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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) on January 17, 2012, which contain a reasonable further progress (RFP) plan and associated contingency measures and motor vehicle emission budgets; a revised 2002 base year emissions inventory for the RFP; enhanced ambient monitoring; and the clean-fuel fleet programs for the Dallas/Fort Worth (DFW) Serious nonattainment area under the 1997 8-hour ozone standard. The EPA is also approving revisions to the DFW Moderate area attainment demonstration SIP submitted by the TCEQ on April 6, 2010, which address the failure-to-attain contingency measures. The EPA is also approving revisions submitted by the TCEQ on July 25, 2007, March 25, 2010 and April 13, 2012, which address the Texas transportation conformity rules and the Texas Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. The EPA is approving these SIP revisions in accordance with the requirements of the Clean Air Act (CAA or Act).

DATES:

This final rule is effective on December 12, 2014.

ADDRESSES:

The EPA established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0099. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. To inspect the hard copy materials, please schedule an appointment with the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253.

FOR FURTHER INFORMATION CONTACT:

Ms. Carrie Paige, Air Planning Section (6PD-L); telephone (214) 665-6521; email address paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” means the EPA.

Table of Contents

I. Background

II. Response to Comments

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

The background for this final rule is discussed in the May 13, 2014 Federal Register (FR) where we proposed to approve revisions to the Texas SIP (79 FR 27257), henceforth referred to as our “Proposal.” We proposed to approve all or parts of six SIP revisions submitted by the TCEQ, which we organized into three categories. First, we proposed to approve revisions to the Texas SIP submitted on January 17, 2012, to meet certain Serious area requirements of section 182(c) of the Act for the DFW nonattainment area under the 1997 ozone standard: The reasonable further progress (RFP) plan; the RFP contingency measure provisions; the revised 2002 base year emission inventory (EI); enhanced ambient monitoring; and the clean-fuel fleet programs (CFFPs). Our proposed approval of the RFP includes the associated motor vehicle emission budgets (MVEBs) for 2011 and 2012—once the EPA approves the submitted MVEBs, they must be used by local, state and Federal agencies in determining whether transportation activities conform to the SIP as required by section 176(c) of the CAA and 40 CFR 93.102. Second, we proposed to approve revisions to the DFW SIP's failure-to-attain contingency measures plan for the Moderate ozone nonattainment area under the 1997 ozone standard, submitted on April 6, 2010. Third, we proposed to approve into the SIP revisions submitted on July 25, 2007, March 25, 2010, and April 13, 2012, that make the Texas transportation conformity rules consistent with the Federal Surface Transportation Reauthorization Act and expand the Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles (DERIP, also often referred to as the Texas Emission Reduction Plan or TERP) to include additional projects.

Our Proposal and the technical support documents (TSDs) that accompanied the proposed rule provide detailed descriptions of the revisions and the rationale for our proposed decisions. Please see the docket for these and other documents regarding our Proposal. The public comment period for our Proposal closed on June 12, 2014.

II. Response to Comments

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.

III. Final Action

The EPA is approving revisions to the Texas SIP submitted by the TCEQ on January 17, 2012, which contain a RFP plan and associated contingency measures and MVEBs; a revised 2002 base year EI for the RFP plan; enhanced ambient monitoring; and the CFFPs for the DFW Serious nonattainment area under the 1997 8-hour ozone NAAQS. We are also approving revisions to the DFW Moderate area attainment demonstration SIP submitted by the TCEQ on April 6, 2010, which address the failure-to-attain contingency measures. We are also approving revisions submitted by the TCEQ on July 25, 2007, March 25, 2010, and April 13, 2012, which address the Texas transportation conformity rules and the Texas Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. These revisions are consistent with the CAA, federal transportation rules and EPA Guidance that addresses economic incentive programs and transportation conformity.

We are also making a ministerial correction to the second table in 40 CFR 52.2270(e) to reflect accurately the date of EPA's approval of the Transportation Control Measures SIP on December 5, 2002 (67 FR 72382).

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 12, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS—Texas

2. In § 52.2270:

a. The table in paragraph (c) is amended by revising the entries for Section 114.260, Section 114.620, and Section 114.622.

b. The second table in paragraph (e) is amended by revising the entry for “Transportation Control Measures SIP Revision” and adding three new entries at the end of the table.

The revisions and additions read as follows: