 [Federal Register Volume 76, Number 142 (Monday, July 25, 2011)] [Rules and Regulations] [Pages 44271-44276] [FR Doc No: 2011-18578]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0426; FRL-9442-7]

Approval and Promulgation of Implementation Plans; Texas;

Revisions to Permits by Rule and Regulations for Control of Air

Pollution by Permits for New Construction or Modification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking a direct final action to approve portions of

three revisions to the Texas State Implementation Plan (SIP) submitted

by the State of Texas on August 31, 1993, July 22, 1998, and October 5,

2010. These revisions amend existing sections and create new sections

in Title 30 of the Texas Administrative Code (TAC), Chapter 116--

Control of Air Pollution by Permits for New Construction or

Modification. The August 31, 1993, revision creates two new sections at

116.174 and 116.175 for the use of emission reductions as offsets in

new source review permitting. The July 22, 1998, revision creates new

section 116.116(f) allowing for the use of Discrete Emission Reduction

Credits (DERC) to exceed emission limits in permits (permit allowables)

and amends section 116.174 to update internal citations to other Texas

regulations. The October 5, 2010, revision amends section 116.116(f) to

update internal citations to other Texas regulations. EPA has

determined that these SIP revisions comply with the Clean Air Act and

EPA regulations and are consistent with EPA policies. This action is

being taken under section 110 and parts C and D of the Federal Clean

Air Act (the Act or CAA).

DATES: This direct final rule is effective on September 23, 2011

without further notice, unless EPA receives relevant adverse comment by

August 24, 2011. If EPA receives such comment, EPA will publish a

timely withdrawal in the Federal Register informing the public that

this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-

OAR-2011-0426, by one of the following methods:

    (1) http://www.regulations.gov: Follow the on-line instructions for

submitting comments.

    (2) E-mail: Ms. Erica Le Doux at<EMAIL_ADDRESS>     (3) Fax: Ms. Erica Le Doux, Air Permits Section (6PD-R), at fax

number<PHONE_NUMBER>.

    (4) Mail: Ms. Erica Le Doux, Air Permits Section (6PD-R),

Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,

Texas 75202-2733.

    (5) Hand or Courier Delivery: Ms. Erica Le Doux, Air Permits

Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,

Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only

between the hours of 8:30 AM and 4:30 PM weekdays except for legal

holidays. Special arrangements should be made for deliveries of boxed

information.

    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-

2011-0426. EPA's policy is that all comments received will be included

in the public docket without change and may be made available online at

http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be

Confidential Business Information (CBI) or other information the

disclosure of which is restricted by statute. Do not submit information

through http://www.regulations.gov or e-mail, if you believe that it is

CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which

means that EPA will not know your identity or contact information

unless you provide it in the body of your comment. If you send an e-

mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured

and included as part of the comment that is placed in the public docket

and made available on the Internet. If you submit an electronic

comment, EPA recommends that you include your name and other contact

information in the body of your comment along with any disk or CD-ROM

submitted. If EPA cannot read your comment due to technical

difficulties and cannot contact you for clarification, EPA may not be

able to consider your comment. Electronic files should avoid the use of

special characters and any form of encryption and should be free of any

defects or viruses. For additional information about EPA's public

docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information

the disclosure of which is restricted by statute. Certain other

material, such as copyrighted material, will be publicly available only

in hard copy. Publicly available docket materials are available either

electronically in http://www.regulations.gov or in hard copy at the Air

Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross

Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made

available by appointment for public inspection in the Region 6 FOIA

Review Room between the hours of 8:30 AM and 4:30 PM weekdays except

for legal holidays. Contact the person listed in the FOR FURTHER

INFORMATION CONTACT paragraph below to make an appointment. If

possible, please make the appointment at least two working days in

advance of your visit. A 15 cent per page fee will be charged for

making photocopies of documents. On the day of the visit, please check

in at the EPA Region 6 reception area on the seventh floor at 1445 Ross

Avenue, Suite 700, Dallas, Texas.

    The State submittal related to this SIP revision, and which is part

of the EPA docket, is also available for public inspection at the State

Air Agency listed below during official business hours by appointment:

    Texas Commission on Environmental Quality, Office of Air Quality,

12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning

today's direct final action, please contact Ms. Erica Le Doux (6PD-R),

Air Permits Section, Environmental Protection Agency, Region 6, 1445

Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone

(214) 665-7265; fax number<PHONE_NUMBER>; e-mail address

<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION: Throughout this document wherever, any

reference to ``we,'' ``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What action is EPA taking?

II. What did Texas submit?

III. What is EPA's evaluation of these SIP revisions?

IV. Final Action

V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are taking direct final action to approve severable portions of

three revisions to the Texas SIP submitted on August 31, 1993, July 22,

1998, and October 5, 2010. The August 31, 1993, SIP submittal creates

two new sections, 116.174 and 116.175, establishing the requirements

for use and recordkeeping of emission reductions in New Source Review

(NSR) permitting. The July 22, 1998 SIP submittal creates a new section

at 116.116(f) that allows the use of Discrete Emission Reduction

Credits (DERCs) to be used to exceed permit allowables and amends

existing section 116.174 to correctly cross-reference other Texas

permitting regulations. The October 5, 2010, SIP submittal amends

section 116.116(f) to correctly cross-reference the SIP-approved DERC

rules at Title 30 of the Texas Administrative Code (30 TAC) Chapter

101, Subchapter H, Division 4. We are approving new sections 116.174

and 116.175 submitted on August 31, 1993. We are approving new section

116.116(f) and amendments to section 116.174 submitted on July 22,

1998. Finally, we are approving the amendment to section 116.116(f)

submitted on October 5, 2010.

    We are publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no relevant adverse

comments. As explained in our technical support document (TSD), we are

finding this action noncontroversial because the three rules that are

the subject of our approval serve to cross-reference current SIP-

approved sections. However, in the proposed rules section of this

Federal Register publication, we are publishing a separate document

that will serve as the proposal to approve the SIP revision if relevant

adverse comments are received. This rule will be effective on September

23, 2011 without further notice unless we receive relevant adverse

comment by August 24, 2011. If we receive relevant adverse comments, we

will publish a timely withdrawal in the Federal Register informing the

public that the rule will not take effect. We will address all public

comments in a subsequent final rule based on the proposed rule. We will

not institute a second comment period on this action. Any parties

interested in commenting must do so now. Please note that if we receive

adverse comment on an amendment, paragraph, or section of this rule and

if that provision may be severed from the remainder of the rule, we may

adopt as final those provisions of the rule that are not the subject of

an adverse comment.

II. What did Texas submit?

    We are approving severable provisions of three SIP revisions that

the Texas Commission on Environmental Quality (TCEQ) adopted on August

16, 1993; June 17, 1998; and September 15, 2010 and submitted to EPA on

August 31, 1993; July 22, 1998; and October 5, 2010, respectively.

Copies of the revised rules as well as the Technical Support Document

(TSD) can be obtained from the Docket, as discussed in the ``Docket''

section above. A discussion of the specific Texas rule changes that we

are approving is included in the TSD and summarized below. The TSD also

contains a discussion as to why EPA is not taking action on certain

provisions of each Texas SIP submittal and documents why these

provisions are severable from the provisions that we are approving.

     We are taking no action in this direct final rule upon

revisions to 30 TAC Section 116.410 for emergency orders, submitted on

August 31, 1993, because this provision is severable from the emission

reduction provisions and subsequent emergency order provisions are

still pending EPA review. EPA will address this rule in a separate

action. EPA is currently under a Settlement Agreement to take action on

the emergency order provisions on or before December 31, 2012.

     We are also taking no action in this direct final rule

upon revisions to 30 TAC Section 116.620 for Installation and/or

Modification of Oil and Gas Facilities submitted on July 22, 1998. The

provisions are severable from the emission reduction provisions that

are the subject of today's action. EPA will address this rule in a

separate action. Additionally, EPA is currently under a Consent Decree

to take action on the Installation and/or Modification of Oil

and Gas Facilities provisions on or before October 31, 2011.

     We are taking no action upon revisions to 30 TAC Section

116.311(a) pertaining to qualified facilities for permit renewals

submitted on July 22, 1998, because the qualified facility program

provisions are severable from the emission reduction provisions for

permitting and will be addressed by EPA at a later date in a separate

action.

     We are taking no action upon revisions to 30 TAC Section

116.312 submitted on July 22, 1998, which relates to public

participation for permit renewals. These public participation

provisions are severable from the emission reduction provisions for

permitting and will be addressed by EPA at a later date in a separate

action.

     We are taking no action upon the remainder of the

revisions to 30 TAC Chapter 116 submitted on October 5, 2010. The

remainder of this SIP submittal package concerns the qualified

facilities program, which is severable from the emission reductions

provisions for permitting and will be addressed by EPA at a later date

in a separate action.

A. August 31, 1993 Submittal

1. Section 116.174--Determination by Executive Director To Authorize

Reductions

    The TCEQ adopted section 116.174 on August 16, 1993, to provide the

criteria by which the TCEQ Executive Director (ED) will determine

whether emission reductions can be used for purposes of NSR permitting.

Section 116.174 requires that the ED approve reductions for use

pursuant with requirements set forth in SIP-approved section 116.170.

Additionally, any emission reductions approved for use as offsets by

the ED must be made as enforceable permit conditions.

2. Section 116.175--Recordkeeping

    The TCEQ adopted new section 116.175 on August 16, 1993, to

establish that the recordkeeping burden for the generation and use of

emission reductions in NSR permitting is on the applicant. The TCEQ

will only maintain records associated with the permit application and

files. The permit applicant is responsible for making all records

related to the emission reductions available upon request by the ED.

B. July 22, 1998 Submittal

1. Section 116.116(f)--Use of Credits

    The TCEQ adopted new section 116.116(f) on June 17, 1998, to

provide that DERCs generated under the TCEQ's banking and trading

provisions at 30 TAC Section 101.29 can be used to exceed permit

allowables, if all applicable requirements of section 101.29 are

satisfied. Since the adoption of section 116.116(f), the TCEQ has

recodified the SIP-approved DERC provisions from 30 TAC Section 101.29

to 30 TAC Section 101.376. The use of DERCs cannot be used to authorize

any physical changes to a facility.

    EPA reviewed and conditionally approved the DERC program on

September 6, 2006 (see 71 FR 52703). This conditional approval was

converted to a full approval on May 18, 2010 (see 75 FR 27644). The

full approval action resulted after we found TCEQ to have satisfied all

elements that were outlined in a commitment letter submitted by TCEQ,

dated September 8, 2005. This commitment letter can be found in the

docket for our approval of the DERC program at EPA-R06-OAR-2005-TX-

0029. The DERC rules establish a type of Economic Incentive Program

(EIP), in particular an open market emission trading (OMT) program as

described in EPA's EIP Guidance document, ``Improving Air Quality with

Economic Incentive Programs'' (EPA-452/R-01-001, January 2001). In an

OMT program, a source generates short-term emission credits (called

discrete emission reduction credits, or DERCs, in the Texas program) by

reducing its emissions. The source can then use these DERCs at a later

time, or trade them to another source to use at a later time. The

trading program assumes that many sources will participate and

continuously generate new DERCs to balance with other sources using

previously generated discrete credits. DERCs are quantified, banked and

traded in terms of mass (tons) and may be generated and used statewide.

Reductions of all criteria pollutants, with the exception of lead, may

be certified as DERCs.

2. Section 116.174--Determination by Executive Director To Authorize

Reductions

    The TCEQ adopted amendments to section 116.174 on June 17, 1998, to

remove outdated references to the Texas Air Control Board, and to

update references to other sections of the Texas NSR permitting

regulations where emission reductions can be used in permits.

C. October 5, 2010 Submittal

Section 116.116(f)--Use of Credits

    The TCEQ adopted amendments to section 116.116(f) on September 15,

2010, to change references to outdated section 101.29 to the current

SIP-approved section 101.376.

III. What is EPA's evaluation of these SIP revisions?

A. August 31, 1993 Submittal

1. Section 116.174--Determination by Executive Director To Authorize

Reductions

    The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993)

of new section 116.174 is approvable. New section 116.174 requires that

the ED approve the use of emission reductions pursuant to the

requirements in section 116.170. We approved section 116.170 on March

20, 2009, as consistent with the requirements of section 173 of the CAA

and 40 CFR Part 51, Subpart I (see 74 FR 11851).

2. Section 116.175--Recordkeeping

    The August 31, 1993 submittal (adopted by TCEQ on August 16, 1993)

of new section 116.175 is approvable. New section 116.175 was adopted

to place the recordkeeping burden on the use of emission reductions in

NSR permitting in accordance with section 116.170 on the permit

applicant rather than the TCEQ. The TCEQ will maintain records

contained in the permit application and permit files, but all other

information necessary to verify the emission reductions used in the

permit are the responsibility of the permit holder and must be made

available at the request of the TCEQ ED. Placing the burden of proof on

the permit holder is consistent with the requirements in NSR and

Prevention of Significant Deterioration (PSD) permitting at 40 CFR Part

51, Subpart I, that the permit holder maintain all necessary records to

substantiate emission reductions and verify emission limitations.

Further, the SIP-approved Emissions Banking and Trading Provisions at

30 TAC Chapter 101, Subchapter H, Divisions 1 and 4 for the Emission

Reduction Credit and Discrete Emission Reduction Credit programs, makes

clear that the generator and user of the emission reductions--not the

TCEQ--is responsible for maintaining all necessary records to

substantiate the reduction (see 30 TAC Sections 101.302(g) and

101.372(h)).

B. July 22, 1998 Submittal

1. Section 116.116(f)--Use of Credits

    The July 22, 1998 submittal (adopted by TCEQ on June 17, 1998),

which created new section 116.116(f) is approvable. New section

116.116(f) is necessary to adequately implement the Chapter 116

permitting program for new construction and modification. The new

section 116.116(f) provides that DERCs can be used as offsets in NSR

permitting, consistent with the TCEQ's banking and trading provisions

at former 30 TAC Section 101.29. EPA approved the use of DERCs in NSR

permitting as consistent with the requirements of section 173 of the

CAA on September 6, 2006 (see 71 FR 52703). Since the adoption of

section 116.116(f), the TCEQ has recodified the SIP-approved DERC

provisions from 30 TAC Section 101.29 to 30 TAC Section 101.376. EPA is

approving the July 22, 1998 adoption of section 116.116(f) and a

subsequent revision that updates the cross-reference.

2. Section 116.174--Determination by Executive Director To Authorize

Reductions

    The July 22, 1998 submittal which amends section 116.174 is

approvable. The amendments remove outdated references to the Texas Air

Control Board and update internal cross references to other sections

(in Chapter 116) where emission reductions can be used in NSR

permitting. The TCEQ has a responsibility under the CAA to routinely

update the permitting regulations to include accurate information.

C. October 5, 2010 Submittal

Section 116.116(f)--Use of Credits

    The October 5, 2010 submittal (adopted by the TCEQ on September 15,

2010) of the amendments to section 116.116(f) are approvable. These

amendments update the outdated references to obsolete section 101.29

with the current citation to section 101.376, and are necessary to

adequately implement the Chapter 116 permitting program for new

construction and modifications. EPA approved the use of DERCs as NSR

offsets consistent with section 173 of the CAA on September 6, 2006

(see 71 FR 52703).

D. Does approval of Texas's rule revisions interfere with attainment,

reasonable further progress, or any other applicable requirement of the

act?

    Section 110(l) of the Clean Air Act states:

    Each revision to an implementation plan submitted by a State

under this Act shall be adopted by such State after reasonable

notice and public hearing. The Administrator shall not approve a

revision of a plan if the revision would interfere with any

applicable requirement concerning attainment and reasonable further

progress (as defined in section 171), or any other applicable

requirement of this Act.

Thus, under section 110(l), sections 116.116(f), 116.174, and 116.175

must not interfere with attainment, reasonable further progress, or any

other applicable requirement of the Act. The three sections are

necessary components of the Texas NSR permitting program. Without these

provisions, permit applicants will not have the necessary flexibility

provided to them in the Texas SIP and the CAA.

    Section 116.116(f) will not interfere with attainment, reasonable

further progress, or any other applicable requirement of the Act.

Section 116.116(f) refers to a SIP-approved usage of DERCs to exceed

permit allowables. This use of DERCs to exceed permit allowables was

previously conditionally approved into the SIP on September 6, 2006,

and fully approved by EPA on May 18, 2010, to be consistent with

section 110(l) of the CAA, see 70 FR 58165 and 75 FR 27644,

respectively. In our proposed approval notice of the DERC program we

stated that:

    We have also considered whether the potential use of DECs \1\ to

exceed allowable emission levels under 30 TAC Sec.  101.376(b)(1) is

contrary to section 110(l) in that it could allow sources to exceed

limits in their CAA Title V permits, which are ``applicable

requirements'' under the Act. We conclude that this aspect of the

rule does not violate section 110(l), for the following reasons.

First, EPA has addressed the interface of Title V permits and

trading programs in the EIP guidance, which provides:

---------------------------------------------------------------------------

    \1\ In the OMT program, a source generates emission credits by

reducing its emissions during a discrete period of time. These

credits, called discrete emission credits or DECs in the Texas

program, are quantified in units of mass. DEC is a generic term that

encompasses reductions from stationary sources (discrete emission

reduction credits, or DERCs), and reductions from mobile sources

(mobile discrete emission reduction credits, or MDERCs). This

footnote is to provide an explanation of the term DEC and is not a

part of the above quote from a previous notice.

---------------------------------------------------------------------------

    If a facility that has a title V operating permit wishes to

participate in your approved EIP, you must modify the facility's

operating permit to include the detailed compliance provisions

necessary to assure compliance with the EIP. Thus, the permit

becomes a valuable tool to ensure the source meets the requirements

of the EIP.

    Once the permit includes terms and conditions necessary to

implement the EIP (as described below), the source may typically

make individual trades under the EIP without the need for future

formal permit revisions. This is true because most trading activity

under such a permit would already be addressed and allowed by the

specific terms and conditions of the permit and such trading would

not normally conflict with the permit. This is the principle

expressed by section 70.6(a)(8) of the CFR, which states that permit

revisions are not required for trading program changes that are

``provided for'' in the permit.

    (EIP Guidance, Appendix 16.8.) Texas has modified its Title V

permit template so as to address the permissible use of DECs to meet

Title V permit requirements. As further explained in this TSD, we

find that the Texas permit language satisfies the concerns

identified in Appendix 16.8.

    In reaching this conclusion, we also considered that a Title V

permit is not itself a source of substantive limits. Rather, it

incorporates applicable requirements under other permits and

programs. In Texas, as elsewhere, many of the allowable emission

levels in Title V permits are determined through New Source

Performance Standards (NSPS), Best Available Control Technology

(BACT), Lowest Achievable Emission Rate (LAER), or National Emission

Standards for Hazardous Air Pollutants (NESHAPs). Under the Texas

rules, DECs may not be used for compliance with any of these

programs. The rule does allow DECs to be used for compliance with

Reasonably Available Control Technology (RACT) standards, in

accordance with EPA's guidance. Specifically, the guidance provides

that ``[i]f your EIP allows sources to avoid direct application of

RACT technology, your EIP must ensure that the level of emission

reductions resulting from implementation of the EIP will be equal to

those reductions expected from the direct application of RACT.''

(EIP Guidance, Appendix 16.7) The Texas program ensures consistency

with that element of the EIP Guidance through the requirement that a

user of DECs must retire 10 percent more credits than are needed.

Accordingly, any use of DECs for RACT compliance will have been

preceded by a ten percent greater reduction.

    The above discussion concerns criteria pollutants for which an

area is classified as nonattainment. As for pollutants for which an

area is in attainment, EPA believes that the DERC rule is consistent

with section 110(l). Discrete credit use in attainment areas could

potentially result in temporary local increases in such attainment

pollutants, but only in the sense of authorizing limited exceedances

of state-only permit requirements. That is, in attainment areas in

Texas, the federally enforceable permit limits are all based on

programs, such as BACT and NSPS, for which DEC use is not authorized

under the Texas rule. DEC use for attainment pollutants can

therefore only affect non-SIP requirements. Irrespective of the DERC

rule, such non-SIP requirements are subject to change without

undergoing a 110(l) analysis. Accordingly, the DERC SIP revision is

not itself causing any increases in attainment pollutants that might

be contrary to section 110(l).

[See 70 FR 58165-58166, October 5, 2005]

    Section 116.174 will not interfere with attainment, reasonable

further progress, or any other applicable requirement of the Act.

Section 116.174 states that the TCEQ ED will approve the use of

emission reductions for NSR permitting consistent with the requirements

of section 116.170. EPA

approved section 116.170 into the SIP and found that it is consistent

with section 110(l) of the CAA on March 20, 2009 (74 FR 11851).

    Section 116.175 will not interfere with attainment, reasonable

further progress, or any other applicable requirement of the Act.

Section 116.175 states that the recordkeeping burden for emission

reduction usage will be on the permit holder, but all other information

necessary to verify the emission reductions used in the permit are the

responsibility of the permit holder and must be made available at the

request of the TCEQ ED. These recordkeeping requirements will not

violate section 110(l).

IV. Final Action

    EPA is taking direct final action to approve revisions to the Texas

SIP submitted on August 31, 1993, July 22, 1998, and October 5, 2010.

Specifically, EPA is approving new sections 116.174 and 116.175,

submitted on August 31, 1993, establishing the approval criteria and

recordkeeping requirements for emission reductions used in NSR

permitting. We are also approving new section 116.116(f) that provides

for the use of DERCs in NSR permitting and amendments to section

116.174 submitted on July 22, 1998. We are also approving amendments to

section 116.116(f), submitted on October 5, 2010 to correctly update

internal citations to the TCEQ DERC program.

    As explained previously, EPA is not acting on other severable

portions of the August 31, 1993; July 22, 1998; and October 5, 2010 SIP

submittals. Specifically, EPA is not taking action on the revisions to

section 116.410 submitted on August 31, 1993. EPA is not taking action

on the revisions to sections 116.311(a), 116.312, or 116.610 submitted

on July 22, 1998. Additionally, EPA is not taking action on the

remainder of the October 5, 2010, submittal. These revisions remain

under review by EPA and will be addressed in separate actions.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act.

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 Clean Air Act; 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, this rule does not have tribal implications as

specified by Executive Order 13175 (65 FR 67249, November 9, 2000),

because the SIP is not approved to apply in Indian country located in

the state, and EPA notes that it will not impose substantial direct

costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. section 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 Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 23, 2011. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this action for the purposes 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, Carbon monoxide,

Incorporation by reference, Intergovernmental relations, Lead, Nitrogen

dioxide, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 12, 2011.

Al Armendariz,

Regional Administrator, EPA Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0

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

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

Subpart SS--Texas

0

2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in

the Texas SIP'' is amended as follows:

0

a. By revising the entry for Section 116.116;

0

b. By adding new entries for Sections 116.174 and 116.175.

    The additions and revisions read as follows:

Sec.  52.2270  Identification of plan.

* * * * *

    (c) * * *

                                    EPA-Approved Regulations in the Texas SIP

----------------------------------------------------------------------------------------------------------------

                                                       State approval/

         State citation              Title/Subject        Submittal      EPA approval date       Explanation

                                                            date

----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *

----------------------------------------------------------------------------------------------------------------

          Chapter 116 (Reg 6)--Control of Air Pollution by Permits for New Construction or Modification

----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *

----------------------------------------------------------------------------------------------------------------

                                     Subchapter B--New Source Review Permits

                                         Division 1--Permit Application

----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *

Section 116.116................  Changes to                 9/15/2010  7/25/2011, [Insert    The SIP does not

                                  Facilities.                           FR page number        include paragraphs

                                                                        where document        (b)(3) and (b)(4)

                                                                        begins].              and subsection

                                                                                (e).

                                                  * * * * * * *

----------------------------------------------------------------------------------------------------------------

                                    Division 7--Emission Reductions: Offsets

----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *

Section 116.174................  Determination by           6/17/1998  7/25/2011, [Insert    ...................

                                  Executive Director                    FR page number

                                  to Authorize                          where document

                                  Reductions.                           begins].

Section 116.175................  Recordkeeping.......       8/16/1993  7/25/2011, [Insert    ...................

                                                                        FR page number

                                                                        where document

                                                                        begins].

                                                  * * * * * * *

----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-18578 Filed 7-22-11; 8:45 am]

BILLING CODE 6560-50-P


ENIVRONMENTAL PROTECTION AGENCY PUBLIC HEARING FOR NOTICE OF PROPOSED RULEMAKING TRANSPORTATION CONFORMITY RULE AMENDMENTS FOR THE NEW 8 HOUR OZONE AND PM 2.5 NATIONAL AMBIENT AIR QUALITY STANDARDS AND MISCELLANEOUS REVISIONS FOR EXISTING AREAS December 4, 2003 Marriott Hotel 1221 22nd Street, N. W. Washington, D. C. 2 P R O C E E D I N G S 1 MS. RUDZINSKI: Good morning. 2 I am Suzanne Rudzinski. I'm the director of 3 transportation, regional programs, in EPA's Office of Air 4 Quality, Transportation Air Quality, in the Office of Air and 5 Radiation. 6 I want to welcome you all to today's public 7 hearing. It's on the transportation conformity proposed 8 rule, the rules basically dealing with the new 8 hour ozone 9 and fine particulate matter air quality standards. 10 The proposed regs, which were proposed in November 11  they were published on November 5th in the Federal 12 Register  are being considered today. They were developed 13 in consultation with the Department of Transportation, as 14 well as with state, local, national transportation 15 environmental stakeholders. 16 Basically, today's hearing is an opportunity for us 17 to hear from you and from others, as well as for our 18 colleagues from DOT that are here today to listen and hear 19 what the comments may be. 20 We're going to be very brief. We don't have a huge 21 audience here, so I think we can do this. I suspect all of 22 3 you are probably familiar with the rule itself, and so, I am 1 just going to summarize the three main aspects of it. 2 First thing that this rule does  it provides 3 guidance on wind transportation conformities, will first 4 apply in the new non attainment areas. 5 Secondly, it will describe the general requirements 6 for conducting a satisfactory determination for the new 7 standards, such as the conformity test that would apply 8 before and after the state air quality plans for the new 9 standards are established. 10 And third, it will clarify certain aspects of the 11 existing conformity regulations to help us improve 12 implementation of those regs. 13 We have a four person panel today, and I want to go 14 ahead and introduce them. 15 The presiding officer for the hearing is Meg 16 Patulski, who is on my staff. She is joined on the panel by 17 Sarah Schneeberg, who is our attorney from the Office of 18 General Counsel and handles all of our state air quality and 19 implementation issues. She is also joined  also from EPA, 20 we have Angela Spickard, who works also on my staff, and then 21 we also  from the Department of Transportation, we have 22 4 Gary Jensen, and in the audience, we have James Shrouds, Jim 1 Shrouds, as the rest of us know him, but officially, he is 2 the director of the Office of National and Human Environment 3 at the Federal Highways Administration. 4 So, anyhow, we look forward to hearing the comments 5 that you may have on the rule, and hopefully, we're going to 6 be able to get this rule out, final. Our goal is to try to 7 get it out and done, if we're really lucky, hopefully by 8 April, when the new designations go into effect. 9 So, anyhow, with that, Jim, if you'd like to say 10 anything. 11 MR. SHROUDS: Thank you, Suzanne. I don't really 12 have any prepared remarks, but I did want to join Suzanne and 13 EPA in welcoming you to this public hearing today. We 14 certainly appreciate you coming out and providing comments on 15 this very important rule. 16 I, for one, have been around this conformity 17 process for many, many years, and I think this is probably 18 one of the more significant revisions that EPA has proposed 19 since the ' 93 rule that came out subsequent to the ' 90 20 amendments, and that's because it really does deal with the 21 new air quality standards, the new non attainment areas, and 22 5 how those areas are going to go about doing their 1 transportation conformity process. 2 And you have, no doubt, noticed that this rule has 3 a lot of options in it, and what I would suggest or encourage 4 you, either in your verbal testimony or maybe in your 5 subsequent written statements to the record, that if you 6 state a preference for one of those options, substantiate 7 that to the best you can based on the state of the knowledge 8 or research or monitoring data or just your knowledge on 9 those options, because I think the more information we get on 10 those options, the more informed decisions we can make in the 11 final rule. 12 So, rather than just saying you'd prefer one option 13 because it's more stringent or it's more flexible, depending 14 on what your viewpoint may be, try and give us the best 15 information on those options that you can. It would be very 16 helpful to us, I think. 17 So, thanks for coming, and we look forward to 18 hearing what you have to recommend. 19 Thanks. 20 MS. PATULSKI: Hello. Today I'll be serving as the 21 presiding officer of the hearing, and before we get started, 22 6 I wanted to go over some prepared statements about how we 1 will hold the hearing. It's pretty standard. 2 We are conducting this hearing under the Clean Air 3 Act in order to provide interested persons with an 4 opportunity for oral presentation of data, views, or 5 arguments. 6 The official record of the hearing will be kept 7 open until December 22, 2003, for submission of rebuttal or 8 supplemental testimony. 9 The hearing will be conducted informally, and 10 formal rules of evidence will not apply. The presiding 11 officer, however, is authorized to strike statements from the 12 record which are deemed irrelevant or needlessly repetitious 13 and to enforce reasonable limits on the duration of the 14 statement of any witness. 15 Witnesses must state their name and affiliation 16 prior to make their statement, and we have this podium over 17 here where people can give their testimony to the panel. 18 When a witness has finished his or her presentation, members 19 of the panel will have an opportunity to ask questions 20 related to the testimony. 21 Witnesses are reminded that any false statements or 22 7 false responses to questions may be a violation of law. 1 Witnesses will have a chance later in the hearing 2 to provide rebuttal and supplemental testimony. In addition, 3 witnesses can submit rebuttal and supplemental testimony in 4 writing until December 22nd to the docket. 5 If any members of the audience wishing to testify 6 have not already signed up, please submit your name at the 7 reception table outside the room, and even if you're not 8 going to be testifying today, just put your name there for 9 the record in the docket. 10 Finally, if you would like a transcript of the 11 proceedings, you should make arrangements directly with Pete, 12 our court reporter, during one of the breaks, and maybe we 13 won't have any breaks. 14 We only have three people, I believe, at this time 15 that are signed up to testify. 16 So, right now, as presiding officer, I'm not 17 expecting any breaks, unless a bunch of people come in at the 18 last minute. 19 Has anybody new signed up since we started? 20 ( No response.) 21 MS. PATULSKI: Before we begin testimony, I want to 22 8 ask if anybody has any clarifying questions on how we'll run 1 the hearing. 2 ( No response.) 3 MS. PATULSKI: Okay. 4 So, with that, we're just going to go in the order 5 that people signed up, the folks that are on the agenda. The 6 first person is John Zamurs from the New York Department of 7 Transportation. 8 MR. ZAMURS: Good morning. I've provided written 9 testimony or comments, but I will be departing from those 10 comments in a couple of locations. 11 My name is John Zamurs, and I am employed with the 12 New York State Department of Transportation. At New York 13 State DOT, I oversee the air quality activities for the 14 department and have been at New York State DOT in a 15 transportation air quality capacity for over 20 years. On 16 behalf of New York State DOT, I'd like to thank USEPA for 17 this opportunity to provide comments on this rulemaking, 18 which will have a substantial impact on state DOT's in 19 general and on New York State DOT in particular for many 20 years to come. 21 As such, it's crucial that USEPA craft this rule to 22 9 protect and improve air quality, as required by the Clean Air 1 Act, and to minimize negative effects on transportation 2 activities, many of which have air quality beneficial 3 aspects. 4 My comments this morning will touch upon some of 5 the broad issues and questions raised by the proposed rule. 6 New York State DOT anticipates submitting detailed written 7 comments prior to the close of the rule making period. The 8 comments today have been coordinated with the New York State 9 Department of Environmental Conservation, our state air 10 agency, and represent a New York view of the proposed rule. 11 I anticipate that New York State DEC will also submit 12 detailed written comments before the close of the comment 13 period. 14 In general, New York recognizes and supports the 15 priorities established in the Clean Air Act to improve air 16 quality and protect public health. Indeed, in New York and 17 across much of the nation, air quality has gotten better 18 because of the programs and requirements spelled out in the 19 Clean Air Act. 20 We agree that transportation conformity is an 21 important element in maintaining and assuring continued 22 10 progress in air quality. 1 New York also appreciates EPA's attempts in the 2 proposed rule to provide flexibility to states in 3 implementing transportation conformity requirements in areas 4 newly designated as non attainment, whether for the 8 hour 5 ozone standard or for the PM 2.5 standard. 6 We also appreciate EPA's desire to limit the cost 7 and analytical impact of transportation conformity 8 requirements. 9 As is generally recognized by all practitioners in 10 the field, transportation conformity requirements can be 11 cumbersome and extensive, often diverting resources and staff 12 time from other critically needed transportation activities. 13 With regard to the interim emission test, the 14 selection of 2002 as the base analysis year makes sense. New 15 York also supports the revision of the build less than no 16 build test to a build no greater than no build test for 17 certain areas. 18 While we see limited applicability of the newly 19 revised test to existing non attainment maintenance areas, it 20 has potentially significant benefits in newly designated 21 areas. 22 11 Finally, the regional emissions analysis in later 1 years proposal may be based on incorrect assumptions. 2 Typically, in future years after the transportation system 3 has experienced significant growth in demand is when the 4 impact of projects on the transportation system would be most 5 readily detected through route selection, speed changes, or 6 other changes to the system. 7 The premise that the action and no action scenario will 8 result in the same outcome may be flawed. 9 Now, this comment presumes that there are no new 10 projects in the outer years of the transportation plan, with 11 new projects coming into line in the early years of the plan. 12 If the situation is reversed so that no new projects in the 13 early years of the plan and there are new projects added 14 later in the out years of the plan, then the proposal may 15 have some limited benefits. 16 Regarding the elimination of multiple interim 17 emission reduction tests for moderate and above ozone areas 18 and some CO areas, New York agrees with the concept of 19 reducing unnecessary analytical requirements. The test that 20 should remain is the one that is more protective of air 21 quality. The less than 1990 test for these pollutants 22 12 reflects improvements in vehicle and fuel technologies, 1 rather than improvements in emission reduction from the 2 transportation plan or program. 3 Regarding the flexibility of emission reduction 4 tests for newly designated areas before the establishment of 5 an emission budget, the rule should clarify that the various 6 emissions test remain available to states and MPOs in 7 subsequent conformity determinations as long as an adequate 8 or approved mission budget has not been established. As 9 written, the rule could be interpreted that once an area 10 selects a particular emission reduction test, it is locked 11 into that test until such time as an emission budget is 12 established. 13 With regard to precursors in PM2.5 conformity 14 determinations, New York agrees with EPA's proposed option 15 that VOCs and NOx are appropriate to include in regional 16 emissions analysis for conformity determinations prior to 17 approved PM2.5 SIPs. 18 In New York, we anticipate that any PM2.5 non 19 attainment areas will overlap ozone non attainment areas, so 20 the requirement to include these two precursors would not 21 impose a significant regulatory burden and would provide 22 13 added air quality protection. 1 New York further agrees with EPA's proposed option 2 to not require conformity determinations to include emissions 3 analysis for ammonia and oxides of sulfur until such time 4 that it is determined that these precursors contribute 5 significantly to PM2.5 non attainment and budgets for these 6 pollutants are established. 7 New York agrees with EPA's proposed option to not 8 include re entrained road dust and PM emissions from 9 construction sites on conformity determinations until such 10 time it's determined that these sources contribute 11 significantly to PM non attainment status. 12 Regarding PM hot spot analysis, the written 13 comments do not properly characterize EPA's options, and we 14 will correctly that in our written comments that we submit 15 before the end of the closing period. 16 We do believe, however, that an approach that is 17 reasonable air quality protective and does not place undue 18 burden on transportation agencies can be devised. Similar to 19 the transportation conformity requirements at the project 20 level for carbon monoxide, EPA should determine a simple 21 analysis trigger, such as level of service for CO. Projects 22 14 that don't meet the trigger would not require analysis. 1 Projects that do meet the trigger would do an analysis to 2 determine if an exceedance of the appropriate PM standard was 3 likely and consider mitigation measures to reduce PM 4 concentrations below the standard, if needed. 5 USEPA's proposal regarding areas with insignificant 6 motor vehicle emissions seems sound, as does its propo0sal 7 for the grace period for transportation modeling and plan 8 content requirements. 9 Once again, let me thank USEPA for this opportunity 10 to present New York's views on this important rulemaking, and 11 as we continue to review the proposed rule, our view on some 12 provisions of the rule may change from what I have presented 13 here this morning. 14 Thank you very much. 15 MS. PATULSKI: I have a question. Thanks, John. I 16 just have a clarifying question. 17 In your comments on the second page, when you were 18 talking about the options we were proposing for moderate and 19 above ozone and higher classifications of CO areas before 20 they had set budgets for the new standards, you said that New 21 York  I wanted to just clarify. 22 15 We proposed three options. One was  option one 1 was to retain the current rules requirements. Option two was 2 to allow areas to choose between a build no build and a 3 baseline year test. And the third option was to just have 4 one test required in the rule. 5 It wasn't clear to me if you were picking option 6 two or option three. 7 MR. ZAMURS: I think at this point we're picking 8 option three, to reduce unnecessary analytical requirements. 9 If one test is more protective of air quality, then, to us, 10 it seems unnecessary to do a second test, as the first test 11 accomplishes that goal. 12 MS. PATULSKI: Would that test be the baseline year 13 test? 14 MR. ZAMURS: No, that test would be a build no 15 build. 16 MS. PATULSKI: Okay. That's what I wanted to 17 clarify. Great. Thank you. 18 MR. ZAMURS: Thank you. 19 MS. PATULSKI: Does anyone else have any clarifying 20 questions? 21 MR. JENSEN: I have one clarifying question. This 22 16 is Gary Jensen, Federal Highway Administration. 1 You said that you anticipate that PM2.5 non 2 attainment areas will overlap with those in non attainment 3 areas, so the requirement to include these two precursors 4 will not impose a significant regulatory burden. Are you 5 assuming that the ozone in PM2.5 areas would be exactly the 6 same  have the same boundaries? 7 MR. ZAMURS: Well, at this point, not knowing 8 exactly where the boundaries are, it's hard to say. We 9 anticipate that they probably will have the same boundaries, 10 although that may change with time, but right now, my 11 understanding is that they will likely have the same 12 boundaries. 13 MS. PATULSKI: Actually, I realize I have one more 14 question, and I think you might have addressed when you 15 deferred from your written comments, but for the  on the 16 top of your second page, for the flexibility that we are 17 providing for when areas are doing the build no build test, 18 if no new projects or assumptions have changed in later years 19 and a new analysis is not required, you, in your written 20 comments, say that our premise may be flawed. 21 I just wanted to clarify that. 22 17 Is that because there may not be a lot of areas in 1 New York State that would be in that situation, thus not have 2 new projects, for example, planned in the future, or is there 3 another reason? 4 MR. ZAMURS: Well, that comment is based on the 5 assumption that, as in New York, most of our new projects 6 come on line early in the transportation improvement program 7 over the plan, so those  and do not have any new projects 8 or committed projects in the out years of the plan. 9 So, our comment is based on the fact that if we do 10 modeling with those new projects coming on line early, the 11 impact and the effect of those projects will continue into 12 the future, and although you may not have any new projects 13 coming on line later, the impact in terms of speeds or 14 diversions of those projects will show up in the modeling 15 later on. 16 So, that's the basis of our comment, as written. 17 Realizing, though, that other states may do things 18 differently where you have projects coming on line later, 19 then if the early years have no changes, then there may be 20 some benefit in not having to look at those years, those 21 early years. 22 18 MS. PATULSKI: Okay. Thank you. 1 The next person is Tracy Freuder. 2 MS. FREUDER: Good morning. My name is Tracy 3 Freuder, and I'm a transportation and research associate at 4 Environmental Defense, a nonprofit that represents over 5 400,000 members. 6 We are concerned that EPA's proposed transportation 7 conformity rule amendments will weaken conformity, undermine 8 the Clean Air Act, and harm our health. 9 We will be submitting detailed written comments 10 prior to the December 22nd deadline, but in today's 11 testimony, I would like to focus on the substantial increase 12 in emissions from motor vehicles that could result from the 13 proposed rule. 14 I will begin by giving a brief overview of the 15 importance and history of transportation conformity. I will 16 then turn to why EPA's rule could result in increased 17 emissions in areas already suffering from high levels of 18 pollution. 19 Transportation conformity is intended to ensure 20 that actual emissions from motor vehicles stay within the 21 limits established to meet health based air quality 22 19 standards. 1 Conformity was strengthened in the 1990 Clean Air 2 Act amendments so that transportation would no longer 3 routinely undermine progress towards unhealthful air quality, 4 as it had repeatedly since the 1970 Clean Air Act. 5 In just the past few years, transportation 6 conformity has begun to operate fully with the adoption of 7 motor vehicle emission budgets as part of the attainment 8 statement implementation plans, or SIPs. 9 This has spurred support for clean air vehicles, 10 fuels, and strategies to curb traffic and pollution growth, 11 with better travel choices. 12 It's gotten transportation and air quality agencies 13 finally talking to each other. 14 By invoking the one hour ozone standard in 2005 15 indicating adopted motor vehicle emissions budgets for one 16 hour SIPs, EPA's conformity rule proposal threatens to 17 disable conformity for many years in our nation's most 18 polluted areas. 19 EPA is proposing to rescind the one hour standard 20 one year after the designation of the eight hour ozone non 21 attainment areas in April of 2004, thereby eliminating, in 22 20 April 2005, the related one hour motor vehicle emissions 1 budgets that are a foundation of the transportation 2 conformity process. 3 For many reasons spelled out in Environmental 4 Defense's earlier comments on the proposed ozone 5 implementation policy, we believe this proposal is unlawful, 6 but even if EPA could lawfully revoke the one hour standard 7 and have the authority to allow states to set aside their 8 motor vehicle emissions budgets, we believe EPA's proposal is 9 unlawful, because it would allow large increases in motor 10 vehicle emissions and thereby violate the statutory 11 conformity tests. 12 EPA proposes to allow states to ignore the motor 13 vehicle emissions budgets in their one hour SIPs for future 14 years and instead demonstrate conformity using any of several 15 alternative tests. 16 History shows that most states will succumb to 17 pressure from highway interests to use whatever test is 18 available to them that will allow the greatest expansion of 19 highway emissions and therefore is the least protective of 20 public health. 21 Among the conformity tests that EPA is proposing to 22 21 substitute is a 2002 baseline test, using motor vehicle 1 emissions from 2002 as the level not to be exceeded. 2 Application of this test in place of adopted one hour motor 3 vehicle emissions budgets would allow emissions to increase 4 after April 2005 to 2002 levels until new budgets are adopted 5 under the eight hour NAAQS. 6 These new eight hour budgets will not become available 7 until 2007, at the earliest, and it is likely that eight hour 8 attainment SIPs will not actually be submitted and approved 9 for several years after that for areas that are designated 10 serious and severe under the eight hour NOx. 11 Under EPA's proposal, areas could approve new 12 transportation plans so long as transportation emissions 13 levels are less than 2002 levels. 14 I've attached a few charts at the end of my 15 testimony that demonstrate emissions could rise to one and a 16 half times allowable motor vehicle emissions that would 17 otherwise be required under the motor vehicle emission 18 budgets of the approved SIP. 19 Just for an example, in Chicago, you can see that 20 VOC would be allowed to increase by 44 percent above the 21 level of emissions budgets currently approved in the one hour 22 22 SIPs in Chicago's attainment date of 2007, and on the second 1 page, you can see that NOx would be allowed to increase by 56 2 percent. 3 The other cities on this chart show Mobile 5 data 4 and a comparison of past emission budgets for 2002 versus 5 attainment budget, and the chart shows that in each region 6 under proposed rule, emissions would be allowed to increase 7 significantly over attainment budgets allowed in the one hour 8 SIP. 9 Again, Chicago is the only area on the chart 10 showing Mobile 6 data, and it's the area that clearly 11 demonstrates the greatest increase in emissions. However, 12 it's well accepted that Mobile 6 more correctly reflects the 13 true emissions compared with the Mobile 5 computer model. 14 An EPA analysis which I've attached to my testimony 15 as attachment 2 shows that Mobile 5 significantly 16 underestimated NOx and VOCs emissions compared to Mobile 6, 17 especially in years prior to 2007, with the Mobile 5 18 emissions under estimation problem becoming more acute the 19 further back in time it looks. 20 Therefore, we believe our preliminary analysis 21 suggests the data for Chicago using Mobile 6 presents a more 22 23 accurate picture of what the likely increase in mobile source 1 emissions that will be allowable under the 2002 baseline test 2 versus the adopted 2005 or 2006 motor vehicle emissions 3 budget test. 4 Motor vehicle emissions represent a quarter to a 5 half of the source of ozone precursor emissions in most U. S. 6 cities that are in non attainment of the one hour standard, 7 as shown in our table as attachment three. 8 An increase in motor vehicle emissions means that 9 total emissions in a air shed will exceed the level needed 10 for attainment. 11 Based on modeling analysis that demonstrates that 12 SIPs will not attain the ozone NAAQS without further 13 reductions  and the EPA's SIP approvals are based on weight 14 of evidence analysis that demonstrate only marginal 15 attainment, with some highly questionable assumptions, it is 16 clear that severe areas will not possibly attain the one hour 17 national ambient air quality standard if all the emission 18 reductions assumed in the attainment demonstrations are not 19 achieved. 20 If motor vehicle emissions are allowed to increase 21 by, say, 50 percent in an area where these emissions 22 24 represent 40 percent of the total attainment year inventory, 1 it will result in a 25 percent increase in total air shed 2 emissions. 3 Similarly, if motor vehicle emissions are allowed 4 to grow by 50 percent in an area where emissions represent 25 5 percent of the emissions, it will result in a 12.5 overall 6 increase in total emissions. 7 In either case, such emissions increases would 8 cause serious damage to public health and to the ability of 9 state and local officials to develop new eight hour ozone 10 attainment strategies. 11 Looking at 2002 EPA air monitoring data, we can get 12 an approximation of what future air quality is likely to be 13 as long as motor vehicle emissions are allowed to remain at 14 2002 levels. 15 For example, the worst monitor in Baltimore shows 16 that there were four exceedances of the one hour standard and 17 21 exceedances of the eight hour standard in 2002. This 18 provides a rough idea of what ozone levels are likely to be 19 in years after 2005 if motor vehicle emissions are allowed to 20 rise to 2002 levels instead of being reduced to the levels 21 required for 2005 in the one hour SIP. 22 25 These significant increases in emission estimates 1 for future years would guarantee that these areas could not 2 possibly attain the one hour NAAQS and will have severe, more 3 frequent violations of the one hour and eight hour NAAQS 4 after April 2005 than they would otherwise and would 5 significantly delay progress toward the attainment of the 6 eight hour NAAQS. 7 In the past decade, the science linking emissions 8 from the transportation sector to public health has confirmed 9 time and time again the powerful link between health and the 10 environment. 11 The increased emissions that will result from this 12 rule could cause great harm to those already suffering from 13 health problems related to poor air quality. 14 In conclusion, we feel it is essential that EPA 15 keep in place the motor vehicle emissions budgets in the 16 approved ozone SIPs and control strategies for motor vehicles 17 under the one hour national ambient air quality standards 18 until the one hour standards are attained and until new 19 attainment SIPs with motor vehicle emission budgets have been 20 approved for the eight hour standard. Otherwise, EPA will 21 authorize backsliding towards dirtier air in America's most 22 26 polluted metropolitan areas, with lengthy delay in attainment 1 of healthful air quality. 2 Thank you very much for your time. 3 MS. PATULSKI: Thank you. I have a clarifying 4 question. 5 Should the one hour budgets be retained in areas 6 that  prior to eight hours being submitted to areas that 7 are, for example, one hour maintenance areas right now, that 8 may have budgets not in the near term, like 2005, 2007, but 9 2015 budgets, things like that? 10 Does ED believe that the same  that EPA should, across 11 the board, require one hour budgets everywhere or just in 12 areas that have not attained the standard? 13 MS. FREUDER: Without wanting to give any false 14 information, I am testifying today on behalf of 15 Transportation Director Michael Replogle, who couldn't be 16 here, and I would prefer to consult with him and provide you 17 a written answer to that question, if that's okay with you. 18 MS. PATULSKI: Yeah. Include that with your 19 comments. 20 MS. FREUDER: Yeah, we definitely will. 21 MS. PATULSKI: There's your statement that says 22 27 that  your conclusion statement  there are some areas 1 that aren't covered by it, so it would be helpful to hear 2 your thoughts on all the different types of areas that have 3 one hour budgets, because some are attaining the standard but 4 are violating the eight hour standard. 5 Will you be submitting written comments on the 6 other parts of the proposal? 7 MS. FREUDER: Yes, I believe that we will providing 8 detailed comments. 9 MS. SCHNEEBERG: I had one additional 10 clarification, also, with respect to other comments that you 11 might be submitting. 12 MS. FREUDER: Uh huh. 13 MS. SCHNEEBERG: Obviously, we understand your 14 point where there are one hour budgets, where the areas are 15 the same size. You're obviously urging that we retain them. 16 But we would also like your views on appropriate tests for 17 areas that don't  either don't have one hour budgets or the 18 area is significantly different in size than the one that has 19 the one hour budget. 20 MS. FREUDER: Okay. 21 MS. SCHNEEBERG: So, if your comments could address 22 28 that, we'd appreciate that. 1 MS. FREUDER: Yeah, we'll be sure to do that. 2 MS. SCHNEEBERG: My last clarifying question is 3 also in your conclusion, where you would say you would like 4 the one hour budgets to continue to be used until areas 5 attain the one hour standard and new eight hour SIPs with 6 budgets are submitted, and I'm wondering if you're saying 7 that, even after the one hour  the eight hour budgets are 8 in place that areas should also have to meet the one hour 9 budgets. 10 In other words, there might be two separate budgets 11 for the same area, different budgets for the eight hour and 12 the one hour, and are you saying that conformity should be 13 done for both of those at the same time, and again, you may 14 not know the answer to that, but I would put that question to 15 Michael. 16 MS. FREUDER: Okay. But I believe it's saying that 17 even if one hour is achieved before the eight hour budget is 18 in place, it should continue to maintain that level until the 19 eight hour budget  20 MS. SCHNEEBERG: Not the opposite, that when you 21 have an eight hour budget, you still keep that limit. 22 29 MS. FREUDER: I believe. But again, I'll clarify 1 it. 2 MS. SCHNEEBERG: Okay. Thanks. 3 MS. SPICKARD: I would just add to what Meg had 4 said about clarifying whether maintenance budgets should be  5  you know, we should maintain those for areas, one hour 6 maintenance budgets. 7 Also, areas that had pre 2002 budgets  for 8 example, if they have a 1999 attainment budget, would you 9 want that to also apply? And then there also seems to be 10 discussion about Mobile 5 versus Mobile 6 budgets, and are 11 you arguing it would be any budgets, whether they're based on 12 Mobile 5 or Mobile 6 or just Mobile 6 budgets? 13 MS. FREUDER: I was just showing that point, 14 because for the charts, we were unable to get 2002 Mobile 6 15 baseline data for most of the cities, so I was just 16 explaining why the Mobile 6 data that we have for Chicago 17 would be more accurate than the Mobile 5. 18 MS. SPICKARD: But you would want both Mobile 5 and 19 Mobile 6 budgets to remain in place. 20 MS. FREUDER: I believe that the Mobile 6 budgets  21  22 30 MS. SPICKARD: Okay. 1 MS. PATULSKI: I have a few more clarifying 2 questions. 3 You say in your conclusion statement that one hour 4 SIP budgets should stay in place until eight hour SIPs are 5 approved, but what about to the point that eight hour SIP 6 budgets are found adequate by EPA  EPA reviews submitted 7 motor vehicle emissions budgets and finds them adequate, if 8 they are adequate, you know, most likely prior to approval? 9 Basically, when you say one hour SIP budgets should be in 10 place until eight hour SIPs are approved  11 MS. FREUDER: Uh huh. 12 MS. PATULSKI: Are you talking about EPA's SIP 13 approval or are you talking about EPA's adequacy finding? 14 MS. FREUDER: I sincerely apologize, but  15 MS. PATULSKI: That's okay. I mean these are 16 details  17 MS. FREUDER: I just want to make sure that I'm 18 providing you with accurate information, so I could provide 19 you with my best guess, but rather than doing that, I think 20 it would be best to get you written responses. 21 MS. PATULSKI: I'm guessing he's probably talking 22 31 about adequacy, but that would be great, and throughout all 1 the supporting information, you talked about the 2002 2 baseline year test. 3 Have you had any thought into how the one hour 4 budgets compare to the build no build test, because that's 5 the other option folks have for doing conformity for eight 6 hour. 7 MS. FREUDER: We'll address that in our comments, 8 definitely. 9 MS. PATULSKI: Okay. 10 Sarah, did you ask the comment about when the 11 boundaries are different? 12 MS. SCHNEEBERG: Yes. 13 MR. JENSEN: I have one. 14 MS. PATULSKI: Okay. 15 MR. JENSEN: For your supporting material, if you 16 could provide sources with that in the written material, in 17 the written comments, that would be helpful and valuable. 18 MS. FREUDER: Sure. 19 MS. PATULSKI: Especially the table. I think the 20 Mobile 6 presentation is something you gave me in the 2001 21 report. I think you took it off our web site. Thanks. 22 32 MS. FREUDER: Thank you. 1 MS. PATULSKI: I think Dr. John Balbus is next. 2 DR. BALBUS: Good morning, and thank you for the 3 opportunity to present my comments. 4 I apologize in advance for some redundancy, since I 5 am with the same organization as Tracy. I'm representing the 6 public health community, though, and as you see in my 7 comments, I'm representing organizations in addition to 8 Environmental Defense, which is my employer. 9 My name is John Balbus. I am director of the 10 environmental health program for Environmental Defense, a 11 leading environmental non profit organization with 400,000 12 members. 13 I'm a physician. I'm board certified in internal 14 medicine and occupational and environmental medicine. I 15 received my M. D. degree from the University of Pennsylvania, 16 my Master's in public health from Johns Hopkins University, 17 and my undergraduate degree from Harvard University. I'm 18 also on the board of directors of Physicians for Social 19 Responsibility, an environmental health advocacy organization 20 representing nearly 30,000 physicians, nurses, scientists, 21 and other health care professionals, and I offer my comments 22 33 today on behalf of both Environmental Defense and Physicians 1 for Social Responsibility. 2 As a public health professional, I'm appalled at 3 how the EPA is abandoning its public health responsibilities 4 in its implementation of the eight hour ozone standard; in 5 particular, with its proposed rules for transportation 6 conformity. 7 The facts on the harmful effects of ozone are 8 clear. Asthmatics and others with lung diseases are sickened 9 by exposures to elevated ozone levels. When ozone levels are 10 high, more people suffer asthma attacks, more children are 11 transported to emergency rooms, and more asthmatics are 12 hospitalized. 13 When ozone levels go down, as was shown in the 14 study of Atlanta during the summer Olympics of 1996, fewer 15 people suffer asthma attacks, fewer asthmatic children wind 16 up in emergency rooms and hospitals. 17 A recent study has documented that ozone sickens 18 asthmatic children at levels well below the new eight hour 19 standard of 80 parts per billion. That study showed effects 20 with an average level of 59 parts per billion in southern 21 Connecticut. 22 34 Ozone impairs lung development in healthy children, 1 as well. Several studies have documented poor lung 2 development in children from high ozone areas compared to 3 those from low ozone areas. 4 The obligation of the EPA under the Clean Air Act 5 is similarly clear. The act directs EPA to set standards 6 solely on the basis of protecting the health of all 7 Americans, including those who are more susceptible. 8 Is this the spirit in which the EPA is implementing 9 the new eight hour standard with regard to conformity? No, 10 it is not. 11 Children with asthma certainly don't care whether 12 the current standard is for one hour or eight hours. They 13 and their parents only care that the government is doing all 14 that it can to protect them and make their air safe to 15 breathe. 16 Has the EPA done its best to ensure that, in 17 transitioning from the one hour to the eight hour standard, 18 that children and their parents have the cleanest air 19 possible? Unquestionably, it has not, and I will briefly 20 outline how the EPA has abandoned its charge to protect the 21 public's health. 22 35 The purpose of the transportation conformity 1 provisions is to ensure that the actual emissions from motor 2 vehicles stay within limits established in air quality plans 3 that should allow a region to meet clean air standards. 4 I'm going to skip some of this, because this is 5 redundant with what Tracy has said, but  6 Despite considerable improvements in automobile 7 technology that have lowered emissions per mile driven, 8 emissions of nitrogen oxides have declined little, and 9 reductions in VOCs have been insufficient to attain ozone 10 standards. 11 As a consequence, ozone pollution has remained a 12 difficult problem, with over 120 million people exposed to 13 air that violates the one hour ozone standard that has been 14 in effect since 1979. 15 Mobile source pollution accounts for one third to 16 one half of the ozone problem in many regions. In almost all 17 non attainment areas, motor vehicle emissions from within the 18 area are the single largest contributor to ozone formation. 19 Only in the past three years have transportation 20 conformity rules begun to operate fully. The adoption of 21 motor vehicle emission budgets as part of the state 22 36 implementation plans, or SIPs, is spurring innovative 1 measures to produce real reductions in motor vehicle 2 emissions. 3 By revoking the one hour standard in 2005 and 4 negating the requirements that motor vehicle emissions 5 conform to existing budgets for the one hour SIPs, the EPA is 6 removing vital incentives for controlling ozone pollution at 7 just the time those incentives are beginning to have an 8 effect. 9 The abandonment of conformity to the one hour ozone 10 SIPs will push back the time frame in which control of motor 11 vehicle emissions must occur, essentially condemning areas 12 with high ozone to greater suffering from ozone's health 13 impacts for yet another generation. 14 Similarly, the use of significantly higher 2002 15 emissions levels as a baseline weakens the existing 16 requirements considerably. 17 Since many areas  as Tracy has pointed out, 18 Baltimore is one of them  already violated one and eight 19 hour ozone standards during 2002, this decision essentially 20 locks those areas into non attainment for another nine years 21 or more. 22 37 Were these choices to abandon the one hour 1 conformity requirements and to use 2002 emissions levels as 2 the baseline made by the agency in order to better protect 3 the public's health? I assure you they were not. 4 We have estimated the impact these weakened 5 emission limits will have on emissions on ozone precursors in 6 various U. S. cities when compared to current EPA approved 7 limits on motor vehicle emissions. These weaker measures 8 will allow ozone precursor emissions to increase between 10 9 and 50 percent by 2005 to 2007. 10 Surely this increase in pollution was not what the 11 agency had in mind six years ago when it promulgated the new 12 standard. 13 Surely this increase in pollution was not what the 14 Supreme Court had in mind when it unanimously upheld the new 15 stricter standards in 2001 and held that the EPA must 16 continue to implement the act's provisions that require 17 continued progress towards attainment, and most surely this 18 increase in pollution will result in higher levels of ozone, 19 which, in turn, will send more children to the emergency 20 rooms and hospitals in those cities. 21 It is also likely to significantly increase 22 38 exposure of millions of Americans to hazardous mobile source 1 air toxics, which recent studies show result in significantly 2 higher cancer risk for those living close to busy highways, 3 as well as other adverse health effects. 4 It's not difficult to envision how the transition 5 into the new more protective standard could be made in such a 6 way that the public's health is optimally protected. As a 7 physician, if I heard that a new improved blood pressure 8 medicine was soon to be released, I wouldn't stop current 9 treatments for my patients and allow their blood pressures to 10 soar until the new medicine could be started. That would be 11 malpractice. 12 Similarly, it is only sensible that the EPA 13 continue to require that transportation plans and programs 14 conform to adoptive one hour SIPs until an area has 15 demonstrated that it has attained and will maintain the one 16 hour standard and until new attainment SIPs with motor 17 vehicle emission budgets have been approved for the eight 18 hour ozone standard. 19 Abandoning these measures prematurely will not 20 protect the public's health but will harm it. 21 Thank you again for your attention and the 22 39 opportunity to give this testimony. 1 MR. JENSEN: I have one clarifying question. 2 Earlier you said that the adoption of motor vehicle 3 emission budgets as part of state implementation plans is 4 spurring innovative measures to produce real reductions in 5 motor vehicle emissions. Do you have examples that you could 6 give? 7 DR. BALBUS: Some of those examples are fuel 8 changes, transit  public transit projects that have reduced 9 traffic. 10 MR. JENSEN: I guess what I'm asking for is maybe  11  12 DR. BALBUS: In the written testimony, we can be a 13 little more specific. 14 MR. JENSEN: Can you be specific as far as 15 including the areas, the types of projects that you're 16 talking about, the type of innovations that you're talking 17 about, as well as the reductions that they're achieving? 18 DR. BALBUS: Some of these are only coming in in 19 the last couple of years, so I'm not sure that the actual 20 reductions in emissions, you know, can really be estimated at 21 this point, but certainly there are programs we can point to. 22 40 MS. PATULSKI: Similar to any written comments that 1 you submit or Environmental Defense submits, just like we 2 asked Tracy for clarification on if you're asking for one 3 hour SIP budgets to stay in place until eight hour SIPs are 4 approved  5 DR. BALBUS: Exactly at what point would we 6 recommend a transition or a turnover, yes. 7 MS. PATULSKI: And if you're talking about focusing 8 on all areas that have one hour SIP budgets or those that are 9 not attaining that standard or those that have SIP budgets 10 within the eight hour attainment dates or overlapping one 11 hour and eight hour boundaries, all those issues, any details 12 that you have on those, or Environmental Defense has, in your 13 written comments would be helpful. 14 DR. BALBUS: The devil is in the details, and we 15 will provide you with the exact details. 16 MS. PATULSKI: Does Environmental Defense plan to 17 submit any health information on the PM2.5 proposals? 18 DR. BALBUS: Not at this point, but I'm sure that 19 we will have them in our written comments. 20 MS. PATULSKI: Okay. 21 DR. BALBUS: Thank you. 22 41 MS. PATULSKI: Thank you. 1 MS. PATULSKI: Is anybody else presenting testimony 2 today? 3 ( No response.) 4 MS. PATULSKI: Well, then I think we're done. I 5 think we can adjourn. 6 Again, if anybody wants copies of the transcript, 7 you can contact our court reporter, Peter, and we have copies 8 of the testimony that people presented on the table outside. 9 Thanks for attending. 10 ( Whereupon, at 10: 23 a. m., the hearing was 11 concluded.) 12 ***** 13