Texas State Implementation Plan Elements 

Required Under Section 110(a)(2) for the 

2010 Sulfur Dioxide (SO2) National Ambient Air Quality 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 Review 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 additional documentation 

concerning our evaluation of the submittal provided in a letter, signed by the Chairman of the Texas 

Commission on Environmental Quality (TCEQ) on April 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 ambient air quality standards 

(NAAQS or standards) for sulfur dioxide (SO2).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 make SIP submissions “within 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 submissions are to provide for the “implementation, 

maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make 

these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's 

 

1

 Although the effective date of the Federal 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 promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of 

specific elements that “[e]ach such plan” submission must address. EPA has historically referred to 

these SIP submissions made for the purpose of satisfying 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 sections 110(a)(1) and (2) for most of the NAAQS 

including the 2010 SO2 NAAQS.2

 More detail on these standards, section 110(a)(1) and (2) of the Act, 

and the submittal we are reviewing 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 background 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, and additional details of our analysis of the State’s response that are not 

included in the Federal Register notice for this proposed action. Copies of the State’s submittal are in 

the docket for this rulemaking. 

Section IV of this TSD includes our recommendation 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 information 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, states 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 shorter 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 air pollution control measures, which are designed to 

assure attainment and maintenance of the NAAQS. Section III of this TSD provides a description of all 

14 infrastructure elements that comprise section 110(a)(2) of the Act. The schedule for completion of 

EPA’s periodic review of both SO2 NAAQS was established in Section 109 (d)(1) of the CAA, which 

requires that “not later than December 31, 1980, and at 5-year intervals thereafter, 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. 
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For the 2010 SO2 NAAQS, states typically have met many of the basic program elements 

required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. 

Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as appropriate, their 

existing SIPs to ensure that they are adequate to address the 2010 SO2 NAAQSs. To assist states in 

meeting this statutory requirement, EPA issued 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 SO2 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 SO2 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 Primary NAAQS for Sulfur Oxides 

On April 30, 1971, EPA promulgated primary (health-based) SO2 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 million (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 Particulate Matter and Sulfur Oxides (EPA, 1982) along with an addendum of 

newly published controlled human exposure studies, which updated the scientific criteria upon which the 

initial standards were based (EPA, 1982). In 1986, EPA published a second addendum presenting newly 

available evidence from epidemiologic and controlled 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 comment 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 SO2 concentrations. 

As a result of public comments on the 1988 proposal 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 addendum of the criteria document which evaluated new 

findings on 5-10 minute SO2 exposures in asthmatics (EPQ, 1994a; EPA 1994b). As in the 1988 

proposal, EPA proposed to retain the existing 4-hour and annual standards. EPA also solicited comment 

on three regulatory alternatives to further reduce the health risk posed by exposure to high 5-minute 

peaks of SO2 if additional protection were judged to be necessary. The three alternatives were: (1) 

Revising the existing primary SO2 NAAQS by adding a new 5-minute standard of 0.6 ppm (600 ppb) 

SO2; (2) establishing a new regulatory 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) SO2, one expected 

exceedance; and (3) augmenting implementation of existing standards by focusing on those sources or 

source types likely to produce high 5-minute peak concentrations of SO2. 
Page 4 of 34

On May 22, 1996, EPA announced its final decision not to revise the NAAQS for SOx (61 FR 

25566). EPA found that asthmatics- a susceptible population group- could be exposed to short-term SO2

bursts resulting in repeated ‘exposure events’ such that tens or hundreds of thousands of asthmatics 

could be exposed annually to lung function effects “distinctly exceeding ... [the] typical daily variation 

in lung function” that asthmatics routinely experience, and found further that repeated occurrences 

should be regarded as significant from a public health standpoint (61 FR at 25572, 25573). Nonetheless, 

the agency concluded that “the likelihood that asthmatic individuals will be exposed is very low when 

viewed from a national perspective”, that “5-minute peak SO2 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 would not revise the existing standards or add a standard to specifically 

address 5-minute exposures. EPA also announced an intention to propose guidance, under section 303 of 

the Act, to assist States in responding to short-term peaks of SO2 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-minute standard. On January 30, 1998, the Court of Appeals for the District 

of Columbia Circuit found that EPA had failed to adequately explain its determination that no revision 

to the SO2 NAAQS was appropriate and remanded the determination back to EPA for further 

explanation. Specifically, the court held that EPA had failed to adequately explain the basis for its 

conclusion that short-term SO2 exposures to asthmatics do not constitute a public health problem, noting 

that the agency had failed to explain the link between its finding that repeated short-term exposures were 

significant, and that there would be tens to hundreds of thousands of such exposures annually to 

susceptible subpopulation. The court also rejected the explanation that short-term SO2 bursts were 

“localized, infrequent, and site-specific” as a rational basis for the conclusion that no public health 

problem existed for purposes of section 109: “[N]othing in the Final Decision explains why ‘localized’, 

‘site-specific’, or even ‘infrequent’ events might nevertheless create a public health problem, 

particularly since, in some sense, all 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 additional air quality data focused on 5-

minute concentrations of SO2. 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 air quality criteria for oxides of sulfur and the 

SO2 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 public comment and was discussed by the Clean Air 

Scientific Advisory Committee (CASAC) via a publicly accessible teleconference on May 11, 2007. As 

noted in that plan, SOx includes multiple gaseous (e.g., SO3) and particulate (e.g., sulfate) species. 

Because the health effects associated with particulate species of SOx have been considered within the 

context of the health effects of ambient particles in the Agency’s review of the NAAQS for particulate 
Page 5 of 34

matter (PM), the current review of the primary SO2 NAAQS is focused on the gaseous species of SOx

and does not consider health effects directly associated with particulate species. 

The first draft of the Integrated Science Assessment for Oxides of Sulfur-Health Criteria (ISA) 

and the Sulfur Dioxide Health Assessment Plan: Scope 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 SO2 Primary National 

Ambient Air Quality Standard (Risk and Exposure 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, comments 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 evidence presented in the final ISA and the air quality, exposure, and risk 

characterization results presented in the second draft REA, as they related to the adequacy of the current 

SO2 NAAQS and potential alternative primary SO2 standards. This document was reviewed by CASAC 

at a public meeting held on April 16-17, 2009. In preparing the final REA report, which included the 

final staff policy assessment, EPA considered comments received from CASAC and the public at and 

subsequent to that meeting. The final 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 SO2 NAAQS. 74 FR 

64810 presented a number of conclusions, findings and determinations proposed by the Administrator. 

EPA invited general, specific and/or technical comments 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 well as on the rationale that 

would support that level or range of levels. These comments were carefully considered by the 

Administrator as she made her final decisions, as described in this notice, on the primary SO2 NAAQS. 

The schedule for completion of the review was governed by a judicial order 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 governed 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 SO2 NAAQS no later than June 2, 2010. The 

Primary National Ambient Air Quality Standard for Sulfur Dioxide was published on June 22, 2010, 75 

FR 35520. 

In 75 FR 35520, EPA published revisions to the primary SO2 NAAQS. Specifically, EPA 

replaced the 24-hour and annual standards with a new short-term standard based on the 3 year average 

of the 99th percentile of the yearly distribution of 1-hour daily maximum SO2 concentration. EPA also 

established a requirement for an SO2 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 SO2 NAAQS did not 
Page 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 SO2 standard has remained unchanged since 1973.3

 The 2010 SO2 NAAQS 

require states have to review and revise, as appropriate, their existing 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 pollutants that “may reasonably be 

anticipated to endanger public health and welfare,” and to develop a primary and secondary standard for 

each NAAQS. The primary standard is designed to protect human health with an adequate margin of 

safety, and the secondary standard is designed to protect public welfare and the environment. EPA has 

set NAAQS for six common air pollutants, referred to as criteria pollutants. These 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 residents of the United States 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 pollution regulations, control 

strategies, other means or techniques, and technical analyses developed by the state, 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, monitoring networks, and modeling demonstrations. Each 

state must submit these regulations and control strategies to EPA for approval and incorporation into the 

federally enforceable SIP. Each federally approved SIP 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 infrastructure SIP submission: (i) 

existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at 

sources, 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 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 discretion”); (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 has other authority to address any such existing SIP 

defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive issues 

are not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011, final 

rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM2.5 National Ambient 

Air Quality Standards” in the section entitled, “What is the scope of this final 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 sources to protect the NAAQS. With respect to smaller statewide minor 

sources Section 110(a)(2)(C) creates “a general duty on States to include a program in their SIP that 

regulates the modification and construction of any stationary source as necessary to assure that the 

NAAQS are achieved” (70 FR 71612 and 71677). EPA provides states with discretion in implementing 

their minor NSR programs (71 FR 48696 and 48700). The “considerably less detailed” regulations for 

minor NSR are provided in 40 CFR 51.160 through 51.164. Texas has a SIP-approved minor NSR 

permitting program; sources that obtain a minor NSR are 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 United States issued an opinion in Utility Air 

Regulatory Group v. EPA. The court determined that a source cannot be considered 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 impact the opinion had on EPA rules. The EPA stated 

that (consistent with the opinion), it would no longer require PSD permitting based on emissions of 

GHGs. On November 10, 2014, the EPA published two notices 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 issue PSD permits for GHGs. The EPA only approved the 

TCEQ rules that are consistent with the Supreme Court opinion. The EPA did 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, Part 52, of the U.S. Code of 

Federal Regulations (40 CFR Part 52). The Identification of plan lists 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 to 
Page 8 of 34

2311. The Identification of plan for Texas is in section 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 section 110(a)(2) and the documentation provided by the 

TCEQ. Where it is useful, we include 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 control 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 covered 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 provisions 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 Visible Emissions and Particulate Matter 

Chap. 112 Control of Air Pollution from Sulfur Compounds 

Chap. 113 Standards of Performance for Hazardous Air Pollutants and for Designated 

Facilities and Pollutants 

Chap. 114 Control of Air Pollution from Motor Vehicles 

Chap. 115 Control of Air Pollution from Volatile Organic Compounds 

Chap. 116 Control of Air Pollution by Permits for New Construction or Modification 

Chap. 117 Control of Air Pollution 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 Permits, and Emissions Trading (§122.218) 
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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 – economic incentives, marketable permits, and auctions of emissions rights. These 

rules include emission limits, control measures, 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 compliance timeframes in Subchapters F (Emissions Events and Scheduled 

Maintenance, Startup, and Shutdown Activities) and H (Emissions Banking and Trading). 

30 TAC 106 addresses general and specific requirements 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 limits, control methods, and compliance timeframes. 

30 TAC 112 provides emission limits 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 inspection 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 addresses 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 includes 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 

Program 

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 Requirements November 14, 2003 at 68 FR 64548 
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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 Nonagricultural Processes 

And 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 Action Compact Counties 

Subchapter K: Mobile Source Incentive Programs 

Division 3: Diesel Emission Reduction Incentive 

Program 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 Petrochemical 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 

Chapter 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 rules adequate to implement and enforce the 

2010 SO2 NAAQS, and limit or reduce emissions of SO2. The Texas SIP meets the requirements of 

section 110(a)(2)(A). 

2. Ambient air quality monitoring 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 making these data available to EPA upon request. 

The State’s response: In its submittal, the TCEQ stated 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 monitoring is conducted under an EPA-approved Quality 

Assurance Project Plan (QAPP). 

The following chapters of 30 TAC contain rules 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 Visible Emissions and Particulate Matter 

Chap. 112 Control of Air Pollution from Sulfur Compounds 

Chap. 115 Control of Air Pollution from Volatile Organic Compounds 

Chap. 116 Control of Air Pollution by Permits for New Construction or Modification 

 

4

 See 57 FR 13498, beginning on p. 13556. 
Page 12 of 34

Chap. 117 Control of Air Pollution from Nitrogen Compounds 

EPA analysis: Monitoring requirements in 40 Code of Federal Regulations (CFR) Part 58 include 

establishment of the SO2 monitoring network based on a calculated 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 SO2 monitors were included in the SIP revision. TCEQ provides verified monitoring data from 

regulatory monitors within the state 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 complies 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 sources 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 section 110(a)(2)(B). 

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires 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 major source permitting requirements of the CAA (for 

areas designated as attainment or unclassifiable for the NAAQS in question).5

The State's response: TCEQ has established rules governing the enforcement of control measures, 

including attainment plans and permitting programs that regulate construction and modification of 

stationary sources. TCEQ referenced the following from 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 Pollution 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 Permits for New Construction or Modification 

Chap. 117 Control of Air Pollution from Nitrogen Compounds 

EPA analysis: Enforcement of emissions inventory requirements is provided under 30 TAC 101.10(f) 

Components related to enforcement addressed in 30 TAC 106, 112, 115 and 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 major6

 modifications at existing major stationary sources have 

several requirements under the Act, one of which is to obtain an air pollution permit before construction 

begins. This pre-construction7 permitting process for major stationary sources is called new source 

review (NSR) and is required whether the major source or major modification is planned for an area 

where the NAAQS are exceeded (nonattainment areas) or an area where the NAAQS have not been 

exceeded (attainment and unclassifiable 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 pollutants 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 programs, is referred to as the NSR program. The 

statutory and regulatory programs that regulate NSR are provided under part C of the Act, and 40 CFR 

51.160 through 51.166. Part C of the Act requires prevention of significant deterioration (PSD) of air 

quality and is codified at 40 CFR 51.166. The Texas NSR and PSD SIPs were initially approved into the 

SIP on June 24, 1992 (57 FR 28093). Subsequent revisions to the PSD program 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 sources that do not require PSD or non- attainment 

NSR (NNSR) permits. The purpose of minor NSR permits is to prevent the construction of sources that 

would interfere with attainment or maintenance of a NAAQS or violate the control strategy in 

nonattainment areas. Also, minor NSR permits often contain permit conditions to limit the sources 

emissions to avoid PSD or NNSR. Section 110(a)(2)(C) of the Act creates “a general duty on States to 

include a program in their SIP that regulates the modification and construction of any stationary source 

as necessary to assure that the NAAQS are achieved” (70 FR 71612, 71677). EPA provides states with a 

“broad degree of discretion” in implementing their minor NSR programs (71 FR 48696, 48700). The 

“considerably less detailed” regulations for minor 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 would result in violations of applicable portions of a control strategy or 

interfere with attainment or maintenance of the 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 nonattainment areas, March 25, 1980 (45 FR 19231), the 

Texas SIP continued to address minor sources and minor modifications. 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 SO2 standards 

with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that 

regulates the modification and construction 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 inconsistent with EPA's regulations governing this program. 

EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any 

defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the 

infrastructure SIP for element C (e.g., 76 FR 41076-41079). EPA believes that a number of states may 

have minor NSR provisions that are contrary to the existing EPA regulations 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 revisit the regulatory requirements for this program 

to give the states an appropriate level of flexibility to design a program that meets their particular air 

quality concerns, while assuring reasonable 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 activity in one state that contributes significantly to nonattainment, or 

interferes with maintenance, of the NAAQS in another state. The EPA sometimes refers to these 

requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with 

maintenance). Neither prong 1 nor prong 2 were addressed in EPA guidance8

 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 other type of emissions activity in one state from interfering with measures 

required of any other state to prevent 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 (interference with visibility protection). 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 ensuring compliance with sections 

115 and 126 of the Act, relating to interstate and international pollution abatement. 

The State's response: 

 With respect to prong 1 and 2, TCEQ SIP submittal includes a technical analysis9 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 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 modifying an existing facility (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 modifying 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 every 5 years thereafter until 2018 and every 10 years thereafter though 

2064 to demonstrate progress toward visibility goal. 

 Finally, section 110(a)(2)(D)(ii) regards the interstate pollution abatement requirements of 

section 126 and the international pollution 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, Division 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 110(a)(2)(D)(i)(II)(PSD portion). In a separate action we proposed to 

disapprove the portion of the Texas SO2 i-SIP for CAA section 110(a)(2)(D)(i)(II) regarding visibility 

protection (79 FR 74818, December 16, 2014). EPA will take action on the CAA section 

110(a)(2)(D)(i)(II) portion 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 will address it in a future rulemaking. Because Texas 

has a fully approved Prevention of Significant Deterioration (PSD) SIP addressing 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 require a state to revise its SIP under certain 

conditions to alleviate international transport into another country. Texas has not received any 

notification or requests from EPA to address the endangerment of public health or welfare in Texas 

under CAA section 115. Texas has the proper authorizing and procedures in place to make revisions to 

its SIP when necessary to correct any endangerment in CAA section 115. 

Section 126 of the CAA requires that each proposed new or modified major source notify 

neighboring state of potential impacts from the source. The Texas SIP addresses section 126 of the Act 

under their PSD rules at 30 TAC Chapter 116, Division 3 (Public Notice). Specifically, 30 TAC 116.131 

provides that public notice be provided for any permit subject 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 publication to the air pollution control agency of any nearby 

state in which air quality may be adversely affected by the emissions from 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 finding that a major source or group of stationary 

sources emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D)(ii) 

of this title or this subsection and after public hearing. The Administrator shall make such a finding or 

deny the petition. 

 CAA section 110(a)(2)(D)(ii) requires that the SIP contain adequate provisions insuring 

compliance with the applicable requirements of section 126 (relating to interstate pollution abatement) 

and 115 (relating to international pollution abatement). 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 there 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) requires states to provide for 

adequate personnel, funding, and legal authority under state law to carry out its SIP and related 

programs. It also requires compliance with state board composition and conflicts of interest contained in 

section 128 of the Act and requires assurances 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 included assurances in SIP revisions 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 local agencies. Local governments have their own 

responsibilities and privileges regarding 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, Subchapter A, General Requirements 
Page 17 of 34

Chapter 116 Control of Air Pollution by Permits for New Construction or Modification 

The TCEQ relies on the complete statutory 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 authority with SIP revisions submitted to the EPA. 

EPA analysis: Each SIP must show that the state has legal authority to carry out the plan (40 

CFR 51.230). Texas SIP revisions include 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 agency, with principal authority in the state on matters 

relating to the quality of air resources. In 1991, the Texas Legislature abolished the TACB and its 

powers, duties, responsibilities and functions were transferred to the Texas Natural Resource 

Conservation Commission (TNRCC). In 2001, the Texas Legislature changed the name of the TNRCC 

to the Texas Commission on Environmental Quality (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 the authorities approved 

into the SIP in 1981. The TCAA charges the Commission with preparing and developing the SIP (see 

THSC section 382.012), and provides the agency with “[...] powers necessary or convenient to carry out 

its responsibilities.” (ibid.) To address funding, the TCAA at section 382.0622 provides that “[t]he 

commission shall request the appropriation of sufficient money to safeguard the air resources of the 

state.” In addition, the first chapter of a Texas SIP revision10 typically addresses 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 detail below, in section II.11, regarding permitting fees (Section 

110(a)(2)(L)). The state also has authority to collect fees for vehicle 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 the air program, thus the amount 

of funding can vary widely from year to year. The section 105 funds support the foundation of the 

State’s air quality program, including the air monitoring network and annual (recurring) air quality 

program activities. The section 105 funding levels are relatively consistent, varying 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 government, 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 agency of the state given 

primary responsibility for implementing the constitution and laws of this state relating to the 

conservation of natural resources and the protection of the environment at 5.012; rules governing the 

authority of local governments are provided under THSC 382.111-115.The TCEQ does not relinquish its 

responsibilities to local governments. The TCEQ made a reference to 30 TAC 7 (Memoranda of 

Understanding) in its submittal, which serves to identify and clarify the roles of agencies with 

overlapping responsibilities. The MOU is discussed in detail in section II.1 above (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 consultation/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 section 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 derive any significant portion of their income from persons subject to 

permits or enforcement orders under this chapter, and (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 general public and 

their suitability and conduct are prescribed by the Texas Water Code (TWC). The state rules that address 

section 128 of the Act are found in the TWC, Title 2 (Water Administration), 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 Prohibition; and Subchapter D 

(General Powers and Duties of the Commission), §5.111: Standards of Conduct. In 1981, the EPA 

approved into the SIP the Standards of Conduct of State Officers and Employees (Texas Revised Civil 

Statute Annotated, Article 6252-9b) (46 FR 61124). The current TWC rules retain the standards of 

conduct for state officers and employees approved in 1981. 

Based upon review of the state's infrastructure SIP submission for the 2010 SO2 NAAQS, and 

relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in 

Texas’ SIP, EPA believes that the requirements 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 installation, maintenance and replacement of equipment, and the 

implementation of other necessary steps, by owners or operators of stationary sources to monitor 

emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and 

emissions-related data from such sources, and (iii) correlation of such reports by the State agency with 
Page 19 of 34

any emission limitations or standards established pursuant to this Act, which reports shall be available at 

reasonable times for public inspection. 

The State's response: The TCEQ requires monitoring for air pollutants as part of its NSR permit 

program. Certain emission sources are required to submit annual emission inventories and periodic 

reporting of emissions, which provides data that is used 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 rules 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 Visible Emissions and Particulate Matter 

Chap. 112 Control of Air Pollution from Sulfur Compounds 

Chap. 115 Control of Air Pollution from Volatile Organic Compounds 

Chap. 116 Control of Air Pollution by Permits for New Construction or Modification 

Chap. 117 Control of Air Pollution from Nitrogen Compounds 

EPA analysis: The TCAA provides the TCEQ with authority to require monitoring and recordkeeping 

at section 382.016. The authority to require the submittal 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 sampling, sampling procedures, emission monitoring and 

compliance demonstration, reporting, recordkeeping, 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 (AERR) on December 5, 2008, which modified the 

requirements for collecting and reporting air emissions 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 monoxide, 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 the general public through the website 

www.epa.gov/ttn/chief/eiinformation.html. 

Based upon review of the state's infrastructure SIP submission for the 2010 SO2 NAAQS, and 

relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in 

Texas’ SIP, EPA believes that the requirements of section 110(a)(2)(F) are met. 
Page 20 of 34

7. Emergency power: Section 110(a)(2)(G) requires states to provide for authority to address activities 

causing imminent and substantial endangerment to public health, including adequate contingency plans 

to implement the emergency episode provisions in their SIPs. 

The State's response: The TCEQ may issue emergency orders, or issue or suspend air permits as 

required by an air pollution emergency. In addition, the TCEQ also maintains air quality information in 

a form readily available to the public on the TCEQ’s Today's Texas Air Quality Forecast website 

(http://www.tceq.texas.gov/compliance/monitoring/air/monops/forecast_today.html) 

The following chapters of 30 TAC contain rules relevant for this federal requirement: 

Chap. 35 Emergency and Temporary Orders and 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 formulate contingency plans for environmental emergencies, 

pursuant to TWC Chapter 5, Subchapter L, which provides for emergency and temporary orders, and 

TWC Chapter 7, which provides enforcement authority. Texas addresses Emergency and Temporary 

Orders at 30 TAC 3511 and Control of Air Pollution Episodes at 30 TAC 118. Provisions regarding 

control of air pollution episodes and the Texas emergency 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) and July 26, 2000 (65 FR 45915). The rules at 30 

TAC 118 include contingency plans and were approved into the Texas SIP at 65 FR 45915. 

EPA compared the State rules to 40 CFR 51 Subpart H – Prevention of Air Pollution Emergency 

Episodes and Appendix L to Part 51 - Example Regulations 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 following pollutants: Sulfur dioxide, particulate matter, 

carbon monoxide, nitrogen dioxide, and ozone (40 CFR 51.150). An area classified as a Priority I region 

for sulfur dioxide has ambient concentrations greater than 100 micrograms 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 concentrations greater 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 summarizes the classification for SO2. 

An area classified as a Priority I region for SO2 has ambient concentrations greater than 100 

micrograms per cubic meter (denoted μg/m3

) or 0.06 ppm for a 1-hour maximum. The Priority II regions 

for SO2 has ambient concentration between 60-100 μg/m3 (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/m3

 (0.10-0.17 ppm) 24-hour maximum; any concentration above 1,300 μg/m3 (0.50 ppm) threehour average. Areas that do not meet the criteria for Priority I or II above criteria are classified Priority 

III12. Table 2 below summarize the classification for SO2

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/m3 (0.04 ppm) 

annual arithmetic mean; 455 

μg/m3 (0.17 ppm) 24-hour 

maximum 

Ambient concentrations 

> 2.620 μg/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 SO2 NAAQS is 1.0 parts per million (ppm) 24-

hour average, as indicated in 40 CFR 51.151. EPA believes that the existing SO2-related provisions of 

40 CFR Subpart H are appropriate. Therefore, EPA expects that for purposes of the 2010 SO2 NAAQS, 

states need only to confirm that they have existing emergency episode plan provisions consistent with 

EPA’s existing regulatory requirements. 

The rules at 30 TAC 118 provide 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, and Appendix L to Part 

51. The state's rules at 30 TAC 118 are approved into the Texas SIP (65 FR45915). In addition, Subpart 

H at 51.153 provides for reevaluation of episode plans and requires that, “States should periodically 

reevaluate priority classifications of all Regions or portion of Regions within their borders. The 

reevaluation must consider the three most recent years of air quality data. If the evaluation indicates a 

change to a higher priority classification, 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 SO2 NAAQS. 

8. Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority 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 the SIP is substantially inadequate. 

The State’s response: “Texas regularly revises its SIP in response to revisions 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 the level of quality to be 

maintained in the State’s air and to control the quality 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 section 382.036 requires that the TCEQ “advise, consult, and cooperate 

with [...] the federal government.” Thus, Texas has the authority to revise its SIP 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 plans or plan revisions as specified 

in Part D of the CAA. 

The State's response: Texas indicated that the SIP revisions implement the control 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 promulgation 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 infrastructure SIP submissions to address 

subsection 110(a)(2)(I). Nonattainment area plans required under Part D are required to be submitted on 

a different schedule from the Section 110 infrastructure elements and will be reviewed and acted upon 

through a separate process governed by the requirements for nonattainment areas, 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 with 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 NAAQS 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 applicable requirements of Part C related to prevention of 

significant deterioration and visibility protection. 

The State's response: Texas has an established public participation process for all SIP revisions and 

permitting programs. The EPA has proposed limited approval/limited disapproval of the rules 

regarding public participation for air quality NSR permits.13 Texas has withdrawn from EPA 

consideration most of the rules that were the subject of the 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 published concerns regarding these requirements. The TCEQ consults 

with other state agencies, local agencies, and non- governmental organizations, as well as with the 

environmental agencies of other states regarding air 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 visibility 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 Orders 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 Construction or Modification 

EPA analysis: Regarding consultation with government officials, section 110(a)(2)(J) requires states 

to provide a process for consultation with local governments and Federal Land Managers carrying out 

NAAQS implementation requirements pursuant to section 121 of the Act, relating 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 subdivisions of the state, [...] other states, the federal government, and 

interested persons or groups concerning [...] air quality control.” In addition, as discussed in Sections 

II.1 and II.12 of this TSD, 30 TAC 7 provides for agreements with other agencies, to clarify areas of 

responsibility. Several MOUs have been approved into the Texas SIP14 including an MOU with 

TxDOT, described in Section II.1 of this TSD. We are proposing that the Texas SIP meets this portion 

of section 110(a)(2)(J). 

Regarding PSD and visibility protection: Section 110(a)(2)(J) requires States to meet 

applicable requirements of Part C related to prevention of significant deterioration and visibility 

protection. As detailed in Section II.3 in this TSD (addressing section 110(a)(2)(C)), the Texas PSD 

program. Texas included a reference 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 Texas SIP (see 42 FR 27894, 

June 1, 1977). 

EPA approved the Texas Visibility Protection 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 protection, 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, however, these visibility and regional haze program 

requirements do not change. Thus, we find that there is no new visibility obligation triggered under 

section 110(a)(2)(J) when a new NAAQS becomes effective. We are proposing that the Texas SIP 

meets the visibility portion of section 110(a)(2)(J). 

 

14 See footnote 16 
Page 24 of 34

11. Air quality modeling and submission of data: Section 110(a)(2)(K) requires that SIPs provide for 

performing air quality modeling to predict effects on air quality resulting 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 demonstrate 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 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions 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 SO2 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 reviewing, approving, implementing and enforcing a permit. 

The State's response: TCEQ assesses fees for reviewing permit applications and for enforcing the terms 

and conditions of permits. TCEQ referenced the following 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, Subchapter A, General Requirements 

Chapter 116 Control of Air Pollution by Permits for New Construction 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 address 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 schedule for permits by rule (PBR) and is approved in the Texas SIP 

(March 20, 2009, at 74 FR 11851). Section 106.50 directs PBR applicants to submit $100 if classified as 

a small business, municipality, county, or independent school district with a population of 10,000 or 

fewer residents. All other entities 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 federally enforceable emissions limits under section 106.6 
Page 25 of 34

or for remediation projects conducted under section 106.533. 30 TAC 116 addresses permitting for new 

construction or modification, and associated fees. The sections in the Texas SIP that address fees are 

listed in Table 3 below. 

Table 3: Texas rules relevant to meeting section 110(a)(2)(L):

Relevant Section of the Texas SIP EPA Approval/FR Citation

30 TAC 106.50 Registration Fees for 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 participation 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 state and local agencies and organizations. 

Consultation with a variety of different organizations is a regular part of TCEQ’s process of 

developing SIP revisions.” 

EPA analysis: Based upon review of the state's infrastructure SIP submission for the 2010 SO2

NAAQS, and relevant statutory and regulatory authorities and provisions 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 SO2 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 separate action we proposed to disapprove the portion of the Texas SO2 i-SIP 

for CAA section 110(a)(2)(D)(i)(II) 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 SIP submittal when a guidance is issued with respect 

to this section of the CAA. 
Page 26 of 34

We recommend approval of the Texas infrastructure 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 Section 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 officials: Section 110(a)(2)(J) 

Public notification: Section 110(a)(2)(J) 

PSD and visibility protection: Section 110(a)(2)(J) 

Air quality and modeling/data: Section 110(a)(2)(K) 

Permitting fees: Section 110(a)(2)(L) 

Consultation/participation by affected local entities: Section 110(a)(2)(M) 

V. References 

1. 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 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 O3 and 2010 NO2 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 “within 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 submissions are to provide for the “implementation, 

maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make 

these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA’s 

taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of 

specific elements that “[e]ach such plan” submission must address. 

EPA has historically referred to these SIP submissions 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 satisfy other SIP requirements 

under the CAA, such as “nonattainment SIP” or “attainment 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 requirements of CAA section 169A, and 

nonattainment new source review permit program submissions to address the permit requirements of 

CAA, title I, part D. 

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and 

section 110(a)(2) provides more details concerning the required contents of these submissions. The list 

of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some 

of which pertain to required legal authority, some of which pertain to required substantive program 

provisions, and some of which pertain 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 submissions provided in section 110(a)(2) contains 

ambiguities concerning what is required for inclusion in an infrastructure SIP submission. 

 

15 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that 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 SIP 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 requirements therein, while EPA has long noted that this literal reading 

of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in 

part D of title I of the Act, which specifically address nonattainment SIP requirements.16 Section 

110(a)(2)(I) pertains to nonattainment 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 plans for certain pollutants when the Administrator 

promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two 

years, or in some cases three years, for 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 section 110(a)(2) are applicable for a particular 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 SIP submission in a single action. Although section 

110(a)(1) directs states to submit “a plan” to meet these 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 submissions either individually or in a larger combined 

action.18 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one 

larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on 

the entire submission. For example, EPA has sometimes 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 Transport 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 heightened 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 years 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 separately to meet the requirements of EPA’s 2008 PM2.5 NSR rule), and 

“Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for 

the 2006 PM2.5 NAAQS). 

19 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, 

made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed 
Page 29 of 34

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP 

submission requirements for different NAAQS. Thus, EPA notes that not every element of section 

110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised 

NAAQS. The states’ attendant infrastructure SIP submissions for 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) could be very different for different pollutants, for 

example because the content and scope of a state’s infrastructure SIP submission to meet this element 

might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.20 

EPA notes that interpretation of section 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 logically 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 the “applicable requirements” of section 110(a)(2). Thus, for example, 

attainment plan SIP submissions must meet the requirements of section 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 the PSD program required in 

part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated 

nonattainment and thus subject to part D planning requirements. 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 section 110(a)(1) and section 

110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) 

and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA 

assumes that Congress could not have intended that 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 submissions against the list of elements in section 110(a)(2), but only 

to the extent each element applies for that particular NAAQS. 

Historically, EPA has elected to use guidance documents to make recommendations to states for 

infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some 

cases conveying interpretations that have already been developed 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 SIP elements of Tennessee’s December 14, 2007 submittal. 20 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure 

ambient levels of that new indicator 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 submissions to meet basic structural SIP requirements 

within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about 

many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP 

submissions.23 The guidance also discusses the substantively important issues that are germane to certain 

subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, 

EPA reviews each infrastructure SIP submission for compliance 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 section 110(a)(2) for infrastructure SIP 

submissions. Under this element, a state must meet the substantive requirements of section 128, which 

pertain to state boards that approve permits or enforcement 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 section 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 statutory requirements, depending on the structure 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 EPA’s evaluation of infrastructure 

SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state 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) focuses upon the structural PSD program 

requirements contained in part C and EPA’s PSD regulations. Structural PSD program requirements 

include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, 

including GHGs. By contrast, structural PSD program requirements do not include 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 submission 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 shortly after the U.S. Supreme Court 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 uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on 

the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether 

EPA elects to provide guidance 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 PM2.5 NAAQS. Accordingly, the latter optional provisions are types 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 basic 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 the pollutants relevant to that NAAQS. In the context of acting on an 

infrastructure SIP submission, however, EPA does not think 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 EPA’s regulations that pertain to such programs. 

With respect to certain other issues, EPA does not believe that an action on a state’s infrastructure SIP 

submission is necessarily the appropriate type of action in which to address possible deficiencies in a 

state’s existing SIP. These issues include: (i) existing 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 contrary 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 approve 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 infrastructure SIP submission should not be 

construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to 

the three specific issues just described. 

EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements that are 

logically applicable to that submission. EPA believes that this approach to the review of a particular 

infrastructure SIP submission is appropriate, 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 existing SIP against all requirements in the CAA and EPA regulations 

merely for purposes of assuring that the state in question has the basic structural elements for a 

functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades 

as statutory and regulatory requirements 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 purposes of “implementation, maintenance, and 

enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 

submission. EPA believes that a better approach is for states and EPA to focus attention on those 

elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the 

promulgation of a new or revised NAAQS or other factors. 

For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon monoxide 

than other NAAQS pollutants to meet the visibility requirements 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 deficiencies in existing SIPs. These other statutory tools 

allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged 

SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines 

that a state’s SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate 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 appropriate 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 the 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 actions 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). 
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Appendix B 

EPA’s Evaluation of the June 23, 2014 United States 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 state to make an infrastructure SIP submission for a new or revised 

NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the 

current requirements for all regulated NSR pollutants. The requirements of Section 110(a)(2)(D)(i)(II) 

may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly 

addressing all regulated NSR pollutants. Texas has shown 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 issued 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 said that the EPA may not treat GHGs as an air 

pollutant for purposes of determining whether a source is a major source required to obtain a PSD 

permit. The Court also said that the EPA could continue 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 Control Technology (BACT). In order to act consistently with its 

understanding of the Court’s decision pending further judicial action to effectuate the decision, the EPA 

is not continuing to apply EPA regulations that would require that SIPs include permitting requirements 

that the Supreme Court found impermissible. Specifically, 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 will revise their existing 

SIP-approved PSD programs in light of the Supreme 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 additional legal process before the United States Court of Appeals for the 

District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD 

programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to 

assure that the state’s program correctly addresses GHGs consistent with the Supreme Court’s decision. 

EPA has previously approved Texas SIP revisions submitted 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 Sections 110(a)(2)(C), (D)(i)(II), and (J) with respect 

to GHGs because the PSD permitting program previously approved by EPA into the SIP continues 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 BACT. Although the approved Texas 
Page 34 of 34

PSD permitting program may currently contain provisions that are no longer necessary in light of the 

Supreme Court decision, this does not 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 those requirements is not impeded 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’ infrastructure SIP as to the requirements of 

the infrastructure elements of Sections 110(a)(2)(C), (D)(i)(II), and (J).