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The EPA’s final rule approving the Houston SIP is not arbitrary, capricious or otherwise not in accordance with law. Click here for the full text of this decision FACTS:Pursuant to the Clean Air Act, Texas was to design a plan to comply with the statute’s “one-hour ozone standard” for the Houston-Galveston area by 2007. Using a photochemical grid computer model approved by the EPA, supported by a “weight of evidence” analysis, Texas adopted an “attainment demonstration state implementation plan.” After a public comment period, the Environmental Protection Agency determined that the proposed plan was as stringent or more stringent than any other in the country and that it would attain the necessary goals by 2007. It approved the plan. Two separate groups now challenge the EPA’s determination, both saying the decision was arbitrary, capricious and not in accordance with law. One group, made up of Brazoria County and an entity called the BCCA Appeal Group, say the plan is too stringent but yet still will not meet its stated goals by 2007. The other group, made up primarily by environmental and conservation groups, say the plan is too weak. HOLDING:Petitions for review denied. The court first addresses procedural matters. It concludes that BCCA has standing to challenge the EPA’s because ultimately the focus is on the plan’s compliance with minimum standards, not its stringency. BCCA suffers an injury in the cost of compliance; the injury is fairly traceable to the EPA’s decision; and its injury would be redressed by a verdict in its favor. The court also concludes that BCCA did not waive its arguments. Contrary to the EPA’s depiction of the comments BCCA submitted to the EPA, the court finds BCCA’s position was sufficiently clarified. On the other hand, Brazoria County did waive its arguments regarding speed limit reductions, vehicle inspection/maintenance provision and law equipment operating restrictions because the county raises them for the first time in this petition. The court then reviews the details of the plan, much of which is based on scientific analysis. The court upholds the EPA’s decision on all aspects, finding the agency’s approval to be reasonably based on the evidence before it. Among the court’s findings: 2. The EPA did not err in withholding action on certain provisions of the plan, namely the discrete emission reduction credits portion and the mobile discrete emission reduction credits. The postponement of action did not make the plan more stringent than the state intended. 3. The EPA’a approval of the plan’s “enforceable commitment” to adopt additional controls on a fixed schedule is consistent with the Clean Air Act. The act is flexible with respect to state implementation plans and allows “enforceable emission limitations and other control measures, means, or techniques . . . as well as schedules and timetables for compliance.” The court approves of EPA’s interpretation of that provision in 42 U.S.C. �7410(a)(2)(A) to mean that enforceable emission limitations and other control measures do not necessarily need to generate reductions in the full amount needed to attain, but rather to allow limited use of other “means” and “techniques,” such as enforceable commitments, so long as the entire package of measures and rules provides for attainment. 4. The EPA properly approved the motor vehicle emissions budget, establishing maximum levels of on-road emissions, that when considered with emissions from all other sources, still provides for attainment of the ozone standards by 2007 for Houston. 5. The EPA’s approval of the emissions reduction plan for Texas is supported by the record. 6. The EPA reasonably interpreted the Clean Air Act as allowing emission reductions from the voluntary mobile emission reduction program to be considered in reaching attainment. And the record supports EPA’s approval of the program in Houston. “The state provided supporting documentation for each voluntary measure that included a description of the measure, the identified or predicted participants, the basis for the quantified emission reductions, and commitments to monitor, assess, and report emission reductions for the voluntary measures,” the court finds. 7. The EPA’s findings on whether “reasonably available control measures” in Houston were in accordance with Clean Air Act and supported by the record. The EPA was entitled to consider whether these measures were economically feasible and would advance attainment goals. OPINION:Davis and Restani, JJ.; Davis, Benavides and Restani, JJ.

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