4 The record articles

The Complexities of a Texas SIP Revision

Posted: October 5th, 2018

Authors: Roy R. 

The Texas Commission on Environmental Quality (TCEQ) approved the proposal of a State Implementation Plan (SIP) Revision for the Houston-Galveston-Brazoria (HGB) ozone nonattainment area.  The proposed SIP revision requests that the U.S. EPA redesignate the area to attainment for both the one-hour and 1997 eight-hour ozone National Ambient Air Quality Standard (NAAQS) and approve a maintenance plan through 2032.  TCEQ opened the public comment period on September 7, 2018 and closed it on October 8, 2018.  At face value, the proposed SIP revision would not appear to be controversial as SIP revisions are approved by TCEQ regularly (U.S. EPA approval of proposed SIP revisions, not so regularly).  While the proposal of a SIP revision related to the ozone NAAQS is not typically newsworthy, the background and circumstances around this proposed SIP revision are a little more complex than normal.

The situation in the HGB area illustrates both the technical and regulatory challenges facing regulatory agencies and the regulated community with regard to a heavily industrialized area, historical ozone NAAQS designations, evolving air quality standards, ambient air monitoring data, anti-backsliding provisions, regulatory revisions, court cases, and interested third party non-governmental organizations (NGO).  In this scenario, the HGB area is currently classified by U.S. EPA as a severe ozone nonattainment area for the one-hour ozone NAAQS of 0.12 ppm (revoked) and the 1997 eight-hour ozone NAAQS of 0.08 ppm (revoked).  However, ozone monitoring data indicate that the HGB area is attaining both the one-hour and eight-hour ozone NAAQS since at least 2014.  Due to anti-backsliding provisions, the severe nonattainment designation persists for HGB even though ambient air monitoring data support an attainment designation.  A severe nonattainment designation for an area impacts how new facilities and modifications at existing facilities are permitted under the Texas nonattainment new source review (NNSR) regulations.  The impacts include lower major source and significant thresholds, lowest achievable emission rate (LAER) requirements, and higher emission offset ratio requirements.

Using a provision of the federal 2008 ozone standard SIP requirements rule, the TCEQ in 2014 and 2015 submitted “Redesignation Substitute Reports” to redesignate the HGB area for the one-hour and 1997 eight-hour standards, respectively, to formally redesignate the area and to remove anti-backsliding provisions for the revoked standards.  Both submittals were approved by U.S. EPA, leaving the HGB area with a moderate ozone nonattainment designation under the 2008 eight-hour ozone NAAQS.  The moderate ozone nonattainment designation meant that facilities in the HGB area had a bit more certainty and a little NNSR permitting breathing room with regard to new construction and modifications until earlier this year.

Recall that the provision for the HGB designation change and lifting of anti-backsliding provisions was based on the 2008 ozone standard SIP requirements rule, which was challenged by the California South Coast Air Quality Management District.  A decision by the United States Court of Appeals for the District of Columbia Circuit vacated parts of the federal final 2008 ozone standard SIP requirements rule, including the parts of the rule that the TCEQ relied on for the 2014 and 2015 redesignation requests to U.S. EPA.  The vacatur ruling, as it stands, extends regulatory uncertainty to the regulated community in the HGB area related to air quality permitting requirements, including whether the severe NNSR permitting requirements are back in place or not.  U.S. EPA, to date, has not provided SIP planning guidance to states to reflect the decision of the Court.  To top things off, several regional and national NGOs have challenged the HGB redesignation substitutes based on the Court’s decision.

To address the ongoing uncertainty faced by the regulated community and as a hedge position, TCEQ developed the proposed formal redesignation request and maintenance plan SIP revision for the HGB area for the revoked one-hour and 1997 eight-hour ozone NAAQS.  TCEQ acknowledges that the U.S. EPA has not historically formally redesignated areas for NAAQS that have been revoked but speculates that if the Court’s South Coast decision stands, U.S. EPA would act upon a formal redesignation request.  One last complicating note – the U.S. EPA is expected to designate the HBG area as a severe ozone nonattainment area for the 2008 ozone NAAQS based on current monitoring data.

In the interim, regulated stakeholders would do well to lobby TCEQ for swift approval of its SIP proposal and then comment positively when, and the optimum word is when, U.S. EPA proposes action on TCEQ’s proposal.  Please contact me at (610) 933-5246, extension 127 or  rrakiewicz@all4inc.com if you have any questions.


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