ALL4’s Texas 2023 Look Ahead

The new year is upon us, and ALL4 is looking forward to the changes and challenges it will bring. Whether the concerns are related to air, water, waste, or health and safety, we are here to assist and find solutions for your challenges. Our Practices include Air Quality, Environmental, Health, and Safety (EHS), Digital Solutions (DS), and Environmental, Social, and Governance (ESG). ALL4 has published our Annual Look Ahead, and we encourage you to read it. The EHS regulatory environment in Texas is also quite active and has many unique aspects. Some upcoming changes that might affect Texas facilities in 2023 include the following.

• New Form PI-1 General Application for New Source Review Permits
• Public Participation Activities for Applications
• Texas to Issue Renewed TPDES General Permit for Construction Activities
• PM_2.5 Annual NAAQS Proposed to be Lowered
• Ozone Non-Attainment Area Reclassification
• 88^th Texas Legislative Session
• Reconsideration of the 2008 Fugitive Emissions Rule
• Ethylene Oxide Emissions
• What’s New With ALL4?

New Form PI-1 General Application for New Source Review Permits

The Texas Commission on Environmental Quality (TCEQ) has announced that there will be a new version, Version 6.0, of the Form PI-1 General Application. This form will be required for all New Source Review (NSR) applications that are submitted after January 15, 2023. NSR applications submitted on or before January 15, 2023 can use either Version 5.0 or Version 6.0. The updates to Version 6.0 are not as significant as those made to previous versions, but there are still a few noteworthy updates, including the following.

• Updated attainment status for Dallas/Fort Worth (DFW), Houston, Galveston, and Brazoria (HGB), and Bexar county.
• Removal of the requirement to provide longitude and latitude.
• Updated wording on the Best Available Control Technology (BACT) and Monitoring tabs.
• Updates to ‘behind-the-scenes’ calculations.
• Updates to the Federal Applicability information for Greenhouse Gas (GHG) emissions.

For more information or for help assessing how these changes will affect your facility, please contact Rachel Henn at rhenn@all4inc.com.

Public Participation and the TCEQ Public Involvement Plan (PIP)

In response to the Title VI complaint filed against the agency in 2019, TCEQ has been making updates to their public notice requirements, including updates to the public participation plan and language access plan. Early in 2022, we saw an update requiring alternative language notice requirements and alternative language public participation in the public notice process from postings to public forms, and the new requirement of a Plain Language Summary form for all applications subject to Chapter 39.

TCEQ now requires the new Public Involvement Plan (PIP) (TCEQ Form 20960) for all multimedia applications (not just air) and applicable standard permit registrations (that require public notice) that meet all three of the following criteria:

1. new applications and/or activities requiring notice;
2. have significant public interest; and
3. are within the following geographical regions: Urban metroplexes, West Texas, Panhandle, and the Texas/Mexico border.

The form must be part of the initial submission, and the purpose of this plan is to allow facilities the opportunity to discuss their public outreach and involvement plans for projects being submitted. The first section of the form is the preliminary screening, and if you screen out, then you do not need to submit the form. All three of the criteria must be selected in Section 2 to proceed to Section 3.

There are no changes to the public notice process or any new delays anticipated with the introduction of this plan. The purpose of the PIP is to provide facilities with the opportunity to start preparing for any potential public concern or concern. With public participation and scrutiny increasing as new permit applications are evaluated, the PIP provides facilities with a head start on planning their responses. For any additional questions on the PIP, including information it requires, contact Rawan El-Afifi at relafifi@all4inc.com.

Texas to Issue Renewed TPDES General Permit for Construction Activities

The TCEQ’s Pollutant Discharge Elimination System (TPDES) is currently in the final stages of renewing General Permit TXR150000 for stormwater discharges from construction activities (permit), which expires March 5, 2023. A draft was issued on September 16, 2022. The permit is required for stormwater discharges to surface waters of the United States from construction sites where an operator disturbs an acre or more of ground. It also requires the implementation of a Construction Stormwater Pollution Prevention Plan (SWPPP). Primary operators that disturb five or more acres of ground are required to submit a Notice of Intent (NOI).

Once the new permit is issued, those required to submit an NOI will have to do so electronically using TCEQ’s online State of Texas Environmental Electronic Reporting System (STEERS), unless a waiver is obtained. For those with existing permits for active construction sites, the submittal must take place within 90 days of the new permit issuance. Electronic submittals are authorized upon confirmation of receipt. Paper submittals must be made at least seven days before operations commence, and provisional coverage will start 48 hours after the submittal is postmarked. A facility must have a SWPPP in place before applying.

Significant changes proposed for the new permit include:

• revised definitions;
• a decrease in provisional coverage from seven days to 48 hours for paper applications;
• a requirement that Delegation of Signatories forms for large construction site operators be submitted electronically;
• a requirement that Delegation of Signatories forms for small construction site operators be submitted by paper;
• allowing for the suspension of inspections in adverse conditions;
• a requirement that dewatering must be managed by controls to prevent sedimentation and erosion and that the controls must be inspected during dewatering;
• requirements for good housekeeping measures related to wastes;
• requirements to document when it is not feasible to utilize outlet structures that withdraw water from the surface of basins and impoundments; and
• technical and administrative clarifications.

Failure to obtain a permit for regulated construction activities is a violation of the Clean Water Act and could lead to enforcement actions, including fines of up to $25,000 per day for each violation and imprisonment for up to one year. Penalties increase for willful and repeat violations.

ALL4 is available to assist with your stormwater permitting or compliance needs. If you have questions about how the draft permit could affect your facility, please reach out to Adam Czaplinski at aczaplinski@all4inc.com.

PM_2.5 Annual NAAQS Proposed to be Lowered

After completing the White House Office of Management and Budget (OMB) review on December 27, 2022, the much anticipated proposal to lower the annual particulate matter of less than 2.5 microns (PM_2.5) National Ambient Air Quality Standard (NAAQS) was officially signed on January 6, 2023. U.S. EPA is proposing to lower the standard from the current 12 micrograms per meter cubed (µg/m³) to a level between 9 µg/m³ and 10 µg/m³. U.S. EPA is taking comments on the proposed rule for 60 days upon publication in the Federal Register, which is anticipated in the coming weeks.

As you plan out your 2023, here are some things to consider to put yourself in the best position once the new standard is finalized later this year.

1. Check to see what the current PM_2.5 design value is in your area to understand if there is the potential for your area to be classified as a PM_2.5 nonattainment area and/or how much “headroom” is available for PM_2.5 NAAQS air quality modeling demonstrations.
2. Review your current PM_2.5 emissions inventory and consider refining overly conservative emissions factors or utilizing particulate matter (PM) or particulate matter less than 10 microns (PM₁₀) as a surrogate for PM_2.5.
3. Considering emissions measurements to refine your emissions inventory.
4. Conduct PM₅ air dispersion modeling to assess your status with the PM_2.5 NAAQS and to identify areas for improvement through stack modifications and/or equipment and process changes.
5. Consider an ambient PM_2.5 monitoring program to establish site specific background concentrations and or to be utilized in lieu of a required air dispersion modeling demonstration.
6. If it’s anticipated that you’ll end up in or near a PM_2.5 nonattainment area, consider projects that can reduce PM_2.5 emissions. PM_2.5 emissions reductions could be used for future projects at your facility or have the potential to be worth a lot of money as emissions reduction credits (ERCs) to other facilities in your area.

ALL4 will continue to monitor the status of NAAQS-related changes and how the changes will impact the regulated community. In the meantime, feel free to revisit our December 2022 webinar recording “Updates to the PM2.5 and Lead NAAQS” and read our latest article about PM_2.5. For more information or for help assessing how these changes will affect your facility, please contact Dan Dix at ddix@all4inc.com.

Ozone Non-Attainment Area Reclassification

On November 7, 2022, the EPA issued a final rule that changed the nonattainment status for six areas, including two areas in Texas. The Dallas-Fort Worth (DFW) and Houston-Galveston-Brazoria (HGB) areas failed to meet the 2008 ozone NAAQS by the attainment date and were reclassified as severe nonattainment. Both DFW and HGB areas have until July 20, 2027, to demonstrate compliance.

The nonattainment classification has a direct impact on state air permitting programs and compliance for each facility. Under the CAA, the major source threshold for a facility located in a serious nonattainment area is 50 tons per year for Nitrogen Oxides (NO_X) and Volatile Organic Compounds (VOC). However, the major source threshold in a severe nonattainment area is 25 tons per year for NO_X and VOC. Therefore, any facility located within the severe nonattainment area with the potential to emit greater than 25 tons per year of NO_X or VOC will be required to obtain a Title V operating permit. Any new facility with potential emissions greater than or equal to 25 tons per year of NO_X or VOC or any modification with an increase greater than or equal to 25 tons per year of NO_X or VOC will have to go through nonattainment NSR. For such facilities that would be new to a Title V operating permit, compliance activities will become more rigorous with respect to recordkeeping and reporting requirements.

Another area that will need to be carefully examined would be emissions netting for new projects at an existing Title V facility. If your facility will be amending an existing NSR permit or starting a new NSR project, the trigger for netting will be reduced and the ratio for emissions offsets will become less favorable. For severe nonattainment classification the offset ratio is 1.3 to 1. With more stringent offset ratios, permitting activities will become more difficult on the regulated community. For more information or for help assessing how these changes will affect your facility, please contact Meghan Skemp at mskemp@all4inc.com.

88th Legislative Session

It’s hard to believe that it’s time for the next Texas Legislative session already. The 87th Texas Legislative Session kicked off on January 10, 2023 in Austin and runs through May 29, 2023. Past sessions have laid the groundwork for TCEQ’s at-risk construction for minor NSR amendments, concrete batch plant permit, expedited air permitting program enhancements, and Texas Emissions Reduction Plan (TERP), among others.

What will this session bring from an environmental perspective? It’s too early to tell, however, multiple bills with environmental implications have already been introduced, and it’s anticipated many more will be. Currently, bills cover topics including environmental justice, contested case hearings, ESG, and, not surprisingly, a few related to concrete/aggregate operations. Additionally, we anticipate a TCEQ Sunset Bill. Stay tuned as the session progresses.

Want to refresh your memory on the legislative process in Texas as it pertains to companies operating with environmental permits and pursuant to environmental regulations? Refer to ALL4’s article Texas Legislative Session: The Process and Implications for Texas Facilities with Permits. For more information on this topic, please contact Wes Hill at whill@all4inc.com.

Reconsideration of the 2008 Fugitive Emissions Rule – What Does it Mean for Your Next Project?

In October 2022, the U.S. EPA proposed to fully repeal the 2008 Fugitive Emissions Rule that has been stayed, in some form, since September 2009. The U.S. EPA also proposed to remove an exemption for modifications that would be considered major solely due to the inclusion of fugitive emissions. As a result of the proposed changes, all existing major stationary sources would be required to include fugitive emissions in determining whether a physical or operational change constitutes a ‘‘major modification,’’ requiring a permit under the Prevention of Significant Deterioration (PSD) or Nonattainment New Source Review (NNSR) programs. Importantly, fugitive emissions may continue to be excluded when determining whether a facility is a new major stationary source if the facility is not one of the 28 listed categories required to include fugitive emissions in 40 CFR 52.21(b)(1)(iii). As such, this reconsideration affects only non-listed, existing major stationary sources. U.S. EPA believes a limited number of sources have invoked the fugitive exemption but does not address whether sources that did invoke the exemption would be required to retroactively review major modification determinations.

For more detail on this proposal and the challenges around fugitive emissions, see our article here or contact Chris Ward at cward@all4inc.com. If your facility is a non-listed major stationary source, you will want to consider how this rule change would impact permitting projects you are planning.

Ethylene Oxide Look Ahead

In 2020, the U.S. EPA revised the National Emission Standards for Hazardous Air Pollutants (NESHAP): Miscellaneous Organic Chemical Manufacturing (MON) based on their Risk and Technology Review, and the update included revisions as a result of the risk review to specifically address ethylene oxide (EtO) emissions from storage tanks, process vents, and equipment leaks as well as additional monitoring and operational requirements for flares that control ethylene oxide emissions. As part of the risk assessment in the 2020 MON final rule updates, the U.S. EPA calculated the cancer risks associated with EtO based on the 2016 Integrated Risk Information System (IRIS) value described below and found that the Maximum Available Control Technology (MACT) requirements did not lead to an acceptable level of risk for this pollutant. This analysis resulted in control requirements for EtO emissions from process vents, storage tanks, and other equipment in EtO service. The final rule received multiple petitions for reconsideration, one issue being the EtO risk value.

The risks associated with ethylene oxide have been the subject of agency evaluation/scrutiny over the past few years. U.S. EPA’s 2016 review of EtO resulted in its reclassification from a possible carcinogen to a probable carcinogen, with an updated IRIS risk value resulting in 30 times higher cancer potency than previously thought. EtO is a colorless, flammable gas made from petroleum or natural gas, and is a chemical intermediate in the manufacturing of multiple products (ethylene glycol, plastics, adhesives, pharmaceuticals, etc.). It is also a widely used sterilizing agent. Five of the top emitting industries associated with EtO emissions are located in Texas. As a result, TCEQ conducted their own risk evaluation of the chemical to confirm the U.S. EPA’s conclusions. Both the U.S. EPA and TCEQ developed exposure estimates based on the same study of nearly 17,500 workers in 13 sterilizing facilities, with little exposure to chemicals other than EtO. However, TCEQ’s evaluation of the dose-response curve of the study conflicted with EPA’s findings. TCEQ argued that EPA’s findings were highly conservative, and based on their review, they proposed increasing EtO’s long-term risk value to 2.4 parts per billion (ppb). In contrast, the U.S. EPA concluded that any long-term concentration of EtO above 0.01 ppb was deemed harmful and would result in probable cancer risk. In December 2022, U.S. EPA rejected the TCEQ’s assessment and deemed their risk review, and therefore the 2020 MON EtO updates, acceptable.

EtO-emitting facilities subject to MON will continue to be required to adhere to the standards set in the 2020 MON rule. This will result in evaluations of control technologies associated with storage tanks, process vents, uncontrolled fugitives, and flares at these facilities. In 2023, we will see whether the TCEQ and other industry-level associations will continue to argue the risk associated with EtO, and what additional findings may arise in order to provide additional comment/analysis on this topic. For more information on this topic, please contact Rawan El-Afifi at relafifi@all4inc.com.

What’s New With ALL4?

ALL4 continued to grow in 2022, celebrating our 20^th anniversary and crossing the 200-employee threshold amongst our four practices: Air Quality, Environmental Health and Safety (EHS), Digital Solutions, and Environmental Social and Governance (ESG) and Sustainability. Each of our offices (Pennsylvania, Georgia, Kentucky, Texas, California, North Carolina, and Washington D.C.) grew, and we added teammates across the U.S. and Canada in remote locations, increasing our geographic footprint.

Our Gulf Coast presence has continued to increase in staff and clients. We’re proud of the challenges we helped our clients tackle in 2022 and look forward to the difference we can make in 2023 as there is no doubt that the regulatory environment is becoming more complex by the day. If you have questions related to any of the topics above and/or know of talented consulting professionals looking for employment at a growth-oriented company with outstanding leadership and work culture, please reach out ALL4’s Southeastern Regional Director, Chuck Doyno, at cdoyno@all4inc.com.