[Federal Register Volume 81, Number 218 (Thursday, November 10, 2016)]
[Proposed Rules]
[Pages 78954-78966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27197]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2016-0598; FRL-9955-00-OAR]
RIN 2060-AT16


Interstate Transport of Fine Particulate Matter: Revision of 
Federal Implementation Plan Requirements for Texas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
withdraw the federal implementation plan (FIP) provisions that require 
affected electricity generating units (EGUs) in Texas to participate in 
Phase 2 of the Cross-State Air Pollution Rule (CSAPR) trading programs 
for annual emissions of sulfur dioxide (SO2) and nitrogen 
oxides (NOX). Withdrawal of the FIP requirements is intended 
to address a decision of the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) remanding the CSAPR Phase 2 
SO2 budget for Texas to the EPA for reconsideration. The EPA 
is also proposing to determine that, following withdrawal of the FIP 
requirements, sources in Texas will not contribute significantly to 
nonattainment in, or interfere with maintenance by, any other state 
with regard to the 1997 national ambient air quality standard (NAAQS) 
for fine particulate matter (PM2.5), and that the EPA 
therefore will have no obligation to issue new FIP requirements for 
Texas sources to address transported PM2.5 pollution under 
Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) with regard to that 
NAAQS. Finally, the proposal includes a sensitivity analysis showing 
that the set of actions the EPA has taken or expects to take in 
response to the D.C. Circuit's decision, including the removal of Texas 
EGUs from the two CSAPR trading programs as well as the recent removal 
of Florida EGUs from Phase 2 of the CSAPR trading programs for ozone-
season NOX emissions, would not adversely impact the 
analytic demonstration for the Agency's 2012 determination that CSAPR 
participation meets the Regional Haze Rule's criteria to qualify as an 
alternative to the application of best available retrofit technology 
(BART). No changes to the Regional Haze Rule are proposed as part of 
this rulemaking.

DATES: Comments must be received on or before December 12, 2016. To 
request a public hearing, please contact the person listed in the FOR 
FURTHER INFORMATION CONTACT section below by November 17, 2016. The EPA 
does not plan to conduct a public hearing unless requested.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2016-0598, at http://www.regulations.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

[[Page 78955]]

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

FOR FURTHER INFORMATION CONTACT: Robert L. Miller, Clean Air Markets 
Division, Office of Atmospheric Programs, U.S. Environmental Protection 
Agency, MC 6204M, 1200 Pennsylvania Avenue NW., Washington, DC 20460; 
telephone number: (202) 343-9077; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Entities regulated under CSAPR are fossil fuel-
fired boilers and stationary combustion turbines that serve generators 
producing electricity for sale, including combined cycle units and 
units operating as part of systems that cogenerate electricity and 
other useful energy output. Regulated categories and entities include:

------------------------------------------------------------------------
                                                         Examples of
             Category                NAICS * Code        potentially
                                                    regulated industries
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Industry.........................          221112   Fossil fuel-fired
                                                     electric power
                                                     generation.
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* North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated. To 
determine whether your facility is affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 97.404 and 
97.704. If you have questions regarding the applicability of CSAPR to a 
particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section above.
    Outline. The following outline is provided to aid in locating 
information in this preamble.

I. Overview
II. Background
    A. History and Summary of CSAPR
    B. CSAPR Participation as a BART Alternative
III. Withdrawal of Certain CSAPR FIP Requirements for Texas EGUs
IV. Texas' Good Neighbor Obligation With Regard to the 1997 Annual 
PM2.5 NAAQS
V. Sensitivity Analysis Regarding CSAPR Participation as a BART 
Alternative
    A. Summary of 2012 CSAPR-Better-Than-BART Analytic Demonstration
    B. Impact on 2012 Analytic Demonstration of Actions Responding 
to the Remand of CSAPR Phase 2 Budgets
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review, and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Overview

    The EPA promulgated CSAPR in 2011 in order to address the 
obligations of states--and of the EPA when states have not met their 
obligations--under CAA section 110(a)(2)(D)(i)(I) to prohibit air 
pollution contributing significantly to nonattainment in, or 
interfering with maintenance by, any other state with regard to several 
NAAQS, including the 1997 annual PM2.5 NAAQS.\1\ To address 
Texas' transport obligation under CAA section 110(a)(2)(D)(i)(I) with 
regard to this NAAQS, CSAPR established FIP requirements for affected 
EGUs in Texas, including emissions budgets that apply to the EGUs' 
collective annual emissions of SO2 and NOX. In 
July 2015, the D.C. Circuit issued a decision on a range of challenges 
to CSAPR in EME Homer City Generation, L.P. v. EPA (EME Homer City II) 
denying most claims but remanding several CSAPR emissions budgets to 
the EPA for reconsideration, including the Phase 2 SO2 
budget for Texas.\2\
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    \1\ Federal Implementation Plans; Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 
52.39 and 40 CFR part 97).
    \2\ EME Homer City Generation, L.P. v. EPA (EME Homer City II), 
795 F.3d 118, 138 (D.C. Cir. 2015). The court also remanded the 
Phase 2 SO2 budgets for three other states and the Phase 
2 ozone-season NOX budgets for eleven states, including 
Texas. Id.
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    In this action, the EPA proposes to address the remand of the Texas 
Phase 2 SO2 budget by withdrawing the FIP provisions 
requiring Texas EGUs to participate in the CSAPR SO2 Group 2 
Trading Program and the CSAPR NOX Annual Trading Program in 
Phase 2, which begins with 2017 emissions.\3\ Although the court's 
decision specifically remanded only Texas' Phase 2 SO2 
budget, the court's rationale for remanding that budget also implicates 
Texas' Phase 2 annual NOX budget because the SO2 
and annual NOX budgets were developed through an integrated 
analysis and were promulgated to meet a common PM2.5 
transport obligation under CAA section 110(a)(2)(D)(i)(I). Withdrawal 
of the FIP provisions is intended to address the remand by eliminating 
the requirement for Texas EGUs to comply with the EPA-established Phase 
2 budgets.\4\
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    \3\ With regard to each of the other remanded budgets, the EPA 
either has already withdrawn or expects to withdraw the FIP 
provisions requiring the EGUs in the affected state to participate 
in the corresponding CSAPR federal trading programs in Phase 2 
through other actions, as discussed in section III.
    \4\ The D.C. Circuit also remanded the CSAPR Phase 2 ozone-
season NOX budget established for Texas EGUs with regard 
to the 1997 ozone NAAQS. EME Homer City II, 795 F.3d at 138. As 
discussed in section III, in another action the EPA has withdrawn 
the FIP requirements for Texas EGUs regarding the 1997 ozone NAAQS 
and has promulgated new FIP requirements for those EGUs regarding 
the 2008 ozone NAAQS. This proposal has no effect on any CSAPR FIP 
requirements for Texas EGUs concerning ozone-season NOX 
emissions.
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    Removal of Texas EGUs from the CSAPR trading programs for 
SO2 and annual NOX as proposed would make it 
necessary to use other means to address any remaining transport 
obligation for Texas under CAA section 110(a)(2)(D)(i)(I) with regard 
to the 1997 PM2.5 NAAQS. In this action, based on a 
reevaluation of PM2.5 data in the CSAPR final rule record in 
light of the D.C. Circuit's reasoning in another portion of the EME 
Homer City II decision, the EPA is proposing to determine that Texas 
would not have any such remaining PM2.5 transport obligation 
in Phase 2 of CSAPR. Accordingly, in the absence of a Texas transport 
obligation with regard to the 1997 PM2.5 NAAQS, the EPA is 
also proposing to determine that the Agency will have no obligation to 
issue new FIP requirements for Texas sources to address transported 
PM2.5 pollution under CAA section 110(a)(2)(D)(i)(I) with 
regard to this NAAQS.\5\
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    \5\ Reevaluation of PM2.5 data in the CSAPR final 
rule record in light of the D.C. Circuit's reasoning would similarly 
support a determination that Texas would have no PM2.5 
transport obligation under CAA section 110(a)(2)(D)(i)(I) with 
regard to the 2006 PM2.5 NAAQS. However, the EPA is not 
proposing to make a determination in this action as to any 
obligation of Texas with regard to that NAAQS because Texas EGUs are 
not subject to CSAPR requirements with regard to that NAAQS.

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[[Page 78956]]

    Participation in CSAPR is relied on by numerous states as an 
alternative to meeting source-specific BART requirements under the 
Regional Haze Rule.\6\ In accordance with the provisions of the 
Regional Haze Rule, the EPA's 2012 determination that implementation of 
CSAPR meets the criteria for a BART alternative was based on an 
analytic demonstration that implementation of CSAPR would result in 
greater reasonable progress than BART toward restoring natural 
visibility conditions in relevant locations. This proposal includes a 
sensitivity analysis showing that if the set of actions the EPA has 
taken or expects to take in response to the D.C. Circuit's remand of 
various CSAPR Phase 2 budgets had been reflected in that analytic 
demonstration, the revised analysis still would have demonstrated that 
implementation of CSAPR in the remaining covered states meets the 
criteria for a BART alternative for those states. Accordingly, based on 
consideration of this analysis, the EPA sees no reason to propose any 
revision to the current Regional Haze Rule provision allowing states 
whose EGUs continue to participate in a CSAPR trading program for a 
given pollutant to rely on CSAPR participation as a BART alternative 
for its BART-eligible EGUs for that pollutant.
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    \6\ See Regional Haze: Revisions to Provisions Governing 
Alternatives to Source-Specific Best Available Retrofit Technology 
(BART) Determinations, Limited SIP Disapprovals, and Federal 
Implementation Plans, 77 FR 33642 (June 7, 2012) (CSAPR-Better-than-
BART rule).
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    At the same time, however, if and when this proposal is finalized, 
Texas will no longer be eligible to rely on CSAPR participation as an 
alternative to certain regional haze obligations including the 
determination and application of source-specific SO2 BART. 
Any such remaining obligations are not addressed in this proposed 
action and would be addressed through other state implementation plan 
(SIP) or FIP actions as appropriate.\7\
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    \7\ The EPA notes that under 40 CFR 51.308(e)(4), CSAPR 
implementation is available as a NOX BART alternative for 
a state whose EGUs are subject to CSAPR requirements for either 
annual NOX emissions or ozone-season NOX 
emissions. See 77 FR at 33652; see also supra note 4.
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    Sections II.A and II.B provide background on CSAPR and on CSAPR 
participation as a BART alternative, respectively. The proposed 
withdrawal of the FIP provisions requiring Texas EGUs to participate in 
the CSAPR federal trading programs for SO2 and annual 
NOX is addressed in section III. Section IV discusses the 
proposal to determine that, following finalization of the proposed 
withdrawal of the CSAPR FIP requirements related to PM2.5, 
Texas would have no remaining transport obligation under CAA section 
110(a)(2)(D)(i)(I) with regard to the 1997 PM2.5 NAAQS, and 
the EPA accordingly would have no obligation to issue new FIP 
requirements for Texas sources to address such a transport obligation. 
The sensitivity analysis of the 2012 analytic demonstration supporting 
CSAPR participation as a BART alternative is described in section V.

II. Background

A. History and Summary of CSAPR

    The EPA initially promulgated CSAPR in 2011 to address the 
obligations of states--and of the EPA when states have not met their 
obligations--under CAA section 110(a)(2)(D)(i)(I), often referred to as 
the ``good neighbor'' provision, to prohibit transported air pollution 
contributing significantly to nonattainment in, or interfering with 
maintenance by, any other state with regard to the 1997 annual 
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and 
the 1997 8-hour ozone NAAQS.\8\ To reduce transported PM2.5 
pollution, CSAPR sets limits on annual emissions of NOX and 
SO2 as precursors to PM2.5. To reduce transported 
ozone pollution, CSAPR sets limits on ozone-season emissions of 
NOX as a precursor to ozone.
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    \8\ See generally 76 FR 48208.
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    CSAPR's emissions limitations are defined in terms of emissions 
``budgets'' for the collective emissions from affected EGUs in each 
covered state. The emissions limitations are phased in, with the Phase 
1 and Phase 2 budgets originally scheduled to apply starting in January 
2012 and January 2014, respectively. Affected EGUs are subject to FIP 
provisions requiring them to participate in one or more of several 
CSAPR federal allowance trading programs established as flexible 
mechanisms to achieve compliance with the emissions budgets. CSAPR also 
contains provisions under which the EPA will approve optional SIP 
revisions that modify or replace the CSAPR FIP requirements while 
allowing states to continue to meet their transport obligations using 
either the CSAPR federal trading programs or integrated CSAPR state 
trading programs that apply emissions budgets of the same or greater 
stringency.\9\
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    \9\ See 40 CFR 52.38, 52.39. States also retain the ability to 
submit SIP revisions to meet their transport-related obligations 
using mechanisms other than the CSAPR federal trading programs or 
integrated state trading programs.
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    A number of state, industry, and other petitioners challenged CSAPR 
in the D.C. Circuit, which stayed and then vacated the rule, ruling on 
only a subset of petitioners' claims. However, in April 2014 the 
Supreme Court reversed the vacatur and remanded to the D.C. Circuit for 
resolution of petitioners' remaining claims.\10\ The D.C. Circuit then 
granted the EPA's motion to lift the stay and to toll the rule's 
deadlines by three years.\11\ Consequently, implementation of CSAPR 
Phase 1 began in January 2015 and implementation of Phase 2 is 
scheduled to begin in January 2017.
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    \10\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
    \11\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 
(D.C. Cir. issued October 23, 2014).
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    Following the Supreme Court remand, the D.C. Circuit conducted 
further proceedings to address petitioners' remaining claims. In July 
2015, the court issued a decision denying most of the claims but 
remanding the Phase 2 SO2 emissions budgets for Alabama, 
Georgia, South Carolina, and Texas and the Phase 2 ozone-season 
NOX budgets for eleven states to the EPA for 
reconsideration.\12\ Petitions challenging CSAPR amendments promulgated 
in 2011 and 2012 are currently being held in abeyance pending 
completion of the EPA's proceedings in response to the D.C. Circuit's 
remand.\13\
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    \12\ EME Homer City II, 795 F.3d at 138.
    \13\ Public Service Co. of Oklahoma v. EPA, No. 12-1023 (D.C. 
Cir.) (challenging amendments published at 76 FR 80760 (December 27, 
2011)); Wisconsin Public Service Corp. v. EPA, No. 12-1163 (D.C. 
Cir.) (challenging amendments published at 77 FR 10324 (February 21, 
2012)); Utility Air Regulatory Group v. EPA, No. 12-1346 (D.C. Cir.) 
(challenging amendments published at 77 FR 34830 (June 12, 2012)).
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    Since receipt of the D.C. Circuit's 2015 decision, the EPA has 
engaged the affected states to determine appropriate next steps to 
address the decision with regard to each state. The EPA expects that 
potentially material changes to the scope of CSAPR coverage resulting 
from the D.C. Circuit's remand will be limited to Texas, based on the 
withdrawal of FIP requirements proposed here, and, as discussed below, 
to Florida, based on the withdrawal of FIP requirements recently 
finalized in another action. With regard to the remanded Phase 2 
SO2 budgets, as discussed in section III, the EPA expects 
that EGUs in Alabama, Georgia, and South Carolina will continue to 
participate in CSAPR trading programs for SO2 and annual 
NOX pursuant to approved SIP revisions (with equally or more 
stringent emissions budgets), making Texas the only state whose EGUs 
would no longer participate in these programs because of the remand.

[[Page 78957]]

    With regard to the remanded ozone-season NOX budgets, in 
September 2016 the EPA promulgated a final rule updating CSAPR to 
address states' good neighbor obligations with regard to the 2008 ozone 
NAAQS.\14\ The rule also responded to the remand of the original Phase 
2 ozone-season NOX budgets established to address transport 
obligations with regard to the 1997 ozone NAAQS by withdrawing the FIP 
provisions requiring EGUs in the eleven states with remanded budgets to 
comply with those budgets for emissions after 2016. The EPA determined 
that none of those eleven states will have a remaining transport 
obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 
ozone NAAQS, but for eight of those states, including Texas, the rule 
established new budgets to address transport obligations with regard to 
the more stringent 2008 ozone NAAQS. EGUs in the three states with 
remanded Phase 2 ozone-season NOX budgets for which the EPA 
did not establish new budgets--Florida, North Carolina, and South 
Carolina--are no longer required to participate in a CSAPR trading 
program for ozone-season NOX emissions to address ozone 
transport obligations after 2016. However, because EGUs in North 
Carolina and South Carolina \15\ are expected to continue to 
participate in a CSAPR trading program for annual NOX 
emissions in order to address PM2.5 transport obligations, 
Florida is expected to be the only state originally covered by CSAPR 
for NOX emissions for which all such coverage is ending as a 
result of the EPA's set of actions to address the remand.
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    \14\ Cross-State Air Pollution Rule Update for the 2008 Ozone 
NAAQS, 81 FR 74504 (October 26, 2016) (CSAPR Update rule).
    \15\ North Carolina EGUs remain subject to FIP provisions 
requiring participation in a CSAPR trading program for annual 
NOX emissions. The EPA's expectation that South Carolina 
EGUs will continue to participate in a CSAPR program for annual 
NOX emissions is based on South Carolina's commitment to 
submit a SIP revision that will include such requirements, as noted 
above and discussed in section III.
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    Texas EGUs are currently subject to CSAPR FIP provisions requiring 
participation in the CSAPR SO2 Group 2 Trading Program and 
the CSAPR NOX Annual Trading Program. Texas EGUs are also 
subject to FIP provisions requiring participation in other CSAPR 
federal trading programs for ozone-season NOX emissions. 
This proposal would withdraw the FIP provisions requiring Texas EGUs to 
participate in the CSAPR federal trading programs for SO2 
and annual NOX emissions after 2016, but would have no 
effect on any CSAPR FIP requirements applicable to Texas EGUs relating 
to ozone-season NOX emissions after 2016, which, as 
discussed in the preceding paragraph, were promulgated in the recently 
finalized CSAPR Update rule and were not subject to the D.C. Circuit's 
remand.

B. CSAPR Participation as a BART Alternative

    The Regional Haze Rule implements CAA requirements for the 
protection of visibility, focusing on visibility impairment that is 
caused by the emissions of air pollutants from numerous sources located 
over a wide geographic area.\16\ CAA section 169A(a)(1) sets a national 
goal of achieving natural visibility conditions in certain Class I 
areas.\17\ CAA section 169A(b)(2) requires states to revise their SIPs 
to contain such measures as may be necessary to make reasonable 
progress toward this national goal, including requirements for the 
application of best available retrofit technology (BART) by any BART-
eligible sources \18\ that emit any air pollutant that may reasonably 
be anticipated to cause or contribute to visibility impairment in a 
Class I area. The air pollutants that may cause or contribute to 
visibility impairment include both SO2 and NOX. 
Under CAA section 110(c), where the EPA disapproves or finds that a 
state has failed to make such a SIP submittal, the EPA must promulgate 
a FIP addressing these requirements.
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    \16\ 40 CFR 51.308 and 51.309. Earlier this year, the EPA 
proposed amendments to other portions of the Regional Haze Rule but 
did not propose any substantive amendments to the provisions related 
to BART. Protection of Visibility: Amendments to Requirements for 
State Plans, 81 FR 26942 (May 4, 2016).
    \17\ The 156 mandatory Class I federal areas in which visibility 
has been determined to be an important value are listed at subpart D 
of 40 CFR part 81. For brevity, these areas are referred to here 
simply as ``Class I areas.''
    \18\ A BART-eligible source is generally a source in any one of 
26 specified categories, including fossil fuel-fired steam electric 
plants, that was not in operation prior to August 7, 1962; was in 
existence on August 7, 1977; and has the potential to emit 250 tons 
per year of any air pollutant. See 40 CFR 51.301.
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    The Regional Haze Rule's BART provisions generally direct states to 
identify all BART-eligible sources; determine which of those BART-
eligible sources are subject to BART requirements because the sources 
emit air pollutants that may reasonably be anticipated to cause or 
contribute to visibility impairment in a Class I area; determine 
source-specific BART for each source that is subject to BART 
requirements, based on an analysis taking specified factors into 
consideration; and include emission limitations reflecting those BART 
determinations in their SIPs.\19\ However, the rule also provides each 
state with the flexibility to adopt an allowance 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 toward the national goal of 
achieving natural visibility conditions in Class I areas.\20\
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    \19\ 40 CFR 51.308(e)(1).
    \20\ 40 CFR 51.308(e)(2).
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    The Regional Haze Rule also sets out criteria for demonstrating 
that an alternative measure achieves greater reasonable progress than 
source-specific BART. The regulations include a specific so-called 
``better-than-BART'' test that may be satisfied in one of two ways: (1) 
If the distribution of emissions under the alternative measure is not 
substantially different than under BART and the alternative measure 
results in greater emission reductions; or (2) if the distribution of 
emissions is significantly different and an air quality modeling study 
for the best and worst 20 percent of days shows an improvement in 
visibility from the alternative measure relative to BART.\21\ In order 
for the alternative measure to pass this ``better-than-BART'' test 
based on such an air quality modeling study, the modeling must 
demonstrate that two criteria (referred to below as ``prongs'') are 
met: first, visibility does not decline in any Class I area, and 
second, there is an overall improvement in visibility, determined by 
comparing the average differences in visibility conditions under BART 
and the alternative measure across all affected Class I areas. In 
addition to the specific test, the regulations also include a more 
general test that allows states (or the EPA) to demonstrate that an 
alternative measure provides for greater reasonable progress than BART 
based on the clear weight of evidence.\22\
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    \21\ 40 CFR 51.308(e)(3).
    \22\ 40 CFR 51.308(e)(2)(i)(E).
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    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--either a CSAPR federal trading program implemented through a 
CSAPR FIP or an integrated CSAPR state trading program implemented 
through an approved CSAPR SIP revision--qualifies as a BART alternative 
for those EGUs for that pollutant.\23\ In

[[Page 78958]]

promulgating the amendment, the EPA relied on an analytic demonstration 
of an improvement in visibility from CSAPR implementation relative to 
BART based on an air quality modeling study, in accordance with the 
second approach to the specific better-than-BART test summarized above. 
Since the EPA promulgated this amendment, numerous states covered by 
CSAPR have come to rely on the provision through either SIPs or 
FIPs.\24\
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    \23\ 40 CFR 51.308(e)(4); see also generally 77 FR 33642. Legal 
challenges to the CSAPR-Better-than-BART rule from state, industry, 
and other petitioners are pending. Utility Air Regulatory Group v. 
EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).
    \24\ The EPA has promulgated FIPs relying on CSAPR participation 
for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, 
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, 
and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 
(July 6, 2012). The EPA has approved Minnesota's SIP relying on 
CSAPR participation for BART purposes. 77 FR 34801, 34806 (June 12, 
2012).
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    For purposes of the 2012 analytic demonstration that CSAPR provides 
for greater reasonable progress than BART, the EPA treated Texas EGUs 
as subject to CSAPR for SO2 and annual NOX (as 
well as ozone-season NOX) and treated Florida EGUs as 
subject to CSAPR for ozone-season NOX. The EPA recognizes 
that the treatment of these EGUs in the analysis would have been 
different if the Florida FIP withdrawal recently finalized and the 
Texas FIP withdrawal proposed in this action had been known before the 
demonstration was prepared. In order to address any potential concern 
about continuing to rely on CSAPR participation as a BART alternative 
for EGUs in the remaining CSAPR states, the EPA is providing a 
sensitivity analysis explicitly addressing the potential effect on the 
2012 analytic demonstration if the treatment of Texas and Florida EGUs 
had been consistent with the EPA's expectations for the updated scope 
of CSAPR coverage following the D.C. Circuit's remand. As discussed in 
section V below, the analysis supports the continued conclusion that 
CSAPR participation would achieve greater reasonable progress than BART 
despite such a change in the treatment of Texas and Florida EGUs. 
Consequently, the proposed FIP withdrawal does not suggest any reason 
to consider amending the current Regional Haze Rule provision 
authorizing the use of CSAPR participation as a BART alternative for 
BART-eligible EGUs for a given pollutant in states whose EGUs continue 
to participate in a CSAPR trading program for that pollutant.

III. Withdrawal of Certain CSAPR FIP Requirements for Texas EGUs

    As summarized in section I above, the EPA proposes to respond to 
the D.C. Circuit's remand of the CSAPR Phase 2 SO2 budget 
for Texas by withdrawing the FIP provisions requiring Texas EGUs to 
participate in the CSAPR federal trading programs for SO2 
and annual NOX emissions with regard to emissions occurring 
after 2016. This section discusses the rationale for this proposed 
action.
    In the CSAPR final rule, the EPA determined that 23 states, 
including Texas, had transport obligations with regard to the 1997 
annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, 
or both, and established SO2 and annual NOX 
emissions budgets for each of the states.\25\ The first step in the 
EPA's analysis was to identify PM2.5 receptors that were 
projected to have difficulty attaining or maintaining either the 1997 
NAAQS or the 2006 NAAQS in 2012 without emission reductions from CSAPR. 
In the second step, the EPA identified states that contribute more than 
a threshold amount of PM2.5 pollution (i.e., one percent of 
the NAAQS) for at least one of those NAAQS to at least one of the 
identified nonattainment or maintenance receptors in a different 
state--in other words, a ``linkage'' was determined. In the third step, 
the EPA projected the SO2 and annual NOX emission 
reductions and the remaining emissions that would be achieved by EGUs 
in all modeled states at a range of control cost levels as well as the 
resulting improvements in air quality at each of the identified 
PM2.5 receptors. For annual NOX, the EPA 
evaluated a range of control cost levels up to $2,500 per ton, and for 
SO2, the EPA evaluated a range of control cost levels up to 
$10,000 per ton in combination with a NOX control cost level 
of $500 per ton. The EPA then set SO2 and annual 
NOX emissions budgets for EGUs in each of the 23 covered 
states at the remaining emissions corresponding to a combination of 
SO2 and annual NOX control cost levels at which 
the air quality problems at all, or most, of the receptors linked to 
that state were projected to be resolved. The budgets were implemented 
through FIP provisions requiring the affected EGUs in each covered 
state to participate in allowance trading programs.
---------------------------------------------------------------------------

    \25\ The EPA also determined in CSAPR and a related supplemental 
rule that 25 states, including Texas, had transport obligations with 
regard to the 1997 8-hour ozone NAAQS. In all, 28 states were 
determined to have transport obligations related to either 
PM2.5, ozone, or both. The EPA's process for determining 
states' emissions limitations under CSAPR and the associated CSAPR 
FIP requirements is described at length in the preamble to the CSAPR 
final rule. See generally 77 FR at 48222-71.
---------------------------------------------------------------------------

    In the case of seven states, including Alabama, Georgia, South 
Carolina, and Texas, the PM2.5 air quality problems at all 
linked receptors were projected to be resolved at an SO2 
control cost level of $500 per ton. The CSAPR SO2 budgets 
for these states were therefore set based on the projected 
SO2 emissions remaining after the reductions achievable at 
that control cost level. For the other 16 states covered by CSAPR for 
PM2.5, the air quality problems at all linked receptors were 
not projected to be resolved until (or after) an SO2 control 
cost level of $2,300 per ton, and the CSAPR SO2 budgets were 
set based on the projected SO2 emissions remaining after the 
reductions achievable at that higher cost level. For all 23 states 
linked to a PM2.5 receptor, the CSAPR annual NOX 
budgets were set based on the projected NOX emissions 
remaining after the reductions achievable at a control cost level of 
$500 per ton. The EPA promulgated FIP provisions requiring EGUs in the 
16 states whose SO2 budgets were set based on a $2,300-per-
ton SO2 control cost level to participate in the CSAPR 
SO2 Group 1 Trading Program, requiring EGUs in the seven 
states whose SO2 budgets were set based on a $500-per-ton 
SO2 control cost level to participate in the CSAPR 
SO2 Group 2 Trading Program, and requiring EGUs in all 23 
states to participate in the CSAPR NOX Annual Trading 
Program.
    Petitioners challenged the EPA's use of a $500-per-ton control cost 
level to set the SO2 budgets for Alabama, Georgia, South 
Carolina, and Texas, citing an analysis the EPA had prepared for the 
CSAPR proposal projecting that the air quality problems at certain 
PM2.5 receptors would be resolved at SO2 control 
cost levels below $500 per ton. In its July 2015 decision, the D.C. 
Circuit agreed that because modeling in the rulemaking record from the 
CSAPR proposal indicated that air quality problems at all 
PM2.5 receptors linked to these four states could have been 
resolved at SO2 control costs below $500 per ton, the Phase 
2 SO2 budgets set in the CSAPR final rule based on control 
costs of $500 per ton may be more stringent than necessary to address 
the four states' PM2.5 transport obligations. The court 
therefore found the Phase 2 SO2 budgets for these four 
states invalid and remanded them to the EPA for reconsideration.\26\
---------------------------------------------------------------------------

    \26\ EME Homer City II, 795 F.3d at 128-29.
---------------------------------------------------------------------------

    In this action, the EPA is proposing to respond to the remand of 
the Phase 2 SO2 budget for Texas by withdrawing the FIP 
provisions requiring Texas EGUs to participate in the CSAPR 
SO2 Group 2 Trading Program and the CSAPR NOX 
Annual Trading Program with regard to emissions during Phase 2 of those

[[Page 78959]]

programs, which is now scheduled to begin in 2017. Withdrawal of the 
FIP provisions related to the SO2 trading program 
encompasses withdrawal of the requirement for Texas EGUs to comply with 
the remanded Phase 2 SO2 budget, thereby addressing the 
specific rule provision remanded by the court. The EPA is proposing to 
withdraw the FIP provisions related to annual NOX in 
addition to the FIP provisions related to SO2 because, as 
just discussed, the CSAPR FIP requirements for SO2 and 
annual NOX applicable to the EGUs in each covered state were 
determined through an integrated analysis and were promulgated in 
combination to remedy that state's PM2.5 transport 
obligation. The court's finding that CSAPR's Phase 2 requirements may 
be more stringent than necessary to address Texas' PM2.5 
transport obligation therefore implicates the state's Phase 2 budgets 
for both SO2 and annual NOX.
    The proposed withdrawal of the FIP requirements would be consistent 
with the approach the EPA has taken in response to previous judicial 
remands regarding obligations of individual states under other EPA 
rules addressing multiple states' transport obligations. For example, 
in Michigan v. EPA, the court found that the EPA had failed to 
adequately support the inclusion of Wisconsin in the NOX SIP 
Call.\27\ The EPA responded to that remand by amending the rule to 
exclude Wisconsin.\28\ Similarly, in North Carolina v. EPA, the court 
found that the EPA had failed to adequately support the inclusion of 
Minnesota in the Clean Air Interstate Rule (CAIR) with regard to the 
1997 annual PM2.5 NAAQS as well as the corresponding CAIR 
FIP provisions applicable to Minnesota units.\29\ The EPA responded to 
that remand by indefinitely staying CAIR's PM2.5 transport 
obligation for Minnesota as well as the CAIR FIP provisions requiring 
Minnesota units to participate in CAIR's federal trading programs for 
SO2 and annual NOX.\30\
---------------------------------------------------------------------------

    \27\ 213 F.3d 663, 681 (D.C. Cir. 2000). Both the court's 
decision and the EPA's response were limited to the NOX 
SIP Call's requirements related to the 1979 1-hour ozone NAAQS, 
because the rule's parallel requirements related to the 1997 8-hour 
ozone NAAQS had already been indefinitely stayed as to all states.
    \28\ Interstate Ozone Transport: Response to Court Decisions on 
the NOX SIP Call, NOX SIP Call Technical 
Amendments, and Section 126 Rules, 69 FR 21604, 21636-37 (April 21, 
2004).
    \29\ 531 F.3d 896, 926-28 (D.C. Cir. 2008).
    \30\ Administrative Stay of Clean Air Interstate Rule for 
Minnesota; Administrative Stay of Federal Implementation Plan to 
Reduce Interstate Transport of Fine Particulate Matter and Ozone for 
Minnesota, 74 FR 56721, 56722 (November 3, 2009).
---------------------------------------------------------------------------

    The proposed withdrawal of FIP requirements is also consistent with 
the actions the EPA either has already taken or expects to take to 
address the D.C. Circuit's remand of other CSAPR Phase 2 budgets. With 
regard to the remanded Phase 2 ozone-season NOX budgets for 
eleven states, the EPA withdrew the FIP provisions requiring compliance 
with those budgets in a rule promulgated earlier this year updating 
CSAPR to address states' transport obligations with regard to the 2008 
ozone NAAQS. Specifically, the EPA amended the FIP provisions 
applicable to EGUs in the eleven states with remanded budgets to 
eliminate the CSAPR FIP requirements related to the 1997 ozone NAAQS 
with regard to emissions occurring after 2016, coincident with the 
transition from CSAPR Phase 1 to CSAPR Phase 2.\31\ The EPA determined 
that none of the eleven states would have remaining transport 
obligations under CAA section 110(a)(2)(D)(i)(I) with regard to the 
1997 ozone NAAQS following the FIP withdrawal.\32\ However, the EPA 
also determined that eight of the states have transport obligations 
under that section with regard to the more stringent 2008 ozone NAAQS, 
and established new CSAPR ozone-season NOX budgets for those 
states related to that NAAQS starting with emissions occurring in 
2017.\33\
---------------------------------------------------------------------------

    \31\ See 81 FR at 74576.
    \32\ See 81 FR at 74524.
    \33\ Id.
---------------------------------------------------------------------------

    With regard to the remanded Phase 2 SO2 budgets for 
Alabama, Georgia, and South Carolina, the EPA either has addressed or 
expects to address the remand through withdrawal of the relevant FIP 
requirements in the context of SIP approval actions for these states. 
As discussed in section II.A above, the CSAPR regulations provide each 
covered state with the option to meet its transport obligations through 
SIP revisions replacing the federal trading programs and requiring the 
state's EGUs to participate in integrated CSAPR state trading programs 
that apply emissions budgets of the same or greater stringency.\34\ 
Under the CSAPR regulations, when such a SIP revision is approved, the 
corresponding FIP provisions are automatically withdrawn. As discussed 
in section II.B above, the Regional Haze Rule allows states to rely on 
CSAPR participation for a given pollutant--through either a CSAPR 
federal trading program or an integrated CSAPR state trading program--
as a BART alternative for that pollutant.
---------------------------------------------------------------------------

    \34\ See 40 CFR 52.38 and 52.39.
---------------------------------------------------------------------------

    Before proposing this action, the EPA communicated with officials 
in Alabama, Georgia, South Carolina, and Texas regarding the EPA's 
intent to respond to the remand of the Phase 2 SO2 budgets 
by withdrawing the FIP provisions requiring the states' EGUs to 
participate in the CSAPR federal trading programs for SO2 
and annual NOX.\35\ The EPA explained that the state would 
lose its ability to rely on CSAPR participation as a BART alternative 
for SO2 and/or NOX if its EGUs no longer 
participated in the CSAPR trading programs, but that the state could 
preserve that ability, if desired, by submitting a CSAPR SIP revision 
replacing the CSAPR federal trading programs with integrated CSAPR 
state trading programs applying state-established budgets no less 
stringent than the remanded federally-established budgets.\36\ Alabama, 
Georgia, and South Carolina have indicated their preference to pursue 
the SIP revision option. The EPA has already approved Alabama's CSAPR 
SIP revision, and the FIP provisions requiring its EGUs to participate 
in the CSAPR federal trading programs for SO2 and annual 
NOX, including the requirements to comply with the 
federally-established SO2 and annual NOX budgets, 
have therefore been automatically withdrawn.\37\ Georgia and South 
Carolina have committed to submit CSAPR SIP revisions,\38\ and the EPA 
is not

[[Page 78960]]

proposing withdrawal of the CSAPR FIP provisions for their EGUs based 
on the expectation that such withdrawal will be automatically 
accomplished as a result of SIP approval actions.\39\ Because Texas has 
not indicated an intent to submit a CSAPR SIP revision, the EPA is 
proceeding with this proposed action to withdraw the FIP requirements 
for Texas EGUs, consistent with the intended approach previously 
communicated to officials for all four states.
---------------------------------------------------------------------------

    \35\ See memo entitled ``The U.S. Environmental Protection 
Agency's Plan for Responding to the Remand of the Cross-State Air 
Pollution Rule Phase 2 SO2 Budgets for Alabama, Georgia, 
South Carolina and Texas'' from Janet G. McCabe, EPA Acting 
Assistant Administrator for Air and Radiation, to EPA Regional Air 
Division Directors (June 27, 2016), available at https://www3.epa.gov/airtransport/CSAPR/pdfs/CSAPR_SO2_Remand_Memo.pdf and 
in the docket for this proposed action. The memo directs the 
Regional Air Division Directors to share the memo with state 
officials. The EPA also communicated orally with officials in 
Alabama, Georgia, South Carolina, and Texas in advance of the memo.
    \36\ Although the D.C. Circuit remanded the states' Phase 2 
SO2 budgets because it determined that the budgets may be 
more stringent than necessary to address the states' identified 
PM2.5 transport obligations, nothing in the court's 
decision affects the states' authority to seek incorporation into 
their SIPs of state-established budgets as stringent as the remanded 
federally-established budgets or limits the EPA's authority to 
approve such SIP revisions. See CAA sections 116, 110(k)(3).
    \37\ Air Plan Approval; Alabama; Cross-State Air Pollution Rule, 
81 FR 59869 (August 31, 2016).
    \38\ See letters to Heather McTeer Toney, Regional 
Administrator, EPA Region 4, from Judson H. Turner, Director of the 
Environmental Protection Division, Georgia Department of Natural 
Resources (May 26, 2016) and from Myra C. Reece, Director of 
Environmental Affairs, South Carolina Department of Health and 
Environmental Control (April 19, 2016), available in the docket for 
this proposed action. The EPA has conditionally approved the CAA 
section 110(a)(2)(D)(i)(II) prong 4 visibility element for multiple 
NAAQS in the Georgia and South Carolina SIPs based on each state's 
commitment to submit a CSAPR SIP revision. 81 FR 65899, 65900 
(September 26, 2016) (Georgia); 81 FR 56512, 56513 (August 22, 2016) 
(South Carolina).
    \39\ If the EPA does not receive the expected SIP submittal from 
either of these states by the deadline provided in its respective 
commitment letter or disapproves such a SIP submittal, the EPA will 
propose to withdraw the FIP provisions requiring that state's EGUs 
to participate in the CSAPR federal trading programs for 
SO2 and annual NOX, consistent with the action 
proposed here for Texas EGUs.
---------------------------------------------------------------------------

    The EPA requests comment on the proposed withdrawal of the FIP 
provisions requiring Texas EGUs to participate in the CSAPR trading 
programs for SO2 and annual NOX with regard to 
emissions occurring after 2016.

IV. Texas' Good Neighbor Obligation With Regard to the 1997 Annual 
PM2.5 NAAQS

    Withdrawal of the CSAPR FIP requirements as proposed in section III 
above would revive the need to consider Texas' transport obligation 
under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 annual 
PM2.5 NAAQS and to address any remaining obligation through 
other means. As summarized in section I above, the EPA proposes to 
determine that Texas would have no remaining transport obligation under 
this section with regard to this NAAQS following withdrawal of the FIP 
requirements, and consequently also proposes to determine that the EPA 
will have no obligation to issue new FIP requirements as to Texas's 
transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard 
to the 1997 annual PM2.5 NAAQS after withdrawal of the 
current FIP requirements. This section discusses the rationale for 
these proposed determinations.
    In the CSAPR rulemaking, one of the receptors that the EPA 
projected would have difficulty attaining and maintaining both the 1997 
annual PM2.5 NAAQS and the 2006 24-hour PM2.5 
NAAQS was a receptor located in Madison County, Illinois (monitor ID 
171191007).\40\ The modeling for the CSAPR final rule showed that Texas 
was projected to contribute more than the threshold amount of 
PM2.5 pollution necessary in order to be considered 
``linked'' to the Madison County receptor for annual 
PM2.5.\41\ Based on the linkage for the 1997 annual NAAQS, 
the EPA consequently determined emissions limitations for 
SO2 and annual NOX from Texas EGUs and 
promulgated FIP requirements reflecting these emission limitations.\42\ 
These are the FIP requirements that the EPA is now proposing to 
withdraw in order to address the D.C. Circuit's remand of the Phase 2 
SO2 budget for Texas.
---------------------------------------------------------------------------

    \40\ 76 FR at 48233, 48235.
    \41\ 76 FR at 48241.
    \42\ The modeling for the CSAPR final rule also linked Texas to 
the Madison County receptor with regard to the 2006 24-hour 
PM2.5 NAAQS, but the EPA did not rely on the linkage with 
regard to that NAAQS as a basis for establishing CSAPR FIP 
requirements for Texas EGUs. See 76 FR at 48243, 48214.
---------------------------------------------------------------------------

    In evaluating what, if any, remaining transport obligation Texas 
would have under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 
PM2.5 NAAQS following withdrawal of the current FIP 
requirements as proposed, the EPA has reexamined data in the CSAPR 
final rule record in light of the D.C. Circuit's other holdings in EME 
Homer City II, specifically the court's rationale for remanding several 
Phase 2 ozone-season NOX budgets. In the CSAPR rulemaking, 
for purposes of identifying receptors projected to have air quality 
problems and determining states that were linked to those receptors and 
which therefore may have transport obligations, the EPA used air 
quality projections for the year 2012, which was also the intended 
start year for implementation of the Phase 1 budgets. The CSAPR final 
rule record also contained air quality projections for 2014, which was 
the intended start year for implementation of the Phase 2 budgets. The 
2014 modeling results showed that some ozone receptors projected to 
have air quality problems in 2012 would no longer be projected to have 
air quality problems in 2014 before considering the emission reductions 
from CSAPR, and petitioners argued that the EPA therefore lacked 
authority to establish Phase 2 ozone-season NOX emissions 
limitations for EGUs in states linked solely to those ozone receptors. 
The D.C. Circuit agreed and held the Phase 2 ozone-season 
NOX budgets for ten states invalid on that basis.\43\
---------------------------------------------------------------------------

    \43\ EME Homer City II, 795 F.3d at 129-30. The court also 
remanded the Phase 2 ozone-season NOX budget for an 
eleventh state (Texas), but on different grounds.
---------------------------------------------------------------------------

    Although not discussed in the court's decision, the CSAPR final 
rule record contains projections of 2014 air quality for the Madison 
County PM2.5 receptor that are analogous to the projections 
of 2014 air quality for the ozone receptors described above. 
Specifically, the 2014 modeling results projected that the Madison 
County receptor would have a maximum design value for annual 
PM2.5 of 15.02 micrograms per cubic meter ([mu]g/m\3\) 
before considering the emissions reductions from CSAPR.\44\ This 
projected value is below the value of 15.05 [mu]g/m\3\ that the EPA 
used to determine whether a particular PM2.5 receptor should 
be identified as having air quality problems that may trigger transport 
obligations in upwind states with regard to the 1997 annual 
PM2.5 NAAQS.\45\ The Madison County receptor was the only 
PM2.5 receptor with projected air quality problems to which 
Texas was found to be linked based on the EPA's air quality modeling 
for the CSAPR final rule. Therefore, given that the Madison County 
receptor was projected to no longer have air quality problems 
sufficient to trigger transport obligations with regard to the 1997 
annual PM2.5 NAAQS in the EPA's 2014 base case modeling for 
the CSAPR final rule, and given the D.C. Circuit's holding discussed 
above with regard to the Phase 2 ozone-season NOX budgets, 
the EPA proposes to find that, as of Phase 2 of CSAPR, Texas would not 
significantly contribute to nonattainment in, or interfere with 
maintenance by, any other state of the 1997 annual PM2.5 
NAAQS following withdrawal of the current CSAPR FIP requirements 
applicable to Texas EGUs with regard to that NAAQS. Accordingly, the 
EPA also proposes to determine that the Agency has no obligation to 
issue new FIP requirements as to Texas under CAA section 
110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 
NAAQS after withdrawal of the current FIP provisions requiring Texas 
EGUs to participate in Phase 2 of the CSAPR federal trading programs 
for SO2 and annual NOX.
---------------------------------------------------------------------------

    \44\ See projected 2014 base case maximum design value for 
Madison County, Illinois receptor 171191007 at B-41 of the Air 
Quality Modeling Final Rule Technical Support Document, Docket ID 
No. EPA-HQ-OAR-2009-0491-4140 (June 2011) (CSAPR Final Rule 
Technical Support Document), available in the docket for this 
proposed action.
    \45\ 76 FR at 48233.
---------------------------------------------------------------------------

    The EPA requests comment on the proposed determinations that Texas 
will no longer have any remaining transport obligation under CAA 
section 110(a)(2)(D)(i)(I) with regard to the 1997 PM2.5 
NAAQS following finalization of the proposed withdrawal of the FIP 
provisions requiring Texas EGUs to participate in the SO2 
and annual NOX trading programs during Phase 2 of CSAPR, and 
that the EPA accordingly will have no obligation to issue new FIP 
requirements for Texas sources to address such a transport obligation.

[[Page 78961]]

V. Sensitivity Analysis Regarding CSAPR Participation as a BART 
Alternative

    As summarized in section II.B above, in 2012 the EPA amended the 
Regional Haze Rule to authorize states whose EGUs participate in CSAPR 
trading programs for a given pollutant to rely on CSAPR participation 
as a BART alternative for that pollutant, basing that determination on 
an analytic demonstration that implementation of CSAPR as expected to 
take effect at the time of the 2012 revision would achieve greater 
reasonable progress than BART toward the national goal of natural 
visibility conditions in Class I areas. This section discusses a 
sensitivity analysis to the 2012 analytic demonstration showing that 
the analysis would have supported the same conclusion if the actions 
the EPA has proposed to take or has already taken in response to the 
D.C. Circuit's remand of various CSAPR Phase 2 budgets--specifically, 
the withdrawal of PM2.5-related CSAPR Phase 2 FIP 
requirements for Texas EGUs proposed in this action and the recently 
finalized withdrawal of ozone-related CSAPR Phase 2 FIP requirements 
for Florida EGUs--were reflected in that analysis.

A. Summary of 2012 CSAPR-Better-Than-BART Analytic Demonstration

    When promulgating the 2012 CSAPR-Better-than-BART rule, the EPA 
relied on an analysis showing that CSAPR implementation meets the 
Regional Haze Rule's criteria for a demonstration of greater reasonable 
progress than BART toward natural visibility conditions as set forth in 
40 CFR 51.308(e)(3).\46\ The analytic demonstration included an air 
quality modeling study whose results passed the two-pronged test 
described in section II.B above. The first prong ensures that the 
alternative program will not cause a decline in visibility at any 
affected Class I area. The second prong ensures 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.
---------------------------------------------------------------------------

    \46\ 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 proposed action.
---------------------------------------------------------------------------

    In the air quality modeling study conducted for the 2012 analytic 
demonstration, the EPA projected visibility conditions in affected 
Class I areas \47\ based on 2014 emissions projections for two control 
scenarios and used this modeling in conjunction with the 2014 base case 
emissions projections and air quality modeling from the CSAPR final 
rule record.\48\ One control scenario represents ``Nationwide BART'' 
and the other control scenario represents ``CSAPR + BART-elsewhere.'' 
The Nationwide BART scenario reflects projected SO2 and 
NOX emissions from all EGUs nationwide (except Alaska and 
Hawaii) after the application of source-specific BART controls to all 
BART-eligible EGUs. In the CSAPR + BART-elsewhere scenario, EGU 
SO2 and NOX emissions reductions attributable to 
CSAPR were applied throughout the 28-state CSAPR region wherever EGUs 
are subject to CSAPR requirements for the respective pollutants, and 
BART controls for SO2 and NOX were applied to all 
BART-eligible EGUs outside the CSAPR region as well as to BART-eligible 
EGUs in the CSAPR region that are not subject to CSAPR requirements for 
the respective pollutants.\49\ The latter scenario reflects the fact 
that source-specific BART would remain a regional haze SIP element in 
states and for pollutants not covered by CSAPR requirements. In the 
base case, neither BART controls nor the EGU SO2 and 
NOX emissions reductions attributable to CSAPR were 
reflected.
---------------------------------------------------------------------------

    \47\ The 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 at 33650.
    \48\ For additional detail on the 2014 base case, see the CSAPR 
Final Rule Technical Support Document, supra note 44.
    \49\ Specifically, because Arkansas, Florida, Louisiana, 
Mississippi, and Oklahoma were covered by CSAPR only to address 
ozone transport obligations, for the CSAPR + BART-elsewhere case, 
EGUs in these states were assumed to be subject to CSAPR 
requirements for ozone-season NOX emissions and source-
specific BART for SO2 (for BART-eligible EGUs). EGUs in 
the remaining CSAPR states, all of which were covered by CSAPR to 
address PM2.5 transport obligations, were assumed to be 
subject to CSAPR requirements for both annual NOX and 
SO2, and were also assumed to be subject to CSAPR ozone-
season NOX requirements where applicable.
---------------------------------------------------------------------------

    For all BART-eligible EGUs in the Nationwide BART scenario and for 
BART-eligible EGUs not subject to CSAPR for a particular pollutant in 
the CSAPR + BART-elsewhere scenario, the modeled emission rates were 
the presumptive EGU BART limits for SO2 and NOX 
as specified in the BART Guidelines,\50\ unless an actual emission rate 
at a given unit with existing controls was lower, in which case the 
lower emission rate was modeled.\51\ The estimates of CSAPR annual 
NOX and SO2 emissions from EGUs for the CSAPR + 
BART-elsewhere control scenario were based on the CSAPR Phase 2 budgets 
promulgated in the CSAPR final rule, except that proposed rather than 
final ozone-season NOX budgets were used for several states 
because their budgets were not final at the time the modeling for the 
CSAPR + BART-elsewhere scenario was performed.\52\
---------------------------------------------------------------------------

    \50\ Appendix Y to 40 CFR part 51--Guidelines for BART 
Determinations under the Regional Haze Rule.
    \51\ For more details on the emissions and modeling of the 
scenarios, see the 2011 CSAPR/BART Technical Support Document, supra 
note 46.
    \52\ The use of proposed rather than final budgets for ozone-
season NOX emissions for Iowa, Kansas, Michigan, 
Missouri, Oklahoma, and Wisconsin had no material effect on the 
overall emissions projections, because for each of the states except 
Oklahoma, the analysis also reflected a final, comparably stringent 
budget for annual NOX emissions, and while Oklahoma has 
no CSAPR budget for annual NOX emissions, its final Phase 
2 ozone-season NOX budget was unchanged from the 
proposal.
---------------------------------------------------------------------------

    For the CSAPR-Better-than-BART final rule, the EPA also conducted 
an additional sensitivity analysis to address instances where certain 
CSAPR budgets were increased after promulgation of the original CSAPR 
final rule.\53\ The overall magnitude of the SO2 budget 
increases (for nine states) was 129,295 tons per year, with budget 
increases for Texas and Georgia accounting for approximately 70 percent 
of that total. In addition, there was an overall increase in annual 
NOX budgets (for thirteen states) of 49,818 tons per year. 
In the sensitivity analysis, the EPA noted the dominance of sulfate 
impacts on visibility for each control scenario and relatedly noted 
that the vast majority of the projected visibility improvements in the 
CSAPR + BART-elsewhere scenario were attributable to the SO2 
reductions in that scenario, which were much larger than the 
SO2 reductions in the Nationwide BART scenario.\54\ This was 
especially true in the sixteen Class I areas that were identified as 
being most impacted by Texas and Georgia (all in the South). The EPA 
also concluded that the impact on the modeled visibility impacts at 
Class I areas from the overall NOX budget increases would be 
negligible. The EPA therefore focused the sensitivity analysis on the 
increases in the SO2 budgets for Texas and Georgia and 
considered highly conservative assumptions for the air quality impacts

[[Page 78962]]

that would result from those budget increases in order to ensure that 
the conclusions from the modeling analysis remained robust in light of 
all the budget increases.
---------------------------------------------------------------------------

    \53\ 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) 
(2012 CSAPR/BART sensitivity analysis memo), available in the docket 
for this proposed action.
    \54\ Id. at 1-2.
---------------------------------------------------------------------------

    The CSAPR-Better-than-BART modeling analysis showed that the CSAPR 
+ BART-elsewhere alternative passed both prongs of the two-pronged test 
described in section II.B above and that CSAPR implementation therefore 
met the Regional Haze Rule's criteria for a BART alternative. The first 
prong of the test--i.e., whether the proposed BART alternative would 
result in a decline in visibility in any Class I area--was evaluated by 
comparing projected visibility conditions under the CSAPR + BART-
elsewhere case and the base case. The CSAPR + BART-elsewhere scenario 
did not show visibility degradation relative to the base case at any of 
the affected Class I areas on either the 20 percent best or the 20 
percent worst visibility days. The second prong of the test--i.e., 
whether the proposed BART alternative would result in an overall 
improvement in visibility across all affected Class I areas relative to 
BART--was evaluated by comparing projected visibility conditions under 
the CSAPR + BART-elsewhere case and the Nationwide BART case. The CSAPR 
+ BART-elsewhere scenario passed this prong of the test based on the 
fact that, on average, modeled visibility improvement at the affected 
Class I areas was greater under the CSAPR + BART-elsewhere scenario 
than under the Nationwide BART scenario on both the 20 percent best and 
the 20 percent worst visibility days.

B. Impact on 2012 Analytic Demonstration of Actions Responding to the 
Remand of CSAPR Phase 2 Budgets

    As discussed in section II.A above, although in EME Homer City II 
the D.C. Circuit remanded the CSAPR Phase 2 SO2 budgets for 
four states and the CSAPR Phase 2 ozone-season NOX budgets 
for eleven states, the EPA expects that with regard to most of these 
states the remand will result in no material change to the scope of 
CSAPR coverage. In the case of the remanded Phase 2 SO2 
budgets for Alabama, Georgia, and South Carolina, the states are 
expected to continue to ensure that their EGUs comply with comparably 
stringent CSAPR SO2 and annual NOX requirements 
through SIP revisions. In the case of the remanded Phase 2 ozone-season 
NOX budgets, eight of the states with remanded budgets 
(including Texas) will continue to be subject to CSAPR to address ozone 
transport obligations with regard to the more stringent 2008 ozone 
NAAQS, and North Carolina and South Carolina, although no longer 
covered by CSAPR to address ozone transport obligations, will continue 
to be subject to CSAPR annual NOX requirements in order to 
address their PM2.5 transport obligations. In considering 
the potential impact of the remand of Phase 2 budgets on the 2012 
CSAPR-Better-than-BART analytic demonstration, the EPA therefore 
believes that only two changes have potential relevance: The withdrawal 
of the FIP provisions subjecting Florida EGUs to CSAPR ozone-season 
NOX requirements that has already been finalized, and the 
withdrawal of FIP provisions subjecting Texas EGUs to CSAPR 
SO2 and annual NOX requirements that is proposed 
in this action.
    With regard to the change in CSAPR requirements for Florida EGUs, 
the EPA believes that the change would have no material impact on the 
2012 analytic demonstration. Because Florida EGUs are no longer subject 
to any CSAPR requirements for NOX emissions during Phase 2, 
Florida is no longer eligible to rely on CSAPR participation as a 
NOX BART alternative.\55\ If this information had been 
available at the time of the 2012 CSAPR-Better-than-BART analytic 
demonstration, the treatment of Florida EGUs in the base case and in 
the Nationwide BART scenario would not have changed, but in the CSAPR + 
BART-elsewhere scenario Florida EGUs would have been treated as subject 
to NOX BART instead of being treated as subject to CSAPR 
ozone-season NOX requirements. The Nationwide BART scenario 
already includes projections of the annual NOX emissions 
from Florida EGUs under NOX BART. The difference between the 
projected annual NOX emissions of Florida EGUs in these two 
scenarios is only 5,300 tons, which represents an increase of 
approximately seven percent of the total annual NOX 
emissions from Florida EGUs and approximately three tenths of one 
percent of the total annual NOX emissions from EGUs in all 
modeled states in the CSAPR + BART-elsewhere scenario.\56\ Consistent 
with the sensitivity analysis supporting the 2012 analytic 
demonstration that showed the dominance of sulfate impacts on 
visibility (especially in the South), small increases in Florida 
NOX emissions are expected to have a negligible impact on 
visibility impairment in nearby Class I areas. The EPA believes that 
this relatively small increase in NOX emissions in the CSAPR 
+ BART-elsewhere case would have been too small to cause any change in 
the results of either prong of the two-pronged CSAPR-Better-than-BART 
test.
---------------------------------------------------------------------------

    \55\ The EPA has already approved the incorporation into 
Florida's SIP of determinations regarding source-specific 
NOX BART. 77 FR 71111, 71113-14 (November 29, 2012); 78 
FR 53250, 53267 (August 29, 2013).
    \56\ See the 2011 CSAPR/BART Technical Support Document, supra 
note 46, at table 2-5. The projected amounts of annual 
NOX emissions from Florida EGUs are 81,000 tons in the 
Nationwide BART scenario and 75,700 tons in the CSAPR + BART-
elsewhere scenario. The difference between these amounts is 5,300 
tons. The quotient of 5,300 divided by 81,000 is 6.5%. The total 
projected amount of annual NOX emissions from all states 
in the table in the CSAPR + BART-elsewhere scenario is 1,755,900 
tons (1,217,500 + 538,400). The quotient of 5,300 divided by 
1,755,900 is 0.3%.
---------------------------------------------------------------------------

    With regard to the changes in CSAPR requirements for Texas EGUs, 
the EPA believes that the changes would have no adverse impact on the 
2012 analytic demonstration. Following withdrawal of the FIP provisions 
as proposed, Texas EGUs would no longer be subject to CSAPR 
requirements for SO2 emissions and Texas would therefore be 
ineligible to rely on CSAPR as an SO2 BART alternative. 
Texas EGUs would also no longer be subject to CSAPR requirements for 
annual NOX emissions, but because the EGUs would continue to 
be subject to CSAPR requirements for ozone-season NOX 
emissions, Texas would remain eligible to rely on CSAPR as a 
NOX BART alternative.\57\ If this information had been 
available at the time of the 2012 CSAPR-Better-than-BART demonstration, 
the treatment of Texas EGUs in the base case and in the Nationwide BART 
case would not have changed, but in the CSAPR + BART-elsewhere case 
Texas EGUs would have been treated as subject to SO2 BART 
instead of being treated as subject to CSAPR SO2 
requirements. For NOX, Texas EGUs would have been treated as 
being subject to CSAPR requirements for ozone-season NOX 
emissions only instead of being treated as subject to CSAPR 
requirements for both ozone-season and annual NOX emissions.
---------------------------------------------------------------------------

    \57\ See 40 CFR 51.308(e)(4); see also supra note 7.
---------------------------------------------------------------------------

    The Nationwide BART scenario already includes projections of the 
SO2 emissions from Texas EGUs under BART. Some of the CSAPR 
states are projected to have lower emissions for a given pollutant in 
the CSAPR + BART-elsewhere scenario compared to the Nationwide BART 
scenario. This occurs in CSAPR states where the majority of the EGUs 
are not BART-eligible and/or where there were many EGUs with available 
cost-effective controls (at the time of the analysis for the CSAPR 
rulemaking). However, in other CSAPR states, the presumptive BART 
limits lead to estimated emissions for a given pollutant that are lower 
than what was

[[Page 78963]]

projected in the CSAPR + BART-elsewhere scenario. This can occur in 
CSAPR states that have numerous BART-eligible EGUs. In the case of 
Texas, the projected SO2 emissions from affected EGUs in the 
modeled Nationwide BART scenario (139,300 tons per year) are 
considerably lower than the projected SO2 emissions from the 
affected EGUs in the CSAPR + BART-elsewhere scenario (266,600 tons per 
year as modeled, and up to approximately 317,100 tons, as addressed in 
the 2012 CSAPR/BART sensitivity analysis memo).\58\ Treating Texas EGUs 
in the CSAPR + BART-elsewhere scenario as subject to SO2 
BART instead of CSAPR SO2 requirements would therefore have 
reduced projected SO2 emissions by between 127,300 tons and 
approximately 177,800 tons in this scenario, thereby improving 
projected air quality in this scenario relative to projected air 
quality in both the Nationwide BART scenario and the base case scenario 
(in which the projected SO2 emissions from Texas EGUs would 
not change).\59\ At the lower end of this range, a reduction in 
SO2 emissions of 127,300 tons would represent a reduction of 
over four percent of the total SO2 emissions from EGUs in 
all modeled states in the CSAPR + BART-elsewhere scenario.\60\ The EPA 
has previously observed that the visibility improvements from CSAPR 
relative to BART are primarily attributable to the greater reductions 
in SO2 emissions from CSAPR across the overall modeled 
region in the CSAPR + BART-elsewhere scenario relative to the 
Nationwide BART scenario.\61\ In the 2012 CSAPR-Better-than-BART 
analytic demonstration as relied on for purposes of the CSAPR-Better-
than-BART rule, in which Texas SO2 emissions for the CSAPR + 
BART-elsewhere scenario were represented at their higher projected 
CSAPR levels instead of at their lower projected BART levels, the 
difference in SO2 emission reductions for the overall 
modeled region between the CSAPR + BART-elsewhere scenario and the 
Nationwide BART scenario was approximately 773,000 tons after 
accounting for the increases in CSAPR SO2 budgets 
promulgated after the CSAPR final rule.\62\ An additional 
SO2 reduction of 127,300 tons or more in the CSAPR + BART-
elsewhere scenario--the result of revising this scenario to represent 
Texas EGUs as subject to SO2 BART requirements instead of 
CSAPR SO2 requirements--would increase this 773,000 ton 
differential, which already favors implementation of CSAPR relative to 
BART, by more than fifteen percent.
---------------------------------------------------------------------------

    \58\ For the projected annual SO2 emissions from 
Texas EGUs for all scenarios, see the 2011 CSAPR/BART Technical 
Support Document, supra note 46, at table 2-4. As discussed in 
section V.A above, 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, supra 
note 53). 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.
    \59\ The difference between 266,600 and 139,300 is 127,300. The 
difference between 317,100 and 139,300 is 177,800.
    \60\ The total projected amount of annual SO2 
emissions from all states in the table in the CSAPR + BART-elsewhere 
scenario is 2,918,500 tons (2,416,900 + 501,600). See the 2011 
CSAPR/BART Technical Support Document, supra note 46, at table 2-4. 
The quotient of 127,300 divided by 2,918,500 is 4.3%.
    \61\ See the 2012 CSAPR/BART sensitivity analysis memo, supra 
note 53, at 1-2.
    \62\ Id.
---------------------------------------------------------------------------

    The modeling performed for the 2012 analytic demonstration does not 
include projections of NOX emissions from Texas EGUs in a 
scenario where the EGUs are assumed to be subject to CSAPR requirements 
for ozone-season NOX but not annual NOX 
emissions. However, in the base case used for the analytic 
demonstration--i.e., without any NOx requirements from either CSAPR or 
BART--the projected annual NOX emissions from Texas EGUs 
were only 2,600 tons higher than the annual NOX emissions 
projected for the CSAPR + BART-elsewhere case in which it was assumed 
that the EGUs were subject to CSAPR requirements for both ozone-season 
and annual NOX emissions.\63\ The EPA believes this 
information indicates that if Texas EGUs had been modeled as subject to 
CSAPR requirements for ozone-season NOX but not annual 
NOX emissions, the projected NOX emissions would 
likely have been at most a few thousand tons higher than the emissions 
already modeled in the CSAPR + BART-elsewhere scenario. An increase of 
2,600 tons--that is, the full difference between the projected annual 
NOX emissions from Texas EGUs under the CSAPR + BART-
elsewhere scenario and a case with no CSAPR (or BART) NOX 
requirements at all--would represent approximately two percent of the 
total annual NOX emissions from Texas EGUs and less than two 
tenths of one percent of the total annual NOX emissions from 
EGUs in all modeled states in the CSAPR + BART-elsewhere scenario.\64\ 
Consistent with the sensitivity analysis supporting the 2012 analytic 
demonstration that showed the dominance of sulfate impacts on 
visibility (especially in the South), small increases in Texas 
NOX emissions are expected to have a negligible impact on 
visibility impairment in nearby Class I areas. The EPA believes that 
this relatively small increase in NOX emissions in the CSAPR 
+ BART-elsewhere case would have been too small to cause any change in 
the results of either prong of the two-pronged CSAPR-Better-than-BART 
test.
---------------------------------------------------------------------------

    \63\ See the 2011 CSAPR/BART Technical Support Document, supra 
note 46, at table 2-5. The projected amounts of annual 
NOX emissions from Texas EGUs are 142,100 tons in the 
base case scenario and 139,500 tons in the CSAPR + BART-elsewhere 
scenario. The difference between these amounts is 2,600 tons.
    \64\ The quotient of 2,600 divided by 139,500 is 1.9%. The total 
projected amount of annual NOX emissions from all states 
in the CSAPR + BART-elsewhere scenario is 1,755,900 tons. See supra 
note 56. The quotient of 2,600 divided by 1,755,900 is 0.15%.
---------------------------------------------------------------------------

    In summary, if the information regarding the remanded CSAPR Phase 2 
SO2 budget for Texas and the consequent proposed withdrawal 
of FIP requirements for Texas EGUs had been available at the time of 
the 2012 CSAPR-Better-than-BART analytic demonstration, the EPA 
believes that the CSAPR + BART-elsewhere scenario likely would have 
reflected SO2 emissions from Texas EGUs that would have been 
127,300 or more tons per year lower than the emissions that were used 
instead, and likely would have reflected annual NOX 
emissions from Texas EGUs that would have been at most a few thousand 
tons per year higher than the emissions that were used instead. Given 
the greater importance of SO2 emissions relative to 
NOX emissions in the 2012 analytic comparison, as noted 
above, and given that emissions would not have changed in the 
Nationwide BART or base case scenarios, it is a logical conclusion that 
the modeled visibility improvement in the CSAPR + BART-elsewhere 
scenario would have been even larger relative to the other scenarios 
than what was modeled in the 2012 analytic demonstration as reflected 
in the CSAPR-Better-than-BART rule. There is therefore no need to do 
any new modeling or more complicated sensitivity analysis. The lower 
SO2 emissions in Texas would clearly have led to more 
visibility improvement on the best and worst visibility days in the 
nearby Class I areas.\65\ Since the ``original'' CSAPR + BART-elsewhere 
scenario passed both prongs of the better-than-BART test (compared to 
the

[[Page 78964]]

Nationwide BART scenario and the base case scenario), a modified CSAPR 
+ BART-elsewhere scenario without Texas in the CSAPR region would 
without question also have passed both prongs of the better-than-BART 
test. In fact, if the modeling analysis had reflected the withdrawal of 
FIP provisions for Texas EGUs proposed in this action, the EPA expects 
that CSAPR implementation would have passed the better-than-BART test 
even more easily, again supporting the use of CSAPR implementation as a 
BART alternative for all states whose EGUs participate in the CSAPR 
trading programs.
---------------------------------------------------------------------------

    \65\ As documented in the 2012 CSAPR/BART sensitivity analysis 
memo, supra note 53, sulfate is the main constituent contributing to 
visibility impairment at the Class I areas affected by Texas' 
emissions, making Texas' SO2 emissions the dominant 
contributor to visibility impairment in these areas.
---------------------------------------------------------------------------

    The EPA requests comment on this discussion and the sensitivity 
analysis showing that the 2012 analytic demonstration supporting the 
conclusion that CSAPR participation qualifies as a BART alternative 
would not be adversely affected by modifying the assumptions to reflect 
the actions that have been or are expected to be taken in response to 
the D.C. Circuit's remand of CSAPR Phase 2 budgets, including the 
proposed withdrawal of FIP provisions requiring Texas EGUs to 
participate in the CSAPR SO2 and annual NOX 
trading programs.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and therefore 
was not submitted to the Office of Management and Budget (OMB) for 
review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the Paperwork Reduction Act. The OMB has previously approved the 
information collection activities contained in the existing regulations 
and has assigned OMB control number 2060-0667. The withdrawal of the 
FIP provisions proposed in this action will eliminate monitoring, 
recordkeeping, and reporting requirements for Texas sources under the 
CSAPR SO2 Group 2 Trading Program and the CSAPR 
NOX Annual Trading Program. However, this action will cause 
no material change in information collection burden related to 
NOX because all of the sources will continue to be subject 
to very similar NOx monitoring and reporting requirements under the 
CSAPR NOX Ozone Season Group 2 Trading Program and/or the 
Acid Rain Program. Further, for most of the sources, this action will 
also cause no change in information collection burden related to 
SO2 because the same SO2 monitoring and reporting 
requirements will continue to apply to the sources under the Acid Rain 
Program. Approximately eight Texas sources currently reporting under 
CSAPR include units that are not subject to the Acid Rain Program and 
therefore will no longer be required to continuously monitor and report 
SO2 emissions to the EPA, but these units combust only 
gaseous or liquid fuels and currently use default values or periodic 
sampling instead of continuous emission monitoring systems to measure 
SO2 concentrations. Consequently, the EPA expects this 
action to cause little change in information collection burden related 
to SO2.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act. 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 action withdraws 
existing regulatory requirements for some entities and does not impose 
new requirements on any entity. We have therefore concluded that this 
action will either relieve or have no net regulatory burden for all 
directly regulated small entities.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local, or tribal governments or the 
private sector. This action simply eliminates certain federal 
regulatory requirements that the D.C. Circuit has held invalid.

E. Executive Order 13132: Federalism

    This 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. This 
action simply eliminates certain federal regulatory requirements that 
the D.C. Circuit has held invalid.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments, on the relationship between the federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes. This action simply 
eliminates certain federal regulatory requirements that the D.C. 
Circuit has held invalid. Thus, Executive Order 13175 does not apply to 
this action. Consistent with the EPA Policy on Consultation and 
Coordination with Indian Tribes, the EPA consulted with tribal 
officials while developing CSAPR. A summary of that consultation is 
provided in the preamble for CSAPR, 76 FR 48208, 48346 (August 8, 
2011).

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it simply eliminates certain federal 
regulatory requirements that the D.C. Circuit has held invalid.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 13211.

I. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 because it does not establish an environmental health or safety 
standard. This action simply eliminates certain federal regulatory 
requirements that the

[[Page 78965]]

D.C. Circuit has held invalid. Consistent with Executive Order 12898 
and the EPA's environmental justice policies, the EPA considered 
effects on low-income populations, minority populations, and indigenous 
peoples while developing CSAPR. The process and results of that 
consideration are described in the preamble for CSAPR, 76 FR 48208, 
48347-52 (August 8, 2011).

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze, 
Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: November 3, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, part 52 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart A--General Provisions

0
2. Section 52.38 is amended by revising paragraph (a)(2), paragraph 
(a)(4) introductory text, paragraph (a)(5) introductory text, and 
paragraph (a)(6) to read as follows:


Sec.  52.38  What are the requirements of the Federal Implementation 
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to 
emissions of nitrogen oxides?

    (a) * * *
    (2)(i) The provisions of subpart AAAAA of part 97 of this chapter 
apply to sources in each of the following States and Indian country 
located within the borders of such States with regard to emissions 
occurring in 2015 and each subsequent year: Alabama, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, 
Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, 
Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, and 
Wisconsin.
    (ii) The provisions of subpart AAAAA of part 97 of this chapter 
apply to sources in each of the following States and Indian country 
located within the borders of such States with regard to emissions 
occurring in 2015 and 2016 only: Texas.
* * * * *
    (4) Notwithstanding the provisions of paragraph (a)(1) of this 
section, a State listed in paragraph (a)(2)(i) of this section may 
adopt and include in a SIP revision, and the Administrator will 
approve, regulations revising subpart AAAAA of part 97 of this chapter 
as follows and not making any other substantive revisions of that 
subpart:
* * * * *
    (5) Notwithstanding the provisions of paragraph (a)(1) of this 
section, a State listed in paragraph (a)(2)(i) of this section may 
adopt and include in a SIP revision, and the Administrator will 
approve, as correcting the deficiency in the SIP that is the basis for 
the CSAPR Federal Implementation Plan set forth in paragraphs (a)(1), 
(a)(2)(i), and (a)(3) and (4) of this section with regard to sources in 
the State (but not sources in any Indian country within the borders of 
the State), regulations that are substantively identical to the 
provisions of the CSAPR NOX Annual Trading Program set forth 
in Sec. Sec.  97.402 through 97.435 of this chapter, except that the 
SIP revision:
* * * * *
    (6) Following promulgation of an approval by the Administrator of a 
State's SIP revision as correcting the SIP's deficiency that is the 
basis for the CSAPR Federal Implementation Plan set forth in paragraphs 
(a)(1), (a)(2)(i), and (a)(3) and (4) of this section, the provisions 
of paragraph (a)(2)(i) of this section will no longer apply to sources 
in the State, unless the Administrator's approval of the SIP revision 
is partial or conditional, and will continue to apply to sources in any 
Indian country within the borders of the State, provided that if the 
CSAPR Federal Implementation Plan was promulgated as a partial rather 
than full remedy for an obligation of the State to address interstate 
air pollution, the SIP revision likewise will constitute a partial 
rather than full remedy for the State's obligation unless provided 
otherwise in the Administrator's approval of the SIP revision.
* * * * *

0
3. Section 52.39 is amended by revising paragraph (c), paragraph (h) 
introductory text, paragraph (i) introductory text, and paragraph (j) 
to read as follows:


Sec.  52.39   What are the requirements of the Federal Implementation 
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to 
emissions of sulfur dioxide?

* * * * *
    (c)(1) The provisions of subpart DDDDD of part 97 of this chapter 
apply to sources in each of the following States and Indian country 
located within the borders of such States with regard to emissions 
occurring in 2015 and each subsequent year: Alabama, Georgia, Kansas, 
Minnesota, Nebraska, and South Carolina.
    (2) The provisions of subpart DDDDD of part 97 of this chapter 
apply to sources in each of the following States and Indian country 
located within the borders of such States with regard to emissions 
occurring in 2015 and 2016 only: Texas.
* * * * *
    (h) Notwithstanding the provisions of paragraph (a) of this 
section, a State listed in paragraph (c)(1) of this section may adopt 
and include in a SIP revision, and the Administrator will approve, 
regulations revising subpart DDDDD of part 97 of this chapter as 
follows and not making any other substantive revisions of that subpart:
* * * * *
    (i) Notwithstanding the provisions of paragraph (a) of this 
section, a State listed in paragraph (c)(1) of this section may adopt 
and include in a SIP revision, and the Administrator will approve, as 
correcting the deficiency in the SIP that is the basis for the CSAPR 
Federal Implementation Plan set forth in paragraphs (a), (c)(1), (g), 
and (h) of this section with regard to sources in the State (but not 
sources in any Indian country within the borders of the State), 
regulations that are substantively identical to the provisions of the 
CSAPR SO2 Group 2 Trading Program set forth in Sec. Sec.  
97.702 through 97.735 of this chapter, except that the SIP revision:
* * * * *
    (j) Following promulgation of an approval by the Administrator of a 
State's SIP revision as correcting the SIP's deficiency that is the 
basis for the CSAPR Federal Implementation Plan set forth in paragraphs 
(a), (b), (d), and (e) of this section or paragraphs (a), (c)(1), (g), 
and (h) of this section, the provisions of paragraph (b) or (c)(1) of 
this section, as applicable, will no longer apply to sources in the 
State, unless the Administrator's approval of the SIP revision is 
partial or conditional, and will continue to apply to sources in any 
Indian country within the borders of the State, provided that if the 
CSAPR Federal Implementation Plan was promulgated as a partial rather 
than full remedy for an obligation of the State to address interstate 
air pollution, the SIP revision likewise will constitute a partial 
rather than full remedy for the State's obligation unless provided

[[Page 78966]]

otherwise in the Administrator's approval of the SIP revision.
* * * * *

Subpart SS--Texas

0
4. Section 52.2283 is amended by revising paragraph (c)(1) and removing 
and reserving paragraph (c)(2) to read as follows:


Sec.  52.2283   Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *
    (c)(1) The owner and operator of each source and each unit located 
in the State of Texas and Indian country within the borders of the 
State and for which requirements are set forth under the CSAPR 
NOX Annual Trading Program in subpart AAAAA of part 97 of 
this chapter must comply with such requirements with regard to 
emissions occurring in 2015 and 2016.
    (2) [Reserved]
* * * * *

0
5. Section 52.2284 is amended by revising paragraph (c)(1) and removing 
and reserving paragraph (c)(2) to read as follows:


Sec.  52.2284  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of sulfur dioxide?

* * * * *
    (c)(1) The owner and operator of each source and each unit located 
in the State of Texas and Indian country within the borders of the 
State and for which requirements are set forth under the CSAPR 
SO2 Group 2 Trading Program in subpart DDDDD of part 97 of 
this chapter must comply with such requirements with regard to 
emissions occurring in 2015 and 2016.
    (2) [Reserved]

[FR Doc. 2016-27197 Filed 11-9-16; 8:45 am]
 BILLING CODE 6560-50-P