Overview of January 16 TCEQ Agenda Meeting
The TCC, the Texas Association of Business (TAB) and the Texas Oil & Gas Association (TxOGA) are working together on the enforcement review process at the Texas Commission on Environmental Quality (TCEQ). At yesterday's TCEQ Agenda meeting, one of the items posted for consideration was proposed amendments to the TCEQ's compliance history rule (30 TAC §§ 60.1-60.3). The proposed rulemaking would have made changes to the compliance history components and the formula; redefined repeat violator; changed the average by default classification; added a requirement that prior to a sale of a regulated entity, the current owner shall provide compliance history information to the prospective buyer, and the buyer shall also seek out compliance history information; added language that allows a regulated entity access to its compliance history information prior to publication on the agency's Web site; and revised the appeal of classification language to allow all average performers the opportunity to appeal.
For the past few weeks, TCC, TAB and TxOGA have led an organized effort to express concerns to agency staff and the Commissioners about the proposed amendments to 30 TAC Chapter 60. While the proposed amendments had many positive aspects, we had concerns that the proposed rule did not go far enough to address TCC members' concerns regarding double counting of components for determining compliance history and escalating penalties, adequately defining and ascertaining the "complexity" of a site, and narrowly defining the terms "repeat violator" and "major violation."
At the January 16th Agenda meeting, the Commissioners unanimously agreed to postpone further discussion on the proposed compliance history rule until they also could consider the proposed amendments to the Penalty Policy. Currently, the Commissioners are scheduled to hear the proposed amendments to the Penalty Policy at the February 29 Agenda meeting. This postponement of the proposed compliance history rule will allow TCC, TAB and TxOGA to further work with TCEQ staff and the Commissioners on the issues outlined above, in addition to the agency's proposed changes to the Penalty Policy. We look forward to continuing this effort. In the meantime, if you have any questions, please contact Mike McMullen at (512) 646-6404 or mmcmullen@txchemcouncil.org.
The U.S. Supreme Court Denies NPRA's Petition to Review Section 185 Fee Case
On January 14, the U.S. Supreme Court denied a petition filed by the National Petroleum & Refiners Association (NPRA), seeking review of the D.C. Circuit Court's decision in South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. Cir. 2006), which vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard. Specifically, the D.C. Circuit Court held that EPA violated the anti-backsliding provisions of the federal Clean Air Act (CAA) when EPA failed to enforce CAA § 185 fee penalties, which are triggered when a nonattainment area classified as either "severe" or "extreme" fails to attain the specified ozone standard.
Under the 1-hour ozone standard, the Houston-Galveston-Brazoria (HGB) nonattainment area was classified as "severe-17" (which had an attainment date of November 15, 2007), and HGB did not meet the 1-hour ozone standard before EPA transitioned to the 8-hour ozone standard (under which, HGB was initially classified as "moderate"). Accordingly, the effect of the U.S. Supreme Court's denial of NPRA's petition is that the D.C. Circuit's ruling now stands. It is estimated that this ruling and the corresponding fee that EPA will now impose on the HGB nonattainment region for failure to meet the 1-hour standard could cost the major stationary sources in the HGB nonattainment approximately $100 - 150 million annually until the 1-hour standard is met (calculated under the CAA as $5,000-per-ton imposed on major stationary pollution sources for every ton of nitrogen oxide or volatile organic compounds emitted above 80% of the permitted operating level, or baseline. This number will be adjusted for inflation).
TCC is working with the American Chemistry Council (ACC) and EPA to influence and ascertain the implementation of the D.C. Circuit Court's ruling. If you have any questions on this issue, please contact Christina Wisdom at (512)646-6403 or wisdom@txchemcouncil.org.
EPA Publishes Notice on Governor Perry's Reclassification Request of HGB
December 31, 2007, the EPA published a notice on Governor Perry's reclassification request (from "moderate" to "severe") for the HBG nonattainment area.
Besides taking comments on the Governor's request, EPA is also taking comments on a range of dates from December 15, 2008 to April 15, 2010 for TCEQ to submit a revised State Implementation Plan addressing the "severe" ozone nonattainment area requirements of the Clean Air Act (CAA).
Under the CAA, EPA must grant the Governor's request for reclassification. TCC will be working with the Air Conservation Committee to submit comments pertaining to the regulatory requirements that accompany the reclassification request.
To view the notice, visit: http://www.epa.gov/fedrgstr/EPA-AIR/2007/December/Day-31/a25402.htm
For additional information, please contact Mike McMullen at (512) 646-6404 or mmcmullen@txchemcouncil.org.