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disapproval for this revision with in 12 months of the completeness determination deemed b y operation oflaw (November 5 , 2009 ), but m i n i m ally, mu st do so prior to any Transport Rule FIP finalization for Texas regardin g th e 199 7 eight- ho ur ozone NAA Q S. In any case, a FIP relying on the 2005 notice of fa i lure t o s ubmit wo uld be inapp ropriate under the FCAA when the EP A has failed to take action on a p e ndin g sub m i tt al dir ectly r es p onding to that notice. Because Texas has submitted, in goo d f aith , a SIP rev i si on with a dditional substantive emission reductions beyond CAI R to addr ess S e cti on 110( a)(2) ( D)( i ) o bli gati ons for the 1997 eight-hour ozone standard; because the EP A mu st take ac tion o n s u c h subm itta l s prior t o finalization of Transport Rule FIPs and to dat e, h as taken n o a c ti o n; and b ecau se T exas' proposed inclusion in the Transport Rule is base d on fl awe d m o d e lin g d at a that fa i l s t o acco unt for cert ain controls explicitly identified in its 2 008 s ubmitt a l , th e i n c lu sio n of Te xas in th e Transpo rt Rul e FIP trading program is inap propriat e. T

he TC EQ appreciates the EPA providing mechanisms for SIP revisions to replace th e Transport Rule F IP prior to rule finalization , but is concerned that the EP A' s implementati on timeframe does not allow states to assume control of allocations p rior to program implementation. In comments regarding the orig in al Tran s p o rt R ul e p ro p o s a l sub mitted to the EPA on October 1 , 2010, the TCEQ requested that th e EP A a ll ow publi c comm ent prior t o finalization on any specific SIP criteria states might fo ll ow i n r epl ac in g Tran s p o rt R ule FI P s with state plans. The TCEQ appreciates the inclusion of these p ote nti al S IP c ri t eria in th e January 7 , 2011, NODA

. The EPA ' s January 7,2011, N OD A states, " B ecau se E P A anticipates issuing the final Transport Rule around mid-2011, there wou l d n ot be s u f f i c ient time f or states to develop and submit abbreviated or full SIPs with al l owan ce a ll o cati on provisions, and for EPA to review and appro v e such SIP submissions, before Sep tembe r 2 011 wh en EP A would record allocations to existing units for 2012 and 2013. Conse qu e ntly, the tab les ass ume that the first year for which state allocations might be used, in lieu o f EP A a ll ocatio n , wou l d be 2 014. " (76 F R 112 0 ) Because changes to allocation methodologies occ urrin g af t er program impl ementation could result in difficulties for stakeholders, the TCEQ s ugges t s th at the EP A ' s T ran sport R ule program provide a mechanism by which states co uld assum e co ntrol of a lloc ati o n s pri or to program implementation, if requested. The E P

A indica tes that states may submitfull or abbreviated SIP rev i sions to a ddress allo c ati ons and /

or Transport Rule tradingfor the 2014 control period b ut w ould require these SIP revisions due by November 1 , 2011 ( 7 6 F R 112 1 )

. Because this initial submittal time line is unrealistic, the EP A should either de lay th e deadline for S I

P submittals for the 2014 control period or eliminate the disingenuous opti onfor state-directed allocation and /

or trading in 2014. The Transport Rule is expected to be finalize d in mi d -2 0 1 1

. I f states intended to assume control of Transport Rule allocations (abbrev i ated S IP rev i sions) o r the Transport Rule trading program (full SIP revisions) starting with the 2 0 1 4 control perio d , S IP r evis i ons would be due to the EPA b y November 1, 2011

. B ecause the FC AA and EP A gui d ance mandates that reasonable notice and public hearing be provided for such SIP rev i sions, states would be unable to develop, propose, provide notice and public hearin g, an d ado p t a S IP revis i on afte r the Transport Rule is finalized but prior to the November 1, 2 0 1 1 , s ubmitta l dea dl ine. If the EPA actually believes state contro l of a ll ocations an d /or trading to be plausible for the 2014 control period, then providin g a November 1,2 0 11, SIP submittal date for such an optionCOM MENTS OF TEXAS COMMISSION ON ENVI RO NMENTAL Q UALI TY DO CKET NO

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would result in states having t o expend s t aff ti m e and resources based on an unfinalized rule. While few states would c h oose to d evelop S I P r ev i s i o n s b ased on op tio n s pro v ided in a proposed rule without some clear assurance th at s uch o ption s w ould no t chan ge at rule finalization , some states may in fact choose to do so in ord er t o attempt t o m eet the short s ubmitt a l deadline. Given that, it is troub l in g that th e EP A did no t o ri g in a lly id e nti fy th e m e chanisms by which states may sub mi t S I P r evisio n s to ass ume c e rta i n contro l of thei r T ransport R ule participation when it proposed the T ransport Rul e o n Ju ly 6 , 2010 , in s t ea d of p roviding these p roposed mechanisms a full six months lat e r i n th e process. The EP A has d emo n strated a repeated pattern of forcing states to accelerat e SIP and rule d eve l o pm e nt processes to meet unrealistic deadlines created by the E PA ' s own failures t o a c t i n a tim e ly manner
. The EP A should eith er delay th e S IP s ubmitt al d ea dlin e for stat es seeki ng to assume control of allocations and/or the trading program for th e 2 014 co ntrol p erio d , or the E P A should eliminate this disingenuous option

. Request for Date Clarification In d es c rib ing t he approachfor allowing abbreviated SIP revisions pro viding for sta te a llo c a ti on of allowances in the proposed Transport Rule trading program s, the E P

A spe c if i es that states would i ssue final allocations by January 1 " of the ye a r tw o y e a rs before the year of the control periodfor which the allowances w ou l d b e distri buted ," for the NO x ozone season program ( 7 6 F R 11 1 9)

. Howe ver, Ta ble IV of t he NOD A , " Deadlines for Submission of Abbre v iated or F ull SIPs an d U

nit-By- U n it A llocations or Auction Results andfor Recordation ; O zone Season T

rading Programs," specifies May 1 of the year two years befo re the year of th e c on tro l p eri odfor submi ttal of such allocations. The TCEQ requests clarification of the subm itta l date for state allocations and further requests clarification of SIP revision submittal d ue d at es assoc i ated with stat e allocation s
. The EP A stated that it needed approximat e ly six m o nth s t o review a SIP revision prior to allocations being issued; if January 1 is the correc t d at e f o r fin al issuan ce of al l ocations for the NO x ozone season program, would SIP revisio n s i de ntif y in g th is a l location methodo l ogy be due the July ist prior to the allocation? If so, the TCE Q again n o t es th at the 2014 contro l period is not realistically available for s t ate al l ocati o n
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