Texas Register, Volume 31, Number 11, Pages 1829-2334, March 17, 2006 Page: 1,895
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programs that will be governed by model rules provided in CAIR,
which states may incorporate by reference. The EPA found that
Texas is among several states that contribute significantly to
nonattainment of the NAAQS for PM25 in downwind states. The
EPA is requiring these upwind states to revise their SIPs to in-
clude control measures to reduce emissions of SO2 and/or NOx,
which are precursors to PM25 formation. Reducing upwind pre-
cursor emissions will assist downwind PM25 nonattainment areas
to achieve the NAAQS in a more equitable, cost-effective man-
ner than if those areas implemented local emissions reductions
alone. The EPA has specified the amount of each states' re-
quired reductions, but states have flexibility to choose the mea-
sures by which they achieve them. If states choose to con-
trol EGUs, then they must establish a budget or cap for those
sources, which will be incorporated into the EGU federal oper-
ating permit. 42 United States Code (USC), 7411 creates a
system for the establishment of standards of performance to re-
duce emissions from stationary sources. The CAMR establishes
standards of performance for mercury emissions from new and
existing coal-fired EGUs. 40 CFR Part 60, Subpart HHHH cre-
ates a trading program for EGUs that will provide a mechanism
to meet the mercury standards by capping and then reducing
emissions over time.
Specifically, the proposed rulemaking would incorporate by ref-
erence the provisions of 40 CFR Part 72 as published by EPA on
May 12, 2005, with an effective date of July 1, 2006; 40 CFR Part
73 as published by EPA on May 12, 2005, with an effective date
of July 1, 2006; 40 CFR Part 74 as published by EPA on May 12,
2005, with an effective date of July 1, 2006; 40 CFR Part 76 with
an effective date of May 1, 1998; and 40 CFR Part 77 as pub-
lished by EPA on May 12, 2005, with an effective date of July 1,
2006, for purposes of implementing an Acid Rain Program that
meets the requirements of FCAA, Title IV and supports the CAIR
and CAMR. Additionally, the proposed rulemaking incorporates
requirements for federal operating permits for sources subject to
CAIR and CAMR. The proposed rulemaking fulfills the require-
ments of HB 2481, enacted by the 79th Legislature, 2005, to
incorporate CAIR and CAMR by reference, which includes re-
quirements for federal operating permits for sources subject to
CAIR and CAMR and compliance with the Acid Rain Program.
The proposed incorporation of the federal rules are intended to
protect the environment and to reduce risks to human health and
safety from environmental exposure by supporting the reduc-
tions of NOx and SO2 emissions from upwind states so that down-
wind states may reach attainment of the NAAQS for PM25 and by
reducing emissions of mercury. The CAIR includes revisions to
the Acid Rain Program regulations under Federal Clean Air Act
(FCAA), Title IV, particularly the regulatory provisions governing
the SO2 cap and trade program. The revisions streamline the
operation of the acid rain SO2 cap and trade program and facili-
tate its interaction with the CAIR trading program. While the pro-
posed rulemaking is intended to protect human health and the
environment, it may adversely affect in a material way sources
in the state that fall under the applicability requirements in the
federal rule. Cost and benefits of the CAIR and CAMR were an-
alyzed by EPA during the federal notice and comment rulemak-
ing for the CAIR and the CAMR. CAIR and CAMR are required
federal programs, and the ability of states to modify their require-
ments is limited.
The proposed rulemaking would implement requirements of the
FCAA. Under 42 USC, 7410(a)(2)(D), each SIP must contain
adequate provisions prohibiting any source within the state fromemitting any air pollutant in amounts that will contribute signifi-
cantly to nonattainment of the NAAQS in any other state. While
42 USC, 7410 generally does not require specific programs,
methods, or reductions in order to meet the standard, state SIPs
must include "enforceable emission limitations and other con-
trol measures, means or techniques (including economic incen-
tives such as fees, marketable permits, and auctions of emis-
sions rights), as well as schedules and timetables for compli-
ance as may be necessary or appropriate to meet the applicable
requirements of this chapter," (42 USC, Chapter 85, Air Pollu-
tion Prevention and Control). Under 42 USC, 7411(b)(1)(A),
EPA must establish a list of stationary source categories that it
has determined "causes, or contributes significantly to, air pol-
lution which may reasonably be anticipated to endanger public
health or welfare." 42 USC, 7411(b)(1)(B), then requires EPA
to set national standards of performance for new sources within
each listed source category. Standards of performance for ex-
isting sources of pollutants in the same source categories must
then be issued. Under 42 USC, 7411(d), EPA is authorized
to promulgate standards of performance that states must adopt
through a SIP-like process, which requires state rulemaking ac-
tion followed by review and approval by EPA under 40 CFR Part
60, Subpart B, Adoption and Submittal of State Plans for Desig-
nated Facilities. One of these requirements is that sources sub-
ject to CAIR and CAMR must make appropriate changes to their
federal operating permits, and comply with changes to the Acid
Rain Program.
The provisions of the FCAA recognize that states are in the best
position to determine what programs and controls are necessary
or appropriate in order to meet the NAAQS. This flexibility allows
states, affected industry, and the public, to collaborate on the
best methods for attaining the NAAQS for the specific regions
in the state. Even though the FCAA allows states to develop
their own programs, this flexibility does not relieve a state from
developing a program that meets the requirements of 42 USC,
7410 and 7411. States are not free to ignore the requirements
of 42 USC, 7410, and must develop programs to assure that
their contributions to nonattainment areas are reduced so that
these areas can be brought into attainment on schedule. While
42 USC, 7411, like 42 USC, 7410 (SIPs), does not require
specific programs, methods, or reductions in order to meet the
standard, state plans must include "enforceable emission limita-
tions and other control measures, means or techniques (includ-
ing economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timeta-
bles for compliance as may be necessary or appropriate to meet
the applicable requirements of this chapter," (42 USC, Chapter
85). The provisions of the FCAA recognize that states are in the
best position to determine what programs and controls are nec-
essary or appropriate in order to meet emission standards. This
flexibility allows states, affected industry, and the public, to col-
laborate on the best methods for meeting the standards. Thus,
while specific measures are not generally required, the emis-
sion reductions of 42 USC, 7411 are required. States are not
free to ignore the requirements of 42 USC, 97411, and must de-
velop strategies to assure that the emission standards for new
and existing sources are met. Adoption of the federal CAIR and
CAMR and participation in its emissions cap and trade approach
for NOx, SO, and mercury emissions is the method the state has
chosen to achieve those reductions in a flexible and cost-effec-
tive manner, and the proposed rules relating to federal operat-
ing permits and compliance with the Acid Rain Program require-
ments are required elements of both CAIR and CAMR.PROPOSED RULES March 17, 2006 31 TexReg 1895
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Texas. Secretary of State. Texas Register, Volume 31, Number 11, Pages 1829-2334, March 17, 2006, periodical, March 17, 2006; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth97336/m1/65/: accessed May 5, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.