Texas State Implementa tion Plan Elements Required Under Section 110(a)(2) for the 2008 Ozone (O 3 ) and 2010 Nitrogen Dioxide (NO 2 ) 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 subm ittals and EPA’s analysis

IV. Recommendations

V. References Appendix A: EPA’s Approach to the Revi ew of Infrastructure SIP Submissions Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on greenhouse gas emissions on Texas’s infrastructure SIP reviews.

I. Introduction

In this technical support document (TSD), EPA is providing addi tional documentation concerning our evaluation of the submittal prov ided by the Texas Commission on Environmental Quality (TCEQ) to meet the requirements of se ctions 110(a)(1) and (2) of the Federal Clean Air Act (CAA or Act) for the 2008 national ambient ai r quality standards (NAAQS or standards) for ozone (O 3 ) and the 2010 NAAQS for nitrogen dioxide (NO 2 ). More detail on these standards, section 110(a)(1) and (2) of the Act, and the su bmittals 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 additiona l background material on the NAAQS, State Implementation Plans (SIPs), and related issues. Section III of this TSD provides a descripti on of each element required under section 110(a)(2) of the Act, the State’s response, and ad ditional details of our an alysis of the State’s response that are not included in the Federal Register notice for this propo sed action. Copies of the State’s submittal are in the docket for this rulemaking.

Section IV of this TSD includes our recomm endation for action on each of the elements

reviewed herein.

Section V of the TSD contains a list of th e guidance documents cited herein. Copies of the guidance documents referenced ar e in the docket for this rulemaking. Appendices A and B provide additional info rmation 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 h ealth) 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 st andards (73 FR 16483, March 27, 2008). For more information on these standards, please see the EPA web site on the ozone NAAQS 1 and its history. 2

As with O 3 , the first NAAQS for nitrogen dioxide were published on April 30, 1971 (36 FR 8186). Both the primary and secondary standard s 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 NO 2 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 98 th percentile of the yearly dist ribution of 1-hour daily maximum concentrations, to supplement the existing annu al standard (75 FR 6474, February 9, 2010). For more information on these standards, please s ee the EPA web site on the nitrogen dioxide NAAQS 3 and its history 4

. 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 y ears following the promulgation of the NAAQS, or within such shorter period as EPA may prescr ibe. Section 110(a)(2) lists the specific infrastructure elements that must be incorporated into the SIPs, incl uding for example, requirements for air pollution control measures, which are designed to assure attainment and main tenance 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. Th e schedule for completion of EPA’ s periodic review of both O 3 and NO 2 NAAQS was established in Section 109 (d)(1 ) of the CAA, which requires that “not later than December 31, 1980, and at 5-year inte rval thereafter, the EPA shall complete a thorough review of the criteria published under section 108 and th e national ambient air quality standards, “... and shall make such revisions in such criteria and standa rds and promulgate such new standards as may be appropriate in accordance with section 108”.

For both the 2008 O 3 and 2010 NO 2 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 secti on 110(a)(1), states have to review and revise, as appropriate, their existing SIPs to ensure that they are adequate to address

the 2008 O 3 and 2010 NO 2 NAAQSs. To assist states in mee ting this statutory requirement, EPA issued guidance on September 13, 2013, addressing th e infrastructure SIP elements required under sections 110(a)(1) and (2) for most the NAAQS 5

. 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 O 3 and 2010 NO 2 NAAQS. The submittals includes a table with an explana tion of how the current Texas SI P 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 sec tion 110(a)(2) for the 2008 O 3 and 2010 NO 2 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 es tablish NAAQS for pollutants that “may reasonably be anticipated to endanger public heal th and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary st andard is designed to protect human health with an adequate margin of safety, and the sec ondary standard is design ed 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, ni trogen dioxide, ozone, particulate matter, and sulfur dioxide. These sta ndards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Additionally, these standards provide information to re sidents of the United States about the quality of the air in their

communities.

B. What is a SIP? A State Implementation Plan, or SIP, is a se t of state statutes, ai r pollution regulations, control strategies, other means or techniques, an d technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 1 10 and other provisions of the Act. These SIPs can be extensive, c ontaining state regulations or other enforceable documents and supporting information such as em issions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and cont rol strategies to EPA for approval and incorporation into the federall y enforceable SIP. Each federally approved SIP protects air quality primarily by addressi ng 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 in tegral 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 provisi ons 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 re quiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing pr ovisions for minor source NSR programs that may be inconsistent with the requ irements 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 requireme nts 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 author ity to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why thes e four substantive issues are not part of the scope of infrastructure SI P rulemakings can be found in EPA’s July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour ozone and PM 2.5 National Ambient Air Quality Standards” in the sect ion 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 subm ittals and EPA’s analysis

The Federally approved SIP for each state is listed in 40 CFR 52. Th e “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, S ubpart SS, sections 2270 to 2311 6 . The Identification of plan for Texas is in section 2270; this c onstitutes 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 th at a SIP must contain in order to be fully approved. 7 In the following sections of this docum ent 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 O 3 and 2010 NO 2 NAAQS. Where it is useful, we include tables showing th e 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 Stat e of Texas indicates that Texas’ enforceable

emission limitations and other control measures are covered in the Texa s 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 ru les include programs for banking a nd trading of emissions, as well as permits and fees. Periodic revisions to th e 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 Vi sible Emissions and Particulate Matter Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 113 Standards of Performance for H azardous Air Pollutants and for Designated

Facilities and Pollutants Chap. 114 Control of Air Pollution from Motor Vehicles Chap. 115 Control of Air Polluti on from Volatile Organic Compounds Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds Chap. 118 Control of Air Pollution Episodes

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 incen tives, 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 met hods in Subchapter A (General Rules); and provides for control techniques and compliance timeframes in Subchapters F (Emissions Events and Scheduled Maintenance, Startup, and S hutdown Activities) and H (Emissions Banking and Trading). 30 TAC 106 addresses general and specific re quirements for permits by rule, including enforceable emission limits, control met hods and compliance timeframes. 30 TAC 111 provides control of air pollution from visible emissions and PM, and includes requirements for specified sources, alternate opacity lim itations, emission limits, control methods, and compliance timeframes. 30 TAC 116 addresses control of air polluti on by permits for new construction or modification of existing sour ces 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 enfo rceable by the State and EPA, and US citizens are offered legal recourse to address violati ons 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

3 0 TAC 101, Subchapter H, Divisions: 1: Emission Credit Banking and Trading

3 : Mass Emissions Cap and Trade Program

4 : Discrete Emission Credit Banking and Trading

6 : Highly-Reactive VOC Emissions Cap and Trade

P rogra m 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

3 0 TAC 106, Subchapter A: General Requirements November 14, 2003 at 68 FR 64548

3 0 TAC 111, Subchapter A, Divisions:

1: Visible Emissions

2 : Incineration

4 : Materials Handling, Construction, Roads, Streets,

A lleys, and Parking Lots

5 : Emission Limits on Nonagricultural Processes

A nd Rule 105.2: Ground Level Concentrations

6 : Emission Limits on Agricultural Processes

3 0 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

3 0 TAC 114, Subchapter C: Divisions: 1: Vehicle Inspection and Maintenance (I/M)

3 : I/M for Early Action Compact Counties Subchapter K:

M obile Source Incentive Progr ams Division 3: Diesel

E mission Reduction Incentive Program for On-road and

N on-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

3 0 TAC 115, SC A: Definitions

SC B: General VOC Sources

SC C: VOC Transfer Operations

SC D: Petroleu m Refining, Natural Gas Processing,

and Petrochemical Processes

SC E: Solven t -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

3 0 TAC 117 – Subchapters A-H SC A, F, G: Dec 3, 2008 at 73 FR 73562 SC C, E, H: Dec 3, 2008 at 73 FR 73562, January 14,
2009 at 74 FR 1927 SC B, D: Dec 3, 2008 at 73 FR 73562, January 14, 2009 at 74 FR 1927 and July 31, 2009 at 74 FR 38102

C hapter 118 July 26, 2000 at 65 FR 45915

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

be enforceable. 9 We reviewed the Texas SIP and found st ate rules adequate to implement and

enforce the 2008 O 3 and 2010 NO 2 NAAQS, and limit or reduce emissions of O 3 and NO 2 . The Texas SIP meets the requiremen ts of section 110(a)(2)(A).

9 See 57 FR 13498, beginning on p. 13556.Page 7 of 19 2. Ambient air quality monitori ng and data analysis system : Section 110(a)(2)(B) requires SIPs to include provisions for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon
request.

The State’s response: In its submittal, the TCEQ st ated that the TCEQ main tains 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 expl ains any proposed changes. Fe derally required monitoring is conducted under an EPA-approved Qualit y Assurance Project Plan (QAPP).

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

EPA analysis: The rules at 30 TAC Chapters 101, 106, 111, 112, and 115 - 117 address air monitoring requirements pur suant to 40 CFR Part 58. As noted in the Federal Regi ster notice for this proposed action, our analysis included review of Texas’s recurrent 5-year ambient monitoring network assessment submitted in June

2010 10 and Texas’s annual ambient monitoring netw ork review submitted in July 2014. Copies of these documents and EPA’s response are av ailable in the docket for this rulemaking. TCEQ provides verified monitori ng data from regulatory monito rs within the state to the EPA annually, and certified design va lues for areas of Texas are determined using only data from regulatory air quality monitors. TCEQ’s current and planned O 3 and NO 2 monitoring networks comply with the requirements of 40 CFR Part 58 We are proposing that the Texas SIP meets the requirements of s ection 110(a)(2)(B).

3. Program for enforcement of control measures : Section 110(a)(2)(C) requires states to include a program providing for enforcement of th e measures described in subparagraph (A), and the regulation of the modification and constructio n of any stationary sources within the areas covered by the SIP as necessary to assure th at the NAAQS are achieved, including a permit program as required in parts C and D.

The State's response: TCEQ has establishe d rules governing the enforcement of control measures, including attainment plans and perm itting 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 Polluti on from Volatile Organic Compounds Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds

EPA analysis: Enforcement of emissions i nventory requirements is provided under 30 TAC 101.10(f). Components related to enforcemen t addressed in 30 TAC 106, 112, 115 and 117 include allowable rates, compliance, control pl an requirements, actual and allowable emissions monitoring and testing requirements, and contro l schedules. These rules clarify the boundaries beyond which regulated entities in Texa s can expect enforcement action. New major stationary sources and major 11 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-construction 12 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 ar ea where the NAAQS are exceeded (nonattainment areas) or an area where the NAAQS have not be en exceeded (attainment and unclassifiable areas). In general, permits for sources in attain ment 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 re ferred to as the NSR program. The statutory and regulatory programs that re gulate 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 initia lly approved into the SIP on June 24, 1992 (57 FR 28093). Subsequent revisions to the PSD program were appr oved 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 wi th attainment or maintenance of a NAAQS or violate the control strategy in nonattainment ar eas. 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 incl ude a program in their SIP that regulates the

modification and construction of any stationary source as necessa ry 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 s ources and modification of exis ting sources and for preventing

construction or modification if it would result in violations of a pplicable portions of a control strategy or interfere with attainment or ma intenance 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 regu lations 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 con tinued to address minor sources and minor

modifications. There have been numerous revi sions 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 O 3 and 2010 NO 2 standards with respect to the genera l 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 su bmissions correct any de fects 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 flex ibility in designing minor NSR programs, and EPA believes it may be time to re visit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns , while assuring reasonable cons istency 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 component s, 110(a)(2)(D)(i) a nd 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) is also divided into tw o components. Section 110 (a)(2)(D)(i)(I) requires SIPs to address any emissions activity in one stat e that contributes signif icantly to nonattainment, or interferes with maintenance, of the NAAQ S in another state. S ection 110(a)(2)(D)(i)(II) requires SIPs to include provision s prohibiting any sources or other types of emissions activity in one state from interfering with measures requ ired of any other state to prevent significant deterioration of air quality or from interferi ng with measures required of any other state to protect visibility. Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensu ring compliance with sections 115 and 126 of the Act, relating to in terstate 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 fu ll analysis is included in Section VI: Control Strategy

of a document titled TX NO 2 i-SIP Submittal in the Docket for this action. In summary, the analysis found that there ar e some days where air is transported from Texas to areas in neighboring states that have monitors. However, the reactivity of NO 2 coupled with the distance from major Texas areas of NO 2 emissions make it highly unlikely that Texas

NO 2 emissions significantly impact other st ates. In fact, EPA has found that peak NO 2 concentrations are found on roadways. The concen trations decrease rapidly with distance from roads. Finally, states surrounding Texas are measuring attainment of the NO 2 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), Texa s 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 be ginning construction of a facility and before modifying an existing facility (see requirement s for §110(a)(2)(C) previo usly 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 SI P 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 genera ting 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 Cour t of Appeals for the District of Columbia

vacated CSAPR and directed the EPA to contin ue to administer CAIR while it works on a replacement rule for interstate transport. Re gional haze program requirements include progress reports due to the EPA in 2014 and every five y ears 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 rule s 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). Th is full analysis is in cluded in Section VI: Control Strategy of a document titled TX O 3 i-SIP Submittal in the Docket for this action. These items will be addressed in a separate federal re gister notice dedicated to 110 (a)(2)(D)(i)(I) and

Texas ozone. With respect to 110(a)(2)(D)(i)(II), Texa s’ PSD and nonattainment new source review (NSR) permitting program that cont ains 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 Pollu tion 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 se parate action we proposed to disapp rove the portion of the Texas NO 2 i-SIP for CAA section 110(a )(2)(D)(i)(II) regardin g visibility prot ection (79 FR 74818,Page 11 of 19 December 16, 2014). EPA will take action on the C AA section 110(a)(2)(D)(i)(II) portion of the

Texas NO 2 i-SIP in future rulemaking. Section 115 of the CAA authorizes EPA to requi re a state to revise its SIP under certain conditions to alleviate international transport in to another country. Texas has not received any notification or requests from EPA to address th e endangerment of public health or welfare in Texas under CAA section 115. Texas has the proper au thorizing and procedures in place to make revisions to its SIP when necessary to co rrect any endangerment in CAA section 115. Section 126 of the CAA requires that each propos ed new or modified major source notify neighboring state of potential imp acts from the source. The Texa s 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 provi ded for any permit subject to CAA, Title 1, Part C or D, or to Title 40 CFR Part 51.165(b). Furthermore, th e rules at 30 TAC 116.134 provide that the permit applicant shall furnish a copy of such notic es 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 modifi ed 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 Ac t provides that any state or po litical 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 Administ rator shall make such a finding or deny the petition. CAA section 110(a)(2)(D)(ii) re quires that the SIP contain adequate provisions insuring compliance with the applicable requirements of section 126 (relating to interstate pollution abatement) and 115 (relating to international po llution abatement). Texas meets the section 126 requirements as it has a fully approved PSD SI P and there are no other section 126 requirements for the State. Texas meets the section 115 requireme nts as there are no final findings by EPA that

Texas air emissions affect other countries. Theref ore, we propose to approve the portion of the

Texas NO 2 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 ac tion we proposed to disapprove the portion of the Texas O 3 i-SIP for CAA section 110(a)(2)( D)(i)(II) regarding visibility protection (79 FR 74818, December 16, 2014). EP A will take action on the CAA section 110(a)(2)(D)(i)(II) porti on of the Texas O 3 i-SIP in future rulemaking.

For the same reasons stated a bove, EPA proposes to approve the O 3 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 complian ce with state board comp osition 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 th e state relies upon local or regional government agencies.

The State’s response: With regards to section 110(a)(2)(E)(i), which pe rtains to adequate pe rsonnel, funding, and authority, TCEQ has consistently included assurances in SIP revisi ons that the State has adequate personnel, funding, and authority under state la w to carry out the SIP. TCEQ has variousPage 12 of 19 Memoranda of Understanding with other state and local agencies. Local governments have their own responsibilities and privileges regarding the protection of ai r quality as established by the Texas legislature. TCEQ relies on the complete statutory and regu latory authority that ensures that Texas can meet the requirements of this section, includi ng 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 s how that the state has legal aut hority to carry out the plan (40 CFR 51.230). Texas SIP revisions include a discussi on on legal authority, with reference to the TCAA. The TCAA was adopted in to 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, responsi bilities and functions we re transferred to the

Texas Natural Resource Conser vation 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 curren t version of the TCAA, which pertains to TCEQ, is codified under the THSC, and retains the authorities approve d 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 co nvenient to carry out its responsibilities.” (ibid.) To address funding, the TCAA at sec tion 382.0622 provides that “[t]he commission shall request the appropriation of suff icient money to safeguard the air resources of the state.” In addition, the first chapter of a Texas SIP revision 13 typically addresses fiscal and staff resources, usually at the end of the chapte r, with the following st atement, “The state has determined that its fiscal and manpower res ources are adequate and will not be adversely affected through the implementation of this pl an.” EPA conducts periodic program reviews to

ensure that the state has ade quate 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 fo r such, as well as for penalties and interest on

fees owed. These fees are discu ssed in detail below, in sectio n II.11, regarding permitting fees (Section 110(a)(2)(L)). The state al so has authority to collect fees for vehicle inspection and maintenance (I/M) programs in several nonattainm ent areas and in the Austin area under THSC

sections 382.202 and 382.302. These ru les 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, authori zed pursuant to sections 103 and 105 of the Act. The section 103 funds support specific, non-recu rring projects within the air program, thus the amount of funding can vary widely from ye ar to year. The secti on 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 sec tion 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 gove rnment, agency, or instrumentality for the implementation of any plan provision, the st ate has responsibility for ensuring adequate implementation of the SIP, codified at 40 CF R 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 conser vation of natural resources and th e protection of the environment at 5.012; rules governing the authority of lo cal governments are provided under THSC 382.111- 115.The TCEQ does not relinquish its responsibil ities 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 overlappi ng responsibilities. Th e 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 be low (regarding consultation/participation by affected local entiti es, pursuant to section 11 0(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 or ders 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 th eir suitability and conduc t 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 Memb ership; §5.054: Removal of Commission Members; §5.059: Conflict of In terest; §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 Standard s of Conduct of State Officers and Employees (Texas Revised Civil Statute Annotated, Ar ticle 6252-9b) (46 FR 61124). The current TWC

rules retain the standards of conduct for st ate officers and employees approved in 1981. Based upon review of the state's infras tructure SIP submission for the 2008 O 3 and 2010

NO 2 NAAQS, and relevant statutor y 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) th e installation, maintenance and replacement of equipment, and the implementation of other necessary steps, by owners or ope rators of stationary

sources to monitor emissions from such source s, (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 monitori ng 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, wh ich 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 al so available on the agency website.

The following chapters of 30 TAC contain rule s relevant for this federal requirement: Chap. 101 General Air Quality Rules Chap. 106 Permits by Rule, Subchapter A, General Requirements Chap. 111 Control of Air Pollution from Vi sible Emissions and Particulate Matter Chap. 112 Control of Air Pollution from Sulfur Compounds Chap. 115 Control of Air Polluti on from Volatile Organic CompoundsPage 14 of 19 Chap. 116 Control of Air Pollution by Perm its for New Construction or Modification Chap. 117 Control of Air Pollu tion from Nitrogen Compounds

EPA analysis: The TCAA provides TCEQ w ith 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 provid ed at section 382.014. 30 TAC Chapters 101, 106, 111, 112, and 115 - 117 address air monitoring requiremen ts for owners or operators of proposed sources, pursuant to 40 CFR 58.3(c). These chap ters 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 Repor ting 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 emi ssions 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 prec ursors that form them – NOx, SO 2 , ammonia, lead, carbon monoxide, PM, and VOCs. Many states also volunt arily report emissions of hazardous air pollutants. EPA compiles the emissions data, suppl ementing it where necessary, and releases it to the general public through the websit e www.epa.gov/ttn/chief/eiinformation.html. Based upon review of the state's infras tructure SIP submission for the 2008 O 3 and 2010

NO 2 NAAQS, and relevant statutor y 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 enda ngerment to public healt h, including adequate contingency plans to implement the emerge ncy episode provisions in their SIPs.

The State's response: TCEQ may issue emergenc y orders, or issue or suspend air permits as required by an air pollution emerge ncy. 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 rule s 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 form ulate contingency plans for environmental emergencies, pursuant to TWC Chapter 5, Subc hapter L, which provides for emergency and temporary orders, and TWC Chapter 7, which pr ovides enforcement authority. Texas addresses Emergency and Temporary Orders at 30 TAC 35 14 and Control of Air Pollution Episodes at 30 TAC 118. Provisions regarding control of air po llution episodes and the Texas emergency episode contingency plan were first approve d 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 in clude contingency plan s 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 classi fied separately with respect to each of the following pollutants: Sulfur dioxide, particulate matter, carbon m onoxide, 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 Priori ty II regions for ozone or nitr ogen dioxide. Areas that do not meet the criteria for Priority I or II are classi fied Priority III. Tabl e 2 below summarizes the

classification for ozone and NO 2

.

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/m 3 (0.10 ppm)
1-hour maximum Not defined Areas which do not meet the criteria for Priority I

Nitrogen

Dioxide Ambient concentrations > 100 μg/m 3 (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 averag e, 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 pl an provisions consistent with EPA’s existing regulatory requirements. The SHL for the 1 hour average NO 2 NAAQS will remain uncha nged as 2 ppm, 24-hour average will remain 0.5 ppm as indicated in 40 CFR 51 The rules at 30 TAC 118 pr ovide 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 provide s for reevaluation of episode plans and requires that, “States should peri odically reevaluate priority cla ssifications of all Regions or portion of Regions within their borders. The reevaluation must c onsider the three most recent years of air quality data. If th e 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 NO 2 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 th at 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 author izes TCEQ to establish and to control the quality of the State’s air by preparing a nd developing a SIP under sections 382.011 and 382.012. The TCAA under section 382.011 further provides th e TCEQ with “the powers necessary or convenient to carry out its res ponsibilities.” Section 382.017 authorizes the TCEQ to adopt rules and section 382.036 requires that th e TCEQ “advise, consult, and cooperate with [...] the federal government.” Thus, Texas has the au thority to revise its SIP as may be necessary to account for revisions of the NAAQS, adopt more effective me thods of attaining the NAAQS, and respond to EPA SIP calls. We are proposing that the Te xas 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 re lated to the submission of nona ttainment area plans or plan revisions as specified in Part D of the CAA.

The State's response: SIP revisions that implem ent the control strategies necessary to bring a

nonattainment area into attainme nt of the NAAQS are not requir ed by the CAA to be submitted within three years of the promulgation of a new or revise d 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 previ ously, EPA does not expect infras tructure SIP submissions to address subsection 110(a)(2)(I). Nonattainment ar ea plans required under Pa rt 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 w ith 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 fo r consultation with local governments and Federal Land Managers (F LMs) carrying out NAAQS implementation requirements pursuant to secti on 121 relating to consultation. Section 110(a)(2)(J) further requires states to notify the pub lic 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 a nd visibility protection.

The State's response: TCEQ has an established public participation proce ss for all SIP revisions and permitting programs. EPA has proposed limit ed approval/limited disapproval of the rules regarding public partic ipation for air quality NSR permits . Texas has withdrawn from EPA

consideration most of the rule s that were the subject of th e proposed limited approval/limited disapproval, and has submitted new and revised pub lic 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 limite d approval/limited disapproval of the SIP revisions relating to public par ticipation because those revision s 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 environmenta l agencies of other states regarding air quality concerns. A ll 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 a ddress visibility impairment for each Class I area that may be impacted by emi ssions from Texas facilities.Page 17 of 19 The following chapters of 30 TAC contain rule s 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 govern ment officials, sectio n 110(a)(2)(J) requires states to provide a process for consultation w ith local governments and Federal Land Managers carrying out NAAQS implementatio n requirements pursuant to sec tion 121 of the Act, relating to consultation. Section 121(1) addresses any tr ansportation controls, air quality maintenance plan requirements or preconstruction review of direct sources of ai r 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, polit ical subdivisions of the state, [...] other states, the federal government, and interested persons or groups co ncerning [...] air quality control.” In addition,

as discussed in Sections II.1 a nd 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 SIP 15 including an MOU with TxDOT, described in Section II.1 of this TSD. We are proposing that the Texas SIP meets th is portion of section 110(a)(2)(J). Regarding PSD and visibility protection: S ection 110(a)(2)(J) requires States to meet applicable requirements of Part C related to PSD and visibility prot ection, 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 infrastructu re element, and applicab le 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 Protecti on Plan Long-Term Strategy for Visibility Protection on February 23, 1989 (54 FR 7767) . The State’s most recent SIP revision addressing Regional Haze was submitted to EPA on March 19, 2009 in a separate rulemaking. With regard to the applicable requirements for visib ility protection, EPA recognizes that states are subj ect to visibility and regional haze program requirements under
sections 169A and 169B of the Act. In the event of the establis hment of new NAAQS, however, these visibility and regional haze program requirements do not change. Thus, we find that there is no new visibility obligati on triggered under section 110(a)(2)(J) when new NAAQS becomes effective. We ar e proposing that the Texas SIP satisfies the requirements of section 110(a )(2)(J) for the 2008 O 3 and 2010 NO 2 NAAQS.

11

. Air quality modeling a nd 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 subm ission of such data to EPA upon request.

The State’s response: Air quality modeling is co nducted during developmen t 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 rule s relevant for this federal requirement: Chap. 116 Control of Air Pollution fo r 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 O 3 and 2010 NO 2 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 ad dress section 110(a)(2)(K) for the 2008 O 3 and 2010 NO 2 NAAQS.

12

. Permitting fees : Section 110(a)(2)(L) requ ires SIPs to require each major stationary source to pay permitting fees to cover the cost of re viewing, 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 rule s 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 require s 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 infrastructu re SIP submissions for the 2008 O 3 and 2010 NO 2 NAAQS, and relevant statutory and regulator y authorities and provisions refe renced in the submission or referenced in Texas’ SIP, EPA believes that Te xas has the adequate infrastructure needed to address section 110(a)(2)(L) for the 2008 O 3 and 2010 NO 2 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 organizati ons 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 O 3 and 2010 NO 2 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 ad dress section 110(a)(2 )(M) for the 2008 O 3 and 2010 NO 2 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 O 3 and 2010 NO 2 NAAQS. Based on these evaluations, we recommend that EPA propose to approve the submittal provided by th e 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 NO 2 . The submittal adequately addressesPage 19 of 19 the infrastructure elements sp ecified in the CAA section 110( a)(2) that are necessary to implement, maintain, and enforce the 2008 ozone and 2010 NO 2 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 offi cials: Section 110(a)(2)(J)

Public notification: Section 110(a)(2)(J) PSD and visibility protectio n: Section 110(a)(2)(J) Air quality and modeling/data : Section 110(a)(2)(K) Permitting fees: Section 110(a)(2)(L) Consultation/particip ation by affected local enti ties: Secti on 110(a)(2)(M)

We recommend partial approval of the Texa s infrastructure SIP for the 2008 Ozone and 2010 Nitrogen dioxide NAAQS fo r the following elements : Interstate Pollution Transport: Section 110(a)(2)(D)(i)(I) (NO 2 only) Section 110(a)(2)(D)(i)(I I) (PSD only for both O 3 and NO 2 ) V. References

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