SIP Section 185 Fees
The Federal Clean Air Act Amendments (FCAA) Section 185 require each state implementation plan (SIP) for severe or extreme ozone nonattainment areas to include a penalty fee on major stationary sources of volatile organic compounds (VOC) located in the area. The fee is imposed if the area fails to attain the ozone National Ambient Air Quality Standard (NAAQS) by the applicable attainment date. FCAA §182(f) extends this fee to emissions of nitrogen oxides (NOx).
The FCAA requires imposition of the fee each calendar year after the attainment date until the area is redesignated as an attainment area for ozone.
The TCEQ proposed rules under 30 Texas Administrative Code, Chapter 101, Subchapter B, to implement the FCAA fee requirement in 2009 but did not adopt them. Instead, the commission requested a Section 185 Termination Determination of the fee program in May 2010. In July 2011, the United States Environmental Protection Agency (EPA) issued a letter to the TCEQ stating they would not process the termination determination.
A final notice of finding of failure to attain the NAAQS was signed by the EPA on June 7, 2012, for the HGB one-hour nonattainment area.
The TCEQ re-initiated the proposed rules under 30 Texas Administrative Code Chapter 101, Subchapter B to implement the FCAA fee requirement. The commission approved publication of the proposed rules at the agenda on November 14, 2012 and published the rules in the Texas Register on November 30, 2012. Comments received from the United States Environmental Protection Agency are now available and remaining comments are posted below.
Comments received on the 2012 Proposed Failure to Attain Fee (Section 185) Rule
Comments were solicited on the 2012 proposed rule language to implement the FCAA Section 185 rule. The deadline for receipt of written comments was January 14, 2013.
- Air Alliance Houston with Environmental Integrity Project, Environmental Defense Fund, and Sierra Club (pdf
Section 185 Termination Determination Request
The EPA issued a memorandum on January 5, 2010, entitled “Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS.” This guidance stated that if the EPA determined that the one-hour nonattainment area is attaining either the one-hour or the 1997 eight-hour ozone NAAQS, based on permanent and enforceable emissions reductions, the area would no longer be obligated to submit a fee. The eight-hour ozone design value in 2009 for the HGB area, based on 2007 through 2009 monitoring data, met this requirement.
In May 2010, the TCEQ submitted a Section 185 Termination Determination submittal to EPA for consideration. The submittal requested a determination that a Section 185 fee program was not required for the HGB one-hour ozone nonattainment area because the area met the requirements in the EPA memo.
On July 25, 2011, the EPA issued a letter to TCEQ stating they were unable to propose approving the Section 185 fee termination determination request. The EPA stated that its January 5, 2010, guidance was vacated by the District of Columbia Circuit Court of Appeals on July 1, 2011. Also, the area had not attained the one-hour standard.
Meeting on Section 185 Termination Determination Request
Staff presented material on the Termination Determination request on April 28, 2010 in Houston.
The commission held two public hearings on 2009 proposed rule language to implement the FCAA Failure to Attain (Section 185) rule
- January 5, 2010, Austin, TX Austin Attendees (PDF)
- January 6, 2010, Houston TX Houston Attendees (PDF)
Two public meetings were held (March 4 and June 12) in 2009 in Houston, Texas. Issues and possible options for Section 185 fee alternatives were discussed in March and an overview of proposed language was presented at the June 12 meeting. Minutes and written comments received from these public meetings are listed below.
Minutes of Past Public Meetings
Comments on Section 185 Termination Determination Request
Comments on the TCEQ's request to terminate the Section 185 fee requirement for the HGB one-hour ozone standard.
Comments received on the 2009 Proposed Failure to Attain Fee (Section 185) Rule
Comments were solicited on the 2009 proposed rule language to implement the FCAA Section 185 rule. The deadline for receipt of written comments was January 25.2010.
Comments Received on Section 185 Issues from Public Meetings
- Galveston-Houston Association for Smog Prevention(GHASP) and Mothers For Clan Air(MfCA) 3-18-2009 (PDF)
- Letter from the United States Environmental Protection Agency to Texas Commission on Environmental Quality regarding Section 185 Termination Determination July 25, 2011.
- The Texas Commission on Environmental Quality Request For Section 185 Fee Program Termination Determination for Houston Galveston Brazoria (HGB) One-Hour Ozone Standard Nonattainment Area, May 14, 2010 (PDF)
- Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the One-hour Ozone NAAQS US EPA January 5, 2010 (PDF)
- Submittal of Section 185 Fee State Implementation Revision (SIP) or an Alternative Equivalent Program for the One-Hour Ozone National Ambient Air Quality Standard (NAAQS), February 10, 2009(PDF)
- Guidance on Establishing Emissions Baselines under Section 185 of the Clean Air Act (CAA) for Severe and Extreme Ozone Nonattainment Areas that Fail to Attain the 1-hour Ozone NAAQS by their Attainment, March 21, 2009(PDF)
For more information or to suggest topics for future meetings, please e-mail email@example.com referencing Section 185 Fees in the subject line.