has done nothing but create further uncertainty and violate the APA. EPA could have requested an extension of the deadline to revise the budgets, but did not. Consistent with the Administration's Executive Order on Reducing Regulation and Controlling Regulatory Costs, EPA could revise the CSAPR budgets adhere to CSAPR is better-than-BART, as they have in many other states, and remove two proposed regulations in doing so without the promulgation of another rule (proposed withdrawal of Texas from the CSAPR Phase 2 program and proposed source-specific BART for Texas source.) EPA should update the Phase 2 SO

budgets as directed and post-haste proceed to finalize CSAPR as a better an alternative to the application of source-specific BART.

Response:

Texas declined to submit a SIP to voluntarily participate in CSAPR and we have addressed our remand obligations for Phase 2 SO

budgets by ending Texas EGU participation in CSAPR for PM

2.5

transport. We agree, however, that Texas sources can continue NO

BART coverage under CSAPR and we are finalizing a BART alternative for SO

instead of establishing source-specific SO

BART determinations for units at those sources. The BART alternative applies the CSAPR allowance allocations for SO

Comment:

EPA is now proposing to require stringent emission control technology on units that have already met the BART obligations by participation in the regional trading programs, CAIR, and its replacement, CSAPR. In this proposal, EPA has effectively removed a cost-effective compliance mechanism which has been in place for the duration of the first planning period, with costs and reductions that far exceed the regulatory obligation, with limited or no benefit to visibility. Because it was only late last week that EPA made available the technical documents that it claims would support its action and EPA has yet to provide us with the specific modeling supporting the proposal that we requested several weeks ago, We have not yet had an opportunity to thoroughly evaluate EPA's technical justification for the proposal.

Response:

Our proposal did not effectively remove CSAPR, and we disagree with the comment's characterization of how and when CSAPR has been “in place.” Regardless, we agree with the premise of the comment that SO

BART and NO

BART for Texas EGUs can be addressed by the BART alternatives we rely on in our final action. We also disagree that our proposal would have provided limited or no benefit to visibility to the extent it suggests our final action is not providing visibility benefits. Visibility benefits are being secured and preserved into the future by the final FIP measures.

Comment:

Texas' SO

emissions are below the levels that EPA has found to be better-than-BART, and any reasonable assessment would conclude that trends of anticipated emissions in Texas will remain below those levels. EPA conducted two sensitivity analyses that both demonstrate that revised CSAPR emission levels for Texas are better-than-BART. We compared actual Texas EGU SO

emissions in 2015 and 2016 to the SO

emission levels that EPA found are better-than-BART. In both cases, Texas' actual emissions are well below the budgets that EPA has determined are better-than-BART.

Response:

We are finalizing a BART alternative that applies the CSAPR allowance allocations for SO

to all BART-eligible coal-fired EGUs, several additional coal-fired EGUs, and several BART-eligible gas-fired and gas/fuel oil-fired EGUs. In addition to being a sufficient alternative to BART, it secures reductions consistent with visibility transport requirements and is part of the long-term strategy to meet the reasonable progress requirements of the Regional Haze Rule. To the extent, the comment suggests that current and anticipated emissions alone are enough to satisfy requirements for BART or a BART alternative, we disagree. As a fundamental matter, emissions reductions must be enforceable to prevent undesired and unexpected increases in future years. Pointing to “trends”—

i.e.,

unenforceable emissions levels without legal requirements against future increases—does not meet CAA requirements.

Comment:

EPA must promulgate or approve a BART alternative for Texas, and must not finalize the unlawful and cost-prohibitive proposed Texas BART FIP. EPA should not, and lawfully may not, finalize its Proposed Texas BART FIP. The Proposed Texas BART FIP—like the predecessor Reasonable Progress Rule that is stayed and was remanded by the Fifth Circuit for reconsideration—is fundamentally flawed, cost-prohibitive to implement, and contrary to reasoned decision-making. EPA should address BART for Texas—not through federally-mandated specific controls on individual units—but through one of several available BART alternatives that will achieve equivalent or greater benefits at far less costs, as demonstrated by EPA's own prior modeling and sensitivity analyses.

Among those available alternatives is EPA's original proposed BART action for EGUs in Texas—reliance on Texas EGUs' participation in CSAPR's annual SO

and NO

trading Programs as BART compliance. That alternative remains the most expeditious and defensible path for finalizing a BART solution for Texas EGUs, and it is fully supported by EPA's previous CSAPR better-than BART modeling and sensitivity analyses. Indeed, EPA's

only

lawful path forward to finalize a BART FIP for Texas by the current September 9, 2017 deadline in EPA's consent decree with Sierra Club is to finalize a CSAPR-for-BART FIP for Texas EGUs, as EPA signed in December 2014. For the many reasons discussed in Section II of these comments, EPA would be acting unlawfully were it to finalize the Proposed Texas BART FIP as issued in December 2016.

As an alternative to finalizing a CSAPR-for-BART FIP in September 2017, EPA could seek an extension of the consent decree deadline and proceed to work cooperatively with the State of Texas and Texas EGU operators to develop and propose for comment a different BART alternative for Texas, as it has done in other states. Such an alternative could, for example, establish SO

emission caps for Texas EGUs that are comparable to CSAPR budgets and would thus fall squarely within EPA's previous CSAPR=BART demonstration and sensitivity analyses for Texas. EPA has frequently worked with states and stakeholders to develop workable BART alternatives for EGUs, and it should do

the same here with Texas and Texas stakeholders, including Luminant.

Promulgation of a CSAPR-for-BART FIP is EPA's only lawful option for meeting the September 9, 2017 consent decree deadline. If EPA believes that it must finalize a BART rule for Texas EGUs by September 2017, EPA's only valid legal option is to finalize its 2014 proposed CSAPR-for-BART FIP. In that proposal, EPA specifically stated that it was proposing “a FIP to replace reliance on CAIR with reliance on the trading programs of CSAPR as an alternative to BART for SO

and NO

emissions from EGUs in the regional haze plan for Texas.” In support, EPA explained that it “determined that [1] CSAPR provides for greater reasonable progress towards the national goal than would BART and [2] Texas is included in CSAPR for NO

and SO

.” The same is true today, and, indeed, recent emission trends and EPA's sensitivity analyses for Texas confirm that CSAPR is and remains better-then-BART for Texas EGUs. Texas remains in the CSAPR annual programs for NO

and SO

, and EPA's determination that CSAPR provides for greater reasonable progress than the installation of BART remains scientifically sound. EPA has determined that “[CSAPR] achieves greater reasonable progress towards the national goal of achieving natural visibility conditions than source-specific BART.” That conclusion remains valid today, and EPA has not undertaken any action to revise or rescind that rulemaking. In fact, the Eighth Circuit recently upheld EPA's conclusion that CSAPR is better than BART, stating that “EPA's explanation that the Transport Rule is better than source-specific BART is rational.” There is no legal or technical barrier to EPA finalizing its original proposal of CSAPR-for-BART for Texas EGUs, and, indeed, that is EPA's only lawful current option if it were to meet the September 2017 deadline.

EPA's consent decree with Sierra Club does not prevent EPA from finalizing its original CSAPR-for-BART proposal in Texas. The consent decree that EPA entered into with Sierra Club was revised in December 2015 to provide two alternative deadlines for issuing a final rule that implements BART for Texas. First, the revised consent decree provides that by “[n]o later than December 9, 2016,” EPA was to promulgate a final BART FIP for Texas, unless EPA had approved Texas's SIP or promulgated “a partial SIP” meeting the BART requirements under the regional haze program. Alternatively, the December 2016 deadline would be “extended to September 9, 2017,” if EPA signed a new proposed rule for BART by December 9, 2016. EPA signed the Proposed Texas BART FIP on December 9, 2016, thereby triggering the extension in the consent decree.

The consent decree, however, does not (and cannot) dictate the substance of EPA's final BART rulemaking under the extended deadline of September 9, 2017; the only prerequisite to invoking this extension is the signing of a proposal by December 9, 2016. EPA is not bound by the consent decree to finalize the terms of the current proposal or any similar source-specific BART rule; in fact, established principles of administrative law require EPA to remain open-minded during the rulemaking process. The consent decree merely established deadlines for EPA's pending course of action. Accordingly, for purposes of meeting the upcoming deadline of September 9, 2017, EPA is not prohibited by the consent decree from reverting to its 2014 proposal to finalize CSAPR as a BART alternative for Texas EGUs.

Response:

We agree that the existence of the consent decree deadline does not dictate the substance of our action to address Clean Air Act requirements to meet the deadline. We disagree that our only possible lawful action for meeting the deadline is to impose a FIP based on CSAPR. 40 CFR 51.308(e) requires that states submit a SIP containing emission limitations that represent BART for BART eligible sources that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area. Alternatively, 40 CFR 51.308(e) allows states to establish an emissions trading program or other alternative as long as the trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions than BART. Where a state has failed to submit a SIP by the applicable deadline or has submitted a SIP that has been disapproved by the EPA, the CAA authorizes and requires EPA to promulgate a FIP that meets the requirements of the applicable federal statutes and regulations. Thus, EPA has the authority to promulgate a FIP containing emission limits that represent BART for BART eligible sources that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area. Alternatively, EPA may establish an emissions trading program or other alternative which will achieve greater reasonable progress than BART. We are meeting requirements with valid use of discretion where appropriate to finalize NO

BART as proposed, and to finalize a BART alternative with emission levels similar to CSAPR to address SO

BART. We are not able to revive the 2014 proposal to satisfy SO

BART for Texas EGUs because remand obligations have led to the removal of SO

trading requirements for Texas. We agree that this might have been a viable solution, but Texas declined to submit a SIP to voluntarily participate in CSAPR to fully preserve and accommodate this option.

Comment:

The Proposed Texas BART FIP is not only cost-prohibitive, it is not necessary to achieve the goals of the Regional Haze Program and satisfy the requirements of the CAA. EPA's own prior modeling and analysis show that BART for these units is more than met by current SO

emission levels from Texas EGUs, and the stringent additional limits in the Proposed Texas BART FIP are not necessary.

EPA's sensitivity analyses for Texas's SO

CSAPR budgets and recent emission trends in Texas demonstrate that CSAPR remains better-than-BART. EPA's sensitivity analyses definitively confirm that EPA's determination that CSAPR is better-than-BART in Texas remains scientifically sound. When EPA issued the final rule promulgating the CSAPR-for-BART provision in June 2012, EPA confirmed that the upward adjustments to Texas's budgets under CSAPR did not adversely impact visibility conditions in nearby Class I areas. EPA initially calculated visibility improvements for nearby Class I areas based on a SO

budget for Texas of 243,954 tons/year. Following EPA's upward adjustments to the CSAPR budget due to errors in EPA's initial calculation, EPA revised its visibility improvement estimates based on a SO

budget of 294,471 tons/year. EPA's methodology demonstrates the expected visibility improvement as a result of implementing the CSAPR is better-than-BART provision under the original budget and the revised budget. Even with an SO

budget of nearly 300,000 tons for Texas, visibility at these Class I areas was projected to improve (not degrade).

Recent emissions data confirm EPA's prior determination—

i.e.,

that Texas's emissions are well below the threshold that was previously determined to be better-than-BART. Implementation of CSAPR Phase 1 began in 2015, and implementation of Phase 2 began in 2017. For 2015 and 2016—during CSAPR Phase 1—Texas maintained its annual emissions of SO

and NO

well under the budgets established by EPA. The state-wide budget for annual SO

in Texas is 294,471 tons, and the state-

wide budget for annual NO

in Texas is 137,701 tons. These same budgets will apply during Phase 2, and there is no expectation that Texas EGUS will exceed these thresholds. In fact, EPA's own data demonstrate that Texas has not exceeded, or even approached, its annual allowance allocations for either SO

or NO

during Phase I of CSAPR. Emissions of SO

from Texas EGUs were 260,122 tons in 2015 and 244,233 tons in 2016. As for NO

, emissions from Texas EGUs were 107,921 tons in 2015 and 106,625 tons in 2016. Once CSAPR became effective in Texas in 2015, SO

emissions from Luminant's coal-fired EGUs dropped dramatically and have trended downward. There is no reason to believe, and EPA presented no reason, that this trend will reverse—and certainly not to a degree that Texas EGU SO

emissions would exceed CSAPR budgets or call into question EPA's CSAPR better-than-BART demonstration.

Texas has maintained its emissions well below the budgets established by CSAPR. The record establishes that BART for these units can be no more stringent than current emission levels, which are well below CSAPR budgets. In 2012, EPA concluded that “[CSAPR] achieves greater reasonable progress towards the national goal of achieving natural visibility conditions than source-specific BART.” EPA confirmed this determination in subsequent sensitivity analyses. So long as Texas's emissions remain below the CSAPR budgets, the operation of Texas EGUs in such a manner will continue to be better-than-BART.

Thus, the Proposed Texas BART FIP is based on a fundamental flaw by EPA—that BART for Texas EGUs must be “more emission reductions than projected under CAIR or CSAPR.” To the contrary, because Texas validly remains in the annual CSAPR programs for SO

and NO

combined with the fact that Texas EGU SO

emissions are well below the annual allocations, EPA has no valid basis to change course from its 2014 proposal to finalize CSAPR for BART in Texas in order to impose more stringent source-specific BART controls. EPA should proceed to finalize a FIP for Texas that approves CSAPR as a BART alternative for Texas EGUs.

Response:

We agree that emissions similar to the CSAPR budgets would be better than BART and can be justified as a BART alternative. To the extent the comment suggests that merely pointing to current emissions level can satisfy the requirements of a BART alternative, we disagree. Those emissions levels must be made enforceable, and our final action accomplishes that. NO

BART for EGUs is addressed by continued participation in CSAPR program for ozone transport. With regard to SO

, the BART alternative is designed to achieve SO

emission levels from Texas EGUs similar to the SO

emission levels that would have been realized from the SO

trading program under CSAPR. These measures will assure Texas' recent reductions of SO

and NO

will be maintained and improved upon in the future.

Comment:

The D.C. Circuit's remand of CSAPR budgets does not create “uncertainty” that prevents EPA from finalizing CSAPR-for-BART for Texas EGUs. EPA says that it did not finalize its initial CSAPR-for-BART proposal for Texas EGUs because it noted some “uncertainty arising from the remand of Texas' CSAPR budgets” by the D.C. Circuit. EPA made that claim in the now-stayed January 2016 Reasonable Progress Rule. That claim was wrong when it was made then, and it is clearly wrong now. There is no “uncertainty.” The D.C. Circuit's remand does not prevent EPA from finalizing CSAPR as an SO

BART alternative for Texas EGUs.

First, EPA's claim that there is an “absence of CSAPR coverage for SO

” in Texas following the D.C. Circuit's remand is simply wrong. Texas EGUs are and have been regulated by a BART equivalent trading program for the entirety of the first planning period to date—first through CAIR and, after CAIR's replacement and up to the present day, through CSAPR. Texas EGUs are presently subject to CSAPR's annual SO

and NO

programs under the budgets remanded by the D.C. Circuit, which are budgets that EPA has confirmed as better-than-BART. EPA's prior determination that CSAPR is better-than-BART for all states, including Texas, is scientifically sound and remains a binding part of EPA's regulations. EPA may properly respond to the D.C. Circuit's remand by revising Texas's annual SO

budget (as instructed by the D.C. Circuit)

after

it finalizes the proposed CSAPR-for-BART FIP for Texas.

Second, regardless of when EPA responds to the D.C. Circuit's remand, EPA's own sensitivity analyses confirm that were EPA to properly respond to the remand by increasing Texas's annual SO

budgets so they do not over-control as instructed by the D.C. Circuit, those revised budgets would remain better-than-BART. EPA established a multi-step methodology to analyze whether increases in Texas's SO

annual budgets would change EPA's CSAPR better-than-BART determination (which remains part of EPA's binding regulations). First, EPA's methodology for conducting a revised sensitivity analysis requires the identification of the Class I areas in and near Texas that that are most likely affected by Texas emissions. Second, EPA's analysis then “employ[s] [the] very conservative” assumption that “all of the visibility improvement” that EPA's CSAPR better-than-BART modeling predicted for these nine areas as a result of

all

CSAPR reductions from

all

covered states is “solely due to [reductions] from Texas.” Third, with this conservative assumption, EPA then “proportionally reduce[s]” the modeled visibility improvements at these nine Class I areas based on the corrected higher SO

budget for Texas. For example, if, in response to the D.C. Circuit's remand, EPA were to adjust Texas's budget to 350,000 tons, CSAPR would still be better-than-BART for Texas and other states. Such an adjustment would be equivalent to a 57% reduction in the number of SO

tons reduced compared to the original Texas CSAPR reductions that were modeled for EPA's original CSAPR better-than-BART modeling. EPA's methodology would thus reduce the visibility benefit accordingly by multiplying the visibility improvement at the Class I areas affected by Texas by a factor of 0.43. Thus, for example, the visibility improvement at Wichita Mountains from CSAPR, even after increasing Texas's budget to 350,000 tons, would be 0.688 deciview [1.6 deciview × 0.43 = 0.688]. This methodology could be applied to other budgets as well. Visibility improvements at nine Class I areas in or around Texas result from the application of EPA's sensitivity analysis of a hypothetical adjustment of Texas's CSAPR SO

budget to 350,000 tons per year. Thus, EPA's own modeling shows that visibility at these Class I areas is projected to improve (not degrade) and that the BART requirements are met even if the CSAPR budgets are increased.

Response:

We have completed our response to the CSAPR remand by withdrawing Texas EGUs from CSAPR requirements for PM

2.5

transport. We did not act to upward adjust Texas' SO

budget. Whether that was a proper response to the remand or whether upward adjustments would have preserved the analytic demonstration that CSAPR is better than BART are not issues of concern with the present finalized action. To the extent the comment asserts that CSAPR budgets can be used to support a better than BART alternative, we agree with the comment and this concept is part of the

BART alternative and weight of the evidence that we deem to justify it.

Comment:

The proposed rule is legally dependent on other pending proposed rulemakings. EPA may not proceed with this action without first finalizing other proposed rules under the CAA on which this action is based.

Since 2009, Texas EGUs have been subject to federal regulatory programs that have resulted in substantial reductions in the NO

and SO

emissions that have been targeted by EPA as contributing to interstate transport and haze. In compliance with EPA rules and precedent, Texas relied on CAIR, and then its replacement CSAPR as achieving reductions in haze precursors from EGUs that are “better than BART” in its Texas Regional Haze SIP submittal. In the unlawful proposed rule, EPA rejects its prior position that Texas EGUs are exempt from BART due to participation in CSAPR. Yet, Texas EGUs continue to this day to be subject to CSAPR requirements for NO

and SO

. While EPA has proposed to withdraw CSAPR SO

requirements for Texas EGUs, it has not yet done so and those EGUs remain subject to CSAPR allocations for both NO

and SO

under federal and state laws and permits. Additionally, EPA's proposal to withdraw the CSAPR FIP with respect to SO

has been challenged in that rulemaking docket as unlawful and not in accordance with the court decision remanding that action to EPA.

As a result, EPA may not proceed with the disapproval of Texas' reliance on CSAPR as “better than BART” until such time that the proposal is legally finalized in compliance with the Court decision that remanded that rule to EPA. Once that rule is legally finalized, then Texas should be given an opportunity to address whether and how that affects the state's regional haze program before a FIP is considered.

Response:

As was made clear by our proposal, we agree our rule is dependent on other proposed and now finalized rulemakings. Nothing in our proposal or final action prevents Texas from addressing the State's regional haze program under its SIP planning authorities. Texas did not request that we withhold our action to withdraw CSAPR SO

requirements for Texas EGUs, and it did not submit comments to oppose that action. We disagree that anything in the sequencing of actions would allow us to suspend our FIP obligations when there is no SIP to address the requirements.

Comment:

The effort to impose BART controls is the result of the proposed withdrawal of Texas from the CSAPR Phase 2 or annual trading program for SO

. Compliance with regional haze obligations for BART-eligible facilities in Texas has depended on CAIR-equal BART and CSAPR-equal BART and removing Texas from CSAPR results in significant disruption and costs to planned future compliance for these facilities. EPA seeks these excessive controls which will achieve limited visibility benefits. EPA should take the proper approach and follow the remand without vacatur of the D.C. Circuit, revise the trading budgets and then finalize CSAPR as compliance strategy for BART in lieu of this proposal.

Response:

We completed our response to the CSAPR remand in a separate action and refer Commenter there. We are finalizing a BART alternative for SO

BART.

E. Comments on the Identification of BART-Eligible Sources

Comment:

We received comment from the owners of Coleto Creek stating that in the Texas Regional Haze SIP, TCEQ determined that Coleto Creek Unit 1 was not a BART-eligible source, based on its interpretation and application of its SIP-approved regional haze rules at 30 TAC Chapter 116, Subchapter M. In implementing its rules, TCEQ prepared questionnaires that sought the information needed to render its BART-eligibility determinations.

As a result of this TCEQ-led process, TCEQ determined that Coleto Creek Unit 1 was not BART-eligible because it was not built, and did not commence operation, until 1980, which is well after the August 7, 1977 applicability date. Coleto Creek Unit 1 has reasonably relied on the state's eligibility determination in evaluating its obligations under the Regional Haze Rule program. EPA's decision to reject TCEQ's BART-eligibility determination for Coleto Creek Unit 1 under 30 TAC 116.1500 is unsupported.

See

October 24, 2005 letter from Al Espinosa, Coleto Creek Power Station, #TX187-0023-0001, Docket Item No. EPA-R06-OAR-2016-0611-0023 at p. 6.

Response:

The commenter states that because Coleto Creek Unit 1 did not commence operations until 1980, it should be determined to be not BART-eligible, as was determined by the TCEQ. However, we believe the TCEQ erred in not listing Coleto Creek Unit 1 as being BART-eligible. The date test for BART-eligibility is whether the units was “in existence on August 7, 1977,” and began operation after August 7, 1962. The BART rule defines as “in existence on August 7, 1977” as follows (70 FR 39159):

What does “in existence on August 7, 1977” mean?

2. The regional haze rule defines “in existence” to mean that: “the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (1) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (2) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed in a reasonable time.” 40 CFR 51.301.

The owner of Coleto Creek Unit 1 provided information that onsite construction began prior to August 7, 1977. Thus, Coleto Creek Unit 1 satisfies the above criteria as being “in existence on August 7, 1977.” Therefore, we disagree with the commenter and continue to find that Coleto Creek Unit 1 is BART-eligible. The NO

BART requirement for Coleto Creek is met by relying on CSAPR as an alternative to EGU BART for NO

. The SO

BART requirement is met by the intrastate trading program FIP that we are finalizing in this action and to which Coleto Creek will be subject. The PM BART requirement is met by our determination that the visibility impacts of PM emissions from Coleto Creek are too small to be considered to cause or contribute to visibility impairment at any Class I area and we determined the facility screens out and is not subject to PM BART.

F. Comments on PM BART

We previously proposed to disapprove the SIP's subject-to-BART determinations for PM, on the grounds that the SIP had based these determinations on reliance on a BART alternative for SO

and NO

and, as a result, considered only the contribution of PM emissions to visibility impairment, and to adopt source-specific PM emission limits to fill the SIP gap. In that context, we received several comments related to PM BART issues. Now, however, we have determined it is appropriate to adopt a BART alternative to address SO

and NO

and therefore find Texas' original SIP was correct in considering only the contribution of PM emissions. Considering only PM emissions, all sources considered in the Texas SIP were demonstrated to screen out of the need for source specific PM BART emission limits.

Also, as explained above, we have identified additional sources as BART-eligible that were not considered in the

2009 Texas Regional Haze SIP. As discussed elsewhere, we have determined that the impact due to PM emissions from these additional sources are also below the BART screen level. Thus, the SIP's determination that none of the BART-eligible EGUs are subject-to-BART for PM is correct and approvable. As a consequence, there is no SIP gap needing to be filled by a FIP. Because we are approving EGU PM BART screening determinations that result in no EGUs being subject to PM BART analysis, comments supporting or alleging errors in the details of our PM BART five-factor analysis and our proposed PM BART technology selections and emission limits are not relevant. We address in this section comments that are relevant to whether it is appropriate to approve the portion of this 2009 SIP submission and EPA's analysis in our proposal that determined that no PM emission limits for Texas EGUs are needed to satisfy the BART requirement because the visibility impacts of PM emissions from BART-eligible EGUs do not cause or contribute to visibility impairment. The information in section III.A. on the history of our proposals regarding the EGU PM BART element of the 2009 Texas SIP submission and EPA's proposals is useful background for understanding the comments and our responses on this topic.

Although we are not finalizing the MATS-based PM limits proposed as PM BART for the coal-fired EGUs, this regional haze action does not affect the existing MATS requirements for these units. We are also not finalizing the fuel oil sulfur percentage limits that we proposed for gas/fuel oil-fired EGUs; the same limits in existing permits for these sources are not affected by our action.

Comments:

AEP states that we provide no basis for not approving the TCEQ's PM BART determination in 2016 or logical support for our decision to proceed with modeling PM in the proposed Texas BART FIP. AEP believes that when a state is provided statutory deference in implementing the Regional Haze program, EPA must support its decision for not approving the state's determination. While AEP also agrees that current PM requirements for sources complying with MATS are sufficient for meeting PM BART for Welsh Unit 1, it disagrees that PM BART is even warranted at all or that EPA has provided adequate basis for declaring that TCEQ's screening analysis is no longer reliable. AEP says that buried in a footnote, EPA grasps at some claim of error that Texas' PM BART determinations only looked at the impact of PM emissions on visibility, that Texas can only take this approach when the BART requirements of NO

and SO

are satisfied, and that Texas' error of not identifying several PM BART eligible sources is grounds for disapproval. AEP believes this logic is unfounded and the situation is created by EPA's piecemeal approach to rulemaking. AEP agrees with EPA's conclusion that gas-fired units that occasionally burn fuel oil should have no further control. AEP will limit burning fuel oil with a sulfur content of 0.7% as currently required by its permit. However, EPA has not provided sufficient reasons to be addressing PM BART. EPA should finalize its earlier proposal to approve Texas' determination that sources in Texas are not subject to PM BART.

The Lower Colorado River Authority disagrees with the disapproval of the Texas PM BART demonstration.

The TCEQ and the Public Utilities Commission of Texas stated that our reliance on language in a guidance memo

to bar TCEQ from conducting pollutant-specific modeling to determining BART eligibility was incorrect. The TCEQ believes this memo did not state that the TCEQ's pollutant-specific modeling is only appropriate when BART for other pollutants is satisfied with a BART alternative such as the CAIR or CSAPR. The TCEQ believes the memo states that such modeling may be appropriate where an alternative program is used for other pollutants. The TCEQ also believes we incorrectly claimed that its SIP acknowledges PM-only modeling is inappropriate where an alternative to BART is not employed.

Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations, Joseph Paisie, EPA Geographic Strategies Group, July 19, 2006.

Technical Support Document for the Texas Regional Haze BART Federal Implementation Plan, BART FIP TSD, Docket ID No. EPA-R06-OAR-2016-0611-004, page 26, footnote 39.

The TCEQ states that our CAMx modeling supports the conclusions from the screening modeling conducted by it that shows these same units did not meet the 0.5 deciview (dv) threshold.

Furthermore, the TCEQ states that we found that for gas-fired units, PM emissions are “inherently low,” and that existing controls plus compliance with the MATS filterable PM limit of 0.03 lb/MMBtu is already BART, further supporting its conclusion that there are no significant visibility impacts from PM emissions from these sources and BART controls for PM are unnecessary. Thus, the TCEQ reasons, a FIP for PM BART is unnecessary and the EPA should approve the screening modeling the TCEQ conducted, as we proposed to do in January 2015.

Id,

at 82.

Luminant provided comments similar to those above. Luminant added that it believes that Texas remains in CSAPR so there is no basis for us to deviate from our prior proposal to approve Texas's PM BART determination. Luminant also stated that our reliance on a Ninth Circuit Court decision to support our rejection of pollutant-specific BART screening is incorrect because the case in point relied upon the BART de minimis exemption, which does not apply in this instance.

Response:

We are approving the EGU PM BART element of Texas's 2009 SIP submittal. Under the combination of reliance on the CSAPR ozone-season NO

trading program to satisfy NO

BART and reliance on the FIP's intrastate trading program for SO

emissions to satisfy SO

BART, it is appropriate for determinations of whether a BART-eligible EGU is subject to BART for PM to be based only on the visibility impact of the source's PM emissions. It is not necessary for us to respond to the comments stating that a PM-only analysis would be appropriate even if both SO

and NO

were not addressed by trading programs.

In particular, TCEQ's comments are correct that the BART Guidelines do not prohibit pollutant-specific screening. The July 19, 2006 guidance memo states that EPA does not generally recommend a pollutant-specific screening approach, however, such a screening approach may be appropriate for PM in certain situations. The memo provides the situation of a state relying on CAIR for NO

and SO

BART as an example where pollutant-specific screening for PM may be appropriate. We agree with TCEQ that the memo's intention is not to limit PM-only analysis to SIPs that rely on CAIR. While we disagree with TCEQ's position that a PM-only analysis is appropriate in a situation involving source-specific SO

BART emission limits, the approaches promulgated here for SO

and NO

BART are BART alternatives and are similar to the CAIR situation described in the memo. Therefore, we find that the pollutant specific PM screening approach in TCEQ's original 2009 SIP submittal is appropriate and demonstrates that the sources covered by the BART alternative program for SO

screen out of PM BART. For BART-eligible EGU sources not participating in the BART alternative program for SO

, all these sources screened out of BART for all visibility impairing pollutants utilizing model plants and CALPUFF modeling as described in our proposed rule and

BART Screening TSD. Therefore, we are approving the determination that no Texas EGUs are required to have source-specific PM emission limits in order for the BART requirement to be met. This approval is consistent with our December 2014 proposal for PM BART, in which EPA proposed to rely on Texas' CSAPR participation for SO

and NO

BART and to approve the SIP's determinations regarding the need for PM emission limits.

See

79 FR 74817, 74848 (January 13, 2015). We are also determining that other sources that EPA identified in our December 2016 proposal as BART-eligible that were not identified as BART eligible in TCEQ's 2009 Regional Haze SIP are also screened out from PM BART.

Comment:

The Sierra Club states that we should finalize our proposed disapproval of Texas's PM BART determinations, which assumed that SO

and NO

emissions contributing to PM formation would be regulated under CSAPR,

see

82 FR at 935. Following the D.C. Circuit Court's remand of CSAPR, SO

emissions from Texas sources are no longer limited by CSAPR. The assumption underlying Texas's PM BART determinations—that CSAPR would limit emissions of PM precursors from Texas sources—is now inaccurate; therefore, reasons the Sierra Club, we must disapprove the State's PM BART determinations.

Response:

We note that the D.C. Circuit Court remanded the budget for Texas EGUs in the CSAPR trading program for SO

without vacatur, so the commenter's statement that Texas EGUs are no longer limited by CSAPR was not true at the time the comment was offered. It is true now as a result of our recent action to remove Texas EGUs from the annual SO

and NO

trading programs. However, a large set of Texas EGUs will, under the final FIP, be subject to CSAPR for ozone-season NO

and the intrastate trading program FIP for SO

. For these EGUs, the BART guidelines and our guidance allow for the subject-to-BART for PM determination to be based on only the impacts of PM emissions on visibility. For the BART-eligible EGUs that will not be required to participate in the FIP's intrastate trading program, our analysis indicates that even when all three pollutants are included in the modeling, all of these sources affect visibility at surrounding Class I Areas by less than 0.5 dv, thus screening out of being subject to PM BART.

Comment:

EPA in its previous rulemaking on the reasonable progress measures for the Texas and Oklahoma regional haze plans initially proposed to accept Texas' finding that no PM BART controls were necessary for EGUs “based on a screening analysis of the visibility impacts from just PM emissions . . . .” In its current Texas BART rulemaking, EPA states that “[i]n connection with changed circumstances on how Texas EGUs are able to satisfy NO

and SO

BART, we are now proposing to disapprove the portion of the Texas Regional Haze SIP that evaluated the PM BART requirements for EGUs.” The changed circumstances EPA refers to is the removal of Texas sources from the SO

caps of the CSAPR rule. Unless a source is subject to a BART alternative or is otherwise determined to be exempt from BART for a particular pollutant, EPA's regulations and BART guidelines do not generally provide for exemptions from a five-factor BART analysis for a specific pollutant. Under EPA's BART Guidelines and the definition of BART, once a source has been determined to be subject to BART, a five-factor BART analysis must be done for each pollutant pursuant to 40 CFR part 51, 51.301 and Appendix Y, section IV.A. So, EPA is correct that it must address BART for PM for the BART-subject sources in Texas.

Response:

The premise in the comment that EGUs in Texas will not be subject to a BART alternative for both NO

and SO

is incorrect, given the content of this final action.

Comment:

Coleto Creek Unit 1 should not be subject to any FIP emission limits, because it should not be determined to be BART-eligible.

Response:

Texas' 2009 SIP submission did not include Coleto Creek Unit 1 as a BART-eligible source and consequently the SIP did not present any analysis of whether it is subject-to-BART, while we are determining in this action that Coleto Creek Unit 1 is BART-eligible. However, we evaluated the available modeling and other analyses and we have concluded that this information shows minimal impacts from PM from this par

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