Lawsuit Threatens Houston's
Clean Air Plan--Possible Loss of Federal Funds for Transportation Projects
Issue
The Galveston-Houston Association for Smog Prevention (GHASP) represented by
Jim Blackburn has filed in the 5th Circuit to overturn the EPA approved
Houston State Implementation Plan (SIP) contending EPA’s approval was
“arbitrary and capricious” and violates the “anti-backsliding” provisions of
the Clean Air Act.
Action
In order to prevent needless and relatively inefficient air emission control
strategies detrimental to growth from being enacted and to prevent a trigger
that would result in disapproving our current transportation conformity,
local government agencies must be encouraged to intervene in legal
challenges to Houston’s approved clean air plans.
Filing by parties should be no later than
January 6th. Only if local governments intervene, can local residents and
businesses that must comply with possible results of a mediated settlement
involving only the Environmental Protection Agency and Jim Blackburn,
counsel for the plaintiff.
Discussion
To resolve the current dispute, it is expected the 5th Circuit will order
mediation between the parties (EPA and GHASP). This situation is identical
to one several years ago where Houston’s SIP was challenged by a third party
and settlement negotiations did not involve any local interests. That
situation forced the West Houston Association and others to take legal
action that ultimately achieved a very favorable result for our interests.
At that time numerous local governments filed to intervene, suggesting to
EPA and environmentalist that mediation would not conclude favorably for the
environmental plaintiffs.
We believe that only if local government file to intervene and are involved
on our behalf in the mediation process, will the interest of the mobile
source sector and the development sector be protected.
Background
The challenge by GHASP is specifically to the 2002 modifications to the
Houston SIP recommended by Texas Commission on Environmental Quality (TCEQ)
that modified from 90% to 80% the needed NOx reductions from stationary
sources. EPA approved that modification with the added requirement for
industry to reduce so called highly reactive volatile organic compounds (HRVOCs).
This combination was demonstrated to achieve greater air quality
improvements.
Some believe the GHASP suit was filed simultaneously with the TCEQ
announcement of Houston 8-Hour SIP documents so that environmental groups
could have a say in what control measures are adopted in the new plan.
The new 8-Hour State Implementation Plan for Houston is currently in draft
for comments with TCEQ adoption scheduled for May 2007. TCEQ says that
Houston will not be able to achieve the standard by 2009 as required by its
current clean air classification of “moderate”. Other classifications
(“serious” and “severe”) have until 2013 or 2018 to achieve the standard.
The 8-Hour SIP includes no additional stationery NOx controls.
Because industry would be affected directly by this suit brought by
Blackburn for GHASP, the Business Council for Clean Air Appeal Group has
filed to intervene in hopes of joining any mediation ordered by the 5th
Circuit.
There is a strong chance that settlement negotiations will affect mobile
sources significantly, particularly if no one represents mobile sources in
the negotiations. The 8-Hour SIP draft includes mobile source items such as:
Continuation of the vehicle
inspection/maintenance program
Speed limit reduction of 5 mph (60 for
autos)
Adoption of California auto standards
Marine fuels must comply with Texas “clean
diesel” standard
Voluntary measures by HGAC including Clean
Fuel Fleet, Commute Solutions, pooled vehicle ownership
TCEQ does include within the 8-Hour SIP
document but not formal part of the recommended SIP, a list of other control
measures. For mobile sources, these include:
Elimination of free parking in designated
employment centers
mileage based auto insurance
speed reductions
mandatory vanpooling and carpooling for
employers with 100 or more employees
“No drive zones” in major activity centers
Free transit
As stated earlier, transportation conformity
can be affected by not having an approved SIP. In a conformity lapse, no
construction activity can commence on increased capacity roadways or
transit. It is possible that Houston can experience conformity lapse periods
of up to 2 years which could lead to all federal funding for road, highway
and mass transportation projects being suspended or diverted to other
regions of Texas until such time as a replacement plan is approved by EPA.
TCEQ's Attainment
Schedule for
Attainment Demonstration of the New 8-Hour Ozone Emission Standard
TCEQ (Texas Commission on Environmental Quality) is responsible for
developing and submitting a plan (State Implementation Plan) to the
Environmental Protection Agency that shows how the Houston area will achieve
the 8-Hour Ozone standards by 2010.
The
current status of this plan can be viewed at this link to TCEQ's website.
The
EPA has designated Houston as a non-attainment area for the new 8-Hour Ozone
Rule. This is a new criteria for reducing ozone further than that required
under the current 1-Hour standard. The Houston State Implementation Plan
and the Conformity Plan are currently oriented to the 1-Hour standard that requires Houston to be in attainment by 2007. The new 8-Hour Standard
(a measure of ozone concentration over an 8 hour period) (Link
to EPA 8-Hour Ozone Site) has an attainment deadline of 2010 for moderate classification or 2013 for
serious classification.
The timing of this
schedule is very "tight" according to sources, suggesting Houston may have
difficulty developing methods to reduce emissions in time to meet EPA's deadline
of 2007 to have an approved plan.
8-HOUR ATTAINMENT SCHEDULE
10.15.2005
Select episodes to model
4.15.2006
Emissions, meteorology development completed
6.15.2006
Base case modeling completed
10.15.2006
Control strategy modeling completed
10.15.2006
Draft SIP (State Implementation Plan) proposals completed
for review
Total emissions of the six principal pollutants identified in the
Clean Air Act dropped again in 2003, signaling that America's air is the
cleanest ever in three decades, the U.S. Environmental Protection Agency (EPA)
reports. Annual emissions statistics for the six pollutants are considered major
indicators of the quality of the nation's air because of their importance for
human health and the existence of their long-standing national standards.
Click for summary information
TCEQ Preliminary Analysis Shows
Houston's Progress in Ozone Reduction
The Texas Alliance
for Responsible Growth, Environment and Transportation (TARGET), a non-profit
supported by the West Houston Association and 6 other organizations in
Houston, reports on the results of preliminary
TCEQ 1-hour ozone modeling results that NO additional mobile source control
strategies will be needed. From the TARGET notice:
“TCEQ’s latest
modeling indicates that additional mobile source control strategies will
probably not be necessary to satisfy 1-hour ozone requirements.
This means that TCEQ is unlikely to consider adopting control measures such
as “Location Efficient Mortgages”, “Pay-As-You-Drive Insurance Rates”, and
construction equipment use-restrictions to satisfy the 1-hour ozone
standard.
As you
may recall, TCEQ committed in the 1-hour ozone plan to conduct a mid-course
correction. The intent of the mid-course correction was to improve the
modeling and evaluate whether additional control strategies would still be
necessary to address the 56 ton per day NOx reduction shortfall. Although
the modeling results are preliminary, TCEQ told me that their efforts in the
past couple weeks have resulted in a model that should demonstrate
attainment without additional control measures (other than a gas can
regulation and additional Highly Reactive Volatile Organic Compound
regulations focused on the chemical industry). Also, it appears that the 55
mph speed limit rule will be completely revoked (the implementation was
delayed until 2005), the diesel truck idling restriction will be revoked,
and the morning hour commercial lawn equipment ban will be revoked.”
EPA Proposed Conformity Rules
The EPA is proposing
modifications to the conformity rule as it applies to the new 8-Hour Ozone
Standard. While Houston is still working to achieve the 1-Hour Ozone
Standard by implementing elements of the current State Implementation Plan (SIP)
by 2007, the 8-Hour Standard is "waiting in the wings". Houston will have
to achieve the attainment status under the 8-Hour Standard as soon as it attains
the 1-Hour Standard.
WASHINGTON (07/07/03) -- The U.S. EPA has
proposed a rule that would incorporate
into the transportation conformity regulations existing guidance issued by
EPA and the Department of Transportation that implements the March 2, 1999,
court decision (Environmental Defense Fund v. EPA, et al.). The
rulemaking also proposes several additional changes and improvements to the
conformity program.
EPA said that of particular interest are
proposals to streamline the number of triggers that require a new conformity
determination, and to allow transportation planners to base regional
emissions analyses on assumptions available at the beginning of the
conformity process.
Background on the Transportation
Conformity Rule
Transportation conformity is
required under section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)) to
ensure that federally supported highway and transit project activities are
consistent with ("conform to'') the purpose of a state air quality
implementation plan (SIP). Conformity to the purpose of the SIP means that
transportation activities will not cause new air quality violations, worsen
existing violations, or delay timely attainment of the national ambient air
quality standards. EPA's transportation conformity rule establishes the
criteria and procedures for determining whether transportation activities
conform to the state air quality plan.
EPA first published the
transportation conformity rule on November 24, 1993 (58 FR 62188). Minor
revisions were made to the rule in 1995 (60 FR 40098, August 7, 1995, and 60
FR 57179, November 14, 1995), and more recently in the spring of 2000 (65 FR
18911, April 10, 2000) and on August 6, 2002 (67 FR 50808).
On August 15, 1997, EPA published a
comprehensive set of amendments that clarified and streamlined language from
the 1993 transportation conformity rule (62 FR 43780) and subsequent 1995
amendments. However, a decision made on March 2, 1999, by the U.S. Court of
Appeals for the District of Columbia Circuit affected several provisions of
the 1997 rulemaking (Environmental Defense Fund v. EPA, et al., 167 F. 3d
641,
DC Cir. 1999).
Specifically, the court's ruling affected
provisions that pertain to five aspects of the conformity rule, including:
(1) Federal approval and funding of
transportation projects in areas without a currently conforming
transportation plan and transportation improvement program (TIP);
(2) Provisions allowing motor vehicle
emissions budgets from submitted SIPs to be used in transportation
conformity determinations before the SIP has been approved;
(3) the adoption and approval of
non-federal transportation projects in areas without a currently conforming
transportation plan and TIP;
(4) the timing of conformity
consequences following an EPA disapproval of a control strategy SIP (e.g.,
reasonable further progress SIPs and attainment demonstrations) without a
protective finding; and,
(5) the use of submitted safety
margins in areas with approved SIPs that were submitted prior to November
24, 1993.
The proposed rule was published in the June
30, 2003, Federal Register, pages 38973–38998
[TEXT]
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