Texas State Implementa tion Plan Elements Required Under Section 110(a)(2) for the 2010 Sulfur Dioxide (SO 2 ) National Ambient Air Qu ality Standards (NAAQS)

Docket ID EPA-R06-OAR-2013-0388

Technical Support Document
June 2015

Table of Contents:
I. Introduction
A. Section 110(a)(1) and (2)

B. History of Reviews of the Primary NAAQS for Sulfur Oxides II. Additional Background

A. What are the National Ambient Air Quality Standards?

B. What is a SIP?
C. Additional Information III. SIP elements required under Section 110(a)(2) for the 2010 Sulfur Dioxide NAAQS, the State’s submittals and EPA’s analysis
IV. Recommendations
V. References Appendix A: EPA’s Approach to the Revi ew of Infrastructure SIP Submissions Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on greenhouse gas emissions on Texas’ infrastructure SIP reviews.

I. Introduction

In this technical support document (TSD), EPA is providing addi tional documentation concerning our evaluation of the submittal provided in a letter, signed by the Chairman of the Texas Commission on Environmental Quality (TCEQ) on Ap ril 29, 2013, to meet the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 2010 national ambi ent air quality standards (NAAQS or standards) for sulfur dioxide (SO 2 ). 1 The requirement for states to make a State Implementation Plan (SIP) submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must ma ke SIP submissions “within 3 year s (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submis sions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The st atute directly imposes on states the duty to make these SIP submissions, and the re quirement to make the submissions is not conditioned upon EPA's

1 Although the effective date of the Fede ral Register notice for the final rule was June 22, 2010, the rule was signed by the Administrator and publicly disseminated on June 2, 2010. The effective date for the final rule is August 23, 2010.Page 2 of 34 taking any action other than promul gating a new or revised NAAQS. S ection 110(a)(2) includes a list of specific elements that “[e]ach such plan” submissi on must address. EPA has historically referred to these SIP submissions made for the purpose of sa tisfying the requirements of CAA sections 110(a)(1) and (a)(2) as "infrastructure SIP" submissions . EPA issued guidance on September 13, 2013, addressing the infrastructure SIP elements required under s ections 110(a)(1) and (2) for most of the NAAQS including the 2010 SO 2 NAAQS. 2 More detail on these standards, se ction 110(a)(1) and (2) of the Act,
and the submittal we are reviewi ng to determine if the Texas SIP satisfies the section 110(a)(2) requirements, is provided in subsection A below. Throughout this document, “we,” “us,” and “our”

means EPA. Section II of this TSD provides additional bac kground material on the NAAQS, SIPs, and related
issues. Section III of this TSD provides a description of each element required under section 110(a)(2) of the Act, the State’s response, a nd additional details of our analysis of the State’ s response that are not
included in the Federal Register notice for this proposed action. Copi es of the State’s submittal are in the docket for this rulemaking.
Section IV of this TSD includes our recomm endation for action on each of the elements
reviewed herein.
Section V of the TSD contains a list of the guidance documents cited herein. Copies of the guidance documents referenced are in the docket for this rulemaking. Appendices A and B provide additional informa tion about recent changes to how EPA reviews
infrastructure SIPs.

A. Section 110(a)(1) and (2)

Under sections 110(a)(1) and (2) of the Act, stat es are required to submit SIPs that provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or revised NAAQS within three years following the promulgation of the NAAQS, or within such s horter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements that must be incorporated into the SIPs, including for example, requirements for ai r pollution control measures, which are designed to assure attainment and maintenance of the NAAQS. Sec tion III of this TSD provi des a description of all 14 infrastructure elements that comprise section 1 10(a)(2) of the Act. The schedule for completion of EPA’s periodic review of both SO 2 NAAQS was established in Secti on 109 (d)(1) of the CAA, which requires that “not later than December 31, 1980, and at 5-year intervals th ereafter, the EPA shall complete a thorough review of the criteria published under section 108 and the national ambient air quality standards, ... and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with section 108.”

2 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.Page 3 of 34 For the 2010 SO 2 NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) thr ough earlier SIP submissions in c onnection with previous NAAQS. Nevertheless, pursuant to section 11 0(a)(1), states have to review and revise, as appropriate, their existing SIPs to ensure that they are adequate to address the 2010 SO 2 NAAQSs. To assi st states in meeting this statutory requirement, EPA issu ed guidance on September 13, 2013, addressing the infrastructure SIP elements required under sections 110(a)(1) and (2) for most the NAAQS. 2 On April 29, 2013 the Chairman of the Texas Commission on Environmental Quality submitted a letter certifying that TCEQ has evaluated the Texas SIP and found that the SIP satisfies all the requirements of section 110( a)(1) and (2) for the 2010 SO 2 NAAQS. The submittal includes a table with an explanation of how the current Texas SIP meets the requirements of each applicable element of section 110(a)(2) for the 2010 SO 2 NAAQS. This TSD provides additional details of Texas’ certification
and EPA’s evaluation that are not included in the official Federal Register notice for this action.

B. History of Reviews of the Pr imary NAAQS for Sulfur Oxides

On April 30, 1971, EPA promulgated primary (health-based) SO 2 NAAQS (36 FR 8187). These primary standards, which were based on the findings outlined in the original 1969 Air Quality Criteria for Sulfur Oxides, were set at 0.14 parts per milli on (ppm) averaged over a 24 hour period, not to be exceeded more than once per year, and 0.030 ppm annual arithmetic mean. In 1982, EPA published the Air Quality Criteria for Particulat e Matter and Sulfur Oxides (EPA , 1982) along with an addendum of newly published controlled human exposure studies, wh ich updated the scientific criteria upon which the initial standards were based (EPA, 1982). In 198 6, EPA published a second addendum presenting newly available evidence from epidemiologic and cont rolled human exposure studies (EPA, 1986). In 1988, EPA published a proposed decision not to revise the existing standards (53 FR 14925, April 26, 1988). However, EPA specifically requested public comme nt on the alternative of revising the current standards and adding a new 1-hour primary standard of 0.4 ppm (400 ppb) to protect asthmatics against 5-10 minute peak SO 2 concentrations. As a result of public comments on the 1988 pr oposal and other post-proposal developments, EPA published a second proposal on November 15, 1994 (59 FR 58958). The 1994 re-proposal was based in part on a supplement to the second addendu m of the criteria document which evaluated new findings on 5-10 minute SO 2 exposures in asthmatics (EPQ , 1994a; EPA 1994b). As in the 1988 proposal, EPA proposed to retain th e existing 4-hour and annual sta ndards. EPA also solicited comment on three regulatory alternatives to further reduce the health risk posed by exposure to high 5-minute peaks of SO 2 if additional protection were judged to be necessary. The three a lternatives were: (1) Revising the existing primary SO 2 NAAQS by adding a new 5-minute standard of 0.6 ppm (600 ppb)
SO 2 ; (2) establishing a new regulator y program under section 303 of the Act to supplement protection provided by the existing NAAQS, with a trigger level of 0.6 ppm (600 ppb) SO 2 , one expected exceedance; and (3) augmenting implementation of ex isting standards by focusing on those sources or source types likely to produce high 5- minute peak concentrations of SO 2

.Page 4 of 34 On May 22, 1996, EPA announced its final decision not to revise the NAAQS for SO x (61 FR 25566). EPA found that asthmatics- a susceptible populat ion group- could be exposed to short-term SO 2 bursts resulting in repeated ‘exposur e events’ such that tens or hundr eds of thousands of asthmatics could be exposed annually to lung function effects “d istinctly exceeding ... [the] typical daily variation in lung function” that asthmatics routinely experi ence, and found further that repeated occurrences should be regarded as significant from a public hea lth standpoint (61 FR at 25572, 25573). Nonetheless, the agency concluded that “the lik elihood that asthmatic individuals will be exposed is very low when viewed from a national perspec tive”, that “5-minute peak SO 2 levels do not constitute the type of ubiquitous public health problem for which establishing a NAAQS would be appropriate.” id. At 25575. EPA concluded, therefore, that it woul d not revise the existing standards or add a standard to specifically address 5-minute exposures. EPA also announced an in tention to propose guidance, under section 303 of the Act, to assist States in re sponding to short-term peaks of SO 2 and later initiated a rulemaking to do so (62 FR 210, Jan. 2, 1997). The American Lung Association and the Environmental Defense Fund challenged EPA’s
decision not to establish a 5-minut e standard. On January 30, 1998, the C ourt of Appeals for the District
of Columbia Circuit found that EPA had failed to ad equately explain its dete rmination that no revision
to the SO 2 NAAQS was appropriate and remanded the de termination back to EPA for further explanation. Specifically, the court held that EPA had failed to ade quately explain the basis for its
conclusion that short-term SO 2 exposures to asthmatics do not const itute a public health problem, noting that the agency had failed to explai n the link between its finding that re peated short-term exposures were significant, and that there would be tens to hundreds of thousands of such exposures annually to susceptible subpopulation. The c ourt also rejected the expl anation that short-term SO 2 bursts were “localized, infrequent, and site-spe cific” as a rational basis for the conclusion that no public health problem existed for purposes of section 109: “[N]othi ng in the Final Decision e xplains why ‘localized’, ‘site-specific’, or even ‘infrequent’ events mi ght nevertheless create a public health problem, particularly since, in some sense, a ll pollution is local and site-specific...” Id. The court accordingly remanded the case to EPA to adequately explain its determination or otherwise take action in accordance with the opinion. In response, EPA has collected and analyzed additi onal air quality data focused on 5-
minute concentrations of SO 2 . These air quality analyses conducted since the last review helped inform the current review, which address the issues raised in the court’s remand of the Agency’s last decision. EPA formally initiated the current review of the ai r quality criteria for ox ides of sulfur and the
SO 2 primary NAAQS on May 15, 2006 (71 FR 28023) with a general call for information. EPA’s draft Integrated Review Plan for the Primary National Ambient Air Quality Standards for Sulfur Dioxide (EPA, 2007a) was made available in April 2007 for pub lic comment and was discussed by the Clean Air Scientific Advisory Committee (C ASAC) via a publicly accessible teleconference on May 11, 2007. As noted in that plan, SO x includes multiple gaseous (e.g., SO 3 ) and particulate (e.g., sulfate) species.
Because the health effects associat ed with particulate species of SO x have been consid ered within the
context of the health effects of am bient particles in the Agency’s review of the NAAQS for particulatePage 5 of 34 matter (PM), the current review of the primary SO 2 NAAQS is focused on the gaseous species of SO x and does not consider health effects directly associated with pa rticulate species. The first draft of the Integrated Science Assessment for Oxides of Sulfur-Health Criteria (ISA)
and the Sulfur Dioxide Health Assessment Plan: Sc ope and Methods for Exposure and Risk Assessment (EPA, 2007b) were reviewed by CASAC at public meeting held on December 5-6 2007. Based on comments received from CASAC and from the public, EPA developed the second draft of the ISA and the first draft of the Risk and Exposure Assessment to Support the Review of the SO 2 Primary National Ambient Air Quality Standard (Risk and Expos ure Assessment (REA)). These documents were reviewed by CASAC at a public meeting held on July 30-31, 2008. Based on comments received from CASAC and the public at this meeting, EPA released the final ISA in September of 2008 (EPA, 2008a; henceforth referred to as ISA). In addition, comm ents received were considered in developing the second draft of the REA. Importantly, the second draft of the REA contained a draft staff policy
assessment that considered the evid ence presented in the final ISA and the air quality, exposure, and risk characterization results presented in the second draft REA, as they relate d to the adequacy of the current
SO 2 NAAQS and potential alternative primary SO 2 standards. This document was reviewed by CASAC at a public meeting held on April 16-17, 2009. In pr eparing the final REA report, which included the final staff policy assessment, EPA considered comme nts received from CASAC and the public at and subsequent to that meeting. The fi nal REA containing the final staff policy assessment was completed in August 2009 (EPA 2009a; henceforth referred to as REA). On December 8, 2009 EPA published its proposed revisions to the primary SO 2 NAAQS. 74 FR 64810 presented a number of conclusions, findings and determinations proposed by the Administrator. EPA invited general, specific and/or technical co mments on all issues involved with this proposal, including all such proposed judgments, conclusions, findings and determinations. EPA invited specific comment on the level, or range of levels appropriate for such a standard, as we ll as on the rationale that would support that level or range of levels. These comments we re carefully considered by the Administrator as she made her final decisions, as described in this notice, on the primary SO 2 NAAQS. The schedule for completion of the review was gove rned by a judicial orde r resolving a lawsuit filed in September, 2005, concerning the timing of the current review. Center for Biologic Diversity v. Johnson (Civ. No. 05-1814) (D.D.C. 2007). The order that go verned this review, entered by the court in August 2007 and amended in December 2008, provides that the Administrator will sign, for publication, a final rulemaking concerning the review of the primary SO 2 NAAQS no later than June 2, 2010. The Primary National Ambient Air Quality Standard fo r Sulfur Dioxide was published on June 22, 2010, 75
FR 35520. In 75 FR 35520, EPA published re visions to the primary SO 2 NAAQS. Specifically, EPA replaced the 24-hour and annual stan dards with a new short-term standard based on the 3 year average
of the 99 th percentile of the yearly distri bution of 1-hour daily maximum SO 2 concentration. EPA also established a requirement for an SO 2 monitoring network. These new provisions require monitors in
areas where there is an increased coincidence of population and SO2 emissions. EPA also made conforming changes to the Air Quality Index (AQI). The 2010 revision of the SO 2 NAAQS did notPage 6 of 34 address the secondary standard, which remains a 3-hour standard with a level of 0.5 ppm. (75 FR 35520).The secondary SO 2 standard has remained unchanged since 1973. 3 The 2010 SO 2 NAAQS require states have to review and revise, as appropriate, their existi ng SIPs to ensure that they are adequate to meet the standards.

II. Additional Background

A. What are the National Ambient Air Quality Standards? Section 109 of the Act requires EPA to establish NAAQS for pollu tants that “may reasonably be anticipated to endanger public health and welfare,” and to develop a pr imary and secondary standard for each NAAQS. The primary standard is designed to pr otect human health with an adequate margin of safety, and the secondary standard is designed to protect public welf are and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants. Th ese pollutants are: carbon monoxide, lead, nitrogen dioxide, ozone , particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Additionally, these standards provide information to re sidents of the United Stat es about the quality of
the air in their communities.

B. What is a SIP? A State Implementation Plan, or SIP, is a set of state statutes, air pollu tion regulations, control strategies, other means or techniques, and technical an alyses developed by the stat e, to ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emissions inventories, moni toring networks, and modeling demonstrations. Each state must submit these regulations and control strategies to EPA for approval and incor poration into the federally enforceable SIP. Each federally approved SI P protects air quality primarily by addressing air pollution at its point of origin.

C

. Additional Information
As indicated in the Federal Register notice for this action, this proposed rulemaking will not cover four substantive issues that are not integral to acting on a state’s infrast ructure SIP submission: (i) existing provisions related to ex cess emissions during periods of st art-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies addr essing such excess emissions (“SSM”); (ii) existing provisi ons related to “director's variance” or “director's di scretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's disc retion”); (iii) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (“minor source NSR” ); and, (iv) existing provisions

3 38 FR 25678 September 14, 1973.Page 7 of 34 for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has indicated that it ha s other authority to addr ess any such existing SIP defects in other rulemakings, as appropriate. A detail ed rationale for why these four substantive issues are not part of the scope of in frastructure SIP rulemakings can be found in EPA’s July 13, 2011, final rule entitled, “Inf rastructure SIP Requirements for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” in the section entitled, “What is the scope of this fina l rulemaking?” (see 76 FR 41075 at 41076-41079). The CAA Section 110(a)(2)(C) requires that the SIP include measures to regulate construction and modification of stationary sour ces to protect the NAAQS. With re spect to smaller statewide minor sources Section 110(a)(2)(C) creates “a general duty on States to incl ude a program in their SIP that regulates the modification and constr uction of any stationary source as necessary to assure that the NAAQS are achieved” (70 FR 71612 and 71677). EPA provi des states with discretion in implementing their minor NSR programs (71 FR 48696 and 48700). Th e “considerably less deta iled” regulations for minor NSR are provided in 40 CFR 51.160 thro ugh 51.164. Texas has a SIP-approved minor NSR permitting program; sources that obtain a minor NSR ar e required to comply with all applicable federal and state regulation, including current NAAQS. Texas has permitting rules for Prevention of Significant Deterioration (PSD), as required by the CAA. On June 23, 2014, the Supreme Court of the Un ited States issued an opinion in Utility Air Regulatory Group v. EPA. The court determined that a source cannot be consider ed a major facility for PSD permitting based solely on emissions of GHGs above major source thresholds. In other words, a source is subject to PSD permitting (i.e., BACT) for its GHG emissions only when emissions of nonGHGs are above major source thresholds as well. On July 24, 2014, the EPA issued a memo detailing its next steps regarding and preliminary views on the im pact the opinion had on EPA rules. The EPA stated that (consistent with the opinion) , it would no longer require PSD pe rmitting based on emissions of GHGs. On November 10, 2014, the EPA published two notic es in the Federal Register related to GHG permitting in Texas: The SIP approval, and the Federal Implementation Plan withdrawal. These combined actions gave TCEQ the authority to i ssue PSD permits for GHGs. The EPA only approved the TCEQ rules that are consistent with the Suprem e Court opinion. The EPA di d not take action on the portions of TCEQ’s rules that addressed sources that are major emitters based solely on emissions of GHGs, and those rules are not applied in Texas.

III. SIP elements required under Section 110(a)(2 ) for the 2010 Sulfur Dioxide NAAQS, the State’s submittal and EPA’s analysis

The federally approved SIP for each State SIP is listed in Title 40, Pa rt 52, of the U.S. Code of Federal Regulations (40 CFR Part 52). The Identification of plan li sts the EPA-approved provisions of the SIP for each state, as provided under section 110 of the Act, 42 U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the Texas SIP is provided in 40 CFR Part 52, Subpart SS, sections 2270 toPage 8 of 34 2311. The Identification of plan for Texas is in sec tion 2270; this constitutes the applicable SIP for Texas, for purposes of the Act.
Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 FR 13498), section 110(a)(2) sets forth elements that a SIP must contain in order to be fully approved. Below we examine the elements required in sect ion 110(a)(2) and the docume ntation provided by the TCEQ. Where it is useful, we incl ude tables showing the date that the applicable state rules were approved by EPA into the SIP.

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to
include enforceable emission limits and other cont rol measures, means or techniques, as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of CAA.

The State’s response: In its submittal, the State of Texas indicates that Texas’ enforceable emission
limitations and other control measures are covere d in the TCAA and those provisions of the Texas Administrative Code (TAC) Title 30- Environment Protection, Chapter 101- Air Quality, listed in 40 CFR Part 52 Subpart SS, as well as source-specific pr ovisions codified at 40 CFR Part 52 Subpart SS. The following chapters of Title 30 TAC contain rules relevant for the federal requirement:

Chap. 7 Memoranda of Understanding Chap. 101 General Air Quality Rules Chap. 106 Permits by Rule, Subchapter A, General Requirements Chap. 111 Control of Air Pollution from Vi sible Emissions and Particulate Matter Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 113 Standards of Performance for H azardous Air Pollutants and for Designated
Facilities and Pollutants Chap. 114 Control of Air Pollution from Motor Vehicles Chap. 115 Control of Air Polluti on from Volatile Organic Compounds Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds Chap. 118 Control of Air Pollution Episodes Chap. 122 Potential to Emit (§122.122) Chap. 122 Minor Permit Revisions (§122.215) Chap. 122 Applications for Minor Permit Revisions (§122.216) Chap. 122 Procedures for Minor Permit Revisions (§122.217) Chap. 122 Minor Permit Revision Procedures for Permit Revisions Involving the Use of Economic Incentives, Marketable Perm its, and Emissions Trading (§122.218)Page 9 of 34 EPA analysis: Section 110(a)(2)(A ) requires that all measures and other elements in the SIP be enforceable. This subsection also authorizes SIPs to contain certain nontraditional techniques for reducing pollution – economi c incentives, marketable permits, and au ctions of emissions rights. These rules include emission limits, control m easures, as well as permits and fees.
30 TAC 101 defines a variety of control methods in Subchapter A (General Rules); and provides for control techniques and complia nce timeframes in Subchapters F (Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activitie s) and H (Emissions Banking and Trading). 30 TAC 106 addresses general and specific re quirements for permits by rule, including enforceable emission limits, control methods and compliance timeframes. 30 TAC 111 provides control of air pollution from visible emissions and PM, and includes requirements for specified sources, alternate opacity limitations, emission lim its, control methods, and compliance timeframes. 30 TAC 112 provides emission limi ts for sulfur compounds and provides compliance timeframes. 30 TAC 114 provides emission limits and a variety of control techniques to reduce pollutants from motor vehicles, including inspecti on and maintenance (I/M) programs, idling restrictions and fuels, and addresses fleets, on- and non-road engines and incentive programs; and provides compliance timeframes. 30 TAC 115 provides emission limits for volatile organic compounds (VOCs), control methods and compliance dates. 30 TAC 116 addresse s control of air pollution by permits for new construction or modification of existing sources in attainment and nonattainment areas. 30 TAC 117 provides emission limits for nitrogen compounds and in cludes control methods and compliance dates.
30 TAC 118 controls emergency episodes of air pollution and provides a compliance timeframe. The State's rules at 30 TAC 7, 101, 106, 111, 112, 114 – 118 & 122 were approved by EPA for adoption into the SIP and thus are enforceable by the State and EPA, and US citizens are offered legal recourse to address violations as described in section 304 of the Act.

Table 1: Texas rules relevant to meeting section 110(a)(2)(A)
Section of SIP Referenced in Texas ’ Submittal EPA Approval/FR Citation 30 TAC 7.119: MOU for TxDOT and TCEQ December 12, 2005 at 70 FR 73380
30 TAC 101.1: Definitions March 30, 2005 at 70 FR 16129 101.223: Actions to Reduce Excessive Emissions August 26, 2005 at 70 FR 50205 30 TAC 101, Subchapter H, Divisions: 1: Emission Credit Banking and Trading 3: Mass Emissions Cap and Trade Program
4 : Discrete Emission Credit Banking and Trading 6: Highly-Reactive VOC Emissions Cap and Trade
P rogram 1: September 6, 2006 at 71 FR 52698 3: November 14, 2001 at 66 FR 57252 and September 6, 2006 at 71 FR 52664 4: September 6, 2006 at 71 FR 52703 6: September 6, 2006 at 71 FR 52659

30 TAC 106, Subchapter A: General Requi rements November 14, 2003 at 68 FR 64548Page 10 of 34 Section of SIP Referenced in Texas ’ Submittal EPA Approval/FR Citation 30 TAC 111, Subchapter A, Divisions: 1: Visible Emissions
2 : Incineration
4 : Materials Handling, Construction, Roads, Streets, Alleys, and Parking Lots 5: Emission Limits on N onagricultural Processes
A nd Rule 105.2: Ground Level Concentrations 6: Emission Limits on Agricultural Processes 30 TAC 111, Subchapter B: Outdoor Burning SC A 1: January 18, 1994 at 59 FR 2532 and May 8, 1996 at 61 FR 20732 2: April 28, 2009 at 74 FR 19144 4: January 18, 1994 at 59 FR 2532

5: April 28, 2009 at 74 FR 19144 105.2: May 31, 1972 at 27 FR 10842 6: April 28, 2009 at 74 FR 19144 SC B: April 28, 2009 at 74 FR 19144 SC A 1: January 18, 1994 at 59 FR 2532 and May 8, 1996 at 61 FR 20732 SC A: August 30, 1993 at 58 FR 45456 and February 18, 1997 at 62 FR 07163 30 TAC 114, Subchapter C: Divisions: 1: Vehicle Inspection and Maintenance (I/M) 3: I/M for Early Ac tion Compact Counties Subchapte r K: Mobile Source Incentive Programs
D ivision 3: Diesel Emission Reduction Incentive
P rogra m for On-road and Non-road Vehicles SC C 1: Nov 14, 2001 at 66 FR 57264 and September 6, 2006 at 71 FR 52670 3: August 8, 2005 at 70 FR 45542 SC K 3: August 19, 2005 at 70 FR 48647

30 TAC 115, SC A: Definitions SC B: General VOC Sources

SC C: VOC Transfer Operations

SC D: Petroleum Refining, Natural Gas Processing, and Petroc hemical Processes

SC E: Solvent-Using Processes A: July 17, 2008 at 73 FR 40972 B: March 29, 2010 at 75 FR 15348, July 10, 2009 at 74 FR 33146, March 7, 1995 at 60 FR 12438, February 27, 2008 at 73 FR 10383, July 17, 2008 at 73 FR 40972, July 16, 2001 at 66 FR 36913, May 22, 1997 at 62 FR 27964 and December 20, 2000 at 65 FR 79745 C: October 20, 2010 at 75 FR 64675, January 19, 2006 at 71 FR 3009, July 16, 2001 at 66 FR 36913, December 20, 2000 at 65 FR 79745, July 17, 2008 at 73 FR 40972, March 29, 2005 at 70 FR 15769 and May 22, 1997 at 62 FR 27964 D: February 27, 2008 at 73 FR 10383, March 7, 1995 at 60 FR 12438 and July 17, 2008 at 73 FR 40972 E: July 10, 2009 at 74 FR 33146, March 29, 2005 at 70 FR 15769, July 17, 2008 at 73 FR 40972, January 19, 2006 at 71 FR 3009, October 30, 2001 at 66 FR 54688, July 16, 2001 at 66 FR 36913, January 26, 1999 at 64 FR 3841 and April 6, 2000 at 65 FR 18003 F: March 29, 2010 at 75 FR 15348, December 22, 1999 at 64 FR 71670, March 29, 2005 at 70 FR 15769,Page 11 of 34 Section of SIP Referenced in Texas ’ Submittal EPA Approval/FR Citation
SC F: Miscellaneous Industrial Sources

SC G: Consumer-Related Sources SC H: Highly-Reactive VOCs C J: Administrative Provisions July 17, 2008 at 73 FR 40972, May 22, 1997 at 62 FR 27964 and February 27, 2008 at 73 FR 10383 G: February 10, 2005 at 70 FR 7041 H: September 6, 2006 at 71 FR 52656 J: May 22, 1997 at 62 FR 27964 February 27, 2008 at 73 FR 10383 and September 6, 2006 at 71 FR 5269

30 TAC 117 – Subchapters A-H SC A, F, G: Dec 3, 2008 at 73 FR 73562 SC C, E, H: Dec 3, 2008 at 73 FR 73562, January 14, 2009 at 74 FR 1927 SC B, D: Dec 3, 2008 at 73 FR 73562, January 14, 2009 at 74 FR 1927 and July 31, 2009 at 74 FR 38102
C hapter 118 July 26, 2000 at 65 FR 45915

The EPA reads this language to require even these other means of achieving reductions to be
enforceable. 4 We reviewed the Texas SIP and found state ru les adequate to implement and enforce the
2010 SO 2 NAAQS, and limit or reduce emissions of SO 2 . The Texas SIP meets the requirements of section 110(a)(2)(A).

2. Ambient air quality monitori ng and data analysis system : Section 110(a)(2)(B) requires SIPs to include provisions for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and maki ng these data available to EPA upon request.

The State’s response: In its submittal, the TCEQ st ated that Texas maintains and operates a network to measure air quality data that is reported to the EPA on a regular basis. Texas submits annual monitoring plans to the EPA that describe how the state has complied with monitoring requirements and explains any proposed changes. Federally required monito ring is conducted under an EPA-approved Quality Assurance Project Plan (QAPP).

The following chapters of 30 TAC contain ru les relevant for this CAA requirement: Chap. 101 General Air Quality Rules Chap. 106 Permits by Rule, Subchapter A, General Requirements Chap. 111 Control of Air Pollution from Vi sible Emissions and Particulate Matter Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 115 Control of Air Polluti on from Volatile Organic Compounds Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification

4 See 57 FR 13498, beginning on p. 13556.Page 12 of 34 Chap. 117 Control of Air Polluti on from Nitrogen Compounds

EPA analysis: Monitoring requirements in 40 Code of Federal Regulations (CFR) Part 58 include
establishment of the SO 2 monitoring network based on a calculate d population weighted emissions index (PWEI). This index is calculated by multiplying the population of a core based statistical area (CBSA)
with the emissions data from counties within that CBSA. The calculated value is then divided by one
million in order to obtain the index value. PWEIs were calculated for all CBSAs in Texas, and the required SO 2 monitors were included in the SIP revision. TCEQ provides verified monitoring data from regulatory monitors within the stat e to the EPA annually, and certified design values for areas of Texas are determined using only data from regulatory air quality monitors. TCEQ’s current and planned SO2 monitoring network complie s with its requirements in 40 CFR Part 58. The rules at 30 TAC Chapters 101, 106, 111, 112, and 115 - 117 address air monitoring requirements for owners or operators of proposed s ources pursuant to 40 CFR 58.3(c) and are evaluated in Section II.6 below, regarding stationary source emissions monitoring and reporting, pursuant to the requirements of section 110(a)(2)(F) of the Act. We are proposing that the Texas SIP meets the requirements of s ection 110(a)(2)(B).

3. Program for enforcement of control measures : Section 110(a)(2)(C) require s states to include the following three elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the ma jor source permitting requirements of the CAA (for areas designated as attainment or un classifiable for the NAAQS in question). 5

The State's response: TCEQ has established rule s governing the enforcement of control measures, including attainment plans and pe rmitting programs that regulate construction and modification of stationary sources. TCEQ referenced the following fr om 30 TAC as relevant to meet this requirement:

Chap. 35 Emergency and Temporary Orders and Permits; Temporary Suspension or
Amendment of Permit Conditions ; Subchapters A, B, C, K Chap. 39 Public Notice Chap. 55 Requests for Reconsideration and Contested Case Hearings; Public Notice Chap. 101 General Air Quality Rules Chap. 106 Permits by Rule, Subchapter A, General Requirements Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 115 Control of Air Polluti on from Volatile Organic Compounds

5 As discussed in further detail below, this infrastructure SIP rulemaking will not address Texas program for provisions related to nonattainment areas, since EPA considers evaluation of these provisions to be outside the scope of infrastructure SIP actions.Page 13 of 34 Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds

EPA analysis: Enforcement of emissions inve ntory requirements is pr ovided under 30 TAC 101.10(f) Components related to enforcemen t addressed in 30 TAC 106, 112, 115 a nd 117 include allowable rates, compliance, control plan requirements, actual and allowable emissions monitoring and testing requirements, and control schedules. These rules clarify the boundaries beyond which regulated entities in Texas can expect enforcement action. New major stationary sources and major 6 modifications at existing ma jor stationary sources have several requirements under the Act, one of which is to obtain an air pollution permit be fore construction begins. This pre-construction 7 permitting process for major stationary sources is called new source review (NSR) and is required whether the major sour ce or major modification is planned for an area where the NAAQS are exceeded (nonattainment ar eas) or an area where the NAAQS have not been exceeded (attainment and unclassifiabl e areas). In general, permits for sources in attainment areas and for other pollutants regulated under the major source program are referred to as PSD permits, while permits for major sources emitting nonattainment po llutants and located in nonattainment areas are referred to as nonattainment NSR (NNSR) permits . The entire preconstruction permitting program, including both the PSD and NNSR permitting progra ms, is referred to as the NSR program. The statutory and regulatory programs th at regulate NSR are provided under part C of the Act, and 40 CFR 51.160 through 51.166. Part C of the Act requires preven tion of significant deteri oration (PSD) of air quality and is codified at 40 CFR 51.166. The Texas NS R and PSD SIPs were initially approved into the SIP on June 24, 1992 (57 FR 28093). Subs equent revisions to the PSD pr ogram were approved into the SIP on September 9, 1994 (59 FR 46556); August 19, 1997 (62 FR 44083), September 18, 2002 (67 FR 58697), July 22, 2004 (69 FR 43752), March 20, 2009 ( 74 FR 11851) and September 15, 2010 (75 FR 55978). Minor NSR is for pollutants from stationary sour ces that do not require PSD or non- attainment NSR (NNSR) permits. The purpose of minor NSR permits is to prevent the constr uction of sources that
would interfere with attainment or maintenance of a NAAQS or violate the control strategy in nonattainment areas. Also, minor NSR permits ofte n contain permit conditions to limit the sources emissions to avoid PSD or NNSR. Section 110(a)(2)(C) of the Act creates “a ge neral duty on States to include a program in their SIP that regulates the modification and cons truction of any stationary source as necessary to assure that the NAAQS are achie ved” (70 FR 71612, 71677). EPA provides states with a “broad degree of discretion” in implementi ng their minor NSR programs (71 FR 48696, 48700). The “considerably less detailed” regulations for mi nor NSR are provided in 40 CFR 51.160 through 51.164.

6 A major source is one with the potential to emit at least 100 tons per year (tpy) or 250 tpy, depending upon the source, per section 169(1) of the Act.

7 After construction, the source must obtain an operating permit, also called a Title V permit, as this requirement comes from Title V of the Act. Most Title V permits are issued by State and local permitting authorities. These permits are often called part 70 permits because the regulations that establish minimum standards for State permit programs are found in Title 40 of the Code of Federal Regulations (CFR) at part 70 (denoted 40 CFR 70).Page 14 of 34 Texas provided for review of new sources and modification of existing sources and for preventing
construction or modification if it woul d result in violations of applicable portions of a control strategy or
interfere with attainment or maintenance of th e NAAQS, without distinguishing between minor and major sources. With EPA’s conditional approval of the Texas nonattainment NSR (NNSR) requirements for major sources and major modifications in no nattainment areas, March 25, 1980 (45 FR 19231), the
Texas SIP continued to address minor sources and minor modificat ions. There have been numerous revisions approved for the Texas Minor NSR SIP since 1980. Among many others , they include August 13, 1982 (47 FR 35193); September 18, 2002 (67 FR 58697); November 14, 2003 (68 FR 64543); August 28, 2007 (72 FR 49198), March 8, 2010 (75 FR 10416), and April 2, 2010 (75 FR 16671). The SIP continues to require preconstruction permits for minor sources and minor modifications. In this action, EPA is proposing to approve Texas’ infrastructure SIPs for the 2010 SO 2 standards with respect to the general requir ement in section 110(a)(2)(C) to in clude a program in the SIP that regulates the modification and constr uction of any stationary source as necessary to assure that the NAAQS are achieved. However, EPA is not proposing to approve or disapprove Texas’ existing minor NSR program to the extent that it may be inconsis tent with EPA's regulations governing this program. EPA has maintained that the CAA does not require th at new infrastructure SIP submissions correct any defects in existing EPA-approved pr ovisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element C (e.g., 76 FR 410 76-41079). EPA believes that a number of states may have minor NSR provisions that ar e contrary to the existing EPA re gulations for this program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to re visit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a progr am that meets their particular air quality concerns, while assuring r easonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

4

. Interstate transport, and interstate and international pollution abatement : Section 110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110( a)(2)(D)(i)(I) requires SIPs to address any emissions activ ity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in a nother state. The EPA sometimes refers to these requirements as prong 1 (significan t contribution to nonattainment) and prong 2 (interference with maintenance). Neither prong 1 nor prong 2 were addressed in EPA guidance 8 on i-SIP under CAA sections 110(a)(1) and 110 (a)(2). Element D(i)(II) (i.e., subsection 110(a)(2)(D)(i )(II)) requires SIPs to include provisions prohibiting any sources or ot her type of emissions activity in one state from interfering with measures required of any other state to prev ent significant deterioration of air quality or from interfering with measures required of any other state to protect visibility (referring to visibility of Class I arears). The EPA sometimes refers to these requirements under subsection 110(a)(2)( D)(i)(II) as prong 3

8 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.Page 15 of 34 (interference with PSD) and prong 4 (i nterference with visibility protect ion). The EPA interprets section 110(a)(2) to require air agencies to address prong 3 and prong 4 as part of each infrastructure SIP
submission. Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensu ring compliance with sections 115 and 126 of the Act, relating to intersta te and international pollution abatement.

The State's response: With respect to prong 1 and 2, TCEQ SI P submittal includes a technical analysis 9 discussion to demonstrate that Texas specifically addresses the interstate transport requirement in CAA section 110(a)(D)(i)(I) for the 2010 SO2 NAAQS in the Texas i-SIP submittal. With respect to prong 3 and prong 4, Texas ha s a SIP-approved PSD and nonattainment NSR permitting program that contains requirements for s ources of air pollutants to obtain an approved permit before beginning construction of a facility and befo re modifying an existing f acility (see requirements for §110(a)(2)(C) previously listed). Texas has a SIP-approved PSD and nonattainment NSR permitting program that contains requirements for sources of air pollutants to obtain an approved permit before beginning construction of a facility and before m odifying an existing facility. Texas submitted a Regional Haze SIP revision to EPA on March 19, 2009. Regional haze program requirements include progress reports due to EPA ever y 5 years thereafter until 2018 a nd every 10 years thereafter though 2064 to demonstrate progress toward visibility goal. Finally, section 110(a)(2 )(D)(ii) regards the interstate po llution abatement requirements of section 126 and the international po llution requirements of section 115.

TCEQ referenced the following from 30TAC as relevant to meet this requirement:

Chapter 101 General Air Quality Rules Chapter 122 Subchapter E, Divisi on 2, Clean Air Interstate Rule

EPA analysis: The Texas i-SIP submittal discussed the requirements of CAA section 110(a)(D). EPA is proposing to approve CAA section 11 0(a)(2)(D)(i)(II)(PSD por tion). In a separate action we proposed to disapprove the portion of the Texas SO 2 i-SIP for CAA section 110(a)(2)( D)(i)(II) regardi ng visibility protection (79 FR 74818, December 16, 2014). EP A will take action on the CAA section 110(a)(2)(D)(i)(II) porti on of the Texas SO2 i-SIP in future rulemaking. EPA is proposing no action pertaining to CAA section 110(a)(2)(D)(i)(I), and w ill address it in a future rulemaking. Because Texas has a fully approved Prevention of Significant Dete rioration (PSD) SIP addr essing all regulated new source review pollutants, we propose to approve the transport prong 3 portion of the submittal.

9 See TCEQ’s i-SIP submittal, Chapter 2: Required Control Strategy Elements of this SIP revision , and revises Section VI: Control Strategy of Texas SIP

.Page 16 of 34 Section 115 of the CAA authorizes EPA to requi re a state to revise its SIP under certain conditions to alleviate international transport in to another country. Texas has not received any notification or requests from EPA to address the endangerment of pub lic health or welfare in Texas under CAA section 115. Texas has the pr oper authorizing and procedures in place to make revisions to its SIP when necessary to correct an y endangerment in CAA section 115. Section 126 of the CAA requires that each propos ed new or modified major source notify neighboring state of potential impact s from the source. The Texas SIP addresses section 126 of the Act under their PSD rules at 30 TAC Chapter 116, Divi sion 3 (Public Notice). Specifically, 30 TAC 116.131 provides that public notice be provided for any permit s ubject to CAA, Title 1, Part C or D, or to Title 40 CFR Part 51.165(b). Furthermore, the rules at 30 TAC 116.134 provide that the permit applicant shall furnish a copy of such notices and date of publicati on to the air pollution cont rol agency of any nearby state in which air quality may be a dversely affected by the emissions fr om the new or modified facility. These rules were adopted into the Texas SIP on September 18, 2002 (67 FR 58709) and address section 126(a)(1)(A) and (B) of the Act. Section 126(b) of the Act provides that any state or political subdivision may petition the Administrator for a findi ng that a major source or group of stationary sources emits or would emit any air pollutant in vi olation of the prohibition of section 110(a)(2)(D)(ii)
of this title or this subsection and after public hearing. The Administ rator shall make such a finding or deny the petition. CAA section 110(a)(2)(D)(ii) re quires that the SIP contain adequate provisions insuring compliance with the applicable requi rements of section 126 (relating to interstate pollu tion abatement) and 115 (relating to international pollution abatemen t). Texas meets the section 126 requirements as it has a fully approved PSD SIP and there are no other section 126 requirements for the State. Texas meets the section 115 requirements as ther e are no final findings by EPA that Texas air emissions affect other countries. Therefore, we propose to approve the portion of the Texas SO2 i-SIP pertaining to CAA section 110(a)(2)(D)(ii).

5. Adequate personnel, funding, and authority : Section 110(a)(2)(E) requi res states to provide for adequate personnel, funding, and legal authority unde r state law to carry out its SIP and related programs. It also requires complian ce with state board composition and c onflicts of interest contained in section 128 of the Act and requires a ssurances that the state retain primacy for implementation of the SIP in cases where the state relies upon local or regional government agencies.

The State’s response: The TCEQ has consistently incl uded assurances in SIP revi sions that the State has adequate personnel, funding, and authority under state law to carry out the SIP. The TCEQ has various Memoranda of Understanding with other state and lo cal agencies. Local gove rnments have their own responsibilities and privileges re garding the protection of air quality as established by the Texas legislature. TCEQ referenced the following from 30 TAC as relevant to meet this requirement:

Chapter 7 Memoranda of Understanding Chapter 101 General Air Quality Rules Chapter 106 Permits by Rule, Subcha pter A, General RequirementsPage 17 of 34 Chapter 116 Control of Air Pollution by Permits for New Co nstruction or Modification

The TCEQ relies on the complete stat utory and regulatory authority that ensures that Texas can meet the requirements of this section, including the requirements of section 128 of the CAA. The TCEQ also regularly submits a description of its legal aut hority with SIP revisions submitted to the EPA.

EPA analysis: Each SIP must s how that the state has legal aut hority to carry out the plan (40 CFR 51.230). Texas SIP revisions incl ude a discussion on legal authority, with reference to the TCAA. The TCAA was adopted into the Texas SIP in 1981 (46 FR 61124). The TCAA names the Texas Air Control Board (TACB) as the state air control agenc y, with principal authority in the state on matters relating to the quality of air resources. In 1991, the Texas Le gislature abolished the TACB and its powers, duties, responsibilities and functions we re transferred to the Texas Natural Resource Conservation Commission (TNRCC). In 2001, the Texa s Legislature changed th e name of the TNRCC to the Texas Commission on Environmental Qual ity (TCEQ or Commission). The TCAA is now codified under the Texas Health and Safety Code (THSC), Chapter 382. The current version of the TCAA, which pertains to the TCEQ and is codified under the THSC, retains th e authorities approved into the SIP in 1981. The TCAA charges the Commissi on with preparing and developing the SIP (see THSC section 382.012), and provides the agency with “[...] powers necessary or co nvenient to carry out its responsibilities.” (ibid.) To address funding, the TCAA at sec tion 382.0622 provides that “[t]he commission shall request the appropriation of sufficient money to sa feguard the air re sources of the state.” In addition, the first ch apter of a Texas SIP revision 10 typically addresse s fiscal and staff resources, usually at the end of the chapter, with the following statement, “The state has determined that its fiscal and manpower resources are adequate and will not be adversely affected through the implementation of this plan.” EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement the SIP. The TCEQ has the authority to collect fees for applications, permits, and inspections pursuant to THSC section 382.062 and thus receives fees for such, as well as for penalties and interest on fees owed.
These fees are discussed in de tail below, in section II.11, rega rding permitting fees (Section 110(a)(2)(L)). The state also has aut hority to collect fees for vehicl e inspection and maintenance (I/M) programs in several nonattainment areas and in the Austin area under THSC sections 382.202 and 382.302. These rules are approved in the TX SIP and are found at 30 TAC 114.53 (71 FR 52670) and 114.87 (70 FR 45542). The TCEQ also receives federal funds, authorized pursuant to sections 103 and 105 of the Act. The section 103 funds support specific , non-recurring projects within th e air program, thus the amount of funding can vary widely from year to year. The section 105 funds s upport the foundation of the State’s air quality program, including the air mon itoring network and annual (recurring) air quality program activities. The section 105 funding levels are re latively consistent, varyi ng not more than about

10 The first chapter of a Texas SIP revision typically addresses general information, including, but not limited to: background; public involvement and hearing information; social and economic considerations; and fiscal and manpower resources.Page 18 of 34 10% from year to year. The 105 funds require a 40% match from the State, while the 103 funds do not require a match. Where the state relies on local or regional gove rnment, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of the SIP, codified at 40 CFR 51.232. The TWC declares that the TCEQ is the ag ency of the state given primary responsibility for implementing the const itution and laws of this state relating to the
conservation of natural resources and the protection of the envir onment at 5.012; rules governing the authority of local governments are provided unde r THSC 382.111-115.The TCEQ does not relinquish its responsibilities to loca l governments. The TCEQ made a re ference to 30 TAC 7 (Memoranda of Understanding) in its submittal, which serves to id entify and clarify the roles of agencies with overlapping responsibilities. The MOU is discussed in detail in section II.1 a bove (regarding enforceable emission limits and other control measures, pursuant to section 110(a)(2)(A) of the Act), and also in section II.12 below (regarding consul tation/participation by affected local entities, pursuant to section 110(a)(2)(M) of the Act). The TCEQ commissioners take final action on Texas state rules and their eligibility to serve as commissioner is subject to sec tion 128 of the Act. Section 128 requires that, (1) any board or body which approves permits or enforcement orders shall have at least a majority of members who represent the public interest and do not deri ve any significant portion of their income from persons subject to permits or enforcement orders under this chapter, a nd (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
The three commissioners of the TCEQ are appointed by the governor to represent the ge neral public and their suitability and conduct are pr escribed by the Texas Water Code (T WC). The state rules that address
section 128 of the Act are found in the TWC, Title 2 (Water Admini stration), Subtitle A (Executive Agencies), Chapter 5 (Texas Natural Resource Conservation Commission), Subchapter C (Texas Natural Resource Conservation Commission), §5.053: Eligibility for Membership; §5.054: Removal of Commission Members; §5.059: Conflict of Interest; §5.060: Lobbyist Prohibiti on; and Subchapter D (General Powers and Duties of the Commission) , §5.111: Standards of Conduct. In 1981, the EPA approved into the SIP the Standard s of Conduct of State Officers and Employees (Texas Revised Civil Statute Annotated, Article 6252-9b) (46 FR 61124). The current TWC ru les retain the standards of
conduct for state officers and employees approved in 1981. Based upon review of the state's infras tructure SIP submission for the 2010 SO 2 NAAQS, and relevant statutory and regulatory aut horities and provisions referenced in the submission or referenced in Texas’ SIP, EPA believes that the require ments of section 110( a)(2)(E) are met.

6. Stationary source emissions monitoring and reporting : Section 110(a)(2)(F) requires, as may be prescribed by the Administrator, (i) the installati on, maintenance and replacement of equipment, and the implementation of other necessary st eps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic repor ts on the nature and amounts of emissions and emissions-related data from such sources, and (iii) corr elation of such reports by the State agency withPage 19 of 34 any emission limitations or standards es tablished pursuant to this Act, wh ich reports shall be available at reasonable times for public inspection.

The State's response: The TCEQ requires monitori ng for air pollutants as part of its NSR permit program. Certain emission sources ar e required to submit annual emi ssion inventories and periodic reporting of emissions, which provides data that is us ed in air quality modeling to help Texas prepare SIP revisions. Emissions data are available at reasonable times for public inspection, with some information also available on the agency website.

The following chapters of 30 TAC contain rule s relevant for this federal requirement: Chap. 101 General Air Quality Rules Chap. 106 Permits by Rule, Subchapter A, General Requirements Chap. 111 Control of Air Pollution from Vi sible Emissions and Particulate Matter Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 115 Control of Air Polluti on from Volatile Organic Compounds Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds

EPA analysis: The TCAA provides the TCEQ with au thority to require monitoring and recordkeeping at section 382.016. The authority to require the subm ittal of emissions data to develop an emissions inventory is provided at section 382.014. 30 TAC Chapters 101, 106, 111, 112, and 115 - 117 address air monitoring requirements for owners or operators of proposed sources, pursuant to 40 CFR 58.3(c). These chapters are in the SIP and include samp ling, sampling procedures, emission monitoring and compliance demonstration, reporting, record keeping, and provides for enforcement. The National Emissions Inventory (NEI) is EPA’s central repository for air emissions data. EPA published the Air Emissions Reporting Rule (A ERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissi ons data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory (EI) every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them – NOx, SO2, ammonia, lead, carbon monoxi de, PM, and VOCs. Many states also voluntarily report emissions of hazardous air pollutants. EPA compiles the emissions data, supplementing it where necessary, and releases it to th e general public th rough the website www.epa.gov/ttn/chief/eiinformation.html.

Based upon review of the state's infras tructure SIP submission for the 2010 SO 2 NAAQS, and relevant statutory and regulatory aut horities and provisions referenced in the submission or referenced in Texas’ SIP, EPA believes that the require ments of section 1 10(a)(2)(F) are met.Page 20 of 34 7. Emergency power : Section 110(a)(2)(G) requires states to pr ovide for authority to address activities causing imminent and substantial en dangerment to public health, includ ing adequate contingency plans to implement the emergency episode provisions in their SIPs.

The State's response: The TCEQ may issue emerge ncy orders, or issue or suspend air permits as required by an air pollution emergenc y. In addition, the TCEQ also main tains air quality information in a form readily available to the public on the TCEQ ’s Today's Texas Air Qu ality Forecast website (http://www.tceq.texas.gov/compliance/mon itoring/air/monops/forecast_today.html)

The following chapters of 30 TAC contain rule s relevant for this federal requirement: Chap. 35 Emergency and Temporary Orders a nd Permits; Temporary Suspension or Amendment of Permit Conditions; Subchapters A, B, C, K Chap. 118 Control of Air Pollution Episodes

EPA analysis: The TCEQ has authority to fo rmulate contingency plans for environmental emergencies, pursuant to TWC Chapter 5, Subcha pter L, which provides for emergency and temporary orders, and TWC Chapter 7, which provides enforcement author ity. Texas addresses Emergency and Temporary
Orders at 30 TAC 35 11 and Control of Air Pollution Episodes at 30 TAC 118. Provisions regarding control of air pollution episodes and the Texas em ergency episode contingency plan were first approved into the SIP on October 7, 1982 (47 FR 44260) . Subsequent revisions to this plan were approved on September 6, 1990 (55 FR 36632) a nd July 26, 2000 (65 FR 45915). The rules at 30 TAC 118 include contingency pl ans and were approved into the Texas SIP at 65 FR 45915. EPA compared the State rules to 40 CFR 51 Subp art H – Prevention of Air Pollution Emergency Episodes and Appendix L to Part 51 - Example Regulat ions for Prevention of Air Pollution Emergency Episodes. Subpart H provides a classification system for episode plans. Each region in a state is classified separately with respect to each of the fo llowing pollutants: Sulfur dioxide, particulate matter, carbon monoxide, nitrogen dioxide, a nd ozone (40 CFR 51.150). An area cl assified as a Priority I region
for sulfur dioxide has ambient c oncentrations greater than 100 mi crograms per cubic meter (denoted μg/m3) or 0.04 ppm for an annual arithmetic mean or 455 μg/m3 (0.17 ppm) for a 24- hour maximum. The Priority II regions for Sulfur Dioxide are those with ambient conc entrations greate r than 2.62 μg/m3 (1.0 ppm) for a 24 hour average. Areas that do not meet the criteria for Priority I or II are classified Priority III. Table 2 below summ arizes the classification for SO 2

. An area classified as a Priority I region for SO 2 has ambient concentrations greater than 100 micrograms per cubic meter (denoted μg/m 3 ) or 0.06 ppm for a 1-hour maximu m. The Priority II regions
for SO 2 has ambient concentration between 60-100 μg/m 3 (0.02-0.04 ppm) annual arithmetic mean; 260-

11 Revisions to 30 TAC 35, addressing Emergency and Temporary Orders and Permits, have not been approved into the Texas SIP. EPA will take action on revisions to 30TAC 35 in a separate rulemaking.Page 21 of 34 445 μg/m 3 (0.10-0.17 ppm) 24-hour maximum; any concentration above 1,300 μg/m 3 (0.50 ppm) threehour average. Areas that do not meet the criteria for Priority I or II abov e criteria are classified Priority

III 12 . Table 2 below summarize the classification for SO 2

Table 2: Classification of Regions for Episode Plans for SO2 (40 CFR 51.150) Parameter Priority I Priority II Priority III
Sulfur Dioxide Ambient concentrations > 100 μg/m 3 (0.04 ppm) annual arithmetic mean; 455 μg/m 3 (0.17 ppm) 24-hour maximum Ambient concentrations > 2.620 μ g/m3 (1.0 ppm) 24-hour average. Areas which do not meet the criteria for Priority I or II

The significant harm level (SHL) for the 24-hour SO 2 NAAQS is 1.0 parts per million (ppm) 24- hour average, as indicated in 40 CF R 51.151. EPA believes that the existing SO 2 -related prov isions of 40 CFR Subpart H are appropriate. Therefore, EPA expects that for purposes of the 2010 SO 2 NAAQS, states need only to confirm that they have existin g emergency episode plan provisions consistent with EPA’s existing regulatory requirements. The rules at 30 TAC 118 provi de for the pollutants specified under 40 CFR 51.150.We found that 30 TAC 118 is consistent with the provisions of 40 CFR 51.151 and 152, a nd Appendix L to Part 51. The state's rules at 30 TAC 118 are approved in to the Texas SIP (65 FR45915). In addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires th at, “States should periodically reevaluate priority classificati ons of all Regions or portion of Regions within their borders. The
reevaluation must consider the thre e most recent years of air quality data. If the evaluation indicates a change to a higher priority classi fication, appropriate changes in the episode plan must be made as expeditiously as practicable.” Based on this analysis, we conclude that the Texas SIP meets the requirements of section 110(a)(2)(G) for the 2010 SO 2 NAAQS.

8. Future SIP revisions : Section 110(a)(2)(H ) requires states to have the au thority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response to an EPA finding that th e SIP is substantially inadequate.

The State’s response: “Texas regularly revises its SIP in response to revi sions in the NAAQS and EPA rules. See [section] 110(a)(2)(A), above.”

EPA analysis: As stated above, the TCAA authorizes the TCEQ to establish th e level of quality to be maintained in the State’s air and to control the qual ity of the State’s air by preparing and developing a
SIP under sections 382.011 and 382.012. The TCAA under section 382.011 further provides the TCEQ

12 51 FR 40668, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993.Page 22 of 34 with “the powers necessary or convenient to carry out its responsibilities.” Section 382.017 authorizes the TCEQ to adopt rules and sect ion 382.036 requires that the TCEQ “advise, consult, and cooperate with [...] the federal government.” Thus, Texas has the authority to revise its SI P as may be necessary to account for revisions of the NAAQS, adopt more effective methods of attaining the NAAQS, and respond to EPA SIP calls. We are proposing that the Texas SIP meets the requirements of section 110(a)(2)(H).

9

. Nonattainment area plans or plan revisions under Part D of the CAA : Section 110(a)(2)(I) contains provisions related to the submission of nonattainment area plan s or plan revisions as specified
in Part D of the CAA.

The State's response: Texas indicated that the SIP re visions implement the cont rol strategies necessary to bring a nonattainment area into attainment of the NAAQS are not required by CAA to be submitted within three years of the promul gation of a new or revised NAAQS. Therefore, §110(a)(1) does not require this element to be demonstrated as part of an infrastructure SIP submittal (73 FR 16205, at 16206).

EPA analysis: As noted previously, EPA does not expect infrastruc ture SIP submissions to address subsection 110(a)(2)(I). Nonattainment area plans re quired under Part D are required to be submitted on
a different schedule from the Section 110 infrastructu re elements and will be reviewed and acted upon through a separate process governed by th e requirements for nonattainment ar eas, as described in part D.

10. Consultation, public notice, and PSD and visibility protection : Section 110(a)(2)(J) requires states to provide a process for consultation w ith local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 relating to consultation. Section 110(a)(2)(J) further requires States to notify the public if NAA QS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also requires States to meet applicab le requirements of Part C related to prevention of significant deterioration a nd visibility protection.

The State's response: Texas has an established pub lic participation process for all SIP revisions and permitting programs. The EPA has proposed limited approval/limited disapproval of the rules regarding public pa rticipation for air quality NSR permits. 13 Texas has withdrawn from EPA consideration most of the rule s that were the subject of th e proposed limited approval/limited disapproval and has submitted new and revised public participation rules to the EPA as new SIP revisions to address the EPA’s publ ished concerns regarding these requirements. The TCEQ consults with other state agencies, local agencies, and non- governmental orga nizations, as well as with the environmental agencies of other states regarding ai r quality concerns. All major sources in Texas are subject to Texas’ SIP-approved PSD program. Texas submitted a SIP revision to address Regional

13 Approval and Promulgation of Implementation Plans; Texas; Revisions to Chapters 39, 55, and 116 which related to public Participation on Permits for New and Modified Sources, 73 FR 72001 (November 26, 2008)Page 23 of 34 Haze, including a long-term strategy to address visibi lity impairment for each Class I area that may be impacted by emissions from Texas facilities.

TCEQ referenced the following from 30 TAC as relevant to meet this requirement:

Chapter 7 Memoranda of Understanding Chapter 35 Emergency and Temporary Orde rs and Permits; Temporary Suspension or Amendment of Permit Conditions; Subchapters A, B, C, K Chapter 101 General Air Quality Rules Chapter 116 Control of Air Pollution by Permits for New Co nstruction or Modification

EPA analysis: Regarding consultation with government officials, section 110(a )(2)(J) requires states to provide a process for consulta tion with local governments and Fe deral Land Managers carrying out NAAQS implementation requirements pursuant to section 12 1 of the Act, rela ting to consultation. Section 121(1) addresses any transportation controls , air quality maintenance plan requirements or preconstruction review of direct sources of air pollution, and section 121(2 )(B) addresses measures pertaining to PSD. Section 382.036 of the TCAA requires the TCEQ to “advise, consult, and cooperate with other state agencies, political subdivisi ons of the state, [...] other states, the federal government, and interested persons or groups concerning [...] air quality control.” In addition, as discus sed in Sections II.1 and II.12 of this TSD, 30 TAC 7 provides for ag reements with other agenci es, to clarify areas of responsibility. Several MOUs have b een approved into the Texas SIP 14 including an MOU with TxDOT, described in Section II.1 of this TSD. We are proposing that the Texa s SIP meets this portion of section 110(a)(2)(J). Regarding PSD and visibility protection: S ection 110(a)(2)(J) requires States to meet applicable requirements of Part C related to prev ention of significant dete rioration and visibility protection. As detailed in Secti on II.3 in this TSD (addressing s ection 110(a)(2)(C)), the Texas PSD program. Texas included a referen ce to 30 TAC 101 as relevant to meeting this infrastructure element, and applicable sections of 30 TAC 101 (e.g.,101.21) are in the Texa s SIP (see 42 FR 27894, June 1, 1977). EPA approved the Texas Visibility Protecti on Plan Long-Term Strategy for Visibility Protection on February 23, 1989 (54 FR 7767). The State’s most recent SIP revision addressing Regional Haze was submitted to EPA on March 19, 2009 in a separate rulemaking. With regard to the applicable requirements for visibility protec tion, EPA recognizes that states are subject to visibility and regional haze program requirements under sections 169A and 169B of the Act. In the event of the establishment of a new NAAQS, howeve r, these visibility and regional haze program requirements do not change. Thus, we find that ther e is no new visibility obligation triggered under section 110(a)(2)(J) when a new NAAQS becomes e ffective. We are proposing that the Texas SIP meets the visibility porti on of section 110(a)(2)(J).

14 See footnote 16Page 24 of 34 11. Air quality modeling a nd submission of data : Section 110(a)(2)(K) requi res that SIPs provide for performing air quality modeling to predict effects on air quality re sulting from emissions of any NAAQS pollutant, and submission of such data to EPA upon request.

The State’s response: “Air quality modeling is conducted during development of revisions to the Texas SIP, as appropriate for the state to demonstr ate attainment with required air quality standards. Modeling is also a part of the new source review permitting program.” TCEQ references 30 TAC 116, Control of Air Pollution by Permits for New Construction or Modification.

EPA analysis: Based upon review of the state' s infrastructure SIP submissions for the 2010 SO 2 NAAQS, and relevant statut ory and regulatory authorities and provi sions referenced in the submission or referenced in Texas’ SIP, EPA believes that Texas has the adequate infrastructure needed to address section 110(a)(2)(K) for the 2010 SO 2 NAAQS.

12. Permitting fees : Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewi ng, approving, implementing and enforcing a permit.

The State's response: TCEQ assesses fees for review ing permit applications and for enforcing the terms and conditions of permits. TCEQ referenced the fo llowing from 30 TAC as relevant to meet this requirement:

Chapter 12 Payment of Fees Chapter 101 General Air Quality Rules Chapter 106 Permits by Rule, Subcha pter A, General Requirements Chapter 116 Control of Air Pollution by Permits for New Co nstruction or Modification

EPA analysis: The TCAA authorizes and requires the TCEQ to charge and collect application, permit, and inspection fees (THSC 382.062), including fees for permits subject to Titles IV and V of the Act, and those not subject to Titles IV and V of the Act (see THSC 382.0621). The rules at 30 TAC 12 address penalties and interest on fees owed the State under the jurisdiction of TCEQ . The rules at 30 TAC 101.24 and 101.27 a ddress inspection and emissions fees, respectively. These rules are enforceable by Texas, but they are not in the SIP and as such, are not federally enforceable.
We were unable to find a reference to fees in 30 TAC 106, Subchapter A, but in Subchapter B,
Section 106.50 establishes the fee sc hedule for permits by rule (PBR) and is approved in the Texas SIP (March 20, 2009, at 74 FR 11851). Secti on 106.50 directs PBR applicants to submit $100 if classified as a small business, municipality, county, or indepe ndent school district w ith a population of 10,000 or
fewer residents. All other entiti es must submit $450 with the registration form. Section 106.50 further explains how to submit the fee. The registration fee under section 106.50 does not apply if the sole purpose of the registration form is to establish fe derally enforceable emissions limits under section 106.6Page 25 of 34 or for remediation projects conducted under se ction 106.533. 30 TAC 116 addresses permitting for new construction or modification, and asso ciated fees. The sections in the Texas SIP that address fees are
listed in Table 3 below.

Table 3: Texas rules relevant to meeting sect ion 110(a)(2)(L): Relevant Section of the Texas SIP EPA Approval/FR Citation 30 TAC 106.50 Registration Fees fo r PBR March 20, 2009 at 74 FR 11851 30 TAC 116.141 Determination of Fees 74 FR 11851 30 TAC 116.143 Payment of Fees 74 FR 11851 30 TAC 116.163 PSD Permit Fees 74 FR 11851 30 TAC 116.313 Renewal Application Fees 74 FR 11851 30 TAC 116.614 Standard Permit Fees 74 FR 11851 30 TAC 116.926 Permit Fee January 11, 2011 at 76 FR 1525

The sections listed in Table 3 above are in the Texas SIP and meet the requirements of section 110(a)(2)(L). We are proposing that the Texas SIP meets the requirements of section 110(a)(2)(L).

13. Consultation/participation by affected local entities : Section 110(a)(2)(M) requires states to provide for consultation and particip ation in SIP development by local political subdivisions affected by
the SIP.

The State’s response: “The TCEQ has several cooperative agreements and Memoranda of Understanding [MOU] with various other stat e and local agencies and organizations. Consultation with a variety of different organizations is a regu lar part of TCEQ’s process of developing SIP revisions.”

EPA analysis: Based upon review of the stat e's infrastructure SIP submission for the 2010 SO 2 NAAQS, and relevant statut ory and regulatory authorities and provi sions referenced in the submission or referenced in Texas’ SIP, EPA believes that the requirements of section 110(a)(2 )(M) are met.

IV. EPA’s Recommendation We reviewed the Texas submittal, SIP, and recent air quality data for Sulfur Dioxide for compliance with the requirements of sections 110(a)(1) and (2) of the Act for the 2010 SO 2 NAAQS. Based on these evaluations, EPA is proposing to approve the Texas SO2 i-SIP, except for the portions pertaining to CAA section 110(a)(2)(D )(i)(I) and the interstate visibility protection part of CAA section 110(a)(2)(D)(i)(II). In a sepa rate action we proposed to disapprove the portion of the Texas SO2 i-SIP for CAA section 110(a)(2)(D)(i)(I I) and visibility protection (80 FR 74818, December 16, 2014). EPA will take an action on the CAA section 110(a)(2)(D)(i )(II) portion of the Texas SO2 i-SIP in future rulemaking to address Texas’ Interstate Transport SI P submittal when a guidance is issued with respect
to this section of the CAA.Page 26 of 34 We recommend approval of the Texas infrastruc ture SIP for the 2010 Sulfur dioxide NAAQS for the following elements : Emission limits and other control measures: Section 110(a)(2)(A) Ambient air quality monitoring/data system: Section 110(a)(2)(B) Program for enforcement of control measures: Section 110(a)(2)(C) PSD portion only Secti on 110(a)(2)(D)(i)(II) Interstate transport: Section 110(a)(2)(D)(ii) Adequate resources: Section 110(a)(2)(E) Stationary source monitoring system: Section 110(a)(2)(F) Emergency power: Section 110(a)(2)(G)
Future SIP revisions: Section 110(a)(2)(H) Consultation with government offi cials: Section 110(a)(2)(J)
Public notification: Section 110(a)(2)(J) PSD and visibility protectio n: Section 110(a)(2)(J) Air quality and modeling/data : Section 110(a)(2)(K) Permitting fees: Section 110(a)(2)(L) Consultation/particip ation by affected local enti ties: Secti on 110(a)(2)(M)

V. References

1. Guidance on Infrastructure State Implementa tion Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a )(2),” Memorandum from Stephen D. Page, September 13, 2013Page 27 of 34 Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon the SIP submissions from Texas that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O 3 and 2010 NO 2 NAAQS

. The requirement for states to make a SIP submissions of these types arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “w ithin 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submis sions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The st atute directly imposes on states the duty to make these SIP submissions, and the re quirement to make the submissions is not conditioned upon EPA’s taking any action other than promul gating a new or revised NAAQS. S ection 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP subm issions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2 ) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satis fy other SIP requirements under the CAA, such as “nonattainment SIP” or “at tainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requir ements of CAA section 169A, and nonattainment new source review permit program s ubmissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timi ng and general requirements for in frastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of th ese submissions. The list of required elements provided in s ection 110(a)(2) contains a wide vari ety of disparate provisions, some of which pertain to required lega l authority, some of which pertain to required substantive program provisions, and some of which pe rtain to requirements for both authority and substantive program provisions. 15 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP su bmissions provided in section 110(a)(2) contains ambiguities concerning what is required for incl usion in an infrastruc ture SIP submission.

15 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances th at they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110( a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.Page 28 of 34 The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SI P submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP
submission must meet the list of re quirements therein, while EPA has long noted that this literal reading of the statute is internally incons istent and would create a conflict with the nona ttainment provisions in part D of title I of the Act, which specif ically address nonattainment SIP requirements. 16 Section 110(a)(2)(I) pertains to n onattainment SIP requirements and part D addresses when attainment plan SIP
submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such pl ans for certain pollutants when the Administrator promulgates the designation of an area as nonattai nment, and section 107(d)(1 )(B) allows up to two years, or in some cases three years, fo r such designations to be promulgated. 17 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of s ection 110(a)(2) are applicable for a particul ar infrastructure SIP
submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SI P submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet th ese requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissi ons either individually or in a larger combined
action. 18 Similarly, EPA interprets the CAA to allow it to take action on the i ndividual parts of one larger, comprehensive infrastructure SIP submis sion for a given NAAQS wit hout concurrent action on the entire submission. For example, EPA has someti mes elected to act at different times on various
elements and sub-elements of the same infrastructure SIP submission. 19

16 See, e.g., “Rule To Reduce Interstate Tran sport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule ,” 70 FR 25162, at 25163 – 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

17 EPA notes that this ambiguity within section 110(a)(2) is height ened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three year s after promulgation of the new or revised NAAQS.

18 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separate ly to meet the requirements of EPA’s 2008 PM 2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Pl ans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for the 2006 PM 2.5 NAAQS).

19 On December 14, 2007, the State of Tenn essee, through the Tennessee Departme nt of Environment and Conservation, made a SIP revision to EPA demonstrating th at the State meets the requirements of s ections 110(a)(1) and (2). EPA proposedPage 29 of 34 Ambiguities within sections 110(a)(1 ) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for differe nt NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or re levant in the same way, for each new or revised NAAQS. The states’ attendant infr astructure SIP submissions fo r each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) coul d be very different for different pollutants, for example because the content and scope of a state’s in frastructure SIP submission to meet this element might be very different for an entirely new NAA QS than for a minor revision to an existing NAAQS. 20

EPA notes that interpretation of se ction 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logi cally apply to these other types of SIP submissions. For example, section 172(c )(7) requires that attainment plan SIP submissions required by part D have to meet th e “applicable requirements” of sec tion 110(a)(2). Thus, for example, attainment plan SIP submissions must meet th e requirements of secti on 110(a)(2)(A) regarding
enforceable emission limits and control measures and section 110(a)(2)(E)(i ) regarding air agency resources and authority. By contrast , it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a )(2)(C) that pertains to th e PSD program required in part C of title I of the CAA, because PSD does not a pply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requi rements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2 ) but not others.

Given the potential for ambiguity in some of the statutory language of se ction 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambi guous portions of section 110(a)(1) and section 110(a)(2) in the contex t of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended th at each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant , would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under
which it reviews infrastructure SIP su bmissions against the list of elem ents in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance docu ments to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly aris ing issues and in some cases conveying interpretations th at have already been develope d and applied to individual SIP

action for infrastructure SIP elements (C) and (J) on January 23 , 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SI P elements of Tennessee’s December 14, 2007 submittal.

20 For example, implemen tation of the 1997 PM 2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indi cator species for the new NAAQS.Page 30 of 34 submissions for particular elements. 21 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 22 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP subm issions to meet basic structural SIP requirements within three years of promulgati on of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are releva nt in the context of infrastructure SIP
submissions. 23 The guidance also discusses th e substantively important issues that are germane to certain subsections of section 110(a)(2). Si gnificantly, EPA interprets sections 110(a)(1) and 110( a)(2) such that
infrastructure SIP submissions need to address certain issues and n eed not address others. Accordingly,
EPA reviews each infrastructure SIP submission for co mpliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii ) is a required element of secti on 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requireme nts of section 128, which pertain to state boards that approve permits or enfor cement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s SIP appropriately addresses the requirements of sec tion 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there may be a variety of ways by which states can appropriately
address these substantive statutor y requirements, depending on the stru cture of an individual state’s permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EP A’s evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explic itly requires that the st ate satisfy the provisions
of section 128.

As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2 )(C), (D)(i)(II), and (J) focuse s upon the structural PSD program requirements contained in part C and EPA’s PSD regulations. Stru ctural PSD program requirements include provisions necessary for th e PSD program to address all regul ated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not incl ude provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are merely available as an option for the

21 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the subm ission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

22 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

23 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shor tly after the U.S. Supreme Cour t agreed to review the D.C. Circuit decision in EME Homer City , 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncerta inty created by ongoing litigation, EPA elected not to provide additional guidance o n the requirements of section 110( a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whethe r EPA elects to provide guid ance on a particular section has no impact on a state’s CAA obligations.Page 31 of 34 state, such as the option to provide grandfathering of complete permit applications with respect to the
2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are type s of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP submission focuses on assuring that the state’s SIP meets basi c structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses th e pollutants relevant to that NAAQS . In the context of acting on an infrastructure SIP submission, however, EPA does not th ink it is necessary to conduct a review of each and every provision of a state’s existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the CAA and EP A’s regulations that pertain to such programs.

With respect to certain other issues, EPA does not belie ve that an action on a st ate’s infrastructure SIP submission is necessarily the approp riate type of action in which to address possible de ficiencies in a state’s existing SIP. These issues include: (i) exis ting provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director’s variance” or “director’s discretion” that may be c ontrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform ”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may appr ove the submission even if it is aware of such existing provisions. 24 It is important to note that EPA’s approval of a state’s infrastructu re SIP submission should not be construed as explicit or implicit re-appr oval of any existing potentially defi cient provisions that relate to the three specific issu es just described.

EPA’s approach to review of infrastructure SIP subm issions is to identify the CAA requirements that are logically applicable to that submi ssion. EPA believes that this approach to the review of a particular
infrastructure SIP submission is a ppropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state’s exis ting SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring th at the state in question has the basic structural elements for a functioning SIP for a new or revi sed NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory re quirements under the CAA have evolved, they may include some

24 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.Page 32 of 34 outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the pur poses of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a bett er approach is for states and EPA to focus attention on those elements of section 110(a)(2) of th e CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revi sed NAAQS or other factors.

For example, EPA’s 2013 Guidance gives simpler reco mmendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility re quirements of section 110(a )(2)(D)(i)(II ), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficien cies in existing SIPs. Th ese other statutory tools allow EPA to take appropriately ta ilored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k )(5) authorizes EPA to i ssue a “SIP call” whenever the Agency determines that a state’s SIP is substantially inadequate to attain or mainta in the NAAQS, to m itigate interstate transport, or to otherwise comply with the CAA. 25 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 26 Significantly, EPA’s determination that an
action on a state’s infrastructure SIP submission is not the appropria te time and place to address all potential existing SIP deficiencies does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director’s discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among th e statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 27

25 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

26 EPA has used this authority to correct errors in past actio ns on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30 , 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

27 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).Page 33 of 34 Appendix B EPA’s Evaluation of the June 23, 2014 United St ates Supreme Court Decision on Greenhouse Gas
Emissions on Texas’ infrastructure SIP reviews

With respect to the infrastructure elements contained in Section 110(a)(2 )(C) and (J), EPA interprets the Clean Air Act to require each stat e to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency ha s a complete PSD permitting program meeting the current requirements for all regulated NSR polluta nts. The requirements of Section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agen cy has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Texas has s hown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On June 23, 2014, the United States Supreme Court issu ed a decision addressing the application of PSD permitting requirements to GHG emissions. (See Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427) The Supreme Court sa id that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a s ource is a major source required to obtain a PSD permit. The Court also said that the EPA could con tinue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available C ontrol Technology (BACT). In order to act consistently with its understanding of the Court’s decision pending further judicial action to effect uate the decision, the EPA is not continuing to apply EPA regulations that woul d require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifi cally, EPA is not applying the requirement that a state’s SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states w ill revise their existing SIP-approved PSD programs in light of the Suprem e Court’s decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additi onal legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EP A is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submi ssions and is only evaluating such submissions to assure that the state’s program co rrectly addresses GHGs consistent w ith the Supreme Court’s decision.

EPA has previously approved Texas SIP revisions s ubmitted to align the state’s PSD program rules for GHGs with federal requirements (76 FR 43149). At present, EPA has determined the Texas SIP is sufficient to satisfy the infrastructure elements of S ections 110(a)(2)(C), (D)(i) (II), and (J) with respect to GHGs because the PSD permitting program previ ously approved by EPA into the SIP continues to require that PSD permits (other wise required based on emissions of pollutants other than GHGs)
contain limitations on GHG emissions based on the application of BACT. A lthough the approved TexasPage 34 of 34 PSD permitting program may currently contain provisions that are no longer nece ssary in light of the Supreme Court decision, this does no t render the infrastructure SIP submission inadequate to satisfy the infrastructure elements of Sections 110(a)(2)(C), (D )(i)(II), and (J). The SIP contains the necessary PSD requirements at this time, and the application of th ose requirements is not im peded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect EPA’s proposed approval of Texas’ infrastructu re SIP as to the requirements of
the infrastructure elements of Sectio ns 110(a)(2)(C), (D)(i)(II), and (J).