43586 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 2 U.S.C. 7401 et seq. 

Dated: August 8, 2018. 

Deborah Jordan, 

Acting Regional Administrator, Region IX. 

[FR Doc. 2018–18408 Filed 8–24–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 97 

[EPA–R06–OAR–2016–0611; FRL–9982– 

50—Region 6] 

Promulgation of Air Quality 

Implementation Plans; State of Texas; 

Regional Haze and Interstate Visibility 

Transport Federal Implementation 

Plan: Proposal of Best Available 

Retrofit Technology (BART) and 

Interstate Transport Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On October 17, 2017, the EPA 

published a final rule partially 

approving the 2009 Texas Regional Haze 

State Implementation Plan (SIP) 

submission and promulgated a Federal 

Implementation Plan (FIP) for Texas to 

address certain outstanding Clean Air 

Act (CAA) regional haze requirements. 

Because the EPA believes that certain 

aspects of the final rule could benefit 

from additional public input, we are 

proposing to affirm our October 2017 

SIP approval and FIP promulgation and 

to provide the public with an 

opportunity to comment on relevant 

aspects, as well as other specified 

related issues. 

DATES: Comments must be received on 

or before October 26, 2018. 

Public Hearing: 

We are holding an information 

session, for the purpose of providing 

additional information and informal 

discussion for our proposal. We are also 

holding a public hearing to accept oral 

comments into the record: 

Date: Wednesday, September 26, 2018 

Time: Information Session: 1:30 p.m.– 

3:30 p.m. 

Public hearing: 4:00 p.m.–8:00 p.m. 

(including a short break) 

Location: Joe C. Thompson Conference 

Center (on the University of Texas 

(UT) Campus), Room 1.110, 2405 

Robert Dedman Drive, Austin, Texas 

78712. 

For additional logistical information 

regarding the public hearing please see 

the SUPPLEMENTARY INFORMATION section 

of this action. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2016–0611, at http://

www.regulations.gov or via email to R6_

TX-BART@epa.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at the EPA Region 6, 1445 Ross 

Avenue, Suite 700, Dallas, Texas. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available at 

either location (e.g., CBI). 

The Texas regional haze SIP is also 

available online at: https://

www.tceq.texas.gov/airquality/sip/bart/ 

haze_sip.html. It is also available for 

public inspection during official 

business hours, by appointment, at the 

Texas Commission on Environmental 

Quality, Office of Air Quality, 12124 

Park 35 Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Huser, Air Planning Section 

(6MM–AA), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–7347; email address 

Huser.Jennifer@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

Joe C. Thompson Conference Center 

parking is adjacent to the building in 

Lot 40, located at the intersection of East 

Dean Keeton Street and Red River 

Street. Additional parking is available at 

the Manor Garage, located at the 

intersection of Clyde Littlefield Drive 

and Robert Dedman Drive. If arranged in 

advance, the UT Parking Office will 

allow buses to park along Dedman Drive 

near the Manor Garage for a fee. 

The public hearing will provide 

interested parties the opportunity to 

present information and opinions to us 

concerning our proposal. Interested 

parties may also submit written 

comments, as discussed in the proposal. 

Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at the public hearing. We will 

not respond to comments during the 

public hearing. When we publish our 

final action, we will provide written 

responses to all significant oral and 

written comments received on our 

proposal. To provide opportunities for 

questions and discussion, we will hold 

an information session prior to the 

public hearing. During the information 

session, EPA staff will be available to 

informally answer questions on our 

proposed action. Any comments made 

to EPA staff during an information 

session must still be provided orally 

during the public hearing, or formally in 

writing within 30 days after completion 

of the hearings, in order to be 

considered in the record. 

At the public hearing, the hearing 

officer may limit the time available for 

each commenter to address the proposal 

to three minutes or less if the hearing 

officer determines it to be appropriate. 

We will not be providing equipment for 

commenters to show overhead slides or 

make computerized slide presentations. 

Any person may provide written or oral 


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1 82 FR 912 (Jan. 4, 2017). 

2 82 FR 48324 (Oct. 17, 2017). 

3See Texas Regional Haze MOA with TCEQ dated 

August 14, 2017 at docket document number EPA– 

R06–OAR–2016–0611–0051. 

4Additional information regarding the regulatory 

background of the CAA and regional haze 

requirements can be found in our January 2017 

notice of proposed rulemaking for Texas Regional 

Haze. (82 FR 917, January 4, 2017). 

comments and data pertaining to our 

proposal at the public hearing. Verbatim 

English—language transcripts of the 

hearing and written statements will be 

included in the rulemaking docket. 

Table of Contents 

I. Background 

A. Overview of the Purpose of Today’s 

Action 

B. Regional Haze 

C. Interstate Transport of Pollutants That 

Affect Visibility 

D. Previous Actions Related to Texas 

Regional Haze 

II. Summary of This Proposed Action 

A. Regional Haze 

1. SO2 BART 

2. PM BART 

B. Interstate Transport of Pollutants that 

Affect Visibility 

III. PM BART 

IV. The SO2 Trading Program and Its 

Implications for Interstate Visibility 

Transport and EGU BART 

A. Background on the Concept of CSAPR 

As an Alternative to BART 

B. Texas SO2 Trading Program 

1. Identification of Sources Participating in 

the Trading Program 

2. Texas SO2 Trading Program as a BART 

Alternative 

C. Specific Texas SO2 Trading Program 

Features 

D. Recent Retirements 

E. Interstate Visibility Transport 

V. Proposed Action 

A. Regional Haze 

B. Interstate Visibility Transport 

VI. Statutory and Executive Order Reviews 

I. Background 

A. Overview of the Purpose of Today’s 

Action 

The following overview demonstrates 

the lengthy and difficult path the 

regional haze program has taken in 

Texas. EPA maintains that States are in 

the best position to provide flexibility 

and protect the environment while 

maintaining a strong economic engine. 

As outlined in more detail below, the 

Texas 2009 Regional Haze SIP relied on 

the defunct Clean Air Interstate Rule 

(CAIR) to satisfy the Best Available 

Retrofit Technology (BART) 

requirements. The D.C. Circuit 

remanded CAIR to the EPA in 2009, 

prior to the state’s submission. The 

CAIR requirements were replaced by the 

Cross-State Air Pollution Rule (CSAPR) 

in 2011. Because of legal challenges, 

CSAPR in its current form does not 

provide SO2 emission reductions in 

Texas and, as such, cannot satisfy the 

BART requirements for SO2 at electrical 

generating units (EGUs) in Texas. 

Nonetheless, Texas has not provided a 

replacement SIP submission to address 

BART for SO2 at its EGUs. Because of 

court deadlines and without a Texas 

SIP, EPA has been forced to adopt a 

Federal Implementation Plan (FIP) to 

address BART. 

When EPA proposed a source-specific 

BART FIP in January 2017,1 Texas, 

along with other commenters, suggested 

to EPA the concept of a trading program. 

In close cooperation with Texas, EPA 

developed an SO2 trading program that 

we included in our October 2017 final 

rule 2 and adopted in time to meet our 

court-ordered deadline. Texas entered 

an agreement with EPA to provide a 

SIP-based trading program that would 

replace the FIP.3 However, in the 

months since EPA promulgated the 

trading program FIP, Texas has not met 

its commitment to provide a SIP, 

leaving it without the benefits a State 

program could bring and leaving EPA 

little choice but to continue to 

implement a federal plan. 

On December 15, 2017, EPA received 

a petition for reconsideration of the 

October 2017 rule requesting that the 

Administrator reconsider certain aspects 

of the FIP related to the intrastate 

trading program promulgated to address 

the SO2 BART requirement for EGUs. As 

stated in our letter in response to that 

petition dated April 30, 2018, we 

believe certain specific aspects of the 

federal plan can benefit from further 

public comment. Therefore, in this 

action, we are soliciting comment on: 

(1) The issuance of a FIP establishing an 

intrastate trading program capping 

emissions of SO2 from certain EGUs in 

Texas and our determination that this 

program meets the requirements for an 

alternative to BART for SO2; (2) our 

finding that the BART alternatives in 

the October 2017 rulemaking to address 

SO2 and NOX BART at Texas’ EGUs 

result in emission reductions adequate 

to satisfy the requirements of CAA 

section 110(a)(2)(D)(i)(II) with respect to 

visibility for a number of NAAQS issued 

between 1997 and 2010; and (3) our 

approval of Texas’ SIP determination 

that no sources are subject to BART for 

PM2.5. We are also soliciting comment 

on the specific issues of whether recent 

shutdowns of sources included in the 

trading program and the merger of two 

owners of affected EGUs should impact 

the allocation methodology for certain 

SO2 allowances. EPA will consider 

these comments in the context of our 

proposal to affirm the SO2 trading 

program FIP. We believe that this 

action, which provides the public an 

opportunity to provide input on the 

issues raised in the December 15, 2017 

petition for reconsideration of the 

October 2017 final rule, resolves the 

basis for that petition. 

While soliciting comment on the 

above three proposed actions, EPA also 

invites comment on additional issues 

that could inform our decision making 

with regard to the SO2 BART obligations 

for Texas. First, we seek input on 

whether SO2 BART would be better 

addressed through a source-by-source 

approach (source-specific BART), the 

October 2017 SO2 trading program, or 

some other appropriate BART 

alternative. Second, EPA requests 

comment on whether a SIP-based 

program would serve Texas better than 

a FIP. Third, we request public input on 

whether and how the SO2 trading 

program finalized in the October 2017 

final rule addresses the long-term 

strategy and reasonable progress 

requirements for Texas. 

We note that, should we decide to act 

pursuant to any comments we receive 

on these additional policy questions, we 

may initiate a new rulemaking process 

with a new proposed rule. 

B. Regional Haze 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities that are located 

across a broad geographic area and emit 

PM2.5 (e.g., sulfates, nitrates, organic 

carbon (OC), elemental carbon (EC), and 

soil dust), and its precursors (e.g., SO2, 

NOX, and, in some cases, ammonia 

(NH3) and volatile organic compounds 

(VOCs)). Fine particle precursors react 

in the atmosphere to form PM2.5, which 

impairs visibility by scattering and 

absorbing light. Visibility impairment 

reduces the clarity, color, and visible 

distance that can be seen. PM2.5 can also 

cause serious health effects and 

mortality in humans and contributes to 

environmental effects, such as acid 

deposition and eutrophication.4

In Section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes as a national goal the 

prevention of any future, and the 

remedying of any existing, man-made 

impairment of visibility in 156 national 

parks and wilderness areas designated 

as mandatory Class I Federal areas. On 

December 2, 1980, EPA promulgated 

regulations to address visibility 

impairment in Class I areas that is 


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5See 42 U.S.C. 7491(g)(7) (listing the set of 

‘‘major stationary sources’’ potentially subject-toBART). 

6See 40 CFR part 51, Appendix Y, III, How to 

Identify Sources ‘‘Subject to BART’’. 

7CAIR required certain states, including Texas, to 

reduce emissions of SO2 and NOX that significantly 

contribute to downwind nonattainment of the 1997 

NAAQS for fine particulate matter and ozone. See 

70 FR 25152 (May 12, 2005). 

8See 70 FR 39104 (July 6, 2005). 

9See North Carolina v. EPA, 531 F.3d 896 (D.C. 

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

2008). 

10 76 FR 48207 (Aug. 8, 2011). 

11CSAPR was amended three times in 2011 and 

2012 to add five states to the seasonal NOX program 

and to increase certain state budgets. 76 FR 80760 

(December 27, 2011); 77 FR 10324 (February 21, 

2012); 77 FR 34830 (June 12, 2012). 

12Ozone season for CSAPR purposes is May 1 

through September 30. 

13 77 FR 33641 (June 7, 2012). This determination 

was recently upheld by the D.C. Circuit. (See Util. 

‘‘reasonably attributable’’ to a single 

source or small group of sources, i.e., 

‘‘reasonably attributable visibility 

impairment.’’ These regulations 

represented the first phase in addressing 

visibility impairment. EPA deferred 

action on regional haze that emanates 

from a variety of sources until 

monitoring, modeling, and scientific 

knowledge about the relationships 

between pollutants and visibility 

impairment were improved. Congress 

added section 169B to the CAA in 1990 

to address regional haze issues, and EPA 

promulgated regulations addressing 

regional haze in 1999. The Regional 

Haze Rule revised the existing visibility 

regulations to add provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. 

Section 169A of the CAA directs 

states to evaluate the use of retrofit 

controls at certain larger, often undercontrolled, older stationary sources in 

order to address visibility impacts from 

these sources. Specifically, section 

169A(b)(2)(A) of the CAA requires states 

to revise their SIPs to contain such 

measures as may be necessary to make 

reasonable progress toward the natural 

visibility goal by controlling emissions 

of pollutants that contribute to visibility 

impairment, including a requirement 

that certain categories of existing major 

stationary sources 5 built between 1962 

and 1977 procure, install, and operate 

the ‘‘Best Available Retrofit 

Technology’’ (BART). Larger ‘‘fossil-fuel 

fired steam electric plants’’ are included 

among the BART source categories. 

Under the Regional Haze Rule, states are 

directed to conduct BART 

determinations for ‘‘BART-eligible’’ 

sources that may be anticipated to cause 

or contribute to any visibility 

impairment in a Class I area. Following 

the compilation of the BART-eligible 

sources, the sources are examined to 

determine whether these sources cause 

or contribute to visibility impairment in 

nearby Class I areas.6 For those sources 

that are not reasonably anticipated to 

cause or contribute to any visibility 

impairment in a Class I area, a BART 

determination is not required. Those 

sources are determined to be not 

subject-to-BART. Sources that are 

reasonably anticipated to cause or 

contribute to any visibility impairment 

in a Class I area are determined to be 

subject-to-BART. For each source 

subject to BART, 40 CFR 

51.308(e)(1)(ii)(A) requires that states (or 

EPA, in the case of a FIP) identify the 

level of control representing BART after 

considering the factors set out in CAA 

section 169A(g). The evaluation of 

BART for EGUs that are located at fossilfuel-fired power plants having a 

generating capacity in excess of 750 

megawatts must follow the ‘‘Guidelines 

for BART Determinations Under the 

Regional Haze Rule’’ at appendix Y to 

40 CFR part 51 (hereinafter referred to 

as the ‘‘BART Guidelines’’). Rather than 

requiring source-specific BART 

controls, states also have the flexibility 

to adopt an emissions trading program 

or alternative program (sometimes 

referred to as a ‘‘BART alternative’’) as 

long as the alternative provides greater 

reasonable progress towards improving 

visibility than BART. 40 CFR 

51.308(e)(2) specifies how a state must 

conduct the demonstration to show that 

an alternative program will achieve 

greater reasonable progress than the 

installation and operation of BART. 40 

CFR 51.308(e)(2)(i)(E) requires a 

determination, under specific criteria 

laid out at 40 CFR 51.308(e)(3) or 

otherwise based on the clear weight of 

evidence, that the trading program or 

other alternative measure achieves 

greater reasonable progress than would 

be achieved through the installation and 

operation of BART at the covered 

sources. Finally, 40 CFR 51.308(e)(4) 

states that states participating in a 

Cross-State Air Pollution Rule (CSAPR) 

trading program need not require BARTeligible fossil fuel-fired steam electric 

plants to install, operate, and maintain 

BART for the pollutant covered by that 

trading program. 

Under section 110(c) of the CAA, 

whenever we disapprove a mandatory 

SIP submission in whole or in part, we 

are required to promulgate a FIP within 

two years unless the state corrects the 

deficiency and we approve the new SIP 

submittal. 

C. Interstate Transport of Pollutants 

That Affect Visibility 

Section 110(a) of the CAA directs 

states to submit SIPs that provide for the 

implementation, maintenance, and 

enforcement of each NAAQS, which is 

commonly referred to as an 

infrastructure SIP. Among other things, 

CAA section 110(a)(2)(D)(i)(II) requires 

that SIPs contain adequate provisions to 

prohibit interference with measures 

required to protect visibility in other 

states. This is commonly referred to as 

‘‘interstate visibility transport.’’ States 

must submit infrastructure SIPs 

addressing interstate visibility transport, 

among other requirements, which are 

due to the EPA within three years after 

the promulgation of a new or revised 

NAAQS (or within such shorter period 

as we may prescribe). A state’s failure to 

submit a complete, approvable SIP for 

interstate visibility transport creates an 

obligation for the EPA to promulgate a 

FIP to address this requirement. 

D. Previous Actions Related to Texas 

Regional Haze 

On March 31, 2009, Texas submitted 

a regional haze SIP (the 2009 Regional 

Haze SIP) to the EPA that included 

reliance on Texas’ participation in 

trading programs under the Clean Air 

Interstate Rule (CAIR) as an alternative 

to BART for SO2 and NOX emissions 

from EGUs.7 This reliance was 

consistent with the EPA’s regulations at 

the time that Texas developed its 2009 

Regional Haze SIP,8 but at the time that 

Texas submitted this SIP to the EPA, the 

D.C. Circuit had remanded CAIR 

(without vacatur).9 The court left CAIR 

and our CAIR FIPs in place in order to 

‘‘temporarily preserve the 

environmental values covered by CAIR’’ 

until we could, by rulemaking, replace 

CAIR consistent with the court’s 

opinion. The EPA promulgated CSAPR 

to replace CAIR in 2011 10 (and revised 

it in 2012).11 CSAPR established FIP 

requirements for a number of states, 

including Texas, to address the states’ 

interstate transport obligation under 

CAA section 110(a)(2)(D)(i)(I). CSAPR 

addresses interstate transport of fine 

particulate matter and ozone by 

requiring affected EGUs in these states 

to participate in the CSAPR trading 

programs and establishes emissions 

budgets that apply to the EGUs’ 

collective annual emissions of SO2 and 

NOX, as well as emissions of NOX

during ozone season.12

Following issuance of CSAPR, the 

EPA determined that CSAPR would 

achieve greater reasonable progress 

towards improving visibility than would 

source-specific BART in CSAPR states 

(a determination often referred to as 

‘‘CSAPR better than BART’’).13 In the 


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Air Regulatory Grp. v. EPA, 885 F.3d 714 (D.C. Cir. 

2018)). 14 Id. 15 79 FR 74818 (Dec. 16, 2014). 16EME Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 132 (D.C. Cir. 2015). 17 81 FR 296 (Jan. 5, 2016). 

18Texas v. EPA, 829 F.3d 405 (5th Cir. 2016). 

19 81 FR 74504 (Oct. 26, 2016). 

20 81 FR 74504, 74524–25. 

21 81 FR 78954. 

22 82 FR 45481 (Sept. 29, 2017). Texas continues 

to be subject to portions of our CSAPR FIP, under 

which it participates in CSAPR for ozone season 

NOX. 

23 82 FR 912, 914–15 (Jan. 4, 2017). 

24 81 FR 74504 (Nov. 10, 2016). 

25 In the 2009 Regional Haze Texas SIP, for EGU 

BART, Texas’ BART EGUs’ emissions of both SO2

and NOX were covered by participation in trading 

programs, which allowed Texas to conduct a 

Continued 

same action, we revised the Regional 

Haze Rule to allow states that 

participate in the CSAPR trading 

programs to rely on such participation 

in lieu of requiring EGUs in the state to 

install BART controls. 

In the same action that EPA 

determined that states could rely on 

CSAPR to address the BART 

requirements for EGUs, EPA issued a 

limited disapproval of a number of 

states’ regional haze SIPs, including the 

2009 Regional Haze SIP submittal from 

Texas, due to the states’ reliance on 

CAIR, which had been replaced by 

CSAPR.14 The EPA did not immediately 

promulgate a FIP to address those 

aspects of the 2009 Regional Haze SIP 

submittal subject to the limited 

disapproval of Texas’ regional haze SIP 

to allow more time for the EPA to assess 

the remaining elements of the 2009 

Texas SIP submittal. 

In December 2014, we proposed an 

action to address the remaining regional 

haze obligations for Texas.15 In that 

action, we proposed, among other 

things, to rely on our CSAPR FIP 

subjecting Texas to participation in the 

CSAPR trading programs to satisfy the 

NOX and SO2 BART requirements for 

Texas’ EGUs; we also proposed to 

approve the portions of the 2009 

Regional Haze SIP addressing PM BART 

requirements for the state’s EGUs. 

Before that rule was finalized, however, 

the D.C. Circuit issued a decision on a 

number of challenges to CSAPR, 

denying most claims, but remanding the 

CSAPR SO2 and/or seasonal NOX

emissions budgets of several states to 

the EPA for reconsideration, including 

the Phase 2 SO2 and seasonal NOX

budgets for Texas.16 Due to the 

uncertainty arising from the remand of 

Texas’ CSAPR budgets, we did not 

finalize our December 2014 proposal to 

rely on CSAPR to satisfy the SO2 and 

NOX BART requirements for Texas 

EGUs.17 Additionally, because our 

proposed action on the PM BART 

provisions for EGUs was dependent on 

how SO2 and NOX BART were satisfied, 

we did not take final action on the PM 

BART elements of the 2009 Texas’ 

Regional Haze SIP. In January 2016, we 

finalized action on the remaining 

aspects of the December 2014 proposal. 

This final action disapproved Texas’ 

Reasonable Progress Goals for the Big 

Bend and Guadalupe Mountains Class I 

areas in Texas, Texas’s reasonable 

progress analysis and Texas’s long-term 

strategy. EPA promulgated a FIP 

establishing a new long-term strategy 

that consisted of SO2 emission limits for 

15 coal fired EGUs at eight power 

plants. That rulemaking was challenged, 

however, and in July 2016, the Fifth 

Circuit granted the petitioners’ motion 

to stay the rule pending review. In 

December 2016, following the submittal 

of a request by the EPA for a voluntary 

remand of the parts of the rule under 

challenge, the Fifth Circuit Court of 

Appeals remanded the rule in its 

entirety.18

On October 26, 2016, the EPA 

finalized an update to CSAPR to address 

the interstate transport requirements of 

CAA section 110(a)(2)(D)(i)(I) with 

respect to the 2008 ozone NAAQS 

(CSAPR Update).19 The EPA also 

responded to the D.C. Circuit’s remand 

of certain CSAPR seasonal NOX budgets 

in that action. As to Texas, the EPA 

withdrew Texas’ seasonal NOX budget 

finalized in CSAPR to address the 1997 

ozone NAAQS. However, in that same 

action, the EPA promulgated a FIP with 

a revised seasonal NOX budget for Texas 

to address the 2008 ozone NAAQS.20

Accordingly, Texas remains subject to 

CSAPR seasonal NOX requirements. 

On November 10, 2016, in response to 

the D.C. Circuit’s remand of Texas’s 

CSAPR SO2 budget, we proposed to 

withdraw the FIP provisions that 

required EGUs in Texas to participate in 

the CSAPR trading programs for annual 

emissions of SO2 and NOX.21 We also 

proposed to reaffirm that CSAPR 

continues to provide for greater 

reasonable progress than BART 

following our actions taken to address 

the D.C. Circuit’s remand of Texas’ SO2

budget and the CSAPR emissions 

budgets of several additional states. On 

September 29, 2017, we finalized the 

withdrawal of the FIP provisions for 

annual emissions of SO2 and NOX for 

EGUs in Texas 22 and affirmed our 

proposed finding that the EPA’s 2012 

analytical demonstration remains valid 

and that participation in the CSAPR 

trading programs as they now exist 

meets the Regional Haze Rule’s criteria 

for an alternative to BART. 

On January 4, 2017, we proposed a 

FIP to address the EGU BART 

requirements for Texas’ EGUs. In that 

action, we proposed to replace the 2009 

Regional Haze SIP’s reliance on CAIR 

with reliance on our CSAPR FIP to 

address the NOX BART requirements for 

EGUs.23 This portion of our proposal 

was based on the CSAPR Update and 

our separate November 10, 2016 

proposed finding that the EPA’s actions 

in response to the D.C. Circuit’s remand 

would not adversely impact our 2012 

demonstration that participation in the 

CSAPR trading programs meets the 

Regional Haze Rule’s criteria for 

alternatives to BART (sometimes 

referred to as a finding that ‘‘CSAPR is 

still better than BART’’).24 We noted 

that we could not finalize this portion 

of our proposed FIP to address the NOX

BART requirements for EGUs unless 

and until we finalized our proposed 

finding that CSAPR was still better than 

BART. 

Our January 4, 2017 proposed action 

addressing the BART requirements for 

Texas EGUs acknowledged that because 

Texas would no longer be participating 

in the CSAPR program for SO2, and thus 

would no longer be eligible to rely on 

participation in CSAPR as an alternative 

to source-specific EGU BART for SO2

under 40 CFR 51.308(e)(4), there were 

BART requirements that were left 

unfulfilled with respect to Texas’s EGU 

emissions of SO2 that would need to be 

fulfilled by either an approved SIP or an 

EPA-issued FIP that satisfied the BART 

requirements under 40 CFR 51.308(e)(1) 

or constituted a viable BART alternative 

under 40 CFR 51.308(e)(2) for those 

emissions. EPA proposed to satisfy 

these requirements through a BART FIP, 

entailing the identification of BARTeligible EGU sources, screening of 

sources to identify subject-to-BART 

sources, and source-by-source 

determinations of SO2 BART controls as 

appropriate. For those EGU sources we 

proposed to find subject to BART, we 

proposed to promulgate source-specific 

SO2 requirements. We proposed SO2

emission limits on 29 EGUs located at 

14 facilities. 

In the January 2017 proposal, we also 

proposed to disapprove the portion of 

the 2009 Regional Haze SIP that made 

BART determinations for PM from 

EGUs, on the grounds that the 

demonstration in the 2009 Texas 

Regional Haze SIP relied on underlying 

assumptions as to how the SO2 and NOX

BART requirements for EGUs were 

being met that were no longer valid with 

the proposed source-specific SO2

requirements.25 In place of these 


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screening analysis of the visibility impacts from PM 

emissions in isolation. However, modeling on a 

pollutant-specific basis for PM is appropriate only 

in the narrow circumstance of reliance on BART 

alternatives to satisfy both NOX and SO2 BART. Due 

to the complexity and nonlinear nature of 

atmospheric chemistry and chemical transformation 

among pollutants, EPA has not recommended 

performing modeling on a pollutant-specific basis 

to determine whether a source is subject to BART, 

except in the unique situation described above. See 

discussion in Memorandum from Joseph Paisie to 

Kay Prince, ‘‘Regional Haze Regulations and 

Guidelines for Best Available Retrofit Technology 

(BART) Determinations,’’ July 19, 2006. 

26 79 FR 74817, 74853–54 (Dec. 16, 2014). 

27See discussion in Memorandum from Joseph 

Paisie to Kay Prince, ‘‘Regional Haze Regulations 

and Guidelines for Best Available Retrofit 

Technology (BART) Determinations,’’ July 19, 2006. 

28CALPUFF (California Puff Model) is a multilayer, multi-species non-steady-state puff 

dispersion modeling system that simulates the 

effects of time- and space-varying meteorological 

conditions on pollutant transport, transformation, 

and removal. CALPUFF is intended for use in 

assessing pollutant impacts at distances greater than 

50 kilometers to several hundreds of kilometers. It 

includes algorithms for calculating visibility effects 

from long range transport of pollutants and their 

impacts on Federal Class I areas. EPA previously 

approved the use of the CALPUFF model in BART 

related analyses (40 CFR part 51 Regional Haze 

Regulations and Guidelines for Best Available 

Retrofit Technology (BART) Determinations; Final 

Rule; FR Vol. 70 No. 128 Pages 39104—39172; July 

6, 2005). For instructions on how to download the 

appropriate model code and documentation that are 

available from Exponent (Model Developer/Owner) 

at no cost for download, see EPA’s website: https:// 

www.epa.gov/scram/air-quality-dispersionmodeling-preferred-and-recommended-models#

calpuff. 

29See document at docket identification number 

EPA–R06–OAR–0611–0005. 

30For additional information regarding the 

determination that CSAPR addresses the NOX

BART requirements for EGUs in Texas, please see 

our January 2017 proposal, and our October 2017 

final action, including response to comments. These 

actions are included in the docket for this action. 

31EME Homer City Generation, L.P. v. EPA, 795 

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

determinations, we proposed to 

promulgate source-specific PM BART 

requirements based on existing practices 

and control capabilities for those EGUs 

that we proposed to find subject to 

BART. Previously, we had proposed to 

approve the EGU BART determinations 

for PM in the 2009 Texas Regional Haze 

SIP, and this proposal had never been 

withdrawn.26 At that time, CSAPR was 

an appropriate alternative for SO2 and 

NOX BART for EGUs. The 2009 Texas 

Regional Haze SIP included a pollutantspecific screening analysis for PM to 

demonstrate that Texas EGUs were not 

subject to BART for PM. In a 2006 

guidance document,27 the EPA stated 

that pollutant-specific screening can be 

appropriate where a state is relying on 

a BART alternative to address both NOX

and SO2 BART. However, in the January 

2017 proposal, we proposed to 

disapprove the PM BART determination 

since SO2 BART was no longer 

addressed by a BART alternative. In our 

October 2017 FIP, we approved the 2009 

Regional Haze SIP PM BART 

determination because the SO2

requirements were addressed by a BART 

alternative, making the original 

pollutant-specific screening 

demonstration once again an 

appropriate approach. 

In our October 2017 rulemaking, we 

finalized our January 2017 proposed 

determination that Texas’ participation 

in CSAPR’s trading program for ozoneseason NOX qualifies as an alternative to 

source-specific NOX BART. We also 

determined that the SO2 BART 

requirements for all BART-eligible coalfired units and a number of BARTeligible gas- or gas/fuel oil-fired units 

are satisfied by a BART alternative for 

SO2—specifically, an intrastate trading 

program addressing emissions of SO2

from certain EGUs in Texas. Finally, we 

approved the 2009 Regional Haze SIP’s 

determination that Texas’ EGUs are not 

subject to BART for PM. The remaining 

BART-eligible EGUs not covered by the 

SO2 BART alternative were previously 

determined to be not subject to BART 

based on methods using model plants 

and CALPUFF 28 modeling as described 

in our proposed rule and BART 

Screening technical support document 

(TSD).29 With respect to visibility 

transport obligations, we determined 

that the BART alternative to address 

SO2 and Texas’ participation in 

CSAPR’s trading program for ozoneseason NOX to address NOX BART at 

Texas’ EGU fully addresses the 

obligations for six NAAQS. 

As explained above, EPA received a 

petition for reconsideration of issues 

related to the SO2 intrastate trading 

program promulgated in the October 

2017 rule. As stated in our letter in 

response to that petition dated April 30, 

2018, we believe certain specific aspects 

of the federal plan can benefit from 

further public comment. Therefore, in 

this notice, we are proposing to affirm 

certain aspects of our SIP approval and 

of the FIP, and to provide the public 

with an opportunity to comment on 

those particular aspects, as well as other 

specified related issues. 

II. Summary of This Proposed Action 

In this notice, we are taking comment 

on the following elements: (1) This 

proposal to affirm the October 2017 FIP 

establishing an intrastate trading 

program addressing emissions of SO2

from certain EGUs in Texas as a BART 

alternative and the determination that 

this program satisfies the requirements 

for BART alternatives; (2) this proposal 

to affirm the finding that the BART 

alternatives in the October 2017 

rulemaking to address SO2 and NOX

BART at Texas’ EGUs result in emission 

reductions adequate to satisfy the 

requirements of CAA section 

110(a)(2)(D)(i)(II) with respect to 

visibility for a number of NAAQS issued 

between 1997 and 2010; and (3) this 

proposal to affirm our October 2017 

approval of Texas’ SIP determination 

that no sources are subject to BART for 

PM. We are not soliciting comment on 

our final determination that CSAPR 

addresses the NOX BART requirements 

for EGUs in Texas.30

A. Regional Haze 

1. SO2 BART 

In our January 2017 proposed action, 

we proposed BART limits based on our 

source-specific BART determinations 

for certain EGUs in Texas. We proposed 

this approach to address the SO2 BART 

requirements following the remand from 

the D.C. Circuit in EME Homer City II 31

of certain CSAPR emission budgets that 

created uncertainty regarding our 

proposed reliance on CSAPR to satisfy 

the SO2 BART requirements for EGUs in 

Texas. However, based on comments we 

received in response to our January 

2017 proposal, including views 

expressed by Texas, we finalized, as a 

BART alternative, a program 

establishing emission caps using CSAPR 

allocations for certain EGUs in Texas in 

our October 2017 final action. The EPA 

determined that, because this BART 

alternative would result in SO2

emissions from Texas EGUs similar to 

emissions anticipated under CSAPR, the 

alternative is an appropriate approach 

for addressing Texas’ SO2 BART 

obligations and, in the context of the 

operation of the CSAPR ozone-season 

NOX trading program and the operation 

of the CSAPR annual NOX and SO2

trading programs, will achieve greater 

reasonable progress than BART towards 

restoring visibility, consistent with the 

June 2012 ‘‘CSAPR better than BART’’ 

and September 2017 ‘‘CSAPR still better 

than BART’’ determinations. In today’s 

proposed action, we are proposing to 

affirm our determination that the 

intrastate trading program is an 

appropriate SO2 BART alternative for 

EGUs in Texas. 

The BART alternative has been 

designed to achieve SO2 emission levels 

that are functionally equivalent to those 

projected for Texas’ participation in the 

original CSAPR program. The BART 

alternative applies the CSAPR 

allowance allocations for SO2 to all 

BART-eligible coal-fired EGUs, several 

additional coal-fired EGUs, and several 

BART-eligible gas-fired and gas/fuel oilVerDate Sep<11>2014 17:27 Aug 24, 2018 Jkt 244001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\27AUP1.SGM 27AUP1

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32 In 2016, EGUs included in the program emitted 

218,291 tons of SO2, and other EGUs emitted 27,446 

tons from other EGUs (11.1% of the total emitted 

by Texas EGUs). In 2017, sources included in the 

program emitted 245,870 tons of SO2, and other 

EGUs emitted 30,096 (10.9%). 

fired EGUs. In addition to being a 

sufficient alternative to BART, we are 

proposing to affirm our October 2017 

determination that the BART alternative 

secures reductions consistent with 

visibility transport requirements and is 

part of the long-term strategy to meet the 

reasonable progress requirements of the 

Regional Haze Rule. 

We propose to affirm that the 

combination of the source coverage for 

this program, the total allocations for 

EGUs covered by the program, and 

recent and foreseeable emissions trends 

from those EGUs both covered and not 

covered by the program will result in 

future EGU emissions in Texas that are 

similar to or less than the SO2 emission 

levels forecast in the 2012 better-thanBART demonstration for Texas EGU 

emissions assuming CSAPR 

participation. We propose to affirm that 

the intrastate trading program meets the 

requirements for a BART alternative and 

therefore satisfies the SO2 BART 

requirements for the BART-eligible coalfired EGUs and gas- and gas/fuel oilfired EGUs in the following table. See 

Section IV.B for a discussion on 

identification of sources covered by the 

program. 

TABLE 1—TEXAS EGUS SUBJECT TO THE FIP SO2 TRADING PROGRAM

Owner/operator Units BARTeligible 

AEP ............................................................. Welsh Power Plant Unit 1 .............................................................................................. Yes. 

Welsh Power Plant Unit 2 .............................................................................................. Yes. 

Welsh Power Plant Unit 3 .............................................................................................. No. 

H W Pirkey Power Plant Unit 1 ..................................................................................... No. 

Wilkes Unit 1 * ................................................................................................................ Yes. 

Wilkes Unit 2 * ................................................................................................................ Yes. 

Wilkes Unit 3 * ................................................................................................................ Yes. 

CPS Energy ................................................ JT Deely Unit 1 .............................................................................................................. Yes. 

JT Deely Unit 2 .............................................................................................................. Yes. 

Sommers Unit 1 * ........................................................................................................... Yes. 

Sommers Unit 2 * ........................................................................................................... Yes. 

Dynegy/Vistra .............................................. Coleto Creek Unit 1 ....................................................................................................... Yes. 

LCRA .......................................................... Fayette/Sam Seymour Unit 1 ........................................................................................ Yes. 

Fayette/Sam Seymour Unit 2 ........................................................................................ Yes. 

Vistra/Luminant ........................................... Big Brown Unit 1 ............................................................................................................ Yes. 

Big Brown Unit 2 ............................................................................................................ Yes. 

Martin Lake Unit 1 ......................................................................................................... Yes.

Martin Lake Unit 2 ......................................................................................................... Yes.

Martin Lake Unit 3 ......................................................................................................... Yes.

Monticello Unit 1 ............................................................................................................ Yes. 

Monticello Unit 2 ............................................................................................................ Yes. 

Monticello Unit 3 ............................................................................................................ Yes. 

Sandow Unit 4 ............................................................................................................... No.

Stryker ST2 * .................................................................................................................. Yes. 

Graham Unit 2 * ............................................................................................................. Yes.

NRG ............................................................ Limestone Unit 1 ............................................................................................................ No. 

Limestone Unit 2 ............................................................................................................ No.

WA Parish Unit WAP4 * ................................................................................................. Yes. 

WA Parish Unit WAP5 ................................................................................................... Yes. 

WA Parish Unit WAP6 ................................................................................................... Yes. 

WA Parish Unit WAP7 ................................................................................................... No. 

Xcel ............................................................. Tolk Station Unit 171B ................................................................................................... No. 

Tolk Station Unit 172B ................................................................................................... No. 

Harrington Unit 061B ..................................................................................................... Yes. 

Harrington Unit 062B ..................................................................................................... Yes. 

Harrington Unit 063B ..................................................................................................... No. 

El Paso Electric .......................................... Newman Unit 2 * ............................................................................................................ Yes. 

Newman Unit 3 * ............................................................................................................ Yes. 

Newman Unit 4 * ............................................................................................................ Yes. 

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

This BART alternative includes all 

BART-eligible coal-fired units in Texas, 

additional coal-fired EGUs, and some 

additional BART-eligible gas and gas/ 

fuel oil-fired units. Moreover, we 

propose to affirm that the differences in 

source coverage between CSAPR and 

this BART alternative are either not 

significant or, in fact, work to 

demonstrate the relative stringency of 

this BART alternative as compared to 

CSAPR. This relative stringency is 

demonstrated in the following points: 

A. Covered sources under the BART 

alternative in this FIP represent 89%32

of all SO2 emissions from all Texas 

EGUs in both 2016 and 2017, and 

approximately 85% of CSAPR 

allocations for existing units in Texas. 

B. The remaining 11% (100 minus 89) 

of 2016 and 2017 emissions from 

sources not covered by the BART 

alternative come from gas units that 

rarely burn fuel oil or from coal-fired 

units that on average are better 

controlled for SO2 than the covered 

sources and generally are less relevant 

to visibility impairment. As such, any 

shifting of generation to non-covered 

sources, as might occur if a covered 

source were to reduce its operation in 

order to remain within its SO2

emissions allowance allocation, would 


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33See CAIR 2018 emission projections of 

approximately 350,000 tons SO2 emitted from Texas 

EGUs compared to CAIR budget for Texas of 

225,000 tons. See section 10 of the 2009 Texas 

Regional Haze SIP. 

34For the projected annual SO2 emissions from 

Texas EGUs under CSAPR See Technical Support 

Document for Demonstration of the Transport Rule 

as a BART Alternative, Docket ID No. EPA–HQ– 

OAR–2011– 0729–0014 (December 2011) (2011 

CSAPR/BART Technical Support Document), 

available in the docket for this action at table 2–4. 

Certain CSAPR budgets were increased after 

promulgation of the CSAPR final rule (and the 

increases were addressed in the 2012 CSAPR/BART 

sensitivity analysis memo. See memo entitled 

‘‘Sensitivity Analysis Accounting for Increases in 

Texas and Georgia Transport Rule State Emissions 

Budgets,’’ Docket ID No. EPA–HQ–OAR–2011– 

0729–0323 (May 29, 2012), available in the docket 

for this action. The increase in the Texas SO2

budget was 50,517 tons which, when added to the 

Texas SO2 emissions projected in the CSAPR + 

BART-elsewhere scenario of 266,600 tons, yields 

total potential SO2 emissions from Texas EGUs of 

approximately 317,100 tons. Texas SO2 emissions 

projected in the CSAPR + BART-elsewhere scenario 

of 266,600 tons compared to the original CSAPR 

budget of 243,954. The CSAPR budget for Texas 

after adjustments was 294,471 tons. 

35 79 FR 74817, 74823 (December 16, 2014) (‘‘We 

propose to replace Texas’ reliance on CAIR to 

satisfy the BART requirement for EGUs with 

reliance on CSAPR.’’). This part of the 2014 

proposal was not finalized in the action taken on 

January 5, 2016, that has since been remanded by 

the Fifth Circuit Court of Appeals. 81 FR 295. 

36 2 FR 45481 (Sept. 29, 2017). See docket EPA– 

HQ–OAR–2016–0598 for additional information. 

37Util. Air Regulatory Grp. v. EPA, 885 F.3d 714 

(D.C. Cir. 2018). 38 40 CFR 51.308(f). 

result in fewer emissions to generate the 

same amount of electricity. 

C. Furthermore, the non-inclusion of 

a large number of gas-fired units that 

rarely burn fuel oil reduces the amount 

of available allowances for such units 

that would typically and collectively be 

expected to use only a fraction of 

CSAPR emissions allowances. Many of 

these sources typically emit at levels 

much lower than their allocation level. 

Should sources not participating in the 

program choose to opt in, thereby 

increasing the number of available 

allowances, this would serve to make 

the program more closely resemble 

CSAPR. 

D. The BART alternative does not 

allow purchasing of allowances from 

out-of-state sources. Emission 

projections under CAIR and CSAPR 

showed that Texas sources were 

anticipated to purchase allowances from 

out-of-state sources.33 34

Based on these points, and applying 

as appropriate the principles of the rules 

and program design of CSAPR to a 

program designed to apply to and for 

Texas, we are proposing to affirm our 

earlier determinations regarding SO2

BART coverage for EGUs by means of a 

BART alternative under an intrastate 

trading program. In 2014, we had 

originally proposed that participation in 

a CSAPR SO2 trading program would 

satisfy the SO2 BART requirement for 

Texas EGUs.35 The October 2017 final 

action and this proposal rely in large 

part on substantially similar technical 

elements. In contrast to the 2014 

proposal, however, the intrastate trading 

program SO2 BART alternative would 

not meet the terms of 40 CFR 

51.308(e)(4), as amended, because that 

regulatory provision provides BART 

coverage for pollutants covered by the 

CSAPR trading program in the State. In 

September 2017, EPA finalized the 

removal of Texas from the CSAPR SO2

trading program.36 Instead, we are 

relying on the BART alternative option 

provided under 40 CFR 51.308(e)(2). 

The BART alternative we are proposing 

to affirm today is supported by our 

determination that the trading program 

achieves greater reasonable progress 

than BART. The BART alternative is 

designed to achieve SO2 emission levels 

from Texas sources similar to the SO2

emission levels that would have been 

achieved under CSAPR. Relying on a 

quantitative and qualitative assessment 

of the operation of the BART alternative, 

we propose to affirm our determination 

that emission levels under this program, 

and their aggregate impact on visibility, 

will be on average no greater than those 

from Texas EGUs that would have been 

realized from the SO2 trading program 

under CSAPR. Accordingly, for 

materially the same reasons underlying 

our June 2012 ‘‘CSAPR better than 

BART’’ and September 2017 ‘‘CSAPR 

still better than BART’’ determinations, 

and the March 2018 court opinion 37

upholding CSAPR better than BART, the 

SO2 BART FIP for Texas’ BART-eligible 

EGUs participating in the trading 

program will achieve greater reasonable 

progress than BART with respect to SO2. 

In our January 2017 proposed action 

and in our October 2017 final action, we 

determined that the BART-eligible EGUs 

not participating in the program were 

not causing or contributing to visibility 

impairment, and were therefore not 

subject to BART. In today’s proposed 

rule, we are not re-opening the 

determination that these units are not 

subject to BART. 

The Regional Haze Rule at 40 CFR 

51.308(e)(2)(iii) requires that the 

emission reductions from BART 

alternatives occur ‘‘during the period of 

the first long-term strategy for regional 

haze.’’ The SO2 BART alternative that 

EPA is proposing here will be 

implemented beginning in January 

2019, and thus emission reductions 

needed to meet the allowance 

allocations must take place by the end 

of 2019. For the purpose of evaluating 

Texas’ BART alternative, the end of the 

period of the first long-term strategy for 

Texas is 2021, consistent with the 

requirement that states submit revisions 

to their long-term strategy to address the 

second planning period by July 31, 

2021.38 Therefore, we propose to affirm 

our determination that because the 

emission reductions from the Texas SO2

trading program will be realized prior to 

that date, the necessary emission 

reductions will take place within the 

period of Texas’ first long-term strategy 

for regional haze. 

In proposing to affirm the regulatory 

terms and rules for implementing the 

BART alternative, we are mindful of the 

minimally required elements for a 

BART alternative emissions trading 

program that are specified in the 

provisions of 40 CFR 

51.308(e)(2)(vi)(A)–(L). In a generic 

sense, these types of provisions are 

foundational to the establishment of 

allowance markets. CSAPR is a 

prominent example of such an 

allowance market, and we have 

designed this BART alternative guided 

by transferring and generally 

incorporating well-tested program rules 

and terms from the provisions of 

CSAPR; we have ensured that the BART 

alternative will conform to the 

provisions necessary and appropriate 

that are needed for an emissions trading 

program covered by a cap. 

EPA requests comment on our 

proposal to affirm the October 2017 FIP 

establishing an intrastate trading 

program addressing emissions of SO2

from certain EGUs in Texas as a BART 

alternative and our determinations that 

this program satisfies the requirements 

for BART alternatives. 

2. PM BART 

The 2009 Texas Regional Haze SIP 

included a pollutant-specific screening 

analysis for PM to demonstrate that 

Texas EGUs were not subject to BART 

for PM. This approach was consistent 

with a 2006 guidance document in 

which the EPA stated that pollutantspecific screening can be appropriate 

where a state is relying on a BART 

alternative to address both NOX and SO2

BART. The majority of Texas’ BARTeligible EGUs rely on BART alternatives 

for both SO2 and NOX emissions and we 

approved Texas’ pollutant-specific 

screening analysis as appropriate. All of 

the BART-eligible sources participating 

in the SO2 intrastate trading program 

have visibility impacts from PM alone 

below the subject-to-BART threshold of 

0.5 deciviews (dv). Furthermore, the 

BART-eligible sources not participating 


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39 81 FR 296 (Jan. 5, 2016). 

40Specifically, we previously disapproved the 

relevant portion of these Texas’ SIP submittals: 

April 4, 2008: 1997 8-hour Ozone, 1997 PM2.5 (24- 

hour and annual); May 1, 2008: 1997 8-hour Ozone, 

1997 PM2.5 (24-hour and annual); November 23, 

2009: 2006 24-hour PM2.5; December 7, 2012: 2010 

NO2; December 13, 2012: 2008 8-hour Ozone; May 

6, 2013: 2010 1-hour SO2 (Primary NAAQS). 79 FR 

74818, 74821; 81 FR 296, 302. 

41Texas v. EPA, 829 F.3d 405 (5th Cir. 2016). 

42EME Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 133–34 (DC Cir. 2015) (holding that SIPs 

based on CAIR were unapprovable to fulfill good 

neighbor obligations). 

43See discussion in Memorandum from Joseph 

Paisie to Kay Prince, ‘‘Regional Haze Regulations 

and Guidelines for Best Available Retrofit 

Technology (BART) Determinations,’’ July 19, 2006. 

44We originally proposed to approve Texas’ 

screening approach in 2014, and the basis of our 

proposal today remains consistent with the 

technical evaluation we provided at that time. See 

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

45Stryker Creek is covered by CSAPR for NOX

and by the SO2 trading program but was not 

included in the 2009 Regional Haze SIP. How 

Stryker Creek is screened out for PM is discussed 

below. 

46EPA determined that Dansby, Greens Bayou, 

Handley, Lake Hubbard, Plant X, Powerlane, R W 

Miller, and Spencer are not subject to BART based 

on the methodologies utilizing model plants and 

CALPUFF modeling as described in our January 

2017 proposed rule and BART Screening TSD 

(Available in the docket for this action, document 

ID EPA–R06–OAR–2016–0611–0005). 

in the intrastate trading program were 

screened out of BART for all visibility 

impairing pollutants. EPA requests 

comments on our proposal to affirm our 

October 2017 approval of the portion of 

the Texas Regional Haze SIP that 

determined that PM BART emission 

limits are not required for any Texas 

EGUs. 

B. Interstate Transport of Pollutants 

That Affect Visibility 

In our January 5, 2016 final action 39

we disapproved the portion of Texas’ 

SIP revisions intended to address 

interstate visibility transport for six 

NAAQS, including the 1997 8-hour 

ozone and 1997 PM2.5.40 That 

rulemaking was challenged, however, 

and in December 2016, following a stay 

of the rule by the Fifth Circuit Court of 

Appeals in Texas v. EPA and EPA’s 

submittal of a subsequent request by the 

EPA for a voluntary remand of the parts 

of the rule under challenge, the Fifth 

Circuit Court of Appeals remanded the 

rule in its entirety without vacatur.41 In 

our October 2017 final action, we again 

finalized our disapproval of Texas’ SIP 

revisions addressing interstate visibility 

transport under CAA section 

110(a)(2)(D)(i)(II) for six NAAQS. As 

explained in our January 2017 proposal, 

Texas’ infrastructure SIP revisions for 

these six NAAQS relied on its 2009 

Regional Haze SIP, including that SIP’s 

reliance on CAIR as an alternative to 

EGU BART for SO2 and NOX, to meet 

the interstate visibility transport 

requirements.42 We are now proposing 

to affirm that Texas’ participation in 

CSAPR to satisfy NOX BART and our 

SO2 intrastate trading program, fully 

addresses Texas’ interstate visibility 

transport obligations for the following 

six NAAQS: (1) 1997 8-hour ozone; (2) 

1997 PM2.5 (annual and 24 hour); (3) 

2006 PM2.5 (24-hour); (4) 2008 8-hour 

ozone; (5) 2010 1-hour NO2; and (6) 

2010 1-hour SO2. The basis of this 

proposed affirmation is our 

determination in the October 2017 final 

action that the regional haze measures 

in place for Texas are adequate to 

ensure that emissions from the State do 

not interfere with measures to protect 

visibility in nearby states because the 

emission reductions are consistent with 

the level of emissions reductions relied 

upon by other states during 

consultation. EPA requests comment on 

our proposal to affirm the finding that 

the BART alternatives in the October 

2017 rulemaking result in emission 

reductions adequate to satisfy the 

requirements of CAA section 

110(a)(2)(D)(i)(II) with respect to 

visibility for six NAAQS issued between 

1997 and 2010. 

III. PM BART 

In our January 2017 proposal, we 

proposed to disapprove Texas’ technical 

evaluation and determination in the 

2009 Regional Haze SIP that PM BART 

emission limits are not required for any 

of Texas’ EGUs. That SIP included a 

pollutant-specific screening analysis for 

PM to demonstrate that Texas EGUs 

were not subject to BART for PM. This 

approach was consistent with a 2006 

guidance document 43 in which the EPA 

stated that pollutant-specific screening 

can be appropriate where a state is 

relying on a BART alternative to address 

both NOX and SO2 BART. However, 

because we proposed to address SO2

BART on a source-specific basis, Texas’ 

pollutant-specific screening was not 

appropriate and we proposed sourcespecific PM BART emission limits 

consistent with existing practices and 

controls. In our October 2017 final 

action, we did not issue source-specific 

SO2 BART determinations. Instead, for 

the majority of Texas’ BART-eligible 

EGUs, we relied on BART alternatives 

for both SO2 and NOX emissions and 

approved Texas’ pollutant-specific 

screening analysis as appropriate.44 All 

of the BART-eligible sources 

participating in the intrastate trading 

program have visibility impacts from 

PM alone below the subject-to-BART 

threshold of 0.5 deciviews (dv).45

Furthermore, the BART-eligible sources 

not participating in the intrastate 

trading program were screened out of 

BART for all visibility impairing 

pollutants. As such, we are proposing to 

affirm our October 2017 approval of the 

portion of the Texas Regional Haze SIP 

that determined that PM BART emission 

limits are not required for any Texas 

EGUs, and are requesting comment on 

this proposal. 

As we explained in the January 2017 

proposal, the 2009 Regional Haze SIP 

did not evaluate PM impacts from all 

BART-eligible EGUs. We evaluated and 

determined that this omission did not 

affect Texas’ conclusion that no BARTeligible EGUs should be subject-toBART for PM emissions. In our January 

2017 proposal and as finalized in our 

October 2017 action, we identified 

several facilities as BART-eligible that 

Texas did not identify as BART eligible 

in its 2009 Regional Haze SIP. 

Specifically, we identified the following 

additional BART-eligible sources: 

Coleto Creek Unit 1 (Dynegy), Dansby 

Unit 1 (City of Bryan), Greens Bayou 

Unit 5 (NRG), Handley Units 3,4, and 5 

(Exelon), Lake Hubbard Units 1 and 2 

(Luminant), Plant X Unit 4 (Xcel), 

Powerlane Units ST1, ST2, and ST3 

(City of Greenville), R W Miller Units 1, 

2, and 3 (Brazos Elec.), Spencer Units 4 

and 5 (City of Garland), and Stryker 

Creek Unit ST2 (Luminant). Based on 

CALPUFF modeling and a model-plant 

analysis, we found that all of these 

facilities except Coleto Creek and 

Stryker Creek had impacts from NOX, 

SO2, and PM below the BART screening 

level.46 CALPUFF modeling showed 

that Stryker Creek Unit ST2 had a 

visibility impact of 0.786 dv from NOX, 

SO2, and PM. However, Stryker Creek 

Unit ST2 is now covered by a BART 

alternative for NOX and SO2, so we 

evaluated the visibility impact of 

Stryker Creek Unit ST2’s PM emissions 

alone. The CALPUFF modeling files and 

spreadsheets included in our January 

2017 proposal indicate that light 

extinction from PM (PMFine and 

PMCoarse) is less than 1% of total light 

extinction at all Class I areas. Therefore, 

because the visibility impact 

attributable to PM emissions from 

Stryker Creek Unit ST2 would be a 

small fraction (roughly 1%) of the 0.786 

dv aggregate impact of the unit’s 

emissions from all pollutants, we 

propose to affirm our determination that 

the source is not subject to BART for PM 

under EPA’s 2006 guidance, and are 

requesting comment on this proposal. 

We also evaluated the potential 

visibility impact of PM emissions from 


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47Environ Report—‘‘Final Report Screening 

Analysis of Potential BART-Eligible Sources in 

Texas’’, September 27, 2006; ‘‘Addendum 1—BART 

Exemption Screening Analysis’’, Draft December 6, 

2006; and ‘‘BARTmodelingparameters V2.csv’’. 

48This is calculated by using the maximum daily 

PM10 daily emission rate, adding the maximum 

daily PM2.5 emission rate and then calculating the 

total emissions in tons per year if this max daily 

rate happened every day. 

49See ‘Coleto_Creek_Screen_analysis.xlsx’. 

50See 79 FR 74817, 74848 (Dec. 16, 2014). Docket 

number EPA–R06–OAR–2014–0754. 

51 40 CFR 51.308(e)(4); see also generally 77 FR 

33641 (June 7, 2012). The D.C. Circuit recently 

denied a challenge to petition seeking review of the 

2012 amendments. Utility Air Regulatory Group v. 

EPA, 885 F.3d 714 (D.C. Cir. 2018). 

52See Technical Support Document for 

Demonstration of the Transport Rule as a BART 

Alternative, Docket ID No. EPA–HQ–OAR–2011– 

0729–0014 (December 2011) (2011 CSAPR/BART 

Technical Support Document), and memo entitled 

‘‘Sensitivity Analysis Accounting for Increases in 

Texas and Georgia Transport Rule State Emissions 

Budgets,’’ Docket ID No. EPA–HQ–OAR–2011– 

0729–0323 (May 29, 2012), both available in the 

docket for this action. 

53The EPA identified two possible sets of affected 

Class I areas to consider for purposes of the study 

and found that implementation of CSAPR met the 

criteria for a BART alternative whichever set was 

considered. See 77 FR 33641, 33650 (June 7, 2012). 

54For additional detail on the 2014 base case, see 

the CSAPR Final Rule Technical Support 

Document, available in the docket for this action. 

55The ‘‘Nationwide BART’’ scenario reflected 

implementation of presumptive source-specific 

BART for both SO2 and NOX at BART-eligible EGUs 

nationwide. The ‘‘CSAPR+BART-elsewhere’’ 

reflected implementation of CSAPR in covered 

states and presumptive source-specific BART for 

each pollutant in states where CSAPR did not apply 

for that pollutant. 

56CSAPR was amended three times in 2011 and 

2012 to add five states to the seasonal NOX program 

and to increase certain state budgets. 76 FR 80760 

(Dec. 27, 2011); 77 FR 10324 (Feb. 21, 2012); 77 FR 

34830 (June 12, 2012). The ‘‘CSAPR-better-thanBART’’ final rule reflected consideration of these 

changes to CSAPR. 

Coleto Creek Unit 1 using the CAMx 

modeling that Texas used for PM BART 

screening of its EGU sources in its 2009 

Regional Haze SIP.47 Specifically, we 

evaluated the modeling results for two 

facilities (LCRA Fayette and Sommers 

Deely) that have stack parameters 

similar to Coleto Creek’s, but that are 

located closer to Class I areas than 

Coleto Creek. Texas grouped the LCRA 

Fayette Facility together with other 

sources into Group 2 of their PM 

screening modeling and found that this 

group’s maximum aggregate impacts at 

all Class I areas were less than 0.25 

deciviews (dv). Texas also modeled the 

City Public Service Sommers Deely 

Facility’s PM impacts. Maximum 

impacts at all Class I areas from 

Sommers Deely were less than 0.32 dv. 

To extend these model results to Coleto 

Creek, we used the Q/D ratio where Q 

is the maximum annual PM emissions 48

and D is the distance to the nearest 

receptor in a Class I area. If the Q/D ratio 

of Coleto Creek is smaller than the ratios 

for the two modeling results (Fayette 

and Sommers Deely) then Coleto Creek’s 

impacts can be estimated as less than 

the impacts of these source(s) and thus 

be screened out. We evaluated the 

closest Class I areas (Big Bend, 

Guadalupe Mountains, Carlsbad, 

Wichita Mountains, and Caney Creek) 

and the Q/D ratios were: Coleto Creek 

(0.59–0.86), Fayette (4.25–6.1), and 

Sommers Deely (6.0–10.05).49 The Q/D 

ratio for Fayette is 6 to 8 times larger 

than for Coleto Creek, while the Q/D 

ratio for Sommers Deely is 9 to 11.6 

times higher than for Coleto Creek. 

Therefore, if we were to model the PM 

impacts from Coleto Creek, they would 

be an order of magnitude smaller than 

the impacts from these facilities, which 

themselves are well below the threshold 

of 0.5 dv. Therefore, we propose to 

affirm our determination that Coleto 

Creek is not subject to BART for PM 

emissions, and are requesting comment 

on this proposal. 

We originally proposed to approve 

Texas’ screening approach in 2014,50

and the basis of our proposal today 

remains consistent with the technical 

evaluation we provided at that time. 

IV. The SO2 Trading Program and Its 

Implications for Interstate Visibility 

Transport and EGU BART 

The Regional Haze Rule provides each 

state with the flexibility to adopt an 

emissions trading program or other 

alternative measure instead of requiring 

source-specific BART controls, so long 

as the alternative measure is 

demonstrated to achieve greater 

reasonable progress than BART. In our 

October 2017 final rulemaking, we 

acknowledged the State’s preference 

and promulgated a BART alternative for 

SO2 for certain Texas EGUs. The 

rationale that the BART alternative 

would be better than BART was based 

on the combination of the source 

coverage for this program and the total 

allocations for EGUs covered by the 

program, which along with the recent 

and foreseeable emissions trends from 

EGUs both covered and not covered by 

the program indicate that the BART 

alternative will result in future EGU 

emissions in Texas that are similar to 

what was forecast in the 2012 ‘‘CSAPR 

better than BART’’ demonstration for 

Texas EGU emissions that assumed 

Texas would be subject to CSAPR for all 

pollutants participation. Today’s 

proposed rule reiterates our finding in 

the October 2017 rule and affirms that 

it continues to support the promulgated 

FIP. 

A. Background on the Concept of 

CSAPR as an Alternative to BART 

In 2012, the EPA amended the 

Regional Haze Rule to provide that 

participation by a state’s EGUs in a 

CSAPR trading program for a given 

pollutant qualifies as a BART alternative 

for those EGUs for that pollutant.51 In 

promulgating this ‘‘CSAPR-better-thanBART’’ rule (also referred to as 

‘‘Transport Rule as a BART 

Alternative’’), the EPA relied on an 

analytic demonstration based on an air 

quality modeling study 52 showing that 

CSAPR implementation meets the 

Regional Haze Rule’s criteria for a 

demonstration of greater reasonable 

progress than BART. In the air quality 

modeling study conducted for the 2012 

analytic demonstration, the EPA 

projected visibility conditions in 

affected Class I areas 53 based on 2014 

emissions projections for two control 

scenarios and on the 2014 base case 

emissions projections.54 One control 

scenario represents ‘‘Nationwide BART’’ 

and the other represents 

‘‘CSAPR+BART-elsewhere.’’ 55 In the 

base case, neither BART controls nor the 

EGU SO2 and NOX emissions reductions 

attributable to CSAPR were reflected. To 

project emissions under CSAPR, the 

EPA assumed that the geographic scope 

and state emissions budgets for CSAPR 

would be implemented as finalized in 

2011, and the EPA’s final analysis also 

accounted for several amendments to 

the CSAPR budgets that were finalized 

in 2012.56 The results of that analytic 

demonstration based on this air quality 

modeling passed the two-pronged test 

set forth at 40 CFR 51.308(e)(3). The first 

prong requires that the alternative 

program will not cause a decline in 

visibility at any affected Class I area. 

The second prong requires that the 

alternative program results in 

improvements in average visibility 

across all affected Class I areas as 

compared to adopting source-specific 

BART. Together, these tests ensure that 

the alternative program provides for 

greater visibility improvement than 

would source-specific BART. 

For purposes of the 2012 analytic 

demonstration that CSAPR as finalized 

and amended in 2011 and 2012 

provides for greater reasonable progress 

than BART, the analysis included Texas 

EGUs as subject to CSAPR for SO2 and 

annual NOX (as well as ozone-season 

NOX). CSAPR’s emissions limitations 

are defined in terms of emissions 

‘‘budgets’’ for the collective emissions 

from affected EGUs in each covered 

state. Sources can purchase allowances 

from sources outside of the state, so 

total projected emissions for a state may, 


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57Units that are subject to CSAPR but that do not 

receive allowance allocations as existing units are 

eligible for a new unit set aside (NUSA) allowance 

allocation. NUSA allowance allocations are a batch 

of emissions allowances that are reserved for new 

units that are regulated by the CSAPR, but were not 

included in the final rule allocations. The NUSA 

allowance allocations are removed from the original 

pool of regional allowances, and divided up 

amongst the new units, so as not to exceed the 

emissions cap set in the CSAPR. Each calendar 

year, EPA issues three pairs of preliminary and final 

notices of data availability (NODAs), which are 

determined and recorded in two ‘‘rounds’’ and are 

published in the Federal Register. In any year, if 

the NUSA for a given CSAPR state and program 

does not have enough new unit applicants after 

completion of the 2nd round to use up all of the 

set aside allowances, the remaining allowances are 

allocated to existing CSAPR-affected units. 

58See 40 CFR 97.710 for state SO2 Group 2 

trading budgets, new unit set-asides, Indian country 

new unit set-asides, and variability limits. 

59For the projected annual SO2 emissions from 

Texas EGUs, see Technical Support Document for 

Demonstration of the Transport Rule as a BART 

Alternative, Docket ID No. EPA–HQ–OAR–2011– 

0729–0014 (December 2011) (2011 CSAPR/BART 

Technical Support Document at Table 2–4), 

available in the docket for this action. at table 2– 

4. Certain CSAPR budgets were increased after 

promulgation of the CSAPR final rule (and the 

increases were addressed in the 2012 CSAPR/BART 

sensitivity analysis memo. See memo entitled 

‘‘Sensitivity Analysis Accounting for Increases in 

Texas and Georgia Transport Rule State Emissions 

Budgets,’’ Docket ID No. EPA–HQ–OAR–2011– 

0729–0323 (May 29, 2012), available in the docket 

for this action. The increase in the Texas SO2

budget was 50,517 tons which, when added to the 

Texas SO2 emissions projected in the CSAPR + 

BART-elsewhere scenario of 266,600 tons, yields 

total potential SO2 emissions from Texas EGUs of 

approximately 317,100 tons. 

60 In addition to the withdrawal of the FIP 

provisions for annual emissions of SO2 and NOX for 

EGUs in Texas, the full set of actions taken to 

respond to the remand includes the 2016 CSAPR 

Update withdrawing the remanded seasonal NOX

budgets for eleven states and establishing new 

seasonal NOX budgets to address a more recent 

ozone NAAQS for eight of those states, and the 

actions approving Alabama’s, Georgia’s, and South 

Carolina’s SIP revisions establishing state CSAPR 

trading programs for SO2 and annual NOX to 

replace the corresponding federal CSAPR trading 

programs. 

61 81 FR 78954 (Nov. 10, 2016), 82 FR 45481 

(Sept. 29, 2017). A petition challenging the EPA’s 

determination regarding the continued validity of 

participation in CSAPR as a BART alternative is 

currently being held in abeyance in the D.C. Circuit. 

Order, Nat’l Parks Conservation Assn. v. EPA, No. 

17–1253 (D.C. Cir. Apr. 10, 2018). 

62See 82 FR 45481; see also 40 CFR 52.39(c)(2), 

52.2284(c)(1). 

63EPA is not determining now that this proposal 

serves to also resolve the EPA’s outstanding 

obligations with respect to reasonable progress that 

resulted from the Fifth Circuit’s remand of our 

reasonable progress FIP. We intend to take future 

action to address the Fifth Circuit’s remand. 

in some cases, exceed the state’s 

emission budget, but aggregate 

emissions from all sources in a state are 

expected to remain lower than or equal 

to the state’s ‘‘assurance level’’ given the 

incentives that source owners have 

under the program to achieve that 

result. The final emission budget under 

CSAPR for Texas was 294,471 tons per 

year for SO2, including 14,430 tons of 

allowances available in the new unit set 

aside.57 The State’s ‘‘assurance level’’ 

under CSAPR was 347,476 tons.58

Under CSAPR, the projected SO2

emissions from the affected Texas EGUs 

in the ‘‘CSAPR + BART-elsewhere’’ 

scenario were 266,600 tons per year. In 

a 2012 sensitivity analysis memo, EPA 

conducted a sensitivity analysis that 

confirmed that CSAPR would remain 

better-than-BART even if Texas EGU 

emissions increased to approximately 

317,100 tons.59

As discussed in Section I.D, in the 

EPA’s final response in September 2017 

to the D.C. Circuit’s remand in EME 

Homer City II of certain CSAPR budgets, 

we finalized the withdrawal of the 

requirements for Texas’ EGUs to 

participate in the annual SO2 and NOX

trading programs and also finalized our 

determination that the changes to the 

geographic scope of the CSAPR trading 

programs resulting from the remand 

response do not affect the continued 

validity of participation in CSAPR as a 

BART alternative.60 This determination 

that CSAPR remains a viable BART 

alternative despite changes in 

geographic scope resulting from EPA’s 

response to the CSAPR remand was 

based on a sensitivity analysis of the 

2012 analytic demonstration used to 

support the original CSAPR as betterthan-BART rulemaking. A full 

explanation of the sensitivity analysis is 

included in the remand response 

proposal and final rule.61

B. Texas SO2 Trading Program 

Texas is no longer in the CSAPR 

program for annual SO2 emissions and 

accordingly cannot rely on CSAPR as a 

BART alternative for SO2 under 

51.308(e)(4).62 Therefore, informed by 

the TCEQ’s comments on our January 

2017 proposal, in our October 2017 final 

action we addressed the SO2 BART 

requirement for coal-fired, some gasfired, and some gas/fuel oil-fired units 

under a BART alternative, which we 

developed to meet the demonstration 

requirements under 51.308(e)(2). Today 

we propose to affirm the demonstration 

in our October 2017 action and to retain 

the SO2 BART alternative for coal-fired, 

some gas-fired, and some gas/fuel-oil 

fired units. We are soliciting comment 

on these issues, and in particular, we 

are soliciting comments on the proposal 

to affirm our determinations that the 

BART alternative meets each of the 

applicable regulatory requirements, as 

detailed in this section. 

1. Identification of Sources Participating 

in the Trading Program 

Under 51.308(e)(2), a State may opt to 

implement or require participation in an 

emissions trading program or other 

alternative measure rather than to 

require sources subject to BART to 

install, operate, and maintain BART. 

Such an emissions trading program or 

other alternative measure must achieve 

greater reasonable progress than would 

be achieved through the installation and 

operation of BART. At the same time, 

the Texas trading program should be 

designed so as not to interfere with the 

validity of existing SIPs in other states 

that have relied on reductions from 

sources in Texas. As discussed 

elsewhere, the Texas trading program is 

designed to provide the measures that 

are needed to address interstate 

visibility transport requirements for 

several NAAQS and to be part of the 

long-term strategy needed to meet the 

reasonable progress requirements of the 

Regional Haze Rule.63 To meet all of 

these goals, the trading program must 

not only be inclusive of all BARTeligible sources that are treated as 

satisfying the BART requirements 

through participation in a BART 

alternative, but must also include 

additional emission sources to the 

extent required to ensure that the 

trading program as a whole can be 

shown to both achieve greater 

reasonable progress than would be 

achieved through the installation and 

operation of BART, and achieve the 

emission reductions assumed by other 

states in their own regional haze SIPs, 

and relied upon in establishing their 

reasonable progress goals for their Class 

I areas. 

In order to identify EGUs in the 

trading program, we began with the list 

of BART-eligible EGUs for which we 

intended to address the BART 

requirements through a BART 

alternative. As discussed elsewhere, we 

determined that several BART-eligible 

gas-fired and gas/oil-fired EGUs are not 

subject-to-BART for NOX, SO2, and PM, 

and are therefore not included in the 

trading program. The table below lists 

those BART-eligible EGUs identified for 

inclusion in the trading program. 

TABLE 2—BART-ELIGIBLE EGUS PARTICIPATING IN THE TRADING PROGRAM

Facility Unit 

Big Brown (Luminant/Vistra) ..... 1 

Big Brown (Luminant/Vistra) ..... 2 

Coleto Creek (Dynegy 64/Vistra) 1 

Fayette (LCRA) ......................... 1 

Fayette (LCRA) ......................... 2 

Graham (Luminant) .................. 2 


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64 Dynegy purchased the Coleto Creek power 

plant from Engie in February 2017. Note that Coleto 

Creek may still be listed as being owned by Engie 

in some of our supporting documentation which 

was prepared before that sale. 

65 40 CFR 51.308(e)(2)(vi)(A). 

66See the BART FIP TSD, available in the docket 

for this action (Document Id: EPA–R06–OAR–2016– 

0611–0004), for evaluation of the performance of 

scrubbers on Fayette Units 1 and 2. 

67The annual average emission rate for 2016 for 

this unit was 0.01 lb/MMBtu. 

68Parish Units 5 and 6 are coal-fired BARTeligible units. Parish Unit 7 is not BART-eligible, 

but is a co-located coal-fired EGU. Unlike Parish 

Unit 8, these three units do not have an SO2

scrubber installed. 

69The annual average emission rate for 2016 for 

J K Spruce Units 1 and 2 was 0.03 lb/MMBtu and 

0.01 lb/MMBtu, respectively. The annual average 

emission rate for 2016 for J T Deely Units 1 and 2 

was 0.52 lb/MMBtu and 0.51 lb/MMBtu, 

respectively. 

70See 40 CFR part 51, App. Y, § III (How to 

Identify Sources ‘‘Subject to BART’’). 

71Federal Land Managers’ Air Quality Related 

Values Work Group (FLAG), Phase I Report— 

Revised (2010). 

Natural Resource Report NPS/NRPC/NRR—2010/ 

232, October 2010. Available at http:// 

TABLE 2—BART-ELIGIBLE EGUS PARTICIPATING IN THE TRADING PROGRAM—Continued 

Facility Unit 

Harrington Station (Xcel) .......... 061B 

Harrington Station (Xcel) .......... 062B 

J T Deely (CPS Energy) ........... 1 

J T Deely (CPS Energy) ........... 2 

Martin Lake (Luminant/Vistra) .. 1 

Martin Lake (Luminant/Vistra) .. 2 

Martin Lake (Luminant/Vistra) .. 3 

Monticello (Luminant/Vistra) ..... 1 

Monticello (Luminant/Vistra) ..... 2 

Monticello (Luminant/Vistra) ..... 3 

Newman (El Paso Electric) ...... 2 

Newman (El Paso Electric) ...... 3 

Newman (El Paso Electric) ...... 4 

O W Sommers (CPS Energy) .. 1 

O W Sommers (CPS Energy) .. 2 

Stryker Creek (Luminant/Vistra) ST2 

WA Parish (NRG) ..................... WAP4 

WA Parish (NRG) ..................... WAP5 

WA Parish (NRG) ..................... WAP6 

Welsh Power Plant (AEP) ........ 1 

Welsh Power Plant (AEP) ........ 2 

Wilkes Power Plant (AEP) ........ 1 

Wilkes Power Plant (AEP) ........ 2 

Wilkes Power Plant (AEP) ........ 3 

For a BART alternative that includes 

an emissions trading program, the 

applicability provisions must be 

designed to prevent any significant 

potential shifting within the state of 

production and emissions from sources 

in the program to sources outsidethe 

program.65 Shifting would be 

logistically simplest among units in the 

same facility, because they are under 

common management and have access 

to the same transmission lines. In 

addition, since a coal-fired EGU to 

which electricity production could shift 

would have a relatively high SO2

emission rate (compared to a gas-fired 

EGU), such shifting could also shift 

substantial amounts of SO2 emissions. 

To prevent any significant shifting of 

generation and SO2 emissions from 

participating sources to nonparticipating sources within the same 

facility, coal-fired EGUs that are not 

BART-eligible but are co-located with 

BART-eligible EGUs have been included 

in the program, with the following 

exceptions. While Fayette Unit 3, WA 

Parish Unit 8 (WAP8), and J K Spruce 

Units 1 and 2 were identified as coalfired units that are not BART-eligible 

but are co-located with BART-eligible 

EGUs, these units have scrubbers 

installed to control SO2 emissions such 

that a shift in generation from the 

participating units to these units would 

not result in a significant increase in 

emissions. Fayette Unit 3 has a high 

performing scrubber similar to the 

scrubbers on Fayette Units 1 and 2,66

and has a demonstrated ability to 

maintain SO2 emissions at or below 0.04 

lbs/MMBtu.67 Any shifting of generation 

from the participating units at the 

facility to Fayette Unit 3 would result in 

an insignificant shift of emissions. The 

scrubber at Parish Unit 8 maintains an 

emission rate four to five times lower 

than the emission rate of the other coalfired units at the facility (Parish Units 

5, 6, and 7) that are uncontrolled.68

Shifting of generation from the 

participating units at the Parish facility 

to Parish Unit 8 would result in a 

decrease in overall emissions from the 

source. Similarly, J K Spruce Units 1 

and 2 have high performing scrubbers 

and emit at emission rates much lower 

than the co-located BART-eligible coalfired units (J T Deely Units 1 and 2).69

In addition, because these units not 

covered by the program are on average 

better controlled for SO2 than the 

covered sources and emit far less SO2

per unit of energy produced, we 

conclude that in general, based on the 

current emission rates of the EGUs, 

should a portion of electricity 

generation shift to those units not 

covered by the program, the net result 

would be a decrease in overall SO2

emissions, as these non-participating 

units are on average much better 

controlled. Relative to current emission 

levels, should participating units 

increase their emissions rates and 

decrease generation to comply with 

their allocation, emissions from nonparticipating units may see a small 

increase. Therefore, we have not 

included Fayette Unit 3, WA Parish 

Unit 8 (WAP8), and J K Spruce Units 1 

and 2 in the trading program. The table 

below lists those coal-fired units that are 

co-located with BART-eligible units that 

have been identified for inclusion in the 

trading program. 

TABLE 3—COAL-FIRED EGUS CO-LOCATED WITH BART-ELIGIBLE EGUS

AND PARTICIPATING IN THE TRADING

PROGRAM

Facility Unit 

Harrington Station (Xcel) .......... 063B 

WA Parish (NRG) ..................... WAP7 

Welsh Power Plant (AEP) ........ 3 

In addition to these sources, we also 

evaluated other EGUs for inclusion in 

the trading program based on their 

potential to impact visibility at Class I 

areas. Addressing emissions from 

sources with the largest potential to 

impact visibility is required to make 

progress towards the goal of natural 

visibility conditions and to address 

emissions that may otherwise interfere 

with measures required to protect 

visibility in other states. EPA, states, 

and Regional Planning Organizations 

(RPOs) have historically used a Q/D 

analysis to identify those facilities that 

have the potential to impact visibility at 

a Class I area based on their emissions 

and distance to the Class I area. Where, 

1. Q is the annual emissions in tons 

per year (tpy), and 

2. D is the nearest distance to a Class 

I Area in kilometers (km), 

We used a Q/D value of 10 as a 

threshold for identification of facilities 

that may impact visibility at Class I 

areas and could be included in the 

trading program in order to meet the 

goals of achieving greater reasonable 

progress than BART and limiting 

visibility transport. We selected this 

value of 10 based on guidance contained 

in the BART Guidelines, which states: 

Based on our analyses, we believe that 

a State that has established 0.5 

deciviews as a contribution threshold 

could reasonably exempt from the 

BART review process sources that emit 

less than 500 tpy of NOX or SO2 (or 

combined NOX and SO2), as long as 

these sources are located more than 50 

kilometers from any Class I area; and 

sources that emit less than 1000 tpy of 

NOX or SO2 (or combined NOX and SO2) 

that are located more than 100 

kilometers from any Class I area.70

The approach described above 

corresponds to a Q/D threshold of 10. 

This approach has also been 

recommended by the Federal Land 

Managers’ Air Quality Related Values 

Work Group (FLAG) 71 as an initial 


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www.nature.nps.gov/air/Pubs/pdf/flag/FLAG_

2010.pdf. 

72We also note that TCEQ utilized a Q/D 

threshold of 5 in its analysis of reasonable progress 

sources in the 2009 Texas Regional Haze SIP. See 

Appendix 10–1 of the 2009 Texas Regional Haze 

SIP. 

73See the TX RH FIP TSD that accompanied our 

December 2014 proposal to address Reasonable 

Progress requirements 79 FR 74818 (Dec 16, 2014) 

;) and 2009statesum_Q_D.xlsx, available in the 

docket for that action. 

74 Gibbons Creek’s 2016 annual SO2 emissions 

were only 138 tons compared to 11,931 tons in 

2009. 

75 79 FR 74818 (Dec. 16, 2014). 

76San Miguel Electric Cooperative FGD Upgrade 

Program Update, URS Corporation, June 30, 2014. 

Available in the docket for our December 2014 

Proposed action, 79 FR 74818 (Dec 16, 2014) as 

‘‘TX166–008–066 San Miguel FGD Upgrade 

Program.’’ 

77A boiler operating day (BOD) is any 24-hour 

period between 12:00 midnight and the following 

midnight during which any fuel is combusted at 

any time at the steam generating unit. See 70 FR 

39172 (July 6, 2005). 

78EPA is not determining at this time that this 

final action fully resolves the EPA’s outstanding 

Continued 

screening test to evaluate the potential 

impact of a new or modified source on 

air quality related values (AQRV) at a 

Class I area and screen out sources from 

further visibility analysis. For this 

purpose, a Q/D value is calculated using 

the combined annual emissions in tons 

per year of SO2, NOX, PM10, and sulfuric 

acid mist (H2SO4) divided by the 

distance to the Class I area in km. 

A Q/D value greater than 10 for a new 

or modified major source seeking a 

permit under the Prevention of 

Significant Deterioration Program or 

Nonattainment New Source Review 

Program is recommended to have a 

Class I area AQRV analysis conducted.72

We considered the results of an 

available Q/D analysis based on 2009 

emissions to identify facilities that may 

impact air visibility at Class I areas.73

Table 4 summarizes the results of that 

Q/D analysis for EGU sources in Texas 

with a Q/D value greater than 10 with 

respect to the nearest Class I area to the 

source. 

TABLE 4—Q/D ANALYSIS FOR TEXAS

EGUS

[Q/D Greater than 10, 2009 annual emissions] 

Facility Maximum Q/D 

H.W. Pirkey (AEP) ................ 35.8 

Big Brown (Luminant) ........... 182.9 

Sommers-Deely (CPS) ......... 56.9 

Coleto Creek (Dynegy) ......... 46.0 

Fayette (LCRA) ..................... 61.0 

Gibbons Creek (TMPA) ........ 30.8 

Harrington Station (Xcel) ...... 107.8 

San Miguel ............................ 32.9 

Limestone (NRG) .................. 85.1 

Martin Lake (Luminant) ........ 367.4 

Monticello (Luminant) ........... 425.4 

Oklaunion (AEP) ................... 85.0 

Sandow (Luminant) .............. 63.0 

Tolk Station (Xcel) ................ 148.5 

Twin Oaks ............................. 14.2 

WA Parish (NRG) ................. 84.3 

Welsh (AEP) ......................... 230.1 

Based on the above Q/D analysis, we 

identified additional coal-fired EGUs for 

participation in the SO2 trading program 

due to their emissions, proximity to 

Class I areas, and potential to impact 

visibility at Class I areas. While Gibbons 

Creek is identified by the Q/D analysis, 

the facility does not include any BARTeligible EGUs and has installed very 

stringent controls such that current 

emissions are approximately 1% of 

what they were in 2009.74 Therefore, we 

do not consider Gibbons Creek to have 

significant potential to impact visibility 

at any Class I area and do not include 

it in the trading program. The Twin 

Oaks facility, consisting of two units, is 

also identified as having a Q/D greater 

than 10. However, the Q/D for this 

facility is significantly lower than that 

of the other facilities, the facility does 

not include any BART-eligible EGUs, 

and the estimated Q/D for an individual 

unit would be less than 10. We do not 

consider the potential visibility impacts 

from these units to be significant 

relative to the other coal-fired EGUs in 

Texas with Q/Ds much greater than 10 

and do not include it in the trading 

program. The Oklaunion facility 

consists of one coal-fired unit that is not 

BART-eligible. Annual emissions of SO2

in 2016 from this source were 1,530 

tons, less than 1% of the total annual 

emissions for EGUs in the state and only 

988 tons in 2017. The most recent 

emissions from this facility are small 

relative to other non-BART units 

included in the program and we have 

not included Oklaunion in the trading 

program. Finally, San Miguel is 

identified as having a Q/D greater than 

10. The San Miguel facility consists of 

one coal-fired unit that is not BARTeligible. In our review of existing 

controls at the facility performed as part 

of our action to address the remaining 

regional haze obligations for Texas, we 

found that the San Miguel facility has 

upgraded its SO2 scrubber system to 

perform at the highest level (94% 

control efficiency) that can reasonably 

be expected based on the extremely high 

sulfur content of the coal being burned, 

and the technology currently 

available.75 Since completion of all 

scrubber upgrades,76 emissions from the 

facility on a 30-day boiler operating 

day 77 rolling average basis have 

remained below 0.6 lb/MMBtu and the 

2016 annual average emission rate was 

0.44 lb/MMBtu. Therefore, we found the 

facility is well controlled and did not 

include San Miguel in the trading 

program. Other coal-fired EGUs in Texas 

that are not included in the trading 

program either had Q/D values less than 

10 based on 2009 emissions or were not 

yet operating in 2009. New units 

beginning operation after 2009 have 

been or would be permitted and 

constructed using emission control 

technology determined under either 

Best Available Control Technology 

(BACT) or Lowest Achievable Emission 

Rate (LAER) review, as applicable, and 

we do not consider the potential 

visibility impacts from these units to be 

significant relative to those coal-fired 

EGUs participating in the program. See 

Table 8 and accompanying discussion 

in the section below for additional 

information on coal-fired EGUs not 

included in the trading program. The 

table below lists the additional units 

identified by the Q/D analysis described 

above as potentially significantly 

impacting visibility that are included in 

the trading program. We note that all of 

the other coal-fired units identified for 

inclusion in the trading program due to 

their BART-eligibility or by the fact that 

they are co-located with BART-eligible 

coal units would also be identified for 

inclusion in the trading program if the 

Q/D analysis were applied to them. 

TABLE 5—ADDITIONAL UNITS IDENTIFIED FOR INCLUSION IN THE TRADING

PROGRAM

Facility Unit 

H.W. Pirkey (AEP) .................... 1 

Limestone (NRG) ...................... 1 

Limestone (NRG) ...................... 2 

Sandow (Luminant) .................. 4 

Tolk (Xcel) ................................ 171B 

Tolk (Xcel) ................................ 172B 

EPA proposes to affirm our 

determination that the inclusion of all of 

these identified sources (Tables 2, 3, 

and 5) in an intrastate SO2 trading 

program will both: (1) Achieve emission 

levels that are similar to those projected 

in the 2012 ‘‘CSAPR better than BART’’ 

determination from original projected 

participation by all Texas EGUs in the 

CSAPR program for trading of SO2; and 

(2) achieve greater reasonable progress 

than BART. In addition to being a 

sufficient alternative to BART, the 

trading program secures reductions 

consistent with visibility transport 

requirements and is part of the longterm strategy to meet the reasonable 

progress requirements of the Regional 

Haze Rule.78 The combination of the 


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obligations with respect to reasonable progress that 

resulted from the Fifth Circuit’s remand of our 

reasonable progress FIP. We intend to take future 

action to address the Fifth Circuit’s remand. 

79See Table 3 above for list of participating units 

and identification of BART-eligible participating 

units. 

80EPA’s determination that these EGU units not 

covered by the program are not subject to BART is 

final and we are not reopening that determination 

here. 81Texas v. EPA, 829 F.3d 405 (5th Cir. 2016). 

82Texas sources were subject to the CSAPR SO2

trading program in 2015 and 2016 but are no longer 

subject to that program. We therefore select 2014 as 

the appropriate most recent year for this 

comparison. 

source coverage for this program, the 

total allocations for EGUs covered by 

the program, and recent and foreseeable 

emissions from EGUs not covered by the 

program will result in future EGU 

emissions in Texas that on average will 

be no greater than what was forecast in 

the 2012 ‘‘CSAPR better than BART’’ 

demonstration for Texas EGU emissions 

which assumed CSAPR participation by 

Texas. EPA requests comment on our 

proposal to affirm the identification of 

sources participating in the trading 

program in the October 2017 final rule. 

2. Texas SO2 Trading Program as a 

BART Alternative 

40 CFR 51.308(e)(2) contains the 

required plan elements and analyses for 

an emissions trading program or 

alternative measure designed as a BART 

alternative. 

In our October 2017 final action, we 

finalized our list of all BART-eligible 

sources in Texas, which serves to satisfy 

51.308(e)(2)(i)(A). We are not reopening 

the identification of BART-eligible 

sources, and thus are not requesting 

comment on this element. 

This proposal includes a list of all 

EGUs covered by the trading program, 

satisfying the first requirement of 

51.308(e)(2)(i)(B). All BART-eligible 

coal-fired units, some additional coalfired EGUs, and some BART-eligible 

gas-fired and oil-and-gas-fired units are 

covered by the alternative program.79

This coverage and our determinations 

that the BART-eligible gas-fired and oiland-gas-fired EGUs not covered by the 

program are not subject-to-BART for 

NOX, SO2 and PM satisfy the second 

requirement of 51.308(e)(2)(i)(B).80

Regarding the requirements of 40 CFR 

51.308(e)(2)(i)(C), we are proposing to 

affirm our determination that it is not 

necessary to make determinations of 

BART for each source subject to BART 

and covered by the program. Under that 

provision, the demonstration for a 

BART alternative does not need to 

include determinations of BART for 

each source subject to BART and 

covered by the program when the 

‘‘alternative measure has been designed 

to meet a requirement other than 

BART.’’ The Texas trading program 

meets this condition, as discussed 

elsewhere, because it has been designed 

to meet multiple requirements other 

than BART. This BART alternative 

extends beyond all BART-eligible coalfired units to include a number of 

additional coal-fired EGUs, and some 

BART-eligible gas-fired and oil-and-gasfired units, capturing the majority of 

emissions from EGUs in the State, and 

is designed to provide the measures that 

are needed to address interstate 

visibility transport requirements for 

several NAAQS. This is because for all 

sources covered by the Texas SO2

trading program, those sources’ CSAPR 

allocations for SO2 are incorporated into 

the BART alternative, and the BART FIP 

obtains more emission reductions of 

SO2 and NOX than the level of 

emissions reductions relied upon by 

other states during consultation and 

assumed by other states in their own 

regional haze SIPs, including their 

reasonable progress goals for their Class 

I areas. This BART alternative, 

addressing emissions from both BART 

eligible and non-BART eligible sources, 

that in combination provides for greater 

reasonable progress than BART, is also 

designed to be part of the long-term 

strategy needed to meet the reasonable 

progress requirements of the Regional 

Haze Rule, which remain outstanding 

after the remand of our reasonable 

progress FIP by the Fifth Circuit Court 

of Appeals. In our January 4, 2017 

proposal on BART, we noted that the 

Fifth Circuit Court of Appeals has 

remanded without vacatur our prior 

action on the Texas’ 2009 Texas 

Regional Haze SIP and part of the 

Oklahoma Regional Haze SIP.81 We 

contemplate that future action on this 

remand, will bring closure to the 

reasonable progress requirement. For 

these reasons, we find that it is not 

necessary for us to make determinations 

of BART for each source subject to 

BART and covered by the program. In 

this context, 51.308(e)(2)(i)(C) provides 

that we may ‘‘determine the best system 

of continuous emission control 

technology and associated emission 

reductions for similar types of sources 

within a source category based on both 

source-specific and category-wide 

information, as appropriate.’’ In this 

action, we are relying on the 

determinations of the best system of 

continuous emission control technology 

and associated emission reductions for 

EGUs as was used in our 2012 

determination that showed that CSAPR 

as finalized and amended in 2011 and 

2012 achieves more reasonable progress 

than BART (‘‘CSAPR better than 

BART’’). These determinations were 

based largely on category-wide 

information. 

Regarding the requirement of 40 CFR 

51.308(e)(2)(i)(D), our analysis is that 

the Texas trading program will 

effectively limit the aggregate annual 

SO2 emissions of the covered EGUs to 

be no higher than the sum of their 

allowances. The Texas SO2 Trading 

Program is an intrastate cap-and-trade 

program for listed covered sources in 

the State of Texas modeled after the 

EPA’s CSAPR SO2 Group 2 Trading 

Program. Authorizations to emit SO2, 

known as allowances, are allocated to 

affected units. As discussed elsewhere, 

the program includes a Supplemental 

Allowance Pool with additional 

allowances that may be allocated to 

subject units and sources to provide 

compliance assistance. The average total 

annual allowance allocation for all 

covered sources is 238,393 tons, with 

and an additional 10,000 tons allocated 

to the Supplemental Allowance pool. In 

addition, while the Supplemental 

Allowance pool may grow over time as 

unused supplemental allowances 

remain available and allocations from 

retired units are placed in the 

supplemental pool, the total number of 

allowances that can be allocated to 

sources in a control period from the 

supplemental pool is limited to a 

maximum 54,711 tons plus the amount 

of any allowances placed in the pool 

that year from retired units and 

corrections. Therefore, annual average 

emissions for the covered sources will 

be less than or equal to 248,393 tons, 

and although there will be some with 

year- to- year variability, that variability 

will be constrained by the number of 

banked allowances and number of 

allowances that can be allocated in a 

control period from the supplemental 

pool. The projected SO2 emission 

reduction that will be achieved by the 

program, relative to any selected 

historical baseline year, is therefore the 

difference between the aggregate 

historical baseline emissions of the 

covered units and the average total 

annual allocation. For example, the 

aggregate 2014 SO2 emissions of the 

covered EGUs were 309,296 tons per 

year, while the average total annual 

allocation for the covered EGUs is 

248,393 tons/year.82 Therefore, 

compared to 2014 emissions, the Texas 

trading program is projected to achieve 

an average reduction of approximately 


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83We note that for other types of alternative 

programs that might be adopted under 40 CFR 

51.308(e)(2), the analysis of achievable emission 

reductions could be more complicated. For 

example, a program that involved economic 

incentives instead of allowances or that involved 

interstate allowance trading would present a more 

complex situation in which achievable emission 

reductions could not be calculated simply be 

comparing aggregate baseline emissions to aggregate 

allowances. 

84EPA’s determination that Texas’ participation 

in CSAPR for ozone-season NOX satisfies NOX

BART for EGUs is final and we are not reopening 

that determination here. 

85 82 FR 45481 (Sept. 29, 2017). 

60,903 tons per year.83 We note that the 

trading program allows additional 

sources to opt-in to the program. Should 

sources choose to opt-in in the future, 

the average total annual allocation could 

increase, up to a maximum of 289,740 

tons. For comparison, the aggregate 

2014 SO2 emissions of the covered 

EGUs including all potential opt-ins 

were 343,425 tons per year. Therefore, 

compared to 2014 emissions, the Texas 

trading program including all potential 

opt-ins is projected to achieve an 

average reduction of approximately 

53,685 tons per year. 

Regarding the requirement of 40 CFR 

51.308(e)(2)(i)(E), the BART alternative 

EPA is proposing to affirm here is 

supported by our determination that, 

the clear weight of the evidence is that 

in the context of the operation of the 

CSAPR ozone-season NOX trading 

program and the operation of CSAPR 

annual NOX and SO2 trading programs, 

the Texas trading program achieves 

greater reasonable progress than would 

be achieved through the installation and 

operation of BART at the covered 

sources.84 The 2012 demonstration 

showed that CSAPR as finalized and 

amended in 2011 and 2012 meets the 

Regional Haze Rule’s criteria for a 

demonstration of greater reasonable 

progress than BART. This 2012 

demonstration is the primary evidence 

that the Texas trading program achieves 

greater reasonable progress than BART. 

However, the states participating in 

CSAPR are now slightly different than 

the geographic scope of CSAPR assumed 

in the 2012 analytic demonstration. In 

September 2017, we determined that the 

changes resulting from EPA’s responses 

to the D.C. Circuit’s remand in EME 

Homer City II to the emissions budgets 

and emissions distributions in states 

participating in CSAPR trading 

programs had no adverse impact on the 

2012 determination that CSAPR 

participation remains better-thanBART.85 Regarding SO2 emissions from 

Texas, as detailed below, the BART 

alternative is projected to accomplish 

emission levels from Texas EGUs that 

are similar to the emission levels from 

Texas EGUs that would have been 

realized from participation in the SO2

trading program under CSAPR. The 

changes to the geographic scope of the 

NOX CSAPR programs combined with 

the expectation that the Texas trading 

program will reduce the SO2 emissions 

of EGUs in Texas to levels similar to 

CSAPR-participation levels, despite 

slight differences in EGU participation 

between the two SO2 programs, lead to 

the proposed finding here that, in the 

context of the operation of the CSAPR 

ozone-season NOX trading program and 

the operation of CSAPR annual NOX

and SO2 trading programs, the Texas 

BART alternative program is betterthan-BART. 

The differences in Texas EGU 

participation in CSAPR and this BART 

alternative are either not significant or, 

in some cases, work to demonstrate the 

relative stringency of the BART 

alternative as compared to CSAPR. If 

Texas EGUs were still required to 

participate in CSAPR’s SO2 trading 

program, a determination that CSAPR is 

an acceptable BART alternative for 

Texas EGUs would be plainly consistent 

with EPA’s previous findings and 

regulations. The Texas trading program 

will result in average annual emissions 

from the covered EGUs and other EGUs 

in Texas that are no higher than if Texas 

EGUs were still required to participate 

in CSAPR’s SO2 trading program, and 

thus the clear weight of evidence is that, 

overall, the Texas trading program in 

conjunction with CSAPR will provide 

more reasonable progress than BART. 

We have considered the question of 

whether, in applying this portion of the 

Regional Haze Rule, we should take as 

the baseline the application of sourcespecific BART at the covered sources. 

We are proposing to interpret the rule to 

not require that approach in this 

situation, given that 51.308(e)(2)(i)C) 

provides for an exception (which we are 

exercising) to the requirement for 

source-specific BART determinations 

for the covered sources. As discussed 

previously, we are not making any 

source-specific BART determinations in 

this action, nor did Texas do so in its 

2009 Regional Haze SIP submission. 

Table 6 identifies the participating 

units and their proposed unit-level 

allocations under the Texas SO2 trading 

program. These allocations are the same 

as under CSAPR. 

TABLE 6—ALLOCATIONS FOR TEXAS EGUS SUBJECT TO THE FIP SO2 TRADING PROGRAM

Owner/operator Units Allocations 

(tpy) 

AEP ........................................................... Welsh Power Plant Unit 1 ............................................................................................ 6,496 

Welsh Power Plant Unit 2 ............................................................................................ 7,050 

Welsh Power Plant Unit 3 ............................................................................................ 7,208 

H W Pirkey Power Plant Unit 1 ................................................................................... 8,882 

Wilkes Unit 1 ................................................................................................................ 14

Wilkes Unit 2 ................................................................................................................ 2 

Wilkes Unit 3 ................................................................................................................ 3 

CPS Energy .............................................. JT Deely Unit 1 ............................................................................................................ 6,170 

JT Deely Unit 2 ............................................................................................................ 6,082 

Sommers Unit 1 ........................................................................................................... 55 

Sommers Unit 2 ........................................................................................................... 7 

Dynegy/Vistra ............................................ Coleto Creek Unit 1 ..................................................................................................... 9,057 

El Paso Electric ........................................ Newman Unit 2 ............................................................................................................ 1 

Newman Unit 3 ............................................................................................................ 1 

Newman Unit 4 ............................................................................................................ 2 

LCRA ........................................................ Fayette/Sam Seymour Unit 1 ....................................................................................... 7,979 

Fayette/Sam Seymour Unit 2 ....................................................................................... 8,019 

Luminant/Vistra ......................................... Big Brown Unit 1 .......................................................................................................... 8,473 

Big Brown Unit 2 .......................................................................................................... 8,559

Martin Lake Unit 1 ........................................................................................................ 12,024 


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86See 40 CFR 97.912. 

87An Indian Country new unit set-aside is 

established for each state under the CSAPR that 

provides allowances for future new units locating 

in Indian Country. The Indian Country new unit 

set-aside for Texas is 294 tons. See 40 CFR 97.710. 

88See letter dated February 14, 2018 from Kim 

Mireles of Luminant to the TCEQ requesting to 

cancel certain air permits and registrations for 

Sandow 5 Units 5A and 5B available in the docket 

for this action. 

89See ‘‘Texas EGUs 2016 and 2017 annual 

emissions.xlsx’’ available in the docket for this 

action. 

TABLE 6—ALLOCATIONS FOR TEXAS EGUS SUBJECT TO THE FIP SO2 TRADING PROGRAM—Continued 

Owner/operator Units Allocations 

(tpy) 

Martin Lake Unit 2 ........................................................................................................ 11,580 

Martin Lake Unit 3 ........................................................................................................ 12,236 

Monticello Unit 1 .......................................................................................................... 8,598 

Monticello Unit 2 .......................................................................................................... 8,795 

Monticello Unit 3 .......................................................................................................... 12,216 

Sandow Unit 4 .............................................................................................................. 8,370 

Stryker ST2 .................................................................................................................. 145 

Graham Unit 2 .............................................................................................................. 226 

NRG .......................................................... Limestone Unit 1 .......................................................................................................... 12,081 

Limestone Unit 2 .......................................................................................................... 12,293 

WA Parish Unit WAP4 ................................................................................................. 3 

WA Parish Unit WAP5 ................................................................................................. 9,580 

WA Parish Unit WAP6 ................................................................................................. 8,900 

WA Parish Unit WAP7 ................................................................................................. 7,653 

Xcel ........................................................... Tolk Station Unit 171B ................................................................................................. 6,900 

Tolk Station Unit 172B ................................................................................................. 7,062 

Harrington Unit 061B ................................................................................................... 5,361 

Harrington Unit 062B ................................................................................................... 5,255 

Harrington Unit 063B ................................................................................................... 5,055 

Total ................................................... ....................................................................................................................................... 238,393 

The total annual allocation for all 

sources in the Texas SO2 trading 

program is 238,393 tons. In addition, a 

Supplemental Allowance pool initially 

holds an additional 10,000 tons for a 

maximum total annual allocation of 

248,393 tons. The Administrator may 

allocate a limited number of additional 

allowances from this pool to sources 

whose emissions exceed their annual 

allocation, pursuant to the provisions in 

the FIP. 86 Under CSAPR, the total 

allocations for all existing EGUs in 

Texas is 279,740 tons, for a total of 

294,471 tons including the state newunit set aside of 14,430 tons and the 

Indian country new-unit set aside.87 As 

shown in Table 7, the coverage of the 

Texas SO2 trading program represents 

81% of the total CSAPR allocation for 

Texas and 85% of the CSAPR 

allocations for existing units. The 

Supplemental Allowance pool contains 

an additional 10,000 tons, compared to 

the new unit set aside (NUSA) 

allowance allocation under CSAPR of 

14,430 tons. Examining 2016 emissions, 

the EGUs covered by the program 

represent 89% of total Texas EGU 

emissions. 

TABLE 7—COMPARISON OF TEXAS SO2 TRADING PROGRAM ALLOCATIONS TO PREVIOUSLY APPLICABLE CSAPR 

ALLOCATIONS AND TO 2016 EMISSIONS

Annual allocations in the 

Texas trading program 

(tons per year) 

% of total 

previously 

applicable CSAPR 

allocations 

(294,471 tons per 

year) 

2016 Emissions 

(tons per year) 

2017 Emissions 

(tons per year) 

Texas SO2 Trading program sources ......................... 238,393 ............................ 81 218,291 245,870 

Total EGU emissions .................................................. .......................................... .............................. 245,737 275,965 

Supplemental Allowance pool ..................................... 10,000 .............................. 3.4 .............................. ..............................

Existing Sources not covered by trading program ..... No allocation .................... 16 27,446 30,096 

The remaining 11% of the total 2016 

or 2017 emissions due to sources not 

covered by the program come from coalfired units that on average are better 

controlled for SO2 than the covered 

sources (26,795 tons in 2016; 29,514 

tons in 2017) and gas units that rarely 

burn fuel oil (651 tons in 2016; 582 tons 

in 2017). The table below lists these 

coal-fired units. We note that Sandow 

5A and 5B were shut down in early 

2018.88 The aggregate annual emission 

rate in 2016 and 2017 was 0.50 lb/ 

MMBTU for the coal-fired units 

participating in the trading program 

compared to 0.12 lb/MMBTU for the 

coal-fired units not covered by the 

program.89 Therefore, we expect that in 

general, based on the current emission 

rates of the EGUs, should a portion of 

electricity generation shift to units not 

covered by the program, the net result 

would be a decrease in overall SO2

emissions, as these non-participating 

units are on average much better 

controlled and emit far less SO2 per unit 

of energy produced. 


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90We note the trading program does allow nonparticipating sources that previously had CSAPR 

allocations to opt-in to the trading program and 

receive an allocation equivalent to the CSAPR level 

allocation. Should some sources choose to opt-in to 

the program, the total number of allowances will 

increase by that amount. 

91For the projected annual SO2 emissions from 

Texas EGUs, see 2011 CSAPR/BART Technical 

Support Document, at Table 2–4, available in the 

docket for this action. Certain CSAPR budgets were 

increased after promulgation of the CSAPR final 

rule (and the increases were addressed in the 2012 

CSAPR/BART sensitivity analysis memo), See 

memo titled ‘‘Sensitivity Analysis Accounting for 

Increases in Texas and Georgia Transport Rule State 

Emissions Budgets,’’ Docket ID No. EPA–HQ–OAR– 

2011–0729–0323 (May 29, 2012), available in the 

docket for this action. The increase in the Texas 

Continued 

TABLE 8—COAL-FIRED EGUS NOT COVERED BY THE TEXAS SO2 TRADING PROGRAM

Previously 

applicable 

CSAPR 

allocation 

(tons) 

2016 

Emissions 

(tons) 

2016 Annual 

average 

emission rate 

(lb/MMBtu) 

Fayette/Sam Seymour Unit 3 ...................................................................................................... 2,955 231 0.01 

Gibbons Creek Unit 1 .................................................................................................................. 6,314 138 0.02 

JK Spruce Unit 1 ......................................................................................................................... 4,133 467 0.03 

JK Spruce Unit 2 ......................................................................................................................... 158 151 0.01 

Oak Grove Unit 1 ......................................................................................................................... 1,665 3,334 0.11 

Oak Grove Unit 2 * ....................................................................................................................... N/A 3,727 0.12 

Oklaunion Unit 1 .......................................................................................................................... 4,386 1,530 0.11 

San Miguel Unit 1 ........................................................................................................................ 6,271 6,815 0.44 

Sandow Station Unit 5A .............................................................................................................. 773 1,117 0.11 

Sandow Station Unit 5B .............................................................................................................. 725 1,146 0.10 

Sandy Creek Unit 1 * ................................................................................................................... N/A 1,842 0.09 

Twin Oaks Unit 1 ......................................................................................................................... 2,326 1,712 0.21 

Twin Oaks Unit 2 ......................................................................................................................... 2,270 1,475 0.23 

WA Parish Unit WAP8 ................................................................................................................. 4,071 3,112 0.16 

Total ...................................................................................................................................... 36,047 26,795 ........................

* Oak Grove Unit 2 and Sandy Creek Unit 1 received allocations from the new unit set aside under the CSAPR program. 

The exclusion of a large number of 

gas-fired units that rarely burn fuel oil 

further limits allowances in the program 

as compared to CSAPR because CSAPR 

allocated these units allowances that are 

higher than their recent and current 

emissions. In 2016, these units emitted 

651 tons of SO2, but received 

allowances for over 5,000 tons. By 

excluding these sources from the 

program, those unused allowances are 

not available for purchase by other 

EGUs. We note the trading program does 

allow non-participating sources that 

previously had CSAPR allocations to 

opt-in to the trading program and 

receive allocations equivalent to their 

CSAPR allocation. Should some sources 

choose to opt-in to the program, the 

total number of allowances will increase 

by the collective amount of the 

allowances they receive. This will serve 

to increase the percentage of CSAPR 

allowances represented by the Texas 

SO2 trading program and increase the 

portion of emissions covered by the 

program, with the result that the Texas 

program will more closely resemble the 

CSAPR program as it would have 

applied to Texas. 

Finally, the Texas SO2 trading 

program does not allow EGUs to 

purchase allowances from sources in 

other states. Under CSAPR, Texas EGUs 

were allowed to purchase allowances 

from other Group 2 states, a fact which 

could, and was projected in CSAPR 

modeling to, result in an increase in 

annual allowances used in the State 

above its budget. CSAPR also included 

a variability limit that was set at 18% of 

the State budget and an assurance level 

equal to the State’s budget plus the 

variability limit. The assurance level for 

Texas was set at 347,476 tons. The 

CSAPR assurance provisions are 

triggered if the State’s emissions for a 

year exceed the assurance level. These 

assurance provisions require some 

sources to surrender two additional 

allowances per ton beyond the amount 

equal to their actual emissions, 

depending on their emissions and 

annual allocation level. In effect, under 

CSAPR, EGUs in Texas could have 

emitted above the allocation if willing to 

pay the market price of allowances, and 

the cost associated with each 

incremental ton of emissions could 

triple if in the aggregate they exceeded 

the assurance level. 

The Texas trading program, by 

contrast, will have 248,393 tons of 

allowances allocated every year, with no 

ability to purchase additional 

allowances from sources outside of the 

State, preventing an increase beyond 

that annual allocation.90 This includes 

an annual allocation of 10,000 

allowances to the Supplemental 

Allowance pool. The Supplemental 

Allowance pool may grow over time as 

unused supplemental allowances 

remain available and allocations from 

retired units are placed in the 

supplemental pool, but the total number 

of allowances that can be allocated in a 

control period from in this 

supplemental pool is limited to a 

maximum 54,711 tons plus the amount 

of any allowances placed in the pool 

that year from retired units and 

corrections. The 54,711-ton value is 

equal to 10,000 tons annually allocated 

to the pool plus 18% of the total annual 

allocation for participating units, 

mirroring the variability limit from 

CSAPR. The total number of allowances 

that can be allocated in a single year is 

therefore 293,104, which is the sum of 

the 238,393 budget for existing units 

plus 54,711. Annual average emissions 

for the covered sources will be less than 

or equal to 248,393 tons with some year 

to year variability constrained by the 

number of banked allowances and 

allowances available to be allocated 

during a control period from the 

Supplemental Allowance pool. If 

additional units opt into the program, 

additional allowances will be available 

corresponding to the amounts that those 

units would have been allocated under 

CSAPR. The projected SO2 emissions 

from the affected Texas EGUs in the 

CSAPR + BART-elsewhere scenario 

were 266,600 tons per year. In a 2012 

sensitivity analysis memo, EPA 

conducted a sensitivity analysis that 

confirmed that CSAPR would remain 

better-than-BART if Texas EGU 

emissions increased to approximately 

317,100 tons.91 Under the Texas SO2


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SO2 budget was 50,517 tons which, when added to 

the Texas SO2 emissions projected in the CSAPR + 

BART-elsewhere scenario of 266,600 tons, yields 

total potential SO2 emissions from Texas EGUs of 

approximately 317,100 tons. 

trading program, annual average EGU 

emissions are anticipated to remain well 

below 317,100 tons per year as annual 

allocations for participating units are 

held at 248,393 tons per year. Sources 

not covered by the program emitted less 

than 27,500 tons of SO2 in 2016 and are 

not projected to significantly increase 

from this level. Any new units would be 

required to be well controlled and, 

similar to the existing units not covered 

by the program, they would not 

significantly increase total emissions of 

SO2. Furthermore, as discussed above, 

any load shifting to these new nonparticipating units would be projected 

to result in a net decrease in emissions 

per unit of electricity generated and at 

most a small increase in total SO2

emissions compared to them not having 

been brought into operation. We note 

that total emissions of SO2 from all EGU 

sources in Texas in 2016 were 245,737 

tons. 

We also note that state-wide EGU SO2

emissions in Texas have decreased 

considerably since the 2002 baseline 

period, reflecting market changes and 

reductions due to requirements such as 

CAIR/CSAPR. In 2002, Texas EGU 

emissions were 560,860 tons of SO2

compared to emissions of 245,737 tons 

in 2016, a reduction of over 56%. The 

Texas SO2 trading program locks in the 

large majority of these reductions by 

limiting allocation of allowances to 

248,393 tons per year for participating 

sources. While the Texas program does 

not include all EGU sources in the State, 

as discussed above, the EGUs outside of 

the program contribute relatively little 

to the total state emissions and these 

units on average are better controlled for 

SO2 than the units subject to the Texas 

program. 

In sum, we propose to affirm and 

request comment on the determination 

that the Texas Trading Program will 

result in SO2 emissions from Texas 

EGUs similar to emissions anticipated 

under CSAPR and thus that the weight 

of evidence supports the conclusion that 

the SO2 Trading Program meets the 

requirements of a BART alternative. The 

differences in source coverage are either 

not significant, or, in some cases, work 

to demonstrate the relative stringency of 

the Program compared to CSAPR. 

C. Specific Texas SO2 Trading Program 

Features 

The Texas SO2 Trading Program is an 

intrastate cap-and-trade program for 

listed covered sources in the State of 

Texas. The EPA is proposing to affirm 

our promulgation of the Texas SO2

Trading Program under 40 CFR 52.2312 

and subpart FFFFF of part 97. The State 

of Texas may choose to remain under 

the Texas SO2 Trading Program in our 

FIP or replace it with an appropriate SIP 

if it chooses to develop and submit one 

to EPA and EPA is able to approve it. 

If the State of Texas is interested in 

pursuing delegation of the Texas SO2

Trading Program, the request would 

need to provide a demonstration of the 

State’s statutory authority to implement 

any delegated elements. 

The Texas SO2 Trading Program is 

modeled after the EPA’s CSAPR SO2

Group 2 Trading Program, and we are 

proposing to affirm that the Program 

satisfies the requirements of 

51.308(e)(2)(vi). Similar to the CSAPR 

SO2 Group 2 Trading Program, the 

Texas SO2 Trading Program sets an SO2

emission budget for affected units and 

sources in the State of Texas. 

Authorizations to emit SO2, known as 

allowances, are allocated to affected 

units. The Texas SO2 Trading Program 

provides flexibility to affected units and 

sources by allowing units and sources to 

determine their own compliance path; 

this includes adding or operating 

control technologies, upgrading or 

improving controls, switching fuels, and 

using allowances. Sources can buy and 

sell allowances and bank (save) 

allowances for future use as so long as 

each source holds enough allowances to 

account for its emissions of SO2 by the 

allowance transfer deadline shortly after 

the end of the compliance period. 

Pursuant to the requirements of 

51.308(e)(2)(vi)(A), the applicability of 

the Texas SO2 Trading Program is 

defined in 40 CFR 97.904. Section 

97.904(a) identifies the subject units, 

which include all BART-eligible coalfired EGUs, additional coal-fired EGUs, 

and several BART-eligible gas-fired and 

gas/fuel oil-fired EGUs, all of which 

were previously covered by the CSAPR 

SO2 Group 2 Trading Program. 

Additionally, pursuant to 40 CFR 

97.904(b), the Trading Program provides 

an opportunity for any other unit in the 

State of Texas that was subject to the 

CSAPR SO2 Group 2 Trading Program to 

opt-in to the Texas SO2 Trading 

Program. We discuss in Section IV.B 

how the applicability results in coverage 

of the Texas SO2 trading program 

representing 81% of the total CSAPR 

allocation for Texas and 85% of the 

CSAPR allocations for existing units, 

and how potential shifts in generation 

would result in a reduction of emissions 

or, at worst, an insignificant increase in 

emissions. The Texas SO2 Trading 

Program establishes the statewide SO2

budget for the subject units at 40 CFR 

97.910(a). This budget is equal to the 

sum of the allowances for each subject 

unit identified under 97.904(a) and 

97.911(a). As units opt-in to the Texas 

SO2 Trading under 97.904(b), the 

allowances for each of these units will 

equal their CSAPR SO2 Group 2 

allowances under 97.911(b). We 

specifically solicit comment on 

retention or elimination of the provision 

that provides opportunity for certain 

units to opt-in to the Texas SO2 trading 

Program. 

Additionally, the EPA has established 

a Supplemental Allowance Pool with a 

budget of 10,000 tons of SO2 to provide 

compliance assistance to subject units 

and sources. Section 40 CFR 97.912 

establishes how allowances are 

allocated from the Supplemental 

Allowance Pool to sources (collections 

of participating units at a facility) that 

have reported total emissions for that 

control period exceeding the total 

amounts of allowances allocated to the 

participating units at the source for that 

control period (before any allocation 

from the Supplemental Allowance 

Pool). For any control period, the 

maximum supplemental allocation from 

the Supplemental Allowance Pool that a 

source may receive is the amount by 

which the total emissions reported for 

its participating units exceed the total 

allocations to its participating units 

(before any allocation from the 

Supplemental Allowance Pool). If the 

total amount of allowances available for 

allocation from the Supplemental 

Allowance Pool for a control period is 

less than the sum of these maximum 

allocations, sources will receive less 

than the maximum supplemental 

allocation from the Supplemental 

Allowance Pool, where the amount of 

supplemental allocations for each 

source is determined in proportion to 

the source’s respective maximum 

allocations, with one exception. While 

all other sources required to participate 

in the trading program have flexibility 

to transfer allowances among multiple 

participating units under the same 

owner/operator when planning 

operations, Coleto Creek consists of only 

one coal-fired unit and, as of the 

issuance of the October 2017 final 

action, was the only coal-fired unit in 

Texas owned and operated by Dynegy. 

It was conceivable that insufficient 

incentives would exist to compel 

Dynegy’s competitors in the electric 

market to make their additional 

allowances available for purchase by 

Dynegy. To provide this source 

additional flexibility, Coleto Creek will 

be allocated its maximum supplemental 


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92https://www.vistraenergy.com/vistra-dynegymerger/. 

93See letter dated March 27, 2018 from Kim 

Mireles of Luminant to the TCEQ requesting to 

cancel certain air permits and registrations for Big 

Brown available in the docket for this action. 

94See letter dated February 8, 2018 from Kim 

Mireles of Luminant to the TCEQ requesting to 

cancel certain air permits and registrations for 

Monticello available in the docket for this action. 

95See letter dated February 14, 2018 from Kim 

Mireles of Luminant to the TCEQ requesting to 

cancel certain air permits and registrations for 

Sandow 5 Units 5A and 5B available in the docket 

for this action. 

96Welsh Unit 2 was retired on April 16, 2016 

pursuant to a Consent Decree (No. 4:10–cv–04017– 

RGK) and subsequently removed from the Title V 

permit (permit no. O26). We have included the 

Consent Decree, permitting notes, and new Title V 

permit showing that the Unit is removed in the 

docket for this action. 

allocation from the Supplemental 

Allowance Pool as long as there are 

sufficient allowances in the 

Supplemental Allowance Pool available 

for this allocation, and its actual 

allocation will not be reduced in 

proportion with any reductions made to 

the supplemental allocations to other 

sources. We note that Dynegy and 

Vistra—which owns other units that are 

subject to the trading program, some of 

which have ceased operation and thus 

will not need to use their allowances— 

have recently merged, and we 

specifically solicit comment on whether 

we should retain or eliminate this 

additional flexibility for Coleto Creek in 

light of this recent change in 

ownership.92

Section 97.921 establishes how the 

Administrator will record the 

allowances for the Texas SO2 Trading 

Program and ensures that the 

Administrator will not record more 

allowances than are available under the 

program consistent with 40 CFR 

51.308(e)(2)(vi)(B). The monitoring, 

recordkeeping, and reporting provisions 

for the Texas SO2 Trading Program at 40 

CFR 97.930–97.935 are consistent with 

those requirements in the CSAPR SO2

Group 2 Trading Program. The 

provisions in 40 CFR 97.930–97.935 

require the subject units to comply with 

the monitoring, recordkeeping, and 

reporting requirements for SO2

emissions in 40 CFR part 75; thereby 

satisfying the requirements of 

51.308(e)(2)(vi)(C)–(E). The EPA will 

implement the Texas SO2 Trading 

Program using the Allowance 

Management System, which will 

provide a consistent approach to 

implementation and tracking of 

allowances and emissions for the EPA, 

subject sources, and the public 

consistent with the requirements of 40 

CFR 51.308(e)(2)(vi)(F). The 

requirements at 40 CFR 97.913–97.918 

for designated and alternate designated 

representatives are consistent with the 

requirements of 40 CFR 

51.308(e)(2)(vi)(G) and are also 

consistent with the EPA’s other trading 

programs under 40 CFR part 97. 

Allowance transfer provisions for the 

Texas SO2 Trading Program at 40 CFR 

97.922 and 97.923 provide procedures 

that allow timely transfer and recording 

of allowances; these provisions will 

minimize administrative barriers to the 

operation of the allowance market and 

ensure that such procedures apply 

uniformly to all sources and other 

potential participants in the allowance 

market, consistent with 40 CFR 

51.308(e)(2)(vi)(H). Compliance 

provisions for the Texas SO2 Trading 

Program at 40 CFR 97.924 prohibit a 

source from emitting a total tonnage of 

SO2 that exceeds the tonnage value of its 

SO2 allowance holdings as required by 

40 CFR 51.308(e)(2)(vi)(I). The Texas 

SO2 Trading Program includes 

automatic allowance surrender 

provisions at 40 CFR 97.924(d) that 

apply consistently from source to source 

and the tonnage value of the allowances 

deducted shall equal at least three times 

the tonnage of the excess emissions, 

consistent with the penalty provisions 

at 40 CFR 51.308(e)(2)(vi)(J). The Texas 

SO2 Trading Program provides for 

banking of allowances under 40 CFR 

97.926; Texas SO2 Trading Program 

allowances are valid for compliance in 

the control period of issuance or may be 

banked for future use, consistent with 

40 CFR 51.308(e)(2)(vi)(K). 40 CFR 

51.308(e)(2)(vi)(L) requires periodic 

program evaluation to assess whether 

the program is accomplishing its goals 

and whether modifications to the 

program are needed to enhance 

performance of the program. The CAA 

and EPA’s implementing regulations 

require comprehensive periodic 

revisions of implementation plans for 

regional haze under 40 CFR 51.308(f) 

and periodic review of the state’s 

regional haze approach under 40 CFR 

51.308(g) to evaluate progress towards 

the reasonable progress goals for Class I 

areas located within the State and Class 

I areas located outside the State affected 

by emissions from within the State. 

Because the Texas SO2 Trading Program 

is a BART-alternative and part of the 

long-term strategy for Texas’ Regional 

Haze obligations, this program will be 

reviewed in each comprehensive 

periodic revision and progress report. 

We anticipate these revisions and 

progress reports will provide the 

information needed to assess program 

performance, as required by 40 CFR 

51.308(e)(2)(vi)(L). In sum, the EPA is 

proposing to affirm our determination 

that the promulgation of the Texas SO2

Trading Program meets the 

requirements of 40 CFR 51.308(e)(2) as 

a BART alternative for Texas’ Regional 

Haze obligations. 

As previously discussed, the EPA 

modeled the Texas SO2 Trading 

Program after the EPA’s CSAPR SO2

Group 2 Trading Program. Relying on a 

trading program structure that is already 

in effect enables the EPA, the subject 

sources, and the public to benefit from 

the use of the Allowance Management 

System’s forms, and of familiar and 

tested monitoring, recordkeeping, and 

reporting requirements. However, there 

are a few features of the Texas SO2

Trading Program that are separate and 

unique from the EPA’s CSAPR. First, the 

program does not address new units that 

are built after the inception of the 

program; these units would be 

permitted and constructed using 

emission control technology determined 

under either BACT or LAER review, as 

applicable, and would emit at emission 

rates much lower than the average 

emission rate of those units 

participating in the program. Second, 

the Texas SO2 Trading Program 

provides that Texas sources that were 

previously covered under the CSAPR 

SO2 Group 2 Trading Program, but that 

are not subject to the requirements of 

subpart FFFFF of part 97, can opt-in to 

the Texas SO2 Trading Program at the 

allocation level established under 

CSAPR. Finally, the Texas SO2 Trading 

Program includes a Supplemental 

Allowance Pool to provide some 

compliance assistance to units whose 

emissions exceed their allocations. The 

amount of allocations to the 

Supplemental Allowance Pool each year 

is less than the portion of the Texas 

budget under the CSAPR SO2 Group 2 

Trading Program that would have been 

set aside each year for new units (and 

which would have been allocated to 

existing units to the extent not needed 

by new units). 

D. Recent Retirements 

Vistra permanently retired Big 

Brown,93 Monticello,94 and Sandow 95

this year. This is new information that 

arose after we issued our October 2017 

FIP. There are now a significant amount 

of allowances that would be allocated to 

retired units. We also note that Welsh 

Unit 2 shut down in 2016 96 and the JT 

Deely units have been announced for 

retirement at the end of 2018. After all 

these recent and planned shutdowns, 

74,313 tons of allowances would be 

allocated to retired units. In 2017, these 

units emitted 105,844 tons of SO2. We 


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97See ‘‘Texas EGUs 2016 and 2017 annual 

emissions.xlsx,’’ available in the docket for this 

action. 

98See ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and (2)’’ included in the 

docket for this action. 

99See id. at 33. 100See id., at 34; 76 FR 22036 (April 20, 2011) 

(containing EPA’s approval of the visibility 

requirement of 110(a)(2)(D)(i)(II) based on a 

demonstration by Colorado that did not rely on the 

Colorado Regional Haze SIP). 

specifically solicit comment on how 

these shutdowns should impact the 

provision at 40 CFR 97.911(a)(2) 

regarding allocations to retired units for 

a period of five years, including 

comment on the alternative proposal 

described below. 

In light of these shutdowns, we solicit 

comment on a different approach to 

calculating the total number of 

allowances that can be allocated in a 

control period from the supplemental 

allowance pool. The 54,711-ton value 

discussed above is equal to 10,000 tons 

annually allocated to the pool plus 18% 

of the total annual allocation for 

participating units, mirroring the 

variability limit from CSAPR (40 CFR 

97.912(b)). In this alternative approach, 

the total limit would be 41,335 tons, 

calculated as 10,000 tons annually 

allocated to the pool plus 18% of the 

total annual allocation for participating 

units minus the annual allocation for 

the participating units that have been 

permanently retired as of January 1, 

2019. The total number of allowances 

that can be allocated in a single year 

would therefore be not 293,104, but 

rather 279,728, which is the sum of the 

238,393 budget for existing units plus 

41,335.97 Annual average emissions for 

the covered sources will be less than or 

equal to 248,393 tons, and although 

there will be with some year-to-year 

variability, that variability will be 

constrained by the number of banked 

allowances and allowances available to 

be allocated during a control period 

from the Supplemental Allowance pool. 

E. Interstate Visibility Transport 

In our October 2017 final action, we 

determined that the BART alternatives 

to address SO2 and NOX BART at Texas’ 

EGUs provided measures that are 

adequate to ensure that emissions from 

the State do not interfere with measures 

to protect visibility in nearby states, and 

thus the October 2017 final action 

satisfies the interstate visibility 

transport requirements. An EPA 

guidance document (2013 Guidance) on 

infrastructure SIP elements states that 

CAA section 110(a)(2)(D)(i)(II)’s 

interstate visibility transport 

requirements can be satisfied by 

approved SIP provisions that the EPA 

has found to adequately address a state’s 

contribution to visibility impairment in 

other states.98 The EPA interprets 

interstate visibility transport to be 

pollutant-specific, such that the 

infrastructure SIP submission need only 

address the potential for interference 

with protection of visibility caused by 

the pollutant (including precursors) to 

which the new or revised NAAQS 

applies.99 The 2013 Guidance lays out 

two ways in which a state’s 

infrastructure SIP submittal may satisfy 

interstate visibility transport. One way 

is through a state’s confirmation in its 

infrastructure SIP submittal that it has 

an EPA approved regional haze SIP in 

place. In the absence of a fully approved 

regional haze SIP, a demonstration that 

emissions within a state’s jurisdiction 

do not interfere with other states’ plans 

to protect visibility meets this 

requirement. Such a demonstration 

should point to measures that limit 

visibility-impairing pollutants and 

ensure that the resulting reductions 

conform with any mutually agreed 

emission reductions under the relevant 

regional haze regional planning 

organization (RPO) process.100

To develop its 2009 Regional Haze 

SIP, TCEQ worked through its RPO, the 

Central Regional Air Planning 

Association (CENRAP), to develop 

strategies to address regional haze, 

which at that time were based on 

emissions reductions from CAIR. To 

help states in establishing reasonable 

progress goals for improving visibility in 

Class I areas, the CENRAP modeled 

future visibility conditions based on the 

mutually agreed emissions reductions 

from each state. The CENRAP states 

then relied on this modeling in setting 

their respective reasonable progress 

goals. 

We are proposing to affirm our 

determination that the October 2017 

final action is adequate to ensure that 

emissions from Texas do not interfere 

with measures to protect visibility in 

nearby states because the BART FIP 

emission reductions are consistent with 

the level of emission reductions relied 

upon by other states during 

consultation. The 2009 Texas Regional 

Haze SIP relied on CAIR to meet SO2

and NOX BART requirements for EGUs. 

Under CAIR, Texas EGU sources were 

projected to emit approximately 350,000 

tpy of SO2. As discussed elsewhere, 

Texas EGU SO2 emissions for sources 

covered by the trading program will be 

constrained by the number of available 

allowances. Average annual emissions 

for the covered sources will be less than 

or equal to 248,393 tons with some year 

to year variability constrained by the 

number of banked allowances and 

number of allowances that can be 

allocated in a control period from the 

supplemental pool. Sources not covered 

by the program emitted less than 27,500 

tons of SO2 in 2016 and are not 

projected to significantly increase from 

this level. Any new units would be 

required to be well controlled and 

similar to the existing units not covered 

by the program, they would not 

significantly increase total emissions of 

SO2. Additionally, the FIP relies on 

CSAPR as an alternative to EGU BART 

for NOX, which exceeds the emission 

reductions relied upon by other states 

during consultation. As such, we are 

proposing to affirm that the BART 

alternatives in the October 2017 final 

action are sufficient to address the 

interstate visibility transport 

requirement under CAA section 

110(a)(2)(D)(i)(II) for the six NAAQS, 

and request comment on this 

determination. 

V. Proposed Action 

A. Regional Haze 

We are proposing to affirm our 

approval of the portion of the Texas 

Regional Haze SIP that addresses the 

BART requirement for EGUs for PM. To 

address the SO2 BART requirements for 

EGUs, we are proposing to affirm our 

FIP to replace Texas’ reliance on CAIR 

with reliance on an intrastate SO2

trading program for certain EGUs 

identified in Table 9. This proposed 

action would also be part of the longterm strategy to address the reasonable 

progress requirements for Texas EGUs, 

which remain outstanding after the 

remand of our reasonable progress FIP 

by the Fifth Circuit Court of Appeals. 

In this proposed action we are also 

specifically soliciting comment on 

whether we should retain or eliminate 

the additional flexibility for Coleto 

Creek in Section 40 CFR 97.912 that 

establishes how allowances are 

allocated from the Supplemental 

Allowance Pool to this source in light of 

this recent change in ownership after 

the merger of Dynegy and Vistra. In light 

of recent and planned shutdowns, we 

specifically solicit comment on how 

these shutdowns should impact the 

provision at 40 CFR 97.911(a)(2) 

regarding allocations to retired units for 

a period of five years. We also solicit 

comment on a different approach to 

calculating the total number of 

allowances that can be allocated in a 

control period from the supplemental 

allowance pool pursuant to 40 CFR 

97.912(b). In addition, we are 

specifically soliciting comment on 


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101 62 FR 19885 (Apr. 23, 1997). 

retention or elimination of the provision 

under 40 CFR 97.904(b) that provides 

opportunity for certain units to opt-in to 

the Texas SO2 trading Program. 

TABLE 9—TEXAS EGUS SUBJECT TO

THE FIP SO2 TRADING PROGRAM

Owner/ 

operator Units 

AEP ................ Welsh Power Plant Units 1, 

2, and 3. 

H W Pirkey Power Plant Unit 

1. 

Wilkes Units 1*, 2*, and 3*. 

CPS Energy ... JT Deely Units 1 and 2, 

Sommers Units 1* and 2*. 

Dynegy ........... Coleto Creek Unit 1. 

LCRA ............. Fayette/Sam Seymour Units 

1 and 2. 

Luminant/ 

Vistra.

Big Brown Units 1 and 2. 

Martin Lake Units 1, 2, and 

3. 

Monticello Units 1, 2, and 3. 

Sandow Unit 4. 

Stryker ST2*. 

Graham Unit 2*. 

NRG ............... Limestone Units 1 and 2. 

WA Parish Units WAP4*, 

WAP5, WAP6, WAP7. 

Xcel ................ Tolk Station Units 171B and 

172B. 

Harrington Units 061B, 

062B, and 063B. 

El Paso Electric.Newman Units 2*, 3*, and 

4*. 

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

B. Interstate Visibility Transport 

In our October 2017 final action, we 

determined that the BART alternatives 

to address SO2 and NOX BART at Texas’ 

EGUs were adequate to satisfy the 

interstate visibility transport 

requirements for these NAAQS: (1) 1997 

8-hour ozone; (2) 1997 PM2.5 (annual 

and 24-hour); (3) 2006 PM2.5 (24-hour); 

(4) 2008 8-hour ozone; (5) 2010 1-hour 

NO2; and (6) 2010 1-hour SO2. The 

emission reductions from Texas sources 

associated with these BART alternatives 

are consistent with the level of emission 

reductions relied upon by other states 

when setting their reasonable progress 

goals. Consistent with our decision in 

the October 2017 rulemaking, we are 

proposing to affirm that the measures in 

the FIP are therefore adequate to ensure 

that emissions from Texas do not 

interfere with measures to protect 

visibility in nearby states with respect to 

the NAAQS enumerated above in 

accordance with CAA section 

110(a)(2)(D)(i)(II). 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Overview, Executive Order 

13563: Improving Regulation and 

Regulatory Review 

This proposed action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 4, 1993) and is 

therefore not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Costs 

This proposed action is not an 

Executive Order 13771 regulatory action 

because this action is not significant 

under Executive Order 12866. 

C. Paperwork Reduction Act 

This proposed action does not impose 

any new information collection burden 

under the PRA. The information 

collection activities in the October 2017 

final rule promulgating the Texas SO2

Trading Program at 40 CFR part 97, 

subpart FFFFF are being submitted to 

the Office of Management and Budget 

(OMB) under the PRA as part of the 

current Information Collection Request 

(ICR) renewal for the CSAPR trading 

programs. OMB has previously 

approved the information collection 

activities for the CSAPR trading 

programs and has assigned OMB control 

number 2060–0667. The ICR document 

that the EPA prepared for the renewal 

has been assigned EPA ICR number 

2391.05. You can find a copy of the ICR 

at https://www.regulations.gov under 

Docket ID Number EPA–HQ–OAR– 

2018–0209. An agency may not conduct 

or sponsor, and a person is not required 

to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

D. Regulatory Flexibility Act 

I certify that this proposed action will 

not have a significant impact on a 

substantial number of small entities. In 

making this determination, the impact 

of concern is any significant adverse 

economic impact on small entities. An 

agency may certify that a rule will not 

have a significant economic impact on 

a substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden or otherwise has a 

positive economic effect on the small 

entities subject to the rule. This 

proposed rule does not impose any 

requirements or create impacts on small 

entities. This proposed FIP action under 

Section 110 of the CAA will not create 

any new requirement with which small 

entities must comply. Accordingly, it 

affords no opportunity for the EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

The fact that the CAA prescribes that 

various consequences (e.g., emission 

limitations) may or will flow from this 

action does not mean that the EPA 

either can or must conduct a regulatory 

flexibility analysis for this action. We 

have therefore concluded that this 

proposed action will have no net 

regulatory burden for all directly 

regulated small entities. 

E. Unfunded Mandates Reform Act 

(UMRA) 

This proposed action does not contain 

an unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. 

F. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

H. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 101 applies to any 

rule that: (1) Is determined to be 

economically significant as defined 

under Executive Order 12866; and (2) 

concerns an environmental health or 

safety risk that we have reason to 

believe may have a disproportionate 

effect on children. EPA interprets E.O. 

13045 as applying only to those 

regulatory actions that concern health or 

safety risks, such that the analysis 

required under Section 5–501 of the 

E.O. has the potential to influence the 

regulation. This proposed action is not 

subject to Executive Order 13045 

because it is not economically 


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43606 Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules 

significant as defined in Executive 

Order 12866, and because the EPA does 

not believe the environmental health or 

safety risks addressed by this proposed 

action present a disproportionate risk to 

children. This proposed action is not 

subject to E.O. 13045 because it 

implements specific standards 

established by Congress in statutes. 

However, to the extent this proposed 

rule will limit emissions of SO2, the 

proposed rule will have a beneficial 

effect on children’s health by reducing 

air pollution. 

I. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed action is not subject to 

Executive Order 13211 (66 FR 28355 

(May 22, 2001)), because it is not a 

significant regulatory action under 

Executive Order 12866. 

J. National Technology Transfer and 

Advancement Act (NTTAA) 

This proposed action involves 

technical standards. The EPA has 

decided to use the applicable 

monitoring requirements of 40 CFR part 

75. Part 75 already incorporates a 

number of voluntary consensus 

standards. Consistent with the Agency’s 

Performance Based Measurement 

System (PBMS), part 75 sets forth 

performance criteria that allow the use 

of alternative methods to the ones set 

forth in part 75. The PBMS approach is 

intended to be more flexible and costeffective for the regulated community; it 

is also intended to encourage innovation 

in analytical technology and improved 

data quality. At this time, EPA is not 

recommending any revisions to part 75; 

however, EPA periodically revises the 

test procedures set forth in part 75. 

When EPA revises the test procedures 

set forth in part 75 in the future, EPA 

will address the use of any new 

voluntary consensus standards that are 

equivalent. Currently, even if a test 

procedure is not set forth in part 75, 

EPA is not precluding the use of any 

method, whether it constitutes a 

voluntary consensus standard or not, as 

long as it meets the performance criteria 

specified; however, any alternative 

methods must be approved through the 

petition process under 40 CFR 75.66 

before they are used. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this proposed 

action does not have disproportionately 

high and adverse human health or 

environmental effects on minority 

populations, low-income populations 

and/or indigenous peoples, as specified 

in Executive Order 12898 (59 FR 7629, 

February 16, 1994). We have determined 

that this proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

proposed rule limits emissions of SO2

from certain facilities in Texas. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxides, 

Visibility, Interstate transport of 

pollution, Regional haze, Best available 

retrofit technology. 

40 CFR Part 97 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Nitrogen dioxide, Reporting 

and recordkeeping requirements, Sulfur 

dioxides. 

Dated: August 17, 2018. 

Anne Idsal, 

Regional Administrator. 

[FR Doc. 2018–18497 Filed 8–24–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2017–0560; FRL–9982–78] 

RIN 2070–AB27 

Significant New Use Rules on Certain 

Chemical Substances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing significant 

new use rules (SNURs) under the Toxic 

Substances Control Act (TSCA) for 10 

chemical substances which were the 

subject of premanufacture notices 

(PMNs). The chemical substances are 

subject to Orders issued by EPA 

pursuant to section 5(e) of TSCA. This 

action would require persons who 

intend to manufacture (defined by 

statute to include import) or process any 

of these 10 chemical substances for an 

activity that is designated as a 

significant new use by this rule to notify 

EPA at least 90 days before commencing 

that activity. The required notification 

initiates EPA’s evaluation of the 

intended use within the applicable 

review period. Persons may not 

commence manufacture or processing 

for the significant new use until EPA 

has conducted a review of the notice, 

made an appropriate determination on 

the notice, and has taken such actions 

as are required with that determination. 

In addition to this notice of proposed 

rulemaking, EPA is issuing the action as 

a direct final rule elsewhere in this issue 

of the Federal Register. 

DATES: Comments must be received on 

or before September 26, 2018. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2017–0560, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW, Washington, DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at http://

www.epa.gov/dockets/contacts.html. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at http:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Kenneth 

Moss, Chemical Control Division 

(7405M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW, 

Washington, DC 20460–0001; telephone 

number: (202) 564–9232; email address: 

moss.kenneth@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCA-Hotline@

epa.gov. 

SUPPLEMENTARY INFORMATION: In 

addition to this notice of proposed 

rulemaking, EPA is issuing the action as 

a direct final rule elsewhere in this issue 

of the Federal Register. For further 


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