Approval and Promulgation of Air Quality Implementation Plans; Texas; Reasonable Further Progress Plan, Enhanced Monitoring, Clean Fuel Fleets and Failure-to-Attain Contingency Measures for the Dallas/Fort Worth 1997 8-Hour Ozone Nonattainment Area; and Transportation Conformity
We received one comment letter dated June 12, 2014, from the Sierra Club (the Commenter) regarding our Proposal. A summary of the comments and our responses to those comments follow.
A. The Failure-to-Attain Contingency Measures
The Commenter provided the following statements regarding the failure-to-attain contingency measures:
The EPA is approving measures that do not “cure the identified failure [to attain]” or do not provide a “backup plan of action,” and the measures had already taken place without air quality benefit, prior to the 2010 attainment finding.
The EPA has not provided any information or support to show that the state’s projection of reductions resulting from fleet turnover from 2009-2010 are accurate, provide a “continuing surplus” and whether the projections would be accurate on a continuing basis. The fleet turnover measure is not enforceable and therefore is not permissible as a contingency measure.
Rather than holding Texas accountable for its failure to attain the 1997 ozone standard on multiple deadlines, and thus requiring that stronger contingency measures be put in place, the EPA in this action credits the state for reductions that will take place naturally and requires nothing more.
The EPA should recommend for Texas’s consideration emissions reductions from large, uncontrolled sources contributing to DFW ozone levels, even where they are not within the nonattainment area. The DFW failure-to-attain contingency measures should include tighter emission limits on the East Texas coal-fired power plants.
Including selective catalytic reduction (SCR) on the cement kilns in Midlothian as a failure-to-attain contingency measure would give Texas a greater incentive to ensure that it meets a new attainment deadline than would allowing it to rely on naturally occurring fleet turnover. The EPA should recommend that Texas consider the EPA’s Natural Gas STAR Program and other practices recommended by the EPA as voluntary measures to reduce emissions from oil and natural gas operations and improve efficiency.
Response: The Commenter mischaracterizes the action EPA is taking. The SIP already includes failure-to-attain contingency measures: (1) Fleet turnover for 2009 to 2010 and, (2) three other measures that reduce emissions of volatile organic compounds or VOC—Degassing, Dry Cleaning, and Offset Lithographic Printing (OLP) rules. See 74 FR 1903 (January 14, 2009). And, in this action EPA is not approving any new or different measures into the SIP for purposes of the failure-to-attain contingency measure requirement. Rather, our Proposal only addresses the removal of the OLP rule as a failure-to-attain contingency measure.
As of March 1, 2012, the OLP rule is being implemented in the DFW area pursuant to EPA’s issuance of a control technique guideline (CTG)
and for that reason it is no longer eligible for use as a failure-to-attain contingency measure. As a result, the State submitted a SIP revision to demonstrate that the remaining failure-to-attain contingency measures would still achieve 3% in emissions reductions without the OLP rule.
Fleet turnover for 2009-2010 by itself satisfies the 3% emissions reductions (fleet turnover is estimated at 3.68 percent reduction of the base year emissions, which includes the NO X and VOC emissions reductions, as discussed in our TSD-B, beginning on p. 13), so removal of the OLP rule as a failure-to-attain contingency measure does not reduce the remaining emissions reductions to less than the 3%.
Our Proposal recognizes that the Moderate area failure-to-attain contingency measures already approved in the SIP meet the Act’s requirement in section 182(c)(9) for failure-to-attain contingency measures. Thus, the elimination of OLP as a contingency measure does not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. See CAA section 110(l).
We evaluated and described the methodologies used to calculate each of the measures used in the failure-to-attain contingency plan at 74 FR 1903. The methodologies were consistent with EPA guidance. The Federal Motor Vehicle Control programs (FMVCP or “fleet turnover”) are federal rules and as such, are enforceable by the EPA, the State and the public (see 74 FR 1903).
We disagree that we have not held the State accountable for its failure to attain the 1997 ozone standard in the DFW area. Consistent with our duties under the CAA, on December 20, 2010, we reclassified the DFW area from Moderate to Serious after it failed to meet the June 15, 2010 attainment date for the Moderate area (75 FR 79302). In that reclassification rulemaking, the State was required to submit SIP revisions addressing requirements for the Serious area no later than one year after the effective date of the rulemaking and the TCEQ submitted such revisions within the time allowed. As a matter of law, the EPA is required to approve a SIP revision if it meets the Act’s requirements, regardless of the State’s choices. It is not EPA’s role to rule out the State’s choice of components of its SIP submittal, including the contingency measures, so long as the plan is adequate to meet the requirements of the Act. See Train v. NRDC, 421 U.S. 60 (1975) and Union Electric v. EPA, 427 U.S. 246 (1976).
We appreciate the Commenter’s suggestions regarding emissions reductions for large, stationary sources and voluntary measures for oil and gas operations. Regarding sources outside of the nonattainment area, EPA policy does not allow emissions reductions from outside of the nonattainment area to be included in attainment or RFP plans. On December 22, 2010, the EPA proposed to set aside its earlier interpretation of the RFP provisions at 74 FR 40074 (August 11, 2009) and no longer permit states to rely on credit for emission reductions from outside the ozone nonattainment area to meet the area’s RFP obligations (75 FR 80420). In light of the reasoning used in Natural Resources Defense Council (NRDC) v. EPA, 571 F.3d (D.C. Cir. 2009), NRDC’s petition for reconsideration of the rule at 74 FR 40074, and the language of the CAA, there is no legal basis for states to credit emissions reductions from sources outside the nonattainment area for satisfying RFP requirements.
On June 6, 2013, the EPA proposed that for the 2008 ozone NAAQS states may not take credit for VOC or NO X reductions occurring outside the nonattainment area for purposes of meeting the 15 percent and 3 percent RFP requirements of sections 172(c)(2), 182(b)(1) and (c)(2)(B). See 78 FR 34178, 34191. Finally, as previously noted, the State has discretion under the Act to determine the components of its SIP submittal.
B. The Serious Area Reasonable Further Progress Plan
Comment: The Commenter states that the TCEQ’s January 17, 2012 submittal does not explicitly outline a reasonable further progress plan or contingency measures specifically associated with missing a reasonable further progress milestone, and that EPA instead considers the total reductions Texas claims are available for contingency measures as above and beyond the reductions the state claimed were needed for attainment.
Response: EPA disagrees with this comment. The submittal
by the State and the EPA’s technical analysis addressed both RFP and the contingency measures that would be implemented if an RFP milestone is not met.
Consistent with section 182(c)(2)(B) of the Act and the Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2 (“the Phase 2 Rule”) at 70 FR 71612, 71650 (November 29, 2005), for each area classified as Serious or higher, the State’s RFP plan must demonstrate a 3-percent annual emission reduction averaged over every 3-year period after the initial 6-year period. For the DFW area, the first 3-year period runs from January 1, 2009 to December 31, 2011. The final increment of progress must be achieved no later than the attainment date of the attainment year, which is June 15, 2012.
As described in our Proposal and TSD-A, the State’s RFP submittal accounts for emissions reductions that average three percent per year, from 2009 through 2011 and for 2012.
Tables 8 and 9 in our TSD-A list the measures that provide emissions reductions during years 2009 through 2011 and for 2012. These include federal measures and State controls that reduce emissions of nitrogen oxides (NO X) on electric generating units (EGUs) and certain area source engines.
As shown in the TSD-A and in Tables 4 and 5 of our Proposal, the RFP plan shows a net decrease in emissions for the period 2009-2011 and for 2012 that meets the RFP requirement of the Act.
In addition, the State’s RFP submittal must include contingency measures that would provide reductions of at least three percent of baseline emissions in 2013. Three percent of the base year NO X emissions (630.46 tpd) is 18.91 tpd and three percent of the base year VOC emissions (481.97 tpd) is 14.46 tpd. The State’s contingency measures are listed in Table 10 of our TSD-A; these include State and federal measures that will achieve reductions during 2013 of 41.60 tpd in NO X emissions and 15.62 tpd in VOC emissions. Because the State and federal measures achieve at least as much in emissions reductions as the three percent target values, the State’s contingency measures meet the RFP requirement of the Act.
Comment: The Commenter states that we failed to provide any verification or support for Texas’ projections of emissions reductions and failed to include a real world check as to whether promised reductions have occurred.
Response: The Commenter’s second point—that EPA has not performed a “real-world” check to ensure that promised reductions have occurred—is not relevant for this action. This action is simply evaluating the SIP to ensure that it provides for sufficient measures to meet the reasonable further progress goals. Additionally, the commenter did not present evidence to support the idea that the reductions have not occurred and EPA has no reason to believe they have not. EPA is not reviewing Texas’ implementation of the SIP for purposes of whether the area attained the standard by the attainment date as part of this action. As to the first point—whether EPA has verified Texas’ projection of the emission reductions—we disagree. Consistent with section 182(c)(2)(B), the plan needs to demonstrate emissions reductions from the baseline emissions equal to the following amount averaged over each consecutive 3-year period beginning 6 years after [the effective date of designations], until the attainment date: (i) At least 3 percent of baseline emissions each year; or (ii) an amount less than 3 percent of such baseline emissions each year, if the State makes certain additional demonstrations.
In addition, section 182(c)(9) of the Act requires contingency measures equal to 3% of the baseline to be implemented if RFP is not met. Our TSD-A and Proposal describe how the State’s submittal meets these requirements. Texas projected emissions reductions from mobile source controls, including, but not limited to: Fleet turnover; inspection and maintenance; reformulated gasoline; Texas low-emission diesel fuel; and Tier 2 and 3 non-road diesel engines. The projected reductions were calculated using mobile source emissions estimation models. The EPA Motor Vehicle Emissions Simulator (MOVES) model was used to estimate from on-road mobile source controls. A Texas-specific version of the EPA NON-ROAD model was used to estimate emissions from non-road mobile source controls.
The area source
emissions were estimated using the 2008 National Emissions Inventory data, back-calculated to 2002 (for the base year EI) and projected to future dates, using the EPA’s Economic Growth Analysis System growth factors. This provided the most recent, complete set of emissions data available at the time the TCEQ developed this RFP plan. Point sources (for example, cement and power plants) are individually inventoried and required to submit emissions data to TCEQ annually. The data are reviewed by the TCEQ for quality assurance purposes and stored in the State of Texas Air Reporting System. We reviewed the State’s methods for developing the projections of emissions and found them to be adequate.