Texas State Implementation Plan Elements 

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

2008 Ozone (O3) and 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality 

Standards (NAAQS) 

Docket ID EPA-R06-OAR-2012-0953 

Technical Support Document 

December 2015 

Table of Contents: 

I. Introduction 

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

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 2008 Ozone and 2010 Nitrogen 

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’s infrastructure SIP reviews. 

I. Introduction 

In this technical support document (TSD), EPA is providing additional documentation 

concerning our evaluation of the submittal provided by the Texas Commission on Environmental 

Quality (TCEQ) to meet the requirements of sections 110(a)(1) and (2) of the Federal Clean Air 

Act (CAA or Act) for the 2008 national ambient air quality standards (NAAQS or standards) for 

ozone (O3) and the 2010 NAAQS for nitrogen dioxide (NO2). More detail on these standards, 

section 110(a)(1) and (2) of the Act, and the submittals 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, State 

Implementation Plans (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. 
Page 2 of 19

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

On April 30, 1971, we published the first NAAQS for ozone (36 FR 8186). Both the 

primary (to protect the health) and secondary (to protect public welfare) standards were set at 

0.08 parts per million (ppm) with total photochemical oxidants as the indicator. These standards 

were reviewed in 1979, 1993, 1997 and 2008, becoming more stringent every time except in 

1993. Following the 2008 evaluation, EPA published a revised, more stringent NAAQS of 0.075 

ppm for both the primary and secondary standards (73 FR 16483, March 27, 2008). For more 

information on these standards, please see the EPA web site on the ozone NAAQS1

 and its 

history.2 

As with O3, the first NAAQS for nitrogen dioxide were published on April 30, 1971 (36 

FR 8186). Both the primary and secondary standards were set at 53 parts per billion (ppb). These 

standards were reviewed in 1985, 1996, and 2010. Following the 2010 evaluation, EPA 

published a revision to the primary NO2 NAAQS in order to provide greater protection of public 

health. Specifically, EPA established a new 1-hour standard at a level of 100 ppb, based on the 3 

year average of the 98th percentile of the yearly distribution of 1-hour daily maximum 

concentrations, to supplement the existing annual standard (75 FR 6474, February 9, 2010). For 

more information on these standards, please see the EPA web site on the nitrogen dioxide 

NAAQS3

 and its history4. 

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 O3 

and NO2 NAAQS was established in Section 109 (d)(1) of the CAA, which requires that “not 

later than December 31, 1980, and at 5-year interval 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”. 

For both the 2008 O3 and 2010 NO2 NAAQSs, 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 2008 O3 and 2010 NO2 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 NAAQS5

. 

On December 13, 2012, and December 7, 2012 the TCEQ Chairman submitted letters 

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 2008 O3 and 2010 NO2 NAAQS. The submittals 

includes a table with an explanation of how the current Texas SIP meets the requirements of each 

 

1

 http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html. 

2

 http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_history.html. 

3

 http://epa.gov/ttn/naaqs/standards/nox/s_nox_index.html. 

4

http://epa.gov/ttn/naaqs/standards/nox/s_nox_history.html. 

5

 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 

110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013. 
Page 3 of 19

applicable element of section 110(a)(2) for the 2008 O3 and 2010 NO2 NAAQS. This TSD 

provides additional details of Texas’s certification and EPA’s evaluation that are not included in 

the official Federal Register notice for this action. 

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 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). 
Page 4 of 19

III. SIP elements required under Section 110(a)(2) for the 2008 Ozone and 2010 Nitrogen 

Dioxide NAAQS, the State’s submittals and EPA’s analysis 

 The Federally approved SIP for each state is listed in 40 CFR 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 23116. 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.7

 In the following sections of this document we provide additional information, not 

included in the Federal Register notice for this action, which we considered in performing our 

evaluation of Texas’s infrastructure SIP submittals for the 2008 O3 and 2010 NO2 NAAQS. 

Where it is useful, we include tables showing the date that the applicable state rules were 

approved by EPA into the Texas 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 necessary or appropriate to meet the 

requirements of this chapter. 

 

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 Texas Clean Air Act (TCAA) 

and those provisions of the Texas Administrative Code (TAC) Title 30- listed in 40 CFR Part 52 

Subpart SS. The TCEQ has promulgated rules to implement and enforce the NAAQS and other 

air quality standards. These rules include programs for banking and trading of emissions, as well 

as permits and fees. Periodic revisions to the SIP establish timetables and schedules for 

improving the air quality in nonattainment areas. 

The following chapters of 30 Texas Administrative Code (TAC) contain rules relevant for this 

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 

 

6

 http://www.ecfr.gov/cgi-bin/textidx?SID=c309cfdf45f54d332df3d77e79cc9928&mc=true&node=sp40.5.52.ss&rgn=div6. 

7

 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble. 
Page 5 of 19

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. 

The EPA reads this language to require even these other means of achieving reductions to be 

enforceable.8

 

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 116 addresses control of air pollution by permits for new 

construction or modification of existing sources in attainment and nonattainment areas. 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. 

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 

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 

 

8

 See 57 FR 13498, beginning on p. 13556. 
Page 6 of 19

Section of SIP Referenced in Texas’ Submittal EPA Approval/FR Citation

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 

SC F: Miscellaneous Industrial Sources 

SC G: Consumer-Related Sources 

SC H: Highly-Reactive VOCs 

C J: Administrative Provisions 

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, 

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.9

 We reviewed the Texas SIP and found state rules adequate to implement and 

enforce the 2008 O3 and 2010 NO2 NAAQS, and limit or reduce emissions of O3 and NO2. The 

Texas SIP meets the requirements of section 110(a)(2)(A). 

 

9

 See 57 FR 13498, beginning on p. 13556. 
Page 7 of 19

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 the TCEQ maintains a network of air 

quality monitors 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 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 rules at 30 TAC Chapters 101, 106, 111, 112, and 115 - 117 address air 

monitoring requirements pursuant to 40 CFR Part 58. 

As noted in the Federal Register notice for this proposed action, our analysis included 

review of Texas’s recurrent 5-year ambient monitoring network assessment submitted in June 

201010 and Texas’s annual ambient monitoring network review submitted in July 2014. Copies 

of these documents and EPA’s response are available in the docket for this rulemaking. 

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 O3 and NO2 monitoring networks 

comply with the requirements of 40 CFR Part 58 

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 a program providing for enforcement of the measures described in subparagraph (A), and 

the regulation of the modification and construction of any stationary sources within the areas 

covered by the SIP as necessary to assure that the NAAQS are achieved, including a permit 

program as required in parts C and D. 

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 that is 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. 39 Public Notice 

Chap. 55 Requests for Reconsideration and Contested Case Hearings; Public Notice 

 

10 TCEQ submitted the 2015 5-year ambient monitoring network assessment and annual ambient monitoring 

network review on June 30, 2015. EPA is currently reviewing these submittals. 
Page 8 of 19

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 

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 major11 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-construction12 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 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 nonattainment 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. 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 

 

11 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. 

12 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 9 of 19

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 2008 O3

and 2010 NO2 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 EPAapproved 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) is also divided into two components. 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. Section 110(a)(2)(D)(i)(II) 

requires SIPs to include provisions prohibiting any sources or other types 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. 

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 EPA interprets section 110(a)(2) to require air agencies to address all of the above as 

part of each infrastructure SIP submission. 

The State's response: 

 Nitrogen Dioxide: 

 The i- SIP submittal included an interstate transport technical analysis to address the 

requirements of 110(a)(2)(D)(i)(I). This full analysis is included in Section VI: Control Strategy

of a document titled TX NO2 i-SIP Submittal in the Docket for this action. 

 In summary, the analysis found that there are some days where air is transported from 

Texas to areas in neighboring states that have monitors. However, the reactivity of NO2 coupled 

with the distance from major Texas areas of NO2 emissions make it highly unlikely that Texas 

NO2 emissions significantly impact other states. In fact, EPA has found that peak NO2

concentrations are found on roadways. The concentrations decrease rapidly with distance from 

roads. Finally, states surrounding Texas are measuring attainment of the NO2 NAAQS; therefore, 
Page 10 of 19

Texas sources are not contributing to an exceedance or interfering with maintenance of the 

NAAQS in neighboring states. 

 With respect to 110(a)(2)(D)(i)(II), Texas has a SIP-approved PSD and nonattainment 

new source review (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 

submitted a Regional Haze SIP revision to the EPA on March 19, 2009. The EPA published a 

limited disapproval of the Texas Regional Haze SIP revision addressing the requirements of 40 

CFR §51.308(d)(3) and §51.308(e) with respect to emissions of nitrogen oxides and sulfur 

dioxide from electric generating units in the June 7, 2012, Federal Register. The EPA’s limited 

disapproval was based on the fact that Texas relied on the Clean Air Interstate Rule (CAIR) in its 

Regional Haze SIP, as allowed by the EPA at the time the SIP was submitted. The EPA’s 

disapproval was based on the replacement of CAIR by the Cross State Air Pollution Rule 

(CSAPR). On August 21, 2012, the United States Court of Appeals for the District of Columbia 

vacated CSAPR and directed the EPA to continue to administer CAIR while it works on a 

replacement rule for interstate transport. Regional haze program requirements include progress 

reports due to the EPA in 2014 and every five years thereafter, to demonstrate progress toward 

the visibility goal. Another Regional Haze SIP is due in 2018 and every 10 years thereafter, 

through 2064. 

The TCEQ submittal did not address 110(a)(2)(D)(ii). EPA’s comments are below. 

The following chapter of 30 TAC contains rules relevant for this federal requirement: 

Chap. 101 General Air Quality Rules 

Chap. 122 Subchapter E, Division 2, Clean Air Interstate Rule 

Ozone 

 As above, the i- SIP submittal included an interstate transport technical analysis to 

address the requirements of 110(a)(2)(D)(i)(I). This full analysis is included in Section VI: 

Control Strategy of a document titled TX O3 i-SIP Submittal in the Docket for this action. These 

items will be addressed in a separate federal register notice dedicated to 110 (a)(2)(D)(i)(I) and 

Texas ozone. 

 With respect to 110(a)(2)(D)(i)(II), Texas’ PSD and nonattainment new source review 

(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. 

Chap. 101 General Air Quality Rules 

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. 122 Subchapter E, Division 2, Clean Air Interstate Rule 

The TCEQ submittal did not address 110(a)(2)(D)(ii). EPA’s comments are below. 

EPA analysis: 

 Nitrogen Dioxide 

 The Texas i-SIP submittal discussed the requirements of CAA section 110(a)(2)(D). EPA is 

proposing to approve CAA section 110(a)(2)(D)(i)(I) and the PSD portion of section 

110(a)(2)(D)(i)(II). In a separate action we proposed to disapprove the portion of the Texas NO2

i-SIP for CAA section 110(a)(2)(D)(i)(II) regarding visibility protection (79 FR 74818, 
Page 11 of 19

December 16, 2014). EPA will take action on the CAA section 110(a)(2)(D)(i)(II) portion of the 

Texas NO2 i-SIP in future rulemaking. 

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 NO2 i-SIP pertaining to CAA section 110(a)(2)(D)(ii). 

Ozone 

 The Texas i-SIP submittal discussed the requirements of CAA section 110(a)(2)(D). EPA 

will be addressing section 110(a)(D)(i)(I) in a separate action. EPA is proposing to approve the 

PSD portion of CAA section 110(a)(2)(D)(i)(II). In a separate action we proposed to disapprove 

the portion of the Texas O3 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 O3 i-SIP in future rulemaking. 

 For the same reasons stated above, EPA proposes to approve the O3 i-SIP pertaining to 

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: 

With regards to section 110(a)(2)(E)(i), which pertains to adequate personnel, funding, and 

authority, 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. TCEQ has various 
Page 12 of 19

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 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. 

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 TCEQ. The TCAA is now codified under the Texas Health 

and Safety Code (THSC), Chapter 382. The current version of the TCAA, which pertains to 

TCEQ, is codified under the THSC, and retains the authorities approved into the SIP in 1981. 

The TCAA charges TCEQ 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 revision13 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. 

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). 

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% 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 TCEQ is the 

agency of the state given primary responsibility for implementing the constitution and laws of 

 

13 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 13 of 19

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. 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). 

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 TCEQ commissioners 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 2008 O3 and 2010 

NO2 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 any emission limitations or standards established pursuant to the 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 
Page 14 of 19

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 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 2008 O3 and 2010 

NO2 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. 

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: TCEQ may issue emergency orders, or issue or suspend air permits as 

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

in a form readily available to the public on TCEQ's Today's Texas Air Quality Forecast Web site 

(http://www.tceq. texas.gov/airquality/monops.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: 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 3514 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). 

 

14 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 30 TAC 35 in a separate rulemaking. 
Page 15 of 19

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 ozone has ambient concentrations greater 

than 195 micrograms per cubic meter (denoted μg/m3) or 0.10 ppm for a 1-hour maximum. The 

regulations do not establish Priority II regions for ozone or nitrogen dioxide. Areas that do not 

meet the criteria for Priority I or II are classified Priority III. Table 2 below summarizes the 

classification for ozone and NO2. 

Table 6: Classification of Regions for Episode Plans for Ozone and Nitrogen Dioxide 

(40 CFR 51.150) 

Parameter Priority I Priority II Priority III 

Ozone Ambient concentrations 

> 195 μg/m3

 (0.10 ppm) 

1-hour maximum 

Not defined Areas which do not meet 

the criteria for Priority I 

Nitrogen 

Dioxide 

Ambient concentrations 

> 100 μg/m3

 (0.06 ppm) 

Annual arithmetic mean 

Not defined. Areas which do not meet 

the criteria for Priority I 

The significant harm level (SHL) for the 8-hour ozone NAAQS will remain unchanged as 

0.6 parts per million (ppm) ozone, 2-hour average, as indicated in 40 CFR 51.151. EPA believes 

that the existing ozone-related provisions of 40 CFR Subpart H remain appropriate. Therefore, 

EPA expects that for purposes of the 2008 8-hour ozone NAAQS, states need only to confirm 

that they have existing emergency episode plan provisions consistent with EPA’s existing 

regulatory requirements. 

 The SHL for the 1 hour average NO2 NAAQS will remain unchanged as 2 ppm, 24-hour 

average will remain 0.5 ppm as indicated in 40 CFR 51 

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 these Texas SIPs meet the requirements of 

section 110(a)(2)(G) for the 2008 8-hour ozone and the 2010 NO2 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: The TCEQ regularly revises the Texas SIP in response to revisions in the 

NAAQS and the EPA rules. See §110(a)(2)(A) above. 
Page 16 of 19

EPA analysis: As stated above, the TCAA authorizes TCEQ to establish 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 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: SIP revisions that implement the control strategies necessary to bring a 

nonattainment area into attainment of the NAAQS are not required by the 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. 

10. Consultation, public notice, and PSD and visibility protection: Section 110(a)(2)(J) is 

divided into three components: consultation with government officials, public notification 

requirements, and provisions for PSD and visibility protection. With regards to consultation with 

government officials, this section requires states to provide a process for consultation with local 

governments and Federal Land Managers (FLMs) 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 PSD and visibility protection. 

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

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

regarding public participation for air quality NSR permits. 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 EPA as a new SIP 

revision to address EPA's published concerns regarding these requirements. On October 28, 

2010, EPA signed a notice withdrawing its limited approval/limited disapproval of the SIP 

revisions relating to public participation because those revisions are no longer before EPA for 

review (75 FR 68291). TCEQ consults with other state agencies, local agencies, and 

nongovernmental organizations, as well as with the environmental agencies of other states 

regarding air quality concerns. All major sources in attainment/unclassifiable areas in Texas are 

subject to Texas' SIP-approved PSD program. Texas submitted a SIP revision to address 

Regional Haze, including a long-term strategy to address visibility impairment for each Class I 

area that may be impacted by emissions from Texas facilities. 
Page 17 of 19

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

Chap.7 Memoranda of Understanding 

Chap.35 Emergency and Temporary Orders and Permits; Temporary Suspension or 

Amendment of Permit Conditions; Subchapters H and K 

Chap.101 General Air Quality Rules 

Chap.116 Control of Air Pollution 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 SIP15 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 PSD and visibility protection, as detailed in 

Section II.3 in this TSD (addressing section 110(a)(2)(C)). 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 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 new 

NAAQS becomes effective. We are proposing that the Texas SIP satisfies the requirements 

of section 110(a)(2)(J) for the 2008 O3 and 2010 NO2 NAAQS. 

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 NAAQS. 

Modeling is also a part of the NSR permitting program. 

The following chapter of 30 TAC contains rules relevant for this federal requirement: 

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

 

15 See footnote 16. 
Page 18 of 19

EPA analysis: Based upon review of the state's infrastructure SIP submissions for the 2008 O3

and 2010 NO2 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 2008 O3 and 2010 NO2

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. 

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

Chap. 12 Payment of Fees 

Chap. 101 General Air Quality Rules 

Chap.106 Permits by Rule, Subchapter A, General Requirements 

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

EPA analysis: The TCAA authorizes and requires 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 (THSC 328.0621). Based upon 

review of the state's infrastructure SIP submissions for the 2008 O3 and 2010 NO2 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)(L) for the 2008 O3 and 2010 NO2 NAAQS. 

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: TCEQ has several cooperative agreements and Memoranda of 

Understanding 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 submissions for the 2008 O3

and 2010 NO2 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)(M) for the 2008 O3 and 2010 NO2

NAAQS. 

IV. EPA’s Recommendation

We reviewed Texas’s submittal, SIP, and recent air quality data for both ozone and 

nitrogen dioxide for compliance with the requirements of sections 110(a)(1) and (2) of the Act 

for the 2008 O3 and 2010 NO2 NAAQS. Based on these evaluations, we recommend that EPA 

propose to approve the submittal provided by the State of Texas, except for the portions 

pertaining to CAA section 110(a)(2)(D)(i)(I) for ozone and the interstate visibility protection part 

of CAA section 110(a)(2)(D)(i)(II) for both ozone and NO2. The submittal adequately addresses 
Page 19 of 19

the infrastructure elements specified in the CAA section 110(a)(2) that are necessary to 

implement, maintain, and enforce the 2008 ozone and 2010 NO2 NAAQS. 

We recommend approval of the Texas infrastructure SIP for the 2008 Ozone and 2010 

Nitrogen 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) 

Interstate Pollution Abatement and Section 110(a)(2)(D)(ii) 

 International Air Pollution 

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) 

We recommend partial approval of the Texas infrastructure SIP for the 2008 Ozone and 

2010 Nitrogen dioxide NAAQS for the following elements: 

Interstate Pollution Transport: Section 110(a)(2)(D)(i)(I) (NO2 only) 

Section 110(a)(2)(D)(i)(II) (PSD only for both O3 and NO2)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