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SIP Section 185 Fees

Information regarding rulemaking and implementation related to Section 185 of the Federal Clean Air Act (FCAA).


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 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.

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 Houston-Galveston-Brazoria (HGB) one-hour ozone nonattainment area did not attain the revoked one-hour ozone NAAQS by its attainment data of November 15, 2007. 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 on November 14, 2012 and published the rules in the Texas Register on November 30, 2012. Comments were received from the United States Environmental Protection Agency and other interested parties and are posted below. These rules were adopted by the TCEQ on May 22, 2013.


Fee Abeyance

On March 7, 2014, the TCEQ submitted a “clean data” notice to the United States Environmental Protection Agency (EPA). This notice stated that three consecutive years of quality-assured data with a design value for 2011-2013 did not exceed the one-hour ozone National Ambient Air Quality Standards (NAAQS) for the Houston-Galveston-Brazoria (HGB) one-hour ozone nonattainment area. As a result, the Section 185 fee collection is placed in abeyance and will not be due until further notice by the TCEQ. At this time, the Section 185 fee will not be invoiced by the agency. All other Section 185 Program requirements remain in effect.

HGB One-hour Ozone NAAQS Redesignation

On July 1, 2015, the commission adopted the HGB Redesignation Substitute SIP Revision for the One-Hour Ozone NAAQS (Non-Rule Project No. 2014-011-SIP-NR) (pdf). The SIP revision satisfies the anti-backsliding obligations for the revoked one-hour ozone NAAQS and ensures that the substance of the redesignation requirements is met for the HGB area. This redesignation substitute takes the place of a redesignation request and maintenance plan, which the EPA would require for a standard that has not been revoked.

On October 20, 2015, the EPA approved the Redesignation Substitute Report for the Houston-Galveston-Brazoria One-hour Ozone Standard Nonattainment Area (80FR 63429). By its approval, the EPA states that this area has attained the revoked one-hour ozone NAAQS due to permanent and enforceable emission reductions, and that it will maintain that NAAQS for ten years from the date of the EPA's approval of this demonstration. No Section 185 fee is due for the HGB one-hour ozone nonattainment area.

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Contact Information

For more information or to suggest topics for future meetings, please e-mail referencing Section 185 Fees in the subject line.

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