Enclosure

EPA Response to Petition for Reconsideration from Look Local Wise County Task Force

By letter dated July 17, 2012, the Look Local Wise County Task Force petitioned the EPA to reconsider the final area designation for Wise County in th e Dallas-Fort Worth (DFW) area. For the reasons discussed below, the EPA is denying the Petition. For the sake of clarity, we have organized this response according to the struct ure of the July 17, 2012 petition.

I. Emissions and Emissions-Related Data

Issue: Petitioner asserts that emission and meteorol ogical factors did not include revised data submitted by the Texas Commission on Environmental Qualit y (TCEQ). Additionally, TCEQ modeling submitted during the comment period did not in clude such revised data and lik ely overestimated emissions of volatile organic compounds (VOC).

Response: This issue was raised during the commen t period and we did address it in our Technical Support Document (TSD) and our Response to Co mments (RTC) document. Thus it is not an appropriate basis for reconsideration. See our final DFW TSD titled, “Dallas-Fort Worth, Texas Final Area Designations for the 2008 Ozone National Ambi ent Air Quality Standards” and “Responses to Comments Document (RTC) on the State and Trib al Designation Recommendations for the 2008 Ozone National Ambient Air Quality Standards ( NAAQS)” in the docket for this action.

As stated in our RTC document, we considered revised VOC emissions data submitted by TCEQ for the 2008 National Emissions Inventory in October, 2 011 as part of our fi nal designation decision. See RTC pages 55-56 (the EPA “reviewed the updated emissions data reported by the TCEQ”). In addition, the state and TCEQ provided new VOC a nd nitrogen oxide (NOx) emissions inventory data to the EPA in subsequent comment letters to the EPA. TCEQ submitted a letter to the EPA dated January 11, 2012.

The State of Texas submitted a letter on Febr uary 29, 2012, that included TCEQ’s January 11, 2012, comment letter. The February 29, 2012 letter al so included source apport ionment modeling (SAM) results and indicated that the modeling was not c onducted using the new lower VOC emission estimates that TCEQ had submitted to the EPA in October, 2011. The February 29, 2012 letter indicates: “[t]he TCEQ did not use the updated oil and gas sector pneumatic emissions submitted October 2011 to the

EPA for the Periodic Emissions I nventory in this modeling and source apportionment analysis, therefore, the VOC emissions from this source cate gory are likely overestimated in the modeling” (page 10 of the referenced TCEQ letter). We took into acc ount these updates and concer ns in our final decision

as indicated in the Final TSD and RTC. In our RTC, we explain that notwithstanding the new emission inventory data provided by Texas and TCEQ during the comment peri od, that “even with the reduced 2009 VOC emissions data, the emissions from Wise Count y still contribute to measur ed violations of the 2008 ozone NAAQS at monitors in neighboring counties.” See page 56 of the RTC.

Specifically, we considered this new information in our evaluation of SAM resu lts as discussed in the Hood and Wise County evaluations on page 20 of the TSD. We indicated in the RTC and other supporting materials that DFW is a NOx-limited area and VOC reductions have not shown significant benefit in past modeling conducted by TCEQ. Furtherm ore, we recognized that the VOC emissions that are potentially overestimated in the SAM modeling ar e from oil and gas operat ions, and that these VOC emissions “are relatively nonreactive, ” i.e., they are less likely to result in ozone formation than VOCs that are more reactive. As a result, we concluded the potential impact of the new reported VOC emissionlevels on our interpretation of the SAM results fo r Wise, Hood and Matagorda Counties, would be negligible. 1

Issue: Petitioner claims that be cause of Wise County’s small populat ion and vehicle miles traveled (VMT), it is unexpected that these types of emissions would have any significant contribution to ozone

formation.

Response: This issue was raised during the comment period and we did address it in our TSD and our RTC document. Thus it is not an appropriate basis for reconsideration. Petitioner raised the issue over the use of population and VMT data as indicators for determining “contribution” during the public comment period and we did address those comments in the record, as de tailed below. While we acknowledged that Wise County’s p opulation and VMT are smaller in co mparison to that of other parts of the DFW nonattainment area, 2 we explain in our record that em issions from the area and distance from the violating monitors were two of the compel ling factors for determini ng “contribution” of Wise County. The total emissions from Wise County are si gnificant and rank compar atively high against the

emissions from other counties in the area. The 2 008 EI of all Wise County sources (with revisions submitted by Texas) lists the County’s emissions as 11,911 tons per year (tpy) for NOx and 17,609 tpy for VOC (TSD, table 3). 3 Wise County’s population and VMT da ta indicated that Wise County’s relatively high total emissions derive more from poi nt and area sources associated with oil and gas production activities in the county. La stly, the close proximity of Wi se County’s comparatively high emissions to violating monitors provided furthe r support that the county s hould be included in the nonattainment area (TSD, page 23).

II. Meteorological Analysis

Issue: Petitioner claims that Wise County is downwind and unlikely to contribute to high ozone values. The DFW area emissions are sufficient to produce hi gh ozone days, without considering contributions from Wise County. Wise County population, VMT and oil and gas activities are not expected to contribute significantly to ozone formation in the DFW area.

Response: This issue could have been raised duri ng the public comment period and other parties did

raise similar issues that we addre ssed in our TSDs and our RTC document. Thus it is not an appropriate basis for reconsideration. The EPA acknowledges th at Wise County is often downwind of the DFW area. However, as discussed in our TSDs and in th e RTC document, general wind patterns over an entire season can be misleading, and are not as instructiv e as a more targeted, day-specific analysis of wind/transport patterns usi ng tools such as HYSPLIT. Such analysis allows for developing a more

1 DFW Final TSD, pages 6-8; Houston Final TSD, pages 5-7; RTC pages 52-56, “EPA has since reviewed the updated emissions data reported by the TCEQ and notes that the revised numbers do not affect the ranking of the counties for VOC emissions. EPA’s analysis indicates that even with the reduced 2009 VOC emissions data, the emissions from Wise County

still contribute to measured violations of the 2008 ozone NA AQS at monitors in neighboring counties. In making our final decision, we considered the reduced emissions and the reduction in drilling activity since 2009.” Governor Perry’s comment letter dated February 29, 2012, pages 17-21, also referred to other TCEQ documents that further support that DFW area is a NOx limited regime and changes to VOC leve ls do not result in much impact in ozone levels: TCEQ 2011 DFW 1997 8-hour Ozone Attainment Demonstration SIP – “APPENDIX E: Protocol for the Eight-Hour Ozone Modeling of the Dallas-Fort Worth Area,” and “APPENDIX D: Conceptual Model For The DFW Attainment Demonstration SIP Revision For The 1997 Eight-Hour Ozone Standard.”

2 See the final DFW TSD, which includes an evaluation of populatio n data and traffic data for the 19 counties in the DFW CSA (TSD, pages 9-14). The TSD included data for Wise County and the DFW CSA (TSD, tables 6, 8 and 10).

3 Table 3 shows emissions of NOx and VOC (expressed in tpy) for violating and nearby counties that we considered for inclusion in the DFW area. The VOC emissions in Table 3 include revisions for Hood and Wise Counties submitted by TCEQ during the comment period.detailed understanding of the exact wind/transport even ts that occur on days wh en high ozone levels are

monitored. 4

We note that, based on past research by TCEQ and the EPA, light winds with weak frontal passages and

conversion zones are a common meteor ological condition that often leads to high ambient ozone levels in the DFW area. (Final TSD page 14.) Our evalua tion of the HYSPLIT figures (Final TSD pages 28- 31) and the individual HYSPLIT mode ling files indicates that light a nd variable winds occurred during some of the highest monitored ozone days and that some of these days included emissions transport patterns from Wise County to the sites of the monito red exceedances. We also note that a review of the individual trajectory file s shows that several of the days duri ng which trajectories passed through Wise County were also days that made up the 1st to 4th hi ghest monitored values (which are the values used in establishing the Design Value) at the Eagle Mo untain Lake and Keller mon itors. These individual trajectory files were included in the supporting materials for th e EPA’s preliminary and final designations. 5

The Source Apportionment M odeling (Final TSD pages 15-20) indicat es that for the limited number of days modeled (modeling did not cover a full ozone s eason for the DFW area) there are several occasions in which emissions from Wise County are transpor ted to the nearby Eagle Mountain Lake and Keller monitoring sites (and other DFW area monitors) and c ontribute to the ozone exceedance levels. We note that this modeling incorporates all ozone precursor emissions from Wise County, including area and

mobile source emissions and oil and gas activities. Moreover, as noted in our previous response the total emissions from Wise County are significant and ra nk comparatively high against the emissions from

other counties in the area. As we previously indicated in our final Federal Register notice and in our TSDs and RTC, Section 107(d)(1) of the Clean Ai r Act (CAA) requires all areas to be designated nonattainment if they do not meet the standard or if they contribute to ambient air quality in a nearby

area that does not meet the standard. While emissi ons from the nine counties in the DFW 1997 ozone nonattainment area may be capable of generating oz one exceedances without contribution from Wise County emissions, we have determined that Wise C ounty emissions do contribute to exceedance levels in the nearby DFW area. See Catawba County, North Carolina v. EPA , 571 F.3d 20, 39 (D.C. Cir. 2009) (“Catawba”) (“Given that the statute uses the word ‘contribute’ and that a contribution may simply exacerbate a problem rather than cause it, we see no reason why the stat ute precludes EPA from determining that a county’s additi on of PM2.5 into the atmosphere is significant even though a nearby county’s nonattainment problem wo uld persist in its absence.”)

III. Opportunity to Comment

Issue: Petitioner claims that the ci tizens of Wise County were not pr ovided with suffi cient review of information submitted by Wise County and TCEQ, thus denying them with an opportunity to interact with state, local and industry representatives an d other stakeholders rega rding the designations. Additionally, Petitioner claims the EPA has not shared its data and justification for designating Wise County as nonattainment, and provided no rebuttal process for its conclusion.

Response: This issue relates to an opportunity to comment on information submitted to the EPA during the comment period and the EPA’s ev aluation of that information in the final rulemaking, including the final TSD. As a general matter, agencies are not re quired to provide an additional opportunity for public comment on material supporting a fi nal rule, such as responses to comments or on information

4 Final TSD pages 14-15, and RTC page 58-61.

5 These data files were added to the electronic docket on January 24, 2012. The docket for this action is identified as EPAHQ-OAR-2008-0476 at www.regulations.gov.supporting a response to a comment. Such an appr oach would result in an unworkable endless rulemaking process. See Catawba , 571 F.3d at 50-51 (In rejecting a claim by New York that it should have been allowed additional input into the EPA’s d ecision to rely on a different monitor for evaluating contribution for the final designation th an it did for the intended designa tion the court noted that such an ongoing exchange with the States is inconsistent with the CAA and that “Congress imposed deadlines on EPA and thus clearly envisioned an end to the designation process.”) See also International

Fabricare Institute v. EPA , 972 F.2d 384, 399 (D.C. Cir. 1992) (notice and comment is not intended to result in “interminable back-and-forth”) and Community Nutrition Institute v. Block , 749 F.2d 50, 58 (D.C. Cir. 1984) (agency is not requ ired to provide additional opportuni ty to comment on its response to comments). This is particularly true when the material does not substantively change the proposed action of the agency or does not significantly change the basis for the Agency’s decision. With regard to the designation process, there is a dditional reason that an additional opportunity for public comment is not warranted. For designations, s ection 107(d) of the Clean Air Act (CAA) sets forth a detailed and specific process between the EPA and the states. This provision provides: (i) th at Governors of states

make the initial recommendations to the EPA for de signations and boundaries; and (ii) that the EPA provide the states with 120 days notice of any intended modifications to the state recommendation prior to finalizing the designation. The 120- day notification process is for the purpose of providing “such State with an opportunity to demonstrate why any proposed modification is inappropriate.” The CAA does not expressly provide a role for any other entity (including local governments) and, moreover, expressly waives the notice and public comment proce ss of the Administrative Procedure Act for initial designations for new or revised NAAQS.

Although no public comment period is required, the EP A opted to provide such a comment period for the 2012 ozone designations. On December 20, 2011 (76 FR 78872), the EPA published a notice in the Federal Register inviting public comment from interested parties other than states and tribes on the

letters sent to states with th e intended designations. Th e notice provided that any comments should be received on or before January 19, 20 12, but, in response to requests from several parties, including Wise County, the EPA extended the public comment period to February 3, 2012. ( See 77 FR 2678, January 19, 2012). In addition, i f an interested party requested to meet with the EPA, we provided such an opportunity.

We further disagree that the EPA ha s not shared its justifi cation for including Wise County as part of the designated nonattainment area. By its initial recommendation letter of March 10, 2009, the State of Texas recommended that the EPA designate the follo wing counties as nonattainment for the DFW Area: Collin, Dallas, Denton, Ellis, Hood, Johnson, Kaufman, Park er, Rockwall and Tarrant. In a second letter of October 31, 2011, Texas revised is initial reco mmendation for the DFW area to exclude Hood County

based on an assessment of 2008-2010 air quality data. On December 9, 2011, the EPA notified Texas of its preliminary response to recommendations from Texa s indicating that it intended to modify the state's recommended area designations an d boundaries for the DFW to incl ude Hood and Wise Counties as nonattainment. The initial TSD provided an analysis to support the EPA’s intended designations. ( See “Texas Area Designations for the 2008 Ozone Nati onal Ambient Air Quality Standards,” December 11, 2011). We asked the state to submit any additional information by February 29, 2012, for the EPA to

consider before it made fi nal decisions on designations.

Based on comments received from several parties, including the State of Texas, and additional information received during the public comment process for the designations, the EPA ultimately excluded Hood County and included Wise County in the DFW nonattainment area, as detailed in the TSD accompanying the final designations rule that was published in the Federal Register on April 30,2012, and (“Dallas-Fort Worth, Texa s Final Area Designations for the 2008 Ozone National Ambient Air Quality Standards”). 6

IV. Economic Harm

Issue: Petitioner claims that a nonattainme nt designation would impose significant economic ramifications on citizens and businesses in Wise County.

Response: This issue could have been raised during the comment period and in fact was raised by other parties, such as the State of Texas. Thus it is not an appropriate basi s for reconsideration. As stated in the RTC, “under section 107(d) of th e CAA, the EPA is required to designate as nonattainment an area that is violating a new or revised national ambient air quality standard or that contributes to a nearby violation. . . . In determining wh ether an area should be designated nonattainment, the EPA does not consider economic impacts because that is not rele vant for determining whether an included area is violating the NAAQS or is a near by area that is contri buting to a violation as provided under CAA section 107(d).” See RTC pages 14-15. As such, the criteria fo r designations in Section 107 of the CAA do not provide for the EPA to consider economic effects. See RTC, pages 52-53. As we stated in our RTC document, we intend for the implementation rulemaking for the 2008 ozone NAAQS to address the minimum planning and emissions control obligations for areas designated nonattainment. As the EPA considers the required elements of implementati on for the 2008 ozone NAAQS, it is our goal to propose approaches that provide flexibility and opportunity fo r efficiency to the exte nt such approaches are consistent with the CAA and will not jeopardize expedi tious attainment of the public health and welfare goals of the CAA. To the extent the CAA does no t mandate specific control measures, states may consider economic concerns in development of thei r state implementation plan s to address air quality. ( See RTC pages 14-15, 52-53, and 61). Finally, we note that DFW counties designated nonattainment, such as Dallas, Denton, Collin, Parker, Tarrant, etc., have continued to grow despite their nonattainment designations ( see TSD page 10, Table 6).

6 Regarding the data used to inform our decision and the jus tification for the decision, we refer the petitioner to our TSD (for air quality, emissions, and meteorological data) and RTC in the docket for this rulemaking, which provide our reasoning for the inclusion of Wise County. Our decisions concerning nonattainment designations for the DFW area are based on technical facts pertaining to these specific counties, information supplied by the TCEQ, and the EPA’s independent evaluation as explained in the TSD. [RTC page 52, see , TSD pages 1-31]