SIP Section 185 Fees
The Federal Clean Air Act Amendments (FCAA) require each state implementation plan (SIP) for ozone nonattainment areas classified as severe or extreme to impose a penalty fee upon major stationary sources of volatile organic compounds (VOC) located in the area if the area fails to attain the ozone National Ambient Air Quality Standard (NAAQS) by the applicable attainment date. FCAA Section 182(f) extends to emissions of nitrogen oxides (NOx) all SIP requirements that apply to VOC emissions. Imposition of the fee is mandated by the FCAA for each calendar year after the attainment date until the area is redesignated as an attainment area for ozone.
The United States Environmental Protection Agency (EPA) memorandum issued on January 5, 2010, entitled “Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS” states that if the EPA determines 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 2009 eight-hour ozone design value for the Houston-Galveston-Brazoria (HGB) area, based on 2007 through 2009 monitoring data, meets this requirement. In May 2010, the Texas Commission on Environmental Quality (TCEQ) submitted a Section 185 Termination Determination submittal for consideration. The submittal would request the EPA to determine that a Section 185 fee program is not needed for the HGB one-hour ozone nonattainment area because the latest (2007 through 2009) ambient monitoring data indicated measured attainment of the 1997 eight-hour ozone standard, and attainment was due to permanent and enforceable emission reductions.
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 the January 5, 2010, Section 185 Guidance was vacated by the District of Columbia Circuit Court of Appeals on July 1, 2011. Also, the area has not attained the one-hour standard and, although the HGB area has made tremendous progress in reducing ozone, preliminary data for 2011 indicates that the Houston area is not monitoring attainment of the 1997 eight-hour ozone NAAQS.
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Solicitation of Comments and Meeting on Section 185 Termination Determination Request
All comments were due by the close of business April 30, 2010.
A meeting was held to discuss this request on:
- April 28, 2010, at 1:00 p.m.
Houston-Galveston Area Council
3555 Timmons, Room A
Houston, TX
Comments on Proposed Failure to Attain (Section 185) Rule Language
The commission extended the deadline for receipt of written comments to January 25, 2010.
Comments were solicited on the 2009 proposed rule language to implement the FCAA Failure to Attain (Section 185) rule. All comments are listed below.
Public Hearings
The commission held two public hearings on this proposal:
- January 5, 2010, at 2:00 p.m.
TCEQ Campus, Bldg E, Room 201S,
12100 Park 35 Circle
Austin, TX
- January 6, 2010, at 2:00 p.m.
Houston-Galveston Area Council
3555 Timmons, Room A.
Houston, TX
Meetings
The first meeting was held in Houston on March 4, 2009. Topics discussed included an overview of Section 185 Fee and possible options for alternatives to a fee-based program. The meeting invited input on baseline determinations for fee calculation and on issues relating to alternatives to a fee-based program.
March 4, 2009 2:00 p.m. Houston-Galveston Area Council
3555 Timmons, Room A
Houston
A second meeting was held in Houston on June 12, 2009. An overview of draft rule language was presented and stakeholder input was sought on issues related to rulemaking the penalty fee. An update was provided on legislative activity impacting the proposed Section 185 fees. A summary was presented on issues from the Clean Air Act Advisory Committee (CAAAC) Section 185 Task Force.
June 12, 2009 9:30 a.m. Houston-Galveston Area Council
3555 Timmons, Room A
Houston
Minutes and Agendas of Past Meetings
Documents
Comments Received on the 2009 Proposed Subchapter B. Failure to Attain Fee Rule
Comments Received on SIP Section 185 Issues
Contact Information
For more information or to suggest topics for future meetings, please e-mail 185rule@tceq.texas.gov referencing Section 185 Fees in the subject line.
