Upcoming Updates to Texas Nonattainment Reclassification

At this year’s Air and Waste Management Association (AWMA) Gulf Coast Chapter (GCC) Annual Conference, several folks from ALL4’s Houston Office had the opportunity to hear from Donna Huff of the Air Programs Division at the Texas Commission on Environmental Quality (TCEQ).  During her presentations, she discussed the historical changes in Texas attainment areas and how the State Implementation Plan (SIP) has changed as a result.  This ties back to an article that Roy Rakiewicz of ALL4 wrote on The Complexities of a Texas SIP Revision last year.  The big takeaway from Ms. Huff’s lecture, was that the Houston-Galveston-Brazoria (HGB) and the Dallas-Fort Worth (DFW) ozone nonattainment areas did not attain the 2008 Eight-Hour Ozone National Ambient Air Quality Standard (NAAQS) of 0.075 ppm by the deadline of July 20, 2018.  This conclusion leads to the bigger issue: nonattainment area reclassification.

With this announcement, HGB and DFW are poised to transition from a moderate to serious ozone nonattainment classification.  That means that the exceptions to triggering the “de minimis threshold test (netting)” provided by Rule 30 Texas Administrative Code (TAC) §116.150(c) will also change, which could be problematic.  For projects in a moderate or marginal nonattainment area, if the emissions increases (without considering decreases) of ozone precursors (i.e., NO_X and VOC) from a project, are less than 40 tons per year, the de-minimis threshold (netting) test is not required per Rule 30 §116.150(c)(2).  However, for projects in serious or severe nonattainment areas, the threshold for project increases, without considering decreases, to avoid the de minimis threshold test, drops to 5 tons per year.

This change is critical in moderate or marginal nonattainment areas that are being reclassified to serious as pending projects that may have avoided netting could now be forced into a netting exercise resulting in an unintended major modification (and the associated consequences, such as longer permitting timelines).  This change is slotted to take place this “spring” (2019) and pending permits that are not issued final by the time the attainment redesignation goes into effect will have to take into consideration the significantly lower threshold (i.e., 5 tons vs. 40 tons) specified at Rule §116.150(c)(1).  If you are already in the middle of a project that could be impacted by this change, our best advice is to get in contact with the TCEQ and discuss your timeline.  Furthermore, this places incredible strain on permitting projects going forward in Texas.  If you have planned projects on the horizon in a serious or severe ozone nonattainment area, you may need to reevaluate your air permitting strategy.  The change in nonattainment status would be expected to be implemented 30 days after U.S. EPA publishes a final notice in the Federal Register.

While things may look bleak at the moment, there’s one glimmer of hope that could change everything.  TCEQ concluded that a number of wildfires burning in the Western U.S. in July and August may have influenced four of the ozone exceedances in 2018.  It was determined that events occurring on the days of July 27-28 and August 23-24 could be considered exceptional events because of the plume that covered much of the central U.S. during this time frame.  TCEQ has determined the exceptional event demonstrations, if confirmed, would remove flagged data from design values at the Bayland Park and Aldine monitors.  If the U.S. EPA agrees, the removal of these values would then show the HGB area as in attainment for 2018 of the 2008 Eight-Hour Ozone NAAQS, thereby sparing the HGB area from a future serious ozone nonattainment designation.

We have reached out to the TCEQ on this matter to get a status update on the request. TCEQ indicated that they submitted the Initial Notification letter to the U.S. EPA on March 26, 2019 describing the events and the initial conclusions based on preliminary analysis.  The TCEQ anticipates preliminary feedback within 60 days, per U.S. EPA Region 6 procedures and processes.  If both agencies agree there is sufficient information to proceed with an exceptional event demonstration, an opportunity for public comment would be available as soon as this summer (2019).  The designation of exceptional events and the removal of the associated data from the affected site data will not prevent immediate reclassification, but improve the current trajectory of these counties for future designation of HGB.

In the interim, the regulated community would do well to remain in contact with the TCEQ on existing applications and potential threats to the timeline of any permits.  If you have a pending permit application in the HGB or DFW areas that could be affected by the designation change, consider the implications this will have on the permitting process, or we can assist you by walking through the additional steps you may need to take.  Please contact Roy Rakiewicz (610) 933-5246, extension 127 or rrakiewicz@all4inc.com or contact us if you have any questions.