TCEQ National Comments Log - Comments Relating to Air Issues
Official statements of the TCEQ's position regarding national policies and activities relating to air issues.
See also: 2003-2009: TCEQ National Comments Relating to Air Issues
DATE SUBMITTED: 12/4/19
SHORT TITLE: TCEQ Comments to EPA for Revisions to Control of Air Pollution by Permits for New Construction or Modification
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Samuel Short
DATE SUBMITTED: 12/2/19
SHORT TITLE: Integrated Science Assessment for Ozone and Related Photochemical Oxidants
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACT: Allison Jenkins
SUMMARY OF COMMENTS:
TCEQ Summary 
New information in the draft ozone ISA reaffirms EPA’s previous conclusions on respiratory effects and is generally consistent with information in the previous ISA. The causality determinations in the 2019 draft ozone ISA were downgraded for cardiovascular effects and mortality for short-term exposure to ozone. For the first time, short- and long-term exposure to ozone and metabolic effects are considered by the EPA to be suggestive of, but not sufficient to infer, a causal relationship.
The TCEQ’s specific comments include those on exposure, biological plausibility, causality, uncertainty, and suggested methodological improvements.
DATE SUBMITTED: 11/12/19
SHORT TITLE: Review of the National Ambient Air Quality Standards for Particulate Matter
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology, Risk Assessment, and Research
STAFF CONTACT: Allison Jenkins
SUMMARY OF COMMENTS:
TCEQ Summary
On September 11, 2019, the United States Environmental Protection Agency (EPA) published in the Federal Register (84 FR 47944) notice of the availability and public comment period for the External Review Draft of the Policy Assessment for Particulate Matter. The Policy Assessment (PA) draws from the scientific evidence assessed in the draft Integrated Science Assessment (ISA) for Particulate Matter (PM), together with the results of air quality and other quantitative analyses, as available. When final, the PA is intended to “bridge the gap” between the scientific and technical information available in the review and the judgments required of the Administrator in determining whether to retain or revise the existing PM national ambient air quality standard (NAAQS). The EPA last revised the primary PM NAAQS in 2012 based on the available scientific literature supporting that standard.
DATE SUBMITTED: 9/20/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vince Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
The comment letter addresses the following topics:
- The TCEQ supports the EPA’s proposed error correction and proposal to revise the 2010 one-hour SO2 NAAQS Round 2 designations for three Texas areas, including portions of Freestone and Anderson Counties, Rusk and Panola Counties, and Titus County, from nonattainment to unclassifiable.
- The TCEQ understands that the attainment/unclassifiable designation for the remaining portion of Titus County in Round 3 was made erroneously and that the area is to be designated in Round 4 by December 31, 2020.
DATE SUBMITTED: 7/24/19
SHORT TITLE: Dallas-Fort Worth Area Redesignation and Maintenance Plan for Revoked Ozone National Ambient Air Quality Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The following significant substantive comments are made in the comment letter:
- The EPA should redesignate the DFW area to attainment for the 1979 one-hour ozone and 1997 eight-hour ozone NAAQS.
- The EPA’s past failure to provide for a legally valid mechanism for termination of anti-backsliding obligations for revoked NAAQS has created uncertainty. The EPA’s reluctance to redesignate areas attaining a revoked NAAQS and terminate associated anti-backsliding requirements potentially creates severe economic consequences for the public, regulated industry, and states.
- The EPA continues to have authority to redesignate areas from “nonattainment” to “attainment” post-revocation of a NAAQS. However, if the EPA determines that it does not have authority to redesignate areas to attainment post-revocation, the EPA clearly has authority to determine that an area has met all redesignation requirements necessary for termination of anti-backsliding requirements.
- The EPA has authority to, and should, revise the designation listings in 40 CFR Part 81 to better reflect the status of applicable anti-backsliding obligations for areas.
The letter also includes comments of a more technical nature related to Motor Vehicle Emission Budgets.
DATE SUBMITTED: 7/8/19
SHORT TITLE: Control of Air Pollution from Motor Vehicles
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ supports the EPA’s approval of the SIP revision and corresponding removal of the associated state rules from the SIP.
DATE SUBMITTED: 6/28/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Janis Hudson
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
TCEQ Comments on Supplemental Notice
- TCEQ agrees with and supports EPA’s policy position that affirmative defense SIP provisions for malfunctions are allowed and that it is not appropriate to extend the D. C. Circuit’s reasoning in NRDC v. EPA to the affirmative defense provisions in the Texas SIP.
- TCEQ agrees with Region 6 that the Luminant decision upheld EPA’s authority to interpret the FCAA to allow affirmative defense provisions in the Texas SIP.
- TCEQ agrees with Region 6 that withdrawal of the finding of inadequacy and the corresponding SIP Call will leave in place the EPA’s 2010 approval of the TCEQ’s affirmative defense as part of the Texas SIP.
- The proposal is consistent with EPA’s Regional Consistency Rules, which allows Region 6 to adopt a policy that varies from national policy.
DATE SUBMITTED: 6/17/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
Attachment One
The following significant substantive comments are made in the comment letter:
- The EPA should redesignate the HGB area to attainment for the 1979 one-hour ozone and 1997 eight-hour ozone NAAQS.
- The TCEQ supports the EPA’s proposed finding that the HGB alternative §185 penalty fee program is equivalent and approvable. The EPA is obligated to ensure that states are relieved of §185 penalty fee obligation in a timely manner.
- The EPA’s past failure to provide for a legally valid mechanism for termination of anti-backsliding obligations for revoked NAAQS has created uncertainty. The EPA’s reluctance to redesignate areas attaining a revoked NAAQS and terminate associated anti-backsliding requirements potentially creates severe economic consequences for the public, regulated industry, and states.
- The EPA continues to have authority to redesignate areas from “nonattainment” to “attainment” post-revocation of a NAAQS. However, if the EPA determines that it does not have authority to redesignate areas to attainment post-revocation, the EPA clearly has authority to determine that an area has met all redesignation requirements necessary for termination of anti-backsliding requirements.
- The EPA has authority to, and should, revise the designation listings in 40 CFR Part 81 to better reflect the status of applicable anti-backsliding obligations for areas.
The letter also includes comments of a more technical nature related to Motor Vehicle Emission Budgets and minor errors in the notice’s tables and Technical Support Document.
DATE SUBMITTED: 6/5/19
SHORT TITLE: Revisions to Public Notice for Air Quality Permit Applications
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ agrees with the EPA's determination that the rule revisions under consideration for approval were developed in accordance with the CAA and the EPA’s regulations, policies, and guidance for new source review permitting. Therefore, the TCEQ supports the EPA’s proposed approval of these rule changes as a revision to the Texas SIP.
DATE SUBMITTED: 5/30/19
SHORT TITLE: Air Plan Approval: Infrastructure for the 2015 Ozone National Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Donna Huff/Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
The comment letter addresses the following topics:
- The TCEQ supports the EPA’s proposed full approval of the Texas 2015 Ozone NAAQS Infrastructure SIP.
- The TCEQ supports the EPA’s approval of the portion of the 2015 Ozone NAAQS Transport SIP revision pertaining to FCAA, §110(a)(2)(D)(i), prong 3, concerning prevention of significant deterioration. The TCEQ understands that prongs 1, 2, and 4 will be evaluated and addressed in a separate rulemaking.
DATE SUBMITTED: 5/28/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACT: Allison Jenkins
SUMMARY OF COMMENTS:
TCEQ Summary
The Texas Commission on Environmental Quality (TCEQ) appreciates the opportunity to respond to the United States Environmental Protection Agency’s (USEPA) request for public comments on their proposed amendments to the National Emission Standards for Hazardous Air Pollutants: Stationary Combustion Turbines Residual Risk and Technology Review. The TCEQ’s comments specifically address the USEPA’s estimation of facility-wide risks due to ethylene oxide.
The TCEQ comments that the USEPA unit risk factor (URF) for ethylene oxide is not scientifically justified. More specifically, use of a supra-linear dose-response must be strongly supported by biological or mechanistic data, which the USEPA has not done for ethylene oxide. Ethylene oxide is produced endogenously by the body at doses that are above those that would be generated from exposure to typical ambient concentrations of this chemical, or by exposure to USEPA’s acceptable air concentrations.
In their 2016 IRIS assessment, USEPA (2016) indicates that sublinearity is highly plausible in this endogenous range, which is completely contrary to USEPA’s use of an exceptionally high dose-response slope from the supra-linear model in this dose region where USEPA acknowledges that sublinearity is expected. The result is the estimation that unreasonably low air concentrations of 0.0001-0.01 ppb cause excess cancer risk in the range of 1E-06 to 1E-04. By comparison, continuous air concentrations of 0.56, 1.6, and 4.5 ppb correspond to the 5th percentile, median, and 95th percentile of the normal endogenous background concentrations in the unexposed general population (Table 4 of Kirman & Hays 2017).
As a scientifically reasonable alternative, the TCEQ is in the process of deriving a URF for ethylene oxide based on the same underlying data as is used by USEPA, but with a different modeling approach that will consider biological and mechanistic data for extrapolation down to environmental concentrations (e.g. endogenous levels). A public draft of the TCEQ’s assessment can be expected in a few short months for any who are interested in an ethylene oxide URF that is derived using a more biologically-plausible low-dose extrapolation method.
If there are any questions concerning the TCEQ’s comments, please contact Ms. Allison Jenkins, Toxicology Division, at 512-239-0656 or allison.jenkins@tceq.texas.gov. We look forward to working with EPA throughout this process.
DATE SUBMITTED: 4/26/19
SHORT TITLE: Notice of Proposed Air Plan Approval, Oklahoma: Regional Haze Five-Year Progress Report
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
- The Texas Commission on Environmental Quality (TCEQ) urges the EPA to take expeditious action on the remanded 2016 FIP for Texas regarding regional haze reasonable progress and repeal the FIP in its entirety. The EPA should also act on and approve Texas’ 2014 Regional Haze Five-Year Progress Report and finalize any action resulting from the additional comment period on the 2017 FIP for Texas regarding regional haze best available retrofit technology.
- The EPA erred in disapproving the consultation process between Texas and Oklahoma. The TCEQ urges the EPA to approve the Oklahoma-Texas consultation for the SIP revisions submitted for the first planning period and withdraw the previous determination that the Oklahoma-Texas consultation was not adequate.
DATE SUBMITTED: 4/26/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACT: Allision Jenkins
DATE SUBMITTED: 4/17/19
SHORT TITLE: National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: Amy Browning & Terry Salem
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
- Texas agrees with EPA’s finding that it is not appropriate and necessary to regulate coal- and oil-fired EGUs under section 112 of the Federal Clean Air Act (FCAA).
- Texas supports EPA’s use of actual benefits from regulating HAPs in its analysis and supports EPA’s decision to not consider ancillary co-benefits as part of the cost-benefit analysis.
- Texas agrees with the EPA that the existence and importance of the unquantified benefits of MATS are not enough to overcome the significant differences between the monetized benefits of HAP controls ($4 to $6 million annually) and the costs of compliance with the rule ($7.4 to $9 billion annually).
- Texas disagrees with EPA’s proposal to leave coal- and oil-fired EGUs listed under section 112, as well as the proposal to leave the MATS rule in place. In the absence of a legally sound appropriate and necessary finding, EPA lacks the necessary legal foundation to leave these sources listed.
DATE SUBMITTED: 3/18/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Laura Gibson
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
- The EPA is required to make a proper endangerment finding in accordance with Federal Clean Air Act (FCAA) section 111, based on GHG emissions from the relevant source category, and cannot rely on the previous FCAA section 202 finding as a rational basis to regulate GHG emissions under section 111.
- The EPA has not demonstrated that the standards have a significant benefit that outweighs the burdens of compliance or implementation.
- The EPA's proposed finding that partial CCS is not BSER for coal-fired steam generating units is appropriate.
- The EPA should not use the levelized cost of electricity (LCOE) as a comparative metric for determining economic feasibility across generation technologies.
- The EPA has neither the expertise nor the authority to determine which generation types are more appropriate for fuel diversity.
- The EPA should not consider government-subsidized projects when evaluating the feasibility of a particular control technology when the subsidy is specifically for that technology.
- The EPA should not establish geography-based standards for new coal-fired EGUs; the joint commenters recommend that any standards be constructed in a manner that provides consistency and certainty.
- The EPA should further investigate the effects of 40 CFR Part 60, Subpart TTTT limitations upon the operation of stationary simple cycle combustion aeroderivative turbines.
DATE SUBMITTED: 2/21/19
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
- Reclassification should be delayed allowing the EPA to work collaboratively with the TCEQ in reviewing air monitoring data from 2018 that would result in a 2018 design value that would attain the 2008 eight-hour ozone NAAQS.
- The TCEQ recommends an 18-month submittal deadline for all reasonably available control measures (RACM), including reasonably available control technology (RACT), necessary for demonstrating attainment for the HGB and DFW reclassified nonattainment areas.
- The TCEQ recommends that RACT state implementation plan submission deadlines precede RACT implementation deadlines.
- The TCEQ requests that the EPA expeditiously provide timely guidance for states regarding how to address the impact of background ozone on nonattainment areas.
DATE SUBMITTED: 12/17/18
SHORT TITLE: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
TCEQ's Monitoring Equivalency Tables
- The TCEQ supports the EPA's proposed approach of allowing certain state-based fugitive emission monitoring programs to be used as an alternative to the default fugitive emission monitoring requirements of the standards.
- The TCEQ supports the EPA's proposed finding that certain TCEQ fugitive emission monitoring programs are substantially equivalent to the default fugitive emission monitoring requirements in Subpart OOOOa, but notes that the EPA should include components at compressor stations within the scope of the EPA's proposed determination of equivalency.
- The TCEQ continues to support withdrawal of the Control Techniques Guidelines (CTG) for the Oil and Natural Gas Industry. At a minimum, the EPA should delay any state CTG submission requirements until finalization of the proposed NSPS revisions.
DATE SUBMITTED: 12/11/18
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The proposed SIP submittal deadline of 12 months from the effective date of the final reclassification notice will be challenging for states to meet considering the significant time, effort, and resources required to develop these SIP revisions concurrently, with increased SIP requirements under the serious classification, for both areas. The TCEQ recommends a submittal deadline of 18 months from the effective date of the final reclassification notice.
- The TCEQ disagrees with the proposed 12-month implementation deadline for all reasonably available control measures, including RACT, necessary for demonstrating attainment for the reclassified nonattainment areas, and recommends adjusting this deadline to allow affected entities time to comply with new rule requirements.
- The TCEQ disagrees with the proposed August 3, 2020 RACT implementation deadline for the DFW and HGB reclassified nonattainment areas and recommends adjusting this deadline to allow affected entities to comply with RACT no later than the attainment deadline of July 20, 2021.
- The TCEQ does not agree that FCAA, §182(i) clearly allows the EPA to adjust required SIP submittal deadlines in order to align deadlines that are applicable for different ozone NAAQS, nor has the EPA demonstrated that accelerating RACT deadlines for the 2008 ozone NAAQS is necessary or appropriate.
DATE SUBMITTED: 12/11/18
SHORT TITLE: Integrated Science Assessment for the NAAQS for Particulate Matter
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACT: Joseph “Kip” Haney/Theresa Hauser/Nnamdi Nnoli
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments
TCEQ's NERA Simulation
The TCEQ urges the EPA to use available systematic literature review techniques to make its review and integration process more transparent. The EPA should also more thoroughly evaluate exposure error, measurement error, and uncertainty and the impact they have on effect estimates within individual studies, as well as the EPA’s integrated assessment. The TCEQ disagrees with the EPA that sufficient and consistent scientific evidence is available to support many of its causal determinations in the ISA and suggests that subsequent drafts of the ISA more consistently apply the causal framework in the ISA Preamble. The TCEQ’s comments detail specific concerns regarding exposure, biological plausibility, causality, uncertainty, health effects, and suggested methodological improvements.
DATE SUBMITTED: 11/2/18
SHORT TITLE: Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Guy Hoffman/Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The Texas Commission on Environmental Quality supports the EPA’s approval of the Texas SIP revisions addressing the good neighbor and interstate transport requirements of the FCAA with respect to the 1997 eight-hour ozone NAAQS.
TCEQ agrees with the EPA in that the demonstration in the state’s SIP submittals is consistent with EPA’s conclusion regarding the Texas’s good neighbor obligation that emissions from Texas will not significantly contribute to nonattainment or interfere with maintenance of the 1997 eight-hour ozone NAAQS in any other state.
DATE SUBMITTED: 10/31/18
SHORT TITLE: Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
A. General Comments
- While the Texas Commission on Environmental Quality (TCEQ) supports some elements of the proposed revisions to the implementation rules and the proposed ACE rule, as discussed in these comments, the TCEQ maintains that any replacement to the CPP rule is premature while the EPA is reconsidering the FCAA, §111(b) rule in 40 Code of Federal Regulations (CFR), Part 60, Subpart TTTT.
B. Proposed ACE Rule
- The TCEQ supports the EPA’s proposed interpretation of BSER and determination of heat rate improvement (HRI) as the BSER for affected coal-fired EGUs.
- The proposed ACE rule imposes a substantial burden on regulatory agencies and permitting authorities responsible for implementation, and on regulated facilities.
- The TCEQ disagrees with the EPA’s estimated information collection request (ICR) cost impact to states derived from the expected recordkeeping and reporting burden associated with developing, implementing, and enforcing a state plan to limit CO2 emissions from existing EGUs. The EPA should reevaluate the costs to the states after engaging with state agencies to better determine the impacts.
- The complex nature of the work required to determine the standards of performance for each affected unit and develop a state plan may require that up to five years be allowed for state plans to be submitted.
- Some of the state plan content requirements proposed in 40 CFR §60.5740a(a)(4) should be removed because the requirements are unnecessary and place significant burden on the states.
- The state plan content requirements should not include open-ended provisions that allow the EPA to require states to submit any information the EPA deems necessary.
- The EPA should clarify whether the ACE rule applies to only coal-fired steam generating units, consistent with its BSER determination, or if it applies more generally to any fossil fuel-fired steam generating unit that otherwise meets the applicability criteria.
- The EPA should remove the phrase “and always has been” from the exemption in §60.5780a(a)(2).
- The EPA should clarify in the rule language at §60.5755a that the percentage ranges of HRI potential for the measures listed in Table 1 of the preamble are only provided to illustrate the EPA’s estimated potential for these measures and their inclusion as candidate technologies for the EPA’s BSER determination, but they are not the actual percentages that would apply to all affected sources.
- States may not have the authority to either require the shutdown of an affected source by a compliance deadline or to set a dual standard including an emission standard that is applicable only if an affected source does not shut down.
- The TCEQ supports and recommends allowing states to implement averaging and emissions trading programs as alternative compliance program options for affected coal-fired EGUs.
- Electrical grid reliability is a critical “other factor” that states should and can evaluate when considering remaining useful life of a unit and setting standards of performance. The EPA should explicitly state in the final rule that states can consider grid reliability.
C. Proposed Emission Guideline Implementation Rules
- The TCEQ supports the EPA’s proposed definition of “emission guideline” in 40 CFR §60.21a(e).
- The TCEQ supports the proposed increase in the time allowed for state plans to be developed and submitted to the EPA.
- The TCEQ supports the concept of allowing electronic submittals of state plans as an option but recommends that the EPA allow state plans to be submitted either electronically or in traditional paper format. If the EPA develops a new platform for accepting state plans electronically, the TCEQ recommends that the platform be flexible enough to accept a wide range of document formats.
- While the TCEQ supports establishing a completeness review of state plans and specifying administrative criteria for completeness, some of the EPA’s criteria for completeness are unnecessary and should be removed from the rule.
- The proposed provisions regarding compliance schedules longer than 24 months in 40 CFR §60.24a(d)(1) and the increments of progress steps proposed in §60.21a(h) are unnecessary and create practical implementation issues with state plan development.
- The EPA should provide additional clarification as to the deadlines and timing associated with proposed §60.27a(g)(1), relating to the EPA's determination of completeness for a submitted state plan.
- The TCEQ is concerned that in many cases, the 12 months provided by proposed 40 CFR §60.28a for states to submit a revised state plan will not be sufficient. In addition, it is not clear how the proposed 12-month deadline of §60.28a would work in cases where the EPA publishes notice of a revision to an emission guideline within the three-year state plan development period after publication of the original final emission guideline.
D. Proposed NSR Permitting Revisions
- The proposed addition of an hourly emission increase test for purposes of major NSR applicability would require state rulemaking to implement and would create an inconsistency with how major NSR applicability functions for non-EGU sources.
E. Regulatory Impact Analysis (RIA)
- The TCEQ appreciates the EPA’s inclusion of cut-points in the co-benefits analysis and the EPA’s sensitivity analysis. The TCEQ again encourages the EPA to further consider important methodological aspects of the underlying epidemiology literature and models and to quantify and clearly communicate uncertainty in the final analysis.
- The EPA should use the appropriate statistical concentration-response (C-R) function (relative risk, not hazard ratios) when calculating putative health effects from changes in pollutant concentrations.
- In order to minimize uncertainty, the EPA should revise its method for selecting epidemiology studies that are used to quantify health impacts in benefits calculations.
- Because of the well-documented regional heterogeneity of fine particulate matter (PM2.5), use of national effect estimates obscures associations from the original research.
- The study by Woodruff et al. (1997) is inappropriate for calculating PM2.5-induced mortality. The EPA should remove benefits calculated using this paper in its final benefits calculation.
- The TCEQ continues to question the necessity of calculating co-benefits.
- If the EPA continues to calculate co-benefits in RIAs, the TCEQ urges the EPA to develop a public accounting mechanism that ensures benefits are not double-counted among different rules.
DATE SUBMITTED: 10/22/18
SHORT TITLE: Adverse Effects of Strategies for Attainment and Maintenance of the National Ambient Air Quality Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS: TCEQ Summary TCEQ Comments Appendix A Appendix B
- The Texas Commission on Environmental Quality supports the EPA's and the Clean Air Scientific Advisory Committee's consideration of possible adverse impacts from strategies for attainment and maintenance of the NAAQS.
- In considering the adverse effects which may result from various strategies for attainment and maintenance of existing, new, or revised NAAQS, the EPA and the Clean Air Scientific Advisory Committee should consider the cost to state agencies associated with the development of state implementation plan (SIP) submittals.
- While evaluating exceptional events and international emissions are not per se "strategies for attainment and maintenance of the NAAQS," states are still required to expend significant resources evaluating these issues to determine which strategies will help attain and maintain compliance with the NAAQS, particularly as the EPA adopts more stringent NAAQS that approach background concentrations of some criteria pollutants.
- The costs of control strategies for emission reductions to attain and maintain compliance with the NAAQ S are significant but vary substantially depending on the specifics of the nonattainment area. As EPA adopts more stringent NAAQS, costs escalate especially if emissions reductions from areas outside the nonattainment area are needed, but the EPA has underestimated such costs in previous regulatory actions.
- Implementation of volatile organic compound (VOC) control techniques guidelines (CTG) as presumptive reasonably available control technology (RACT) under Federal Clean Air Act (FCAA), §182(b)(2) and §l 72(c)(l) can result in the unnecessary economic burden of imposing regulations that would not contribute to attainment or maintenance of the ozone NAAQS.
- Nonattainment designations trigger more stringent Nonattainment New Source Review (NNSR) permitting. More stringent NNSR permitting not only has direct economic impacts but can also discourage or disincentivize development and economic growth in nonattainment areas due to the increased costs and additional practical burdens such as delays in the permitting process.
- In addition to more stringent permitting requirements such as lowest achievable emission rate (LAER), sources in nonattainment areas must obtain offsets for increases in emissions for sources that exceed FCAA thresholds. Emission reduction credits (ERCs) are most commonly used to meet FCAA offset requirements and can result in significant additional costs to construction of new facilities or expansions at existing facilities.
- Economic impacts from a nonattainment designation for the NAAQS can be significant even when direct control strategies for attainment (e.g., RACT) are not required.
- Regulatory costs from attainment and maintenance of NAAQS can lead to adverse public health effects.
- Nitrogen oxides (NOx) dis-benefits can increase ozone concentrations in highly populated areas, possibly resulting in adverse health impacts.
In addition to the written comments, the submittal will include copies of the following economic impact studies.
DATE SUBMITTED: 10/22/18
SHORT TITLE: Regional Haze and Interstate Visibility Transport Federal Implementation Plan (FIP)
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The Texas Commission on Environmental Quality (TCEQ) supports the EPA’s affirmation that the October 2017 Regional Haze FIP satisfies Texas’ obligations for BART as well as interstate visibility transport for certain National Ambient Air Quality Standards (NAAQS).
- The TCEQ may replace the SO2 trading program FIP with a state-run trading program in the upcoming regional haze state implementation plan (SIP) revision for the second planning period. However, any commitments made in the 2017 Memorandum of Agreement (MOA) between the TCEQ and the EPA are no longer applicable.
- The EPA should eliminate the additional flexibility afforded to Coleto Creek’s owner in the Supplemental Allowance Pool of the SO2 trading program FIP because Coleto Creek is no longer an isolated unit in the program.
- The total number of allowances that can be allocated in a control period from the Supplemental Allowance Pool should remain the same as the EPA finalized in the October 2017 FIP.
- The TCEQ suggests retaining current program elements finalized in the October 2017 FIP, considering the imminent start of the program on January 1, 2019. Significant program changes may mean the EPA must propose another rule, potentially causing significant interruption in the planning operations of participating sources.
DATE SUBMITTED: 8/31/18
SHORT TITLE: Determination Regarding Good Neighbor Obligations for the 2008 Ozone National Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- While the Texas Commission on Environmental Quality (TCEQ) agrees that Texas should have no further obligations for transport under the 2008 ozone NAAQS, and the state should not need to submit a state implementation plan (SIP) establishing additional control requirements, the TCEQ believes that Texas meets its obligations for transport under the 2008 ozone NAAQS without inclusion in the CSAPR Update. The Texas electric generating unit (EGU) fleet has shown a general trend of decreased nitrogen oxides (NOX) emissions even without CSAPR in place. The TCEQ encourages the EPA to consider these changes to the Texas EGU sector and reevaluate the necessity of the CSAPR Ozone Season NOX program for Texas.
- The TCEQ appreciates the EPA updating its methods for forecasting emissions from the EGU and oil and gas industry sectors. Since the TCEQ’s response to the EPA’s January 2017 Notice of Data Availability (NODA), operational changes for specific coal-fired EGUs have been implemented, and the EPA should account for these as well as other potential changes in any future updates to the 2011 modeling platform.
- The TCEQ continues to disagree with the methodology used to identify “Maintenance Receptors” and subsequently the EPA’s definition of “Maintenance Receptors.” The TCEQ urges the EPA to consider alternative methods to identify maintenance monitors.
- The TCEQ appreciates the EPA’s efforts to address the land/water interface issue for coastal monitors. However, the TCEQ recommends modeling at fine grid resolutions (≤ 4 km) for evaluating the transport contributions at coastal monitors, instead of removing “water” cells from the future design value calculation.
DATE SUBMITTED: 8/27/18
SHORT TITLE: Call for Scientific and Policy-Relevant Information: Review of Nationa Ambient Air Quality Standards for Ozone
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The TCEQ provides information related to background ozone and scientific research that are relevant to the EPA’s forthcoming evaluation of the ozone literature.
DATE SUBMITTED: 8/9/18
SHORT TITLE: Review of the Proposed Rule for Primary National Ambient Air Quality Standards for Sulfur Oxides
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones
SUMMARY OF COMMENTS:
TCEQ Summary |
TCEQ Comments (11/15)
TCEQ Comments (12/16)
TCEQ Comments (2/17)
TCEQ Comments (9/17)
Although the TCEQ disagrees with certain decisions made in the EPA’s assessment process, as detailed in our comments on prior assessment documents, the TCEQ agrees that the current one-hour primary SO2 NAAQS offers sufficient protection of public health with an adequate margin of safety. As in all of its NAAQS evaluations, the TCEQ encourages future reviews to include more consideration of exposure measurement error and a more accurate reflection of all uncertainty, both through the use of uncertainty bounds in presentation of risk assessment results as well as the use of important caveats in its written assessment documents and announcements. In specific regard to the SO2 NAAQS, the EPA should also reconsider its key health endpoint (changes in specific airway resistance). Although the TCEQ agrees with the EPA’s reliance on data from controlled human exposure studies instead of epidemiological studies, there is very limited understanding of natural inter- and intra-individual variability in specific airway resistance and no scientific or medical justification for the noted changes being adverse. Further, the EPA should reconsider its use of a no-threshold model for bronchoconstriction, which is fundamentally understood to have a threshold.
DATE SUBMITTED: 8/2/18
SHORT TITLE: Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The Texas Commission on Environmental Quality (TCEQ) supports the EPA’s efforts at increasing consistency and transparency in how the EPA considers costs and benefits in the rulemaking process. If the EPA decides to implement this process through guidance rather than rulemaking, then the public should still be given an opportunity to comment on the guidance before it is finalized.
- There are numerous examples of inconsistency and lack of transparency in how the EPA determines and considers costs and benefits in the regulatory process.
- The EPA must begin providing complete and clear information on how the costs and benefits of regulations are determined if the EPA wants to meaningfully improve transparency in how it considers costs and benefits.
- The EPA needs to better quantify and take into consideration the total costs to state and local agencies.
- Stranded costs may need to be taken into consideration during some circumstances, such as regulatory actions where the EPA expects that facilities will cease operations rather than incur the costs of compliance with the regulation.
- The EPA should only consider domestic costs and benefits during regulatory actions unless there is specific congressional authorization to consider international impacts.
- The EPA should consider establishing a requirement or policy that extended comment periods will be provided on substantial or wide-reaching regulatory actions with significant costs or benefits to allow for more meaningful review of the EPA’s determination and evaluation of those costs and benefits. The EPA should establish deadlines for either approving or denying extension requests.
- The TCEQ supports the removal of co-benefits calculations in RIAs, as those benefits are achieved in other rules
- Because of the important role that benefits estimations play in policy decisions (Executive Order 12866) and in communicating benefits to the public, the EPA should either discontinue calculating benefits achieved at pollutant concentration ranges where the available concentration-response data are highly uncertain or provide some accounting mechanism, such as a weighting factor, to limit the bias of the current process.
- The EPA should attempt to strike a balance between standard term definitions and the need to accomplish important environmental goals.
DATE SUBMITTED: 7/26/18
SHORT TITLE: Reasonably Available Control Technology in the Houston-Galveston-Brazoria (HGB) Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ supports the EPA’s approval of the Texas SIP revisions addressing VOC and NOX RACT for the HGB moderate nonattainment area for the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS).
The TCEQ agrees with the EPA’s analysis and finding that:
- previous VOC and NOX RACT determinations made for the HGB area under the one-hour ozone NAAQS and the 1997 eight-hour ozone NAAQS continue to meet RACT for the 2008 eight-hour ozone NAAQS;
- the revisions to 30 Texas Administrative Code Chapter 115, Subchapter B, Division 1, Storage of VOC, meet both control techniques guidelines (CTG) and non-CTG major source VOC RACT for storage tanks in the HGB area; and
- the HGB area meets VOC and NOX RACT for the 2008 eight-hour ozone NAAQS.
DATE SUBMITTED: 6/28/18
SHORT TITLE: Attainment Demonstration for the Houston-Galveston-Brazoria (HGB) 2008 Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ supports the EPA’s proposed approval of the HGB AD SIP revision, and offers the following specific comments.
- The TCEQ agrees with the EPA’s analysis and proposed approval of the 2016 HGB AD SIP revision RACM analysis.
- The TCEQ agrees with the EPA’s finding that all elements of the photochemical modeling are acceptable.
- The TCEQ supports EPA’s holistic assessment of TCEQ’s modeling and technical analysis in determining that the AD is approvable. The TCEQ fully agrees with the EPA’s conclusion that, “The combination of the modeling and the Weight of Evidence indicate that recent emission levels are consistent with attainment of the standard and demonstrate attainment by the attainment date.” (83 FR 24454)
DATE SUBMITTED: 6/4/18
SHORT TITLE: Attainment Demonstration for the Dallas/Fort Worth 2008 Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer, Guy Hoffman
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ supports the EPA’s proposed approval of the DFW AD SIP revision, and offers the following specific comments.
- The TCEQ agrees with the EPA’s analysis and proposed approval of the 2016 DFW AD SIP revision RACM analysis.
- The TCEQ agrees with the EPA’s conclusion that no potential volatile organic compound (VOC) control measures met the criteria to be RACM; however, the TCEQ’s RACM analysis did not estimate a VOC emissions threshold that would be needed to advance attainment of the NAAQS.
- The TCEQ agrees with the EPA’s assessment of the Weight of Evidence (WoE) portions of the SIP, and appreciates the positive conclusions drawn from the assessment and the additional analysis undertaken by EPA.
- The TCEQ agrees with the EPA’s assessment, as stated on page 151 of the Technical Support Document for this action, that “the modeling, monitoring data, including all the WoE, is consistent with attainment and demonstrates the area will attain.”
DATE SUBMITTED: 5/25/18
SHORT TITLE: Reasonable Further Progress Plan for the Houston-Galveston-Brazoria (HGB) 2008 eight-hour ozone nonattainment area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer, Guy Hoffman
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ supports the EPA’s proposed approval that Texas meets the RFP requirements for the HGB moderate 2008 eight-hour ozone nonattainment area. Specifically, the TCEQ supports the EPA’s proposed approval of the RFP demonstration, contingency measures, motor vehicle emissions budgets, and updated 2011 base year emissions inventory.
DATE SUBMITTED: 4/26/18
SHORT TITLE: Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments (Attachment A)
TCEQ Comments (Attachment B)
A. Comments on the Proposed Repeal and Legal Interpretations
- The Public Utility Commission of Texas (PUCT), Railroad Commission of Texas (RRC), and Texas Commission on Environmental Quality (TCEQ) support the repeal of the CPP rule and its associated legal interpretations.
- The PUCT, RRC, and TCEQ urge the EPA to also reconsider the underlying justification for not making an endangerment finding specifically for CO2 to regulate that pollutant under §111 of the FCAA.
- The TCEQ agrees with and supports the EPA’s return to its historical interpretation of Best System of Emission Reduction (BSER).
- Emission guidelines for existing sources should not be more stringent than standards of performance for new or modified units if BSER is interpreted and applied appropriately.
- The EPA did exceed its proper role and authority with the CPP rule, which has significant implications beyond just the utility electricity generation sector.
- The EPA’s previous Legal Memoranda supporting the CPP rule should be withdrawn.
B. Comments on the Regulatory Impact Analysis (RIA)
- The TCEQ appreciates the opportunity to comment on the RIA for the proposed repeal of the CPP rule.
- The TCEQ appreciates the EPA’s commitment to more fully characterizing uncertainty in the upcoming analysis. In doing so, the TCEQ encourages the EPA to consider important methodological aspects of the underlying epidemiology literature and models and to quantify and clearly communicate uncertainty in the final analysis.
- The EPA should provide a new model performance evaluation that considers important sources of variability including regional heterogeneity of particulate matter with diameters equal to or less than 2.5 micrometers (PM2.5) concentrations.
- The TCEQ supports the removal of co-benefits calculations in RIAs, as those benefits are achieved in other rules.
DATE SUBMITTED: 4/23/18
SHORT TITLE: Proposed Withdrawal of the Control Techniques Guidelines for the Oil and Natural Gas Industry
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The TCEQ supports the EPA’s proposed withdrawal of the CTG for the Oil and Natural Gas Industry.
- The federal Clean Air Act (FCAA) intended for the EPA to develop CTG documents to reduce volatile organic compound (VOC) emissions to help areas attain the ozone National Ambient Air Quality Standard (NAAQS). The EPA should never exercise authority granted expressly regarding the ozone NAAQS for the purposes of greenhouse gas reductions.
DATE SUBMITTED: 4/23/18
SHORT TITLE: Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
The comment letter addresses the following topics:
- The TCEQ supports the EPA’s proposed approval that Texas meets its infrastructure and transport obligations for the 2012 PM2.5 NAAQS.
- However, we note that the EPA is not taking action on the FCAA, Section 110(a)(2)(D)(i)(II) provision for interstate visibility protection.
- Neither the notice nor the associated technical support document provides explanation as to why the EPA is not acting on this provision.
- The TCEQ believes that Texas is meeting all FCAA, Section 110(a)(2) infrastructure and transport requirements for the 2012 PM2.5 NAAQS.
DATE SUBMITTED: 3/16/18
SHORT TITLE: Interstate Transport Requirements for the 1997 and 2006 PM2.5 NAAQS
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer/Guy Hoffman
SUMMARY OF COMMENTS:
TCEQ Summary
The comment letter addresses the following topics:
- The TCEQ supports the EPA’s proposed approval that Texas meets its transport obligations for these NAAQS.
- The EPA’s proposed approval is based on a review of 2014 future year modeled design values for the Madison County, Illinois receptor, which the EPA found to be linked for nonattainment and maintenance to emissions from Texas under the Cross-State Air Pollution Rule (CSAPR) for the 1997 and 2006 PM2.5 NAAQS.
- While the TCEQ agrees with the EPA’s conclusion that Texas does not significantly contribute to nonattainment or maintenance in any other state, we disagree with EPA’s method for determining significant contribution.
- The EPA’s framework establishes the 1% of NAAQS threshold as the default definition of significant contribution to nonattainment or interference with maintenance. The TCEQ has maintained and noted in comments to the EPA on its transport modeling, that an arbitrary threshold of 1% of the NAAQS for significant contribution to nonattainment or interference with maintenance is inappropriate and incomplete.
DATE SUBMITTED: 3/16/18
SHORT TITLE: Permitting and Public Participation for Air Quality Permit Applications
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ agrees with the EPA's conclusion that the rule revisions and SIP actions identified above were developed in accordance with the Federal Clean Air Act and the EPA’s regulations, policy, and guidance for new source review permitting. The TCEQ further agrees with the EPA’s determination that these rule revisions and SIP actions are consistent with federal requirements for public notice and will not interfere with attainment or reasonable further progress. Therefore, the TCEQ supports the EPA’s proposed approval of these rule repeals and revisions as a revision to the Texas SIP.
DATE SUBMITTED: 2/26/18
SHORT TITLE: State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
A. General Comments
- The Public Utility Commission of Texas (PUCT), Railroad Commission of Texas (RRC), and Texas Commission on Environmental Quality (TCEQ) support the proposed repeal of the CPP rule but do not support replacement of the rule.
- Given the significant legal issues surrounding the EPA’s authority to regulate GHG emissions from EGUs under §111, the PUCT, RRC, and TCEQ urge the EPA to carefully consider the timing of any future proposed action to replace the CPP rule under §111(d).
- The PUCT, RRC, and TCEQ support the EPA’s proposed interpretation of best system of emission reduction (BSER) issued with the proposed repeal of the CPP rule because that interpretation is consistent with other requirements of §111(d).
- Carbon capture and storage (CCS) should not be considered as BSER.
B. State Plan Process
- The FCAA requires the EPA to allow states to consider the remaining useful life of existing sources. States should be given wide flexibility to evaluate the remaining useful life of sources when developing state plans.
- States should have longer than the nine months prescribed in the implementation regulations in 40 CFR §60.23(a)(1) for the development and submittal of a state plan under FCAA, §111(d). At a minimum, states should have three years for the development and submittal of such a plan, as is given under the statutory and regulatory framework of FCAA, §110 for a state implementation plan (SIP).
- The EPA should establish clear and specific criteria for how state plans will be evaluated and provide for automatic approval if the EPA fails to act timely on submitted state plans.
- The EPA should consider revising the progress report requirements under 40 CFR §60.25(f) to make them less burdensome for states.
- The EPA should not assume the state’s authority to set performance standards. Rather, §111(d) requires the EPA to prescribe regulations establishing a procedure under which states submit plans that establish standards of performance for existing sources and that provide for the implementation and enforcement of such standards.
- The provision in 40 CFR §60.24(f)(3) allowing states to apply a less stringent standard than would otherwise be required by a presumptively approvable emission guideline is subjective and left open to interpretation.
- Emission guidelines should be based on gross generation to demonstrate compliance with the standards established by the state.
- While there may be no simple way for the EPA to identify heat rate improvements or set presumptively approvable standards, the approach used in the final CPP rule of averaging data from the three electric power grid interconnections was inappropriate and flawed.
C. Interactions with New Source Review (NSR) Permitting
- Changes to an EGU based on improving the unit’s heat rate may require a change to the NSR review permit.
- The EPA has limited options regarding rule and policy changes to the NSR program to address issues that will result from a §111(d) GHG emission guidelines regulation for EGUs that targets heat rate improvements.
DATE SUBMITTED: 11/1/17
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The proposed cost associated with the EPA’s estimated burden to implement additional SIP activities under the 2008 ozone NAAQS during this time period is too low, without clarification or alternative estimates.
- The EPA has indicated that the 2008 ozone NAAQS will be revoked upon finalization of the 2015 ozone NAAQS. If this happens as expected, then there would likely be no additional burden to states in developing submittals for the 2008 ozone standard during the ICR period from February 1, 2018 through January 31, 2021, as long as no states are required to prepare additional SIP revisions to address antibacksliding obligations or for areas reclassified to higher classifications for the 2008 ozone standard. However, there could be responsibilities and costs for activities that remain applicable for the revoked standard.
- If the 2008 ozone NAAQS is not revoked or revocation is delayed, then the TCEQ disagrees with the methodology that the EPA used to account for the estimated agency burden in fulfilling the SIP activities associated with 2008 ozone nonattainment in the Dallas-Fort Worth and Houston-Galveston-Brazoria nonattainment areas.
- The TCEQ recommends that a more realistic estimate of burden associated with implementing the 2008 ozone standard be developed. The burden, based on current average salary projections, in each Texas nonattainment area alone is expected to be:
- between 45,000 to 50,000 hours of labor; and
- an estimated total cost of $2,019,248.
DATE SUBMITTED: 10/24/17
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- Although the TCEQ agrees with the EPA’s preliminary conclusion that the current SO2 NAAQS, including the 1-hour duration of the NAAQS, provides adequate protection of public health, the EPA should still work to resolve key issues with its risk assessment. The following technical issues are specifically highlighted.
- Specific airway resistance (sRaw) is inappropriate for this analysis because of limited understanding of adversity and variability.
- The EPA does not justify its use of a no-threshold model and should have conducted a sensitivity analysis that includes a threshold in the exposure-response curve.
- The current construction of exposure categories in the draft REA inappropriately suggests that effects could confidently be measured at concentrations below 100 and 200 ppb.
- The EPA does not provide a rationale for why it did not follow its own REA Planning Document in the selection of study areas and description of their selection criteria.
- The EPA inappropriately describes the locations of two of the three study areas and, instead, should use a standard geographical reference for designating areas of the country.
- The EPA does not provide adequate rationale for creating artificially inflated design values for Fall River and Tulsa in order to just meet the current standard.
- The EPA does not adequately support the large disparity in risk estimates between the study areas.
- The EPA does not quantitatively address the many uncertainties identified in the draft REA.
- The EPA does not include uncertainty bounds in its presentation of risk assessment results.
- The draft REA needs to provide a quantitative analysis and additional discussion to explain the relevance of modeled effect estimates in the three study areas to the actual ambient conditions found across the rest of the country.
- The draft PA inappropriately relies on highly uncertain modeled health effects below concentrations that cause effects in controlled human exposure studies.
- The draft PA needs to more clearly discuss how uncertainties in the draft REA alter the current understanding of at-risk populations.
- The risk assessment does not identify a public health risk with any scientific confidence.
DATE SUBMITTED: 09/25/17
SHORT TITLE: Review of the Proposed Rule for the Primary National Ambient Air Quality Standards for Oxides of Nitrogen
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology
STAFF CONTACT: Lindsey Jones
SUMMARY OF COMMENTS: TCEQ Letter to EPA
DATE SUBMITTED: 08/18/17
SHORT TITLE: Reasonably Available Control Technology For The 2008 8-Hour Ozone National Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer and Vince Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The EPA should clarify that in addition to an agreed order, there are other potential options for an enforceable mechanism to assure that Martin Marietta is satisfying NOX RACT.
The proposed DFW NOX RACT conditional approval contains the following sentence (page 33029): "The commitment letter states that through an agreed order between TCEQ and MM, certain conditions of MM’s air permit, concerning the NOX emission limitation of 1.95 lb/ton of clinker produced from kiln #5, will be incorporated into a future revision to the Texas SIP."
The July 29, 2016 TCEQ commitment letter to the EPA referenced above mentioned options other than an agreed order available for the TCEQ to pursue. Accordingly, the TCEQ requests that the EPA revise the description to more accurately reflect the content of the TCEQ’s letter. Specifically, the EPA should acknowledge in the description that the TCEQ's letter contained a commitment to prepare a SIP revision for consideration by the commission to incorporate the emission limit for Martin Marietta Kiln #5 into the SIP through a federally enforceable mechanism, such as a voluntary agreed order between the TCEQ and Martin Marietta or through rulemaking.
DATE SUBMITTED: 05/05/17
SHORT TITLE: Regional Haze and Interstate Visibility Transport Federal Implementation Plan (FIP)
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The TCEQ and Public Utility Commission of Texas (PUCT) disagree with the EPA’s interpretation regarding the consideration of energy impacts of compliance in BART analyses.
- The EPA should consider the potential impacts of the proposed FIP on the reliability of the electrical grid in Texas regardless of how the EPA interprets BART analyses.
- The EPA’s proposed SO2 controls for the BART-affected coal-fired power plants represents more control than is necessary to satisfy BART. The EPA should consider an alternate control approach for these BART-affected units using source or system caps comparable to the CSAPR.
- A state should be able to independently rely on EPA’s CSAPR-is-better-than-BART determination if the state can demonstrate that a state-only program for EGUs is more stringent than CSAPR.
- The EPA’s determination that the SO2 BART controls are economically feasible and will not result in shutdowns at coal-fired EGUs is contradicted by the EPA’s own Integrated Planning Model results.
- The SO2 BART control levels proposed for Texas’ EGUs are inconsistent with and more stringent than SO2 BART controls implemented or approved by other EPA regions and are not supported by the data the EPA used in determining the control levels, particularly with regard to lignite-fired units.
- The retrofit SO2 BART control levels proposed for Texas’ EGUs are more stringent than the EPA’s recent New Source Performance Standard (NSPS) for new coal-fired EGUs in 40 Code of Federal Regulations (CFR) Part 60, Subpart Da.
- The EPA did not properly evaluate the emission standards with regard to applying the standards at all times including startup and shutdown operations.
- The EPA should reconsider its evaluation of dry sorbent injection (DSI) technology for SO2 control in the BART analysis.
- The EPA’s selection of 30 years as the remaining useful life of the BART affected units is arbitrary and overestimated for the affected coal-fired EGUs in Texas. The EPA’s overestimated remaining useful life grossly biases the EPA’s cost effectiveness calculations for certain emission controls.
- Averaging times for compliance for the proposed SO2 and PM emission limits for coal-fired EGUs should be specified in the rule. The EPA should also clarify the methodology for averaging emissions for compliance.
- The proposed continuous emissions monitoring system (CEMS) requirements in §52.2287(e)(2) are incomplete and inconsistent with both 40 CFR Part 60, Subpart Da and 40 CFR Part 75 requirements. The EPA should just incorporate by reference the applicable CEMS requirements from either 40 CFR Part 60, Subpart Da or 40 CFR Part 75.
- The TCEQ and PUCT disagree with the EPA’s assertion that the PM screening analysis for EGUs in the 2009 Regional Haze SIP is “no longer reliable or accurate” because CSAPR can no longer be relied upon as an alternative to source-by-source BART for SO2 and NOX. (82 FR p. 917(3)) The EPA should approve of the TCEQ’s PM screen modeling for EGUs, as it proposed to do on December 14, 2015.
- The EPA should document and justify the source of the range of cost-effectiveness estimates that the EPA is claiming to be acceptable for the proposed BART FIP.
- The EPA has not provided sufficient technical justification for the use of CALPUFF beyond its acceptable range.
- The EPA should have screened out the Newman facility based on CALPUFF modeling or used CAMx modeling to quantify the visibility impacts and BART applicability of Newman.
- The natural conditions estimates used by the EPA potentially overestimate the impact of facilities identified as subject to BART and therefore, potentially overstate the estimated benefits of the proposed FIP requirements.
DATE SUBMITTED: 04/13/17
SHORT TITLE: Review of the Primary National Ambient Air Quality Standards for Sulfur Oxides: Risk and Exposure Assessment Planning
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones, Sabine Lange, Jennifer McKinney, Tiffany Bredfeldt, Angela Curry
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The SO2 REA Planning Document outlines various new analytical approaches that will be conducted in the forthcoming REA. The TCEQ encourages the EPA to consider the following points in this planning phase and in the drafting of the REA.
Generally, the EPA should approach the upcoming analysis with the goal of having a stable and robust standard with clearly articulated risk estimates. As in the last SO2 NAAQS review, the EPA should continue to consider the stability and robustness of the duration of the SO2 standard and maintain the 1-hour duration. Further, the EPA should include uncertainty bounds in its presentation of risk assessment results to allow for more accurate and meaningful communication of risk.
The EPA should also clarify several issues with the SO2 exposure-response (E-R) curve. Specifically, the EPA should more clearly articulate the shape of the E-R curve for SO2-mediated decrements in specific airway resistance (sRaw). The evidence suggests a threshold of effects at least 200 ppb, so the EPA should accurately portray the uncertainties of risk attributed to SO2 exposures at concentrations less than 200 ppb and provide a clearer justification for the use of benchmarks below 200 ppb in its analysis. The EPA should also reconsider using logit and probit E-R functions that estimate risk of SO2 exposure at 0 ppb SO2 concentrations.
The EPA should provide additional information on its modeling for the SO2 REA. Modeling data should be verified against monitored data (5-minute ambient concentrations) or experimental data (microenvironment data) to improve confidence in the model. The results of these comparisons should be presented in the REA. The EPA should also finalize which analyses will be included in the REA in the REA Planning Document. While the air pollution exposure (APEX) model is being updated, the TCEQ encourages the EPA to develop a graphic user interface for the program.
Finally, the EPA should more fully discuss its rationale for its determination of the level at which changes in sRaw become adverse; its position that the selected model cities are sufficiently representative; and how it will, in the absence of a quantitative uncertainty analysis, use a balanced, science-grounded approach to its qualitative uncertainty evaluation. In all instances, the TCEQ encourages the EPA to present important uncertainties together with risk estimates.
DATE SUBMITTED: 04/05/17
SHORT TITLE: Preliminary Interstate Ozone Transport Modeling Data for the 2015 Ozone National Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
- The EPA should not include the Clean Power Plan (CPP) in the updated electric generating unit (EGU) projections.
- The EPA has not proven that a contribution by upwind states of 1% of the relevant NAAQS will "interfere with" maintenance in identified maintenance areas.
- The EPA does not provide a rationale for using the attainment deadline for moderate nonattainment areas as the projected analysis year.
- The TCEQ has updated nonpoint source oil and gas emissions estimates for drilling rig engines based on a study completed in 2015 and will provide this data to the EPA. The EPA should revise its 2017 and 2023 future-year inventories to incorporate these updates.
- In general for Texas EGUs, the EPA should use TCEQ-reported emissions rates for the 2011 base-year emissions inventory, and ensure future-year EGU emissions are reasonable based upon individual EGU characteristics and representative historic emissions data. Otherwise, the EPA risks over-predicting criteria pollutant formation by modeling unrealistically high emissions data.
- The TCEQ continues to support flexibility in the approach used by states when addressing interstate ozone transport.
- The EPA should not apply boundary conditions developed for 2011 for modeling a 2023 future year.
- 2011 is not representative of historical ozone formation for Texas and surrounding states because of the atypical meteorology (e.g., extreme temperatures) and related events (e.g., wildfires and exceptional drought).
- 2011 is not conducive to good model performance in Texas, and relatively poor model performance increases uncertainty surrounding estimates of contribution.
- The EPA should optimize meteorological parameters used for subsequent photochemical modeling.
- The EPA has not demonstrated the appropriateness of a 1% threshold to identify significant contribution to nonattainment and interference with maintenance.
- The EPA should appropriately differentiate action necessary for nonattainment and maintenance monitoring sites.
- The EPA should account for air quality trends when identifying maintenance areas.
- The EPA should use a consistent approach for assessing future attainment status and for calculating state contributions to future design values.
- The EPA should finalize the applicable modeling guidance.
- The EPA should evaluate and publish model performance for ozone and ozone precursors to demonstrate that the model is getting the "right answer for the right reason."
- Upwind states should not be required to compensate for international emissions.
DATE SUBMITTED: 03/20/17
SHORT TITLE: Second External Review Draft Integrated Science Assessment for Sulfur Oxides—Health Criteria
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones, Sabine Lange, Jennifer McKinney, Tiffany Bredfeldt, Angela Curry
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The TCEQ appreciates the EPA’s efforts to address public comments on the first ISA by adjusting causal designations and adding supporting information related to several key uncertainties. The TCEQ continues to encourage the EPA to more fully consider and discuss exposure measurement error and the limitations of epidemiology studies in its assessment documents and clearly articulate when decisions are being made based on scientific evidence or default policy assumptions. Because many readers have only the time or expertise to review the Executive Summary and Introduction, effort should be made to include at least a summary of these uncertainties and limitations in these integrative chapters. The EPA should also provide better justification for its operating assumption that one mode of action explains the spectrum of effects occurring from low-concentration exposures in humans to high-concentration exposures in animals. Available evidence indicates that there are multiple concentration-dependent modes of action; therefore, the EPA should focus its evaluation on the mode of action occurring at ambient-relevant SO2 concentrations of less than 500 parts per billion (ppb), as informed by conclusions from controlled experiments. Finally, the EPA should better articulate causal associations between SO2 and the different types of respiratory effects whenever these associations are provided. There is little evidence linking respiratory effects other than asthma exacerbations with SO2 exposure and the EPA does not provide adequate justification for the causal designation for long-term SO2 exposure and respiratory effects.
DATE SUBMITTED: 02/21/17
SHORT TITLE: Proposed Settlement Agreement, Clean Air Act Petition for Review
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Holly Landuyt
SUMMARY OF COMMENTS:
TCEQ Summary
TCEQ Comments
The TCEQ comments that the timeframe of the proposed settlement agreement does not allow for a period of public notice, review, and subsequent comment on the resulting guidance documents. Public comment periods are of the utmost importance because they provide an opportunity for the public and state and local air monitoring agencies to impact rules and guidance.
DATE SUBMITTED: 02/13/2017
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS: Comments
- It is unreasonable to expect or require states to resubmit all nonattainment SIP elements applicable to an area’s classification upon revision of a NAAQS.
- The TCEQ supports Option 1 for revoking the 2008 ozone NAAQS and opposes Option 2.
- The EPA should provide additional guidance regarding SIP submission deadlines for all federally-required SIP submittals resulting from mandatory reclassifications.
- The EPA should finalize its modeling guidance to facilitate efficient use of limited state resources in program implementation.
- The TCEQ supports retaining the existing requirements from the 2008 ozone NAAQS implementation rule for the RFP baseline year. The TCEQ opposes requiring the year that an area is officially designated as nonattainment to be used as the RFP baseline year.
- The EPA should clarify the milestone compliance demonstrations (MCD) reporting and submittal requirements, as required by the FCAA, and whether historical emissions inventory data can be used for MCD purposes if the historical data indicates the required RFP reduction was achieved in advance of the applicable milestone year.
- The proposed RACT implementation deadline does not provide enough compliance time for areas initially designated marginal and subsequently reclassified to moderate.
- The proposed 24-month implementation deadline associated with new Control Techniques Guidelines (CTG) is unnecessary; rather, the EPA should continue to set SIP revision deadlines at the time of issuance of a new CTG, consistent with Federal Clean Air Act FCAA, §182(b)(2).
- The opportunity to submit an FCAA, §179B demonstration should not be limited to nonattainment areas adjoining international borders.
- The EPA should not finalize the proposed §51.1309 requiring states to demonstrate that all RACM have been implemented in accordance with FCAA, §172(c)(1) for ozone nonattainment areas classified as marginal for the purposes of §179B.
- The EPA should not finalize the language in proposed §51.1312(c) that would require SIP revisions to include “other control measures” on sources located outside the nonattainment area but located within the state. The TCEQ disagrees with the EPA’s interpretation that the language regarding “other control measures” in FCAA §172(c)(6) requires states to consider controls on sources outside of a designated nonattainment area.
- The EPA should clarify proposed §51.1308(d) regarding which nonattainment areas are required to implement controls.
- The EPA should revise the proposed rule to allow states to continue implementing an EPA-approved rule that includes case-by-case approval from both the state and the EPA for all IPT projects.
- The TCEQ disagrees with the proposed requirement for an evaluation of an EPA-approved IPT program every three years. This is a misuse of limited state air quality protection resources.
- States with multiple nonattainment areas should have the flexibility to choose multiple IPT approaches.
- The EPA should revise the proposed rule and draft IPT technical guidance to clearly indicate there is no minimum IPT ratio.
- The EPA should revise the draft IPT technical guidance to address credits from mobile sources.
- The TCEQ encourages the EPA to make the IPT technical guidance stronger, more understandable and more useful by adopting demonstrated aspects of the Texas IPT trading program and addressing the specific concerns raised in the TCEQ’s comments.
- The proposed change to the Air Emissions Reporting Requirements (AERR) point source emissions inventory requirement concerning reporting thresholds for NOX emissions sources (50 tons per year [tpy]) in an ozone transport region (OTR) is a substantive, unexplained change in EPA policy that contradicts current EPA regulations, policy, and guidance. The EPA should withdraw the AERR point source reporting thresholds proposal and clarify in the final 2015 ozone NAAQS implementation rule that the major stationary source threshold for NOX sources in OTRs is 100 tpy, unless the source is also located within an ozone nonattainment area with a serious or higher nonattainment classification, in which case the relevant major source threshold would apply.
- The TCEQ supports the proposed change that measures to reduce emissions from wildland fires need not be included as RACM in SIP documentation.
- The EPA should revoke the 2008 ozone standard for all purposes in all areas one year after designations are final for the 2015 ozone standard to provide for clarity, certainty, and efficient implementation of conformity requirements.
DATE SUBMITTED: 12/05/16
SHORT TITLE: Review of the Primary National Ambient Air Quality Standards for Nitrogen Dioxide
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Toxicology Division
STAFF CONTACT: Lindsey Jones, Sabine Lange, Shannon Ethridge, Tiffany Bredfeldt
SUMMARY OF COMMENTS:
TCEQ Summary
The TCEQ agrees with and supports the USEPA’s preliminary conclusion that the current 1-hour and annual primary NO2 NAAQS should be retained without revision. Given available scientific literature and its significant uncertainty, the levels of the current 1-hour and annual primary NAAQS offer sufficient protection of public health with an adequate margin of safety. The TCEQ again encourages the USEPA to give careful consideration to the significant limitations in the studies it uses in its risk assessment and causal determinations. Results from controlled human exposure studies should be given significantly more weight than those from epidemiology studies. The TCEQ also encourages the USEPA to re-evaluate the strength of its causality determinations for long-term exposure and respiratory, mortality, and cancer effects and should require a stronger weight-of-evidence to support these causal designations. The TCEQ urges the USEPA to consider the entire body of scientific evidence related to NO2-mediated health effects. The USEPA should equally consider evidence from all high quality studies, whether their results are positive, negative, or null.
DATE SUBMITTED: 12/02/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS: TCEQ Summary
- TCEQ does not support the EPA’s overall requirement for permitting of GHG emissions. However, TCEQ acknowledges that if GHG permitting is to be required, the proposed SER of 75,000 tpy CO2e is consistent with the thresholds that the EPA and other permitting authorities have been using for several years, and is least likely to cause disruption or confusion for regulated entities and permitting authorities. Therefore, TCEQ supports the continued use of the 75,000 tpy CO2e SER as an appropriate threshold.
- The EPA solicited comment on the possible selection of a SER below 75,000 tpy CO2e, specifically citing examples of a SER of 30,000 or 45,000 tpy CO2e. TCEQ is opposed to the potential selection of any GHG SER below the proposed SER of 75,000 tpy CO2e.
- The selection of a SER less than 75,000 tpy CO2e would increase the number and type of combustion units subject to the GHG BACT requirement, but would have little real-world benefit.
- In most applications, a GHG-specific BACT review is not likely to result in substantial reductions in GHG emissions beyond what is already accomplished through the existing BACT review for criteria pollutants. In addition, carbon capture and storage (CCS) is still not an adequately demonstrated technology for control of GHG emissions, and in many applications CCS will not be technically or economically feasible.
- TCEQ supports the EPA’s proposed removal of the limited authority the EPA previously retained for issuance of certain GHG PSD permits in Texas.
DATE SUBMITTED: 11/01/16
SHORT TITLE: Clean Energy Incentive Program Design Detail
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS: TCEQ Summary West Virginia OAG Summary
General Comments:
A-1. The Texas Commission on Environmental Quality (TCEQ) and Public Utility Commission of Texas (PUCT) disagree with the EPA’s interpretation of its authority regarding the CPP rule and the United States Supreme Court’s stay of the rule.
A-2. While the CPP rule is stayed by the United States Supreme Court, the timeline of the program and all related programs are uncertain. The EPA should not finalize any design details for the CEIP that include uncertain dates, particularly when the eligibility date is already viewed as challenging.
A-3. The EPA has never allowed for public comment on the size of the EPA matching pool and is in violation of the Administrative Procedures Act (APA).
A-4. The proposed CEIP, as part of the implementation of the EPA’s CPP rule emission guidelines, would incentivize the renewable energy sources that the EPA prefers without consideration for state-specific energy policy decisions.
CEIP Design Detail Comments:
B-1. The EPA should grant greater flexibility to the states for the apportionment of the matching pool. A 50/50 split of the pool is arbitrary and neglects the unique energy needs of each state.
B-2. It is not appropriate for the EPA to restrict the number of CEIP early action and matching allowances or emission rate credits for wind or solar projects based on the extension of the tax credits.
B-3. The EPA needs to clarify state authority issues related to the CEIP and tribal lands.
B-4. The EPA should include reapportionment provisions in the CEIP.
B-5. The EPA should apply the proposed adjustment factor to only those eligible ERC resources that received early action ERCs so as to not penalize natural gas combined cycle (NGCC) resources that could also qualify as eligible ERC resources.
B-6. The EPA’s proposed rule text concerning the requirement for eligible renewable energy projects to be connected to and deliver energy to the electric grid effectively omits residential and community rooftop solar deployment. In proposed §§62.16245(c)(2)(i)(A) and 62.16435(d)(2)(i)(A), the EPA should remove the constraint that solar renewable energy projects deployed on residential or community rooftops must deliver energy to the electric grid in order to be considered eligible CEIP renewable energy projects.
B-7. The EPA should revise the proposed rule text regarding the requirement for low-income community renewable energy projects to be connected to and deliver energy to the electric grid to make it similar to the proposed rule text for low-income community energy efficiency projects. In proposed §§62.16245(c)(2)(ii)(F) and 62.16435(d)(2)(ii)(F), the EPA should remove the words “and deliver energy to” to make clear that residential or community rooftop solar implemented in a low-income community could also participate in the CEIP.
B-8. The proposed October 23, 2015 cut-off date for definitions of "low-income community" is unnecessary.
B-9. The EPA gives little reasoning as to why low-income community energy efficiency projects have a different eligibility period than renewable energy projects.
B-10. The EPA should apply evaluation, measurement, and verification (EM&V) requirements for low-income community renewable energy generation projects that are more consistent with EM&V requirements for the low-income community energy efficiency projects.
B-11. The EPA should revise the proposed requirements to remove the 60-day waiting period prior to the issuance of matching ERCs or allowances.
B-12. The EPA should clarify the system requirements for records related to the early action ERCs or allowances but not specify the exact mechanism by which states must make records available.
DATE SUBMITTED: 10/27/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS: Comments
- The proposed SIP submittal deadline of January 1, 2017 for the HGB 2008 ozone nonattainment area is unreasonable, not consistent with previous practice, and the EPA’s lack of timely notification of the abbreviated schedule resulted in an undue burden on the state and stakeholders in the HGB area.
- It is not clear how the EPA is working closely with the TCEQ to support submittal of the required moderate nonattainment area requirements by the proposed January 1, 2017 deadline.
- The TCEQ disagrees with the proposed January 1, 2017 RACT compliance deadline for the HGB reclassified nonattainment area and recommends adjusting this deadline to allow affected entities to comply with RACT no later than July 20, 2018.
DATE SUBMITTED: 10/24/16
SHORT TITLE: Revisions to the Petition Provisions of the Title V Permitting Program; Proposed Rule
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
Comments
- The EPA’s proposed changes would broaden the scope of title V petitions and could result in petitioners using a title V action to re-open issues on new source review (NSR) permits that have already been vetted and addressed. The scope of title V permit petitions should be limited to the type of permit action under consideration.
- The proposed rules do not clearly indicate what actions trigger the start of the EPA’s 45-day review period for situations when no comments are received. In addition, the proposed requirement for state permitting authorities to issue a “no comments received” notice to the EPA appears to be an unnecessary extra step that does not provide any added value, and would interfere with running the public comment period and the EPA’s 45-day review period concurrently.
- TCEQ recommends that the rule be revised so that the start of the 45-day EPA review period is not contingent upon receiving the “no comments received” statement from the state permitting authority.
- The EPA’s proposed addition of minor permit revisions to the types of title V permit actions which are subject to petitions would substantially increase the burden on state permitting authorities. The existing public comment requirements for minor revision projects provide sufficient opportunity for public review and participation. There would be minimal additional benefit from making minor revisions subject to petition.
- The EPA’s proposed rule does not provide clear deadlines as to when the rule changes will go into effect or when state permitting authorities are required to have implemented any necessary changes to their programs to incorporate the revised requirements.
- The EPA’s intentions and proposed requirements are unclear as to the format in which permit applications and supporting information are to be made available to the public. In Texas, the use of a combination of paper and electronic recordkeeping and permit processing tools complicates the task of making active permit records available to the public.
- The proposed rules require that a complete copy of each permit application and updates must be transferred to EPA electronically or in “computer readable” format (proposed 40 CFR §70.8). It may not be possible to electronically transfer all title V permit-related information to EPA. Additional details regarding the “EPA’s national database management system” referenced in the proposal are needed. The development of systems and processes to convert permit information and supporting material into a format compatible with the EPA’s system could impose a major burden on state permitting authorities.
DATE SUBMITTED: 08/22/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Comments
- The EPA should withdraw this proposed guidance and continue to use the 20 pages of 2007 guidance originally issued for the first planning period. In addition, the EPA should withdraw all the proposed amendments to the RHR except the change of the due date for the SIP for the second planning period from July 31, 2018 to July 31, 2021 and the elimination of the requirement for progress reports.
- The EPA’s guidance for evaluating control measures associated with long-term strategies and reasonable progress has been designed to make it very difficult, if not impossible, for states to rule out control measures based on the potential visibility benefits while having any reasonable assurance of the EPA’s approving the SIP submittal. The EPA’s guidance would effectively require states to impose control measures solely for the sake of imposing controls regardless of the visibility benefits and is contrary to the FCAA.
- The EPA’s justification in its attempt to dissuade states from considering visibility benefits is flawed; states have the ability and experience to evaluate visibility benefits. The EPA has not adequately justified its “no bright-line” policy for evaluating visibility benefits.
- Evaluation of control measures should be based on consistent, logical, and unbiased decision-making founded in technical and legal facts. The EPA’s proposed guidance is a collection of conflicting arguments and illogical recommendations designed to justify imposing control measures that would not otherwise be justifiable.
- By relying too heavily on cost/ton, i.e., a $/ton basis, for the recommended approach and first alternative approach, the EPA misconstrues the meaning of taking into consideration the costs of compliance as established by Congress in §169A(g) of the FCAA for purposes of determining the reasonableness of potential control measures.
- The TCEQ disagrees with the EPA’s guidance in Section 8.1 for selecting control measures required for reasonable progress under the recommended approach or the first alternative approach. For determination of potential control measures for inclusion in a state’s LTS resulting from application of the four statutory factors, the EPA intends to impose a process to select measures very similar to the New Source Review Permitting Program by relying on a top-down approach used to evaluate and decide Best Available Control Technology and by evaluating sources on a unit-by-unit basis.
- The EPA’s recommendation that the state’s assessment of the reasonableness of cost/ton of a particular control should consider all past EPA and other state regulatory actions, including those not within the regional haze program, is a potentially far-reaching and unwarranted interpretation of the rule language and places a severe burden on states.
- The EPA should not dismiss the use of the cost/deciview concept for evaluating visibility benefits.
- The guidance should be revised to account for resource constraints faced by states, especially regarding regional scale modeling.
- The TCEQ supports allowing a state to use the 20% of days with the most impairment from U.S. anthropogenic emissions to track progress under the RHR. The TCEQ supports allowing states that choose to do so to continue to use the method allowed during the first planning period. Further, the TCEQ supports allowing states the choice to use the method laid out in the draft guidance or a different method that emphasizes the trends in visibility impairment caused by U.S. anthropogenic pollution.
- Since the EPA determined that Oklahoma and Texas both had flawed consultations, the process is now less clear to Texas. Approvable consultation now seems a less certain prospect.
- The TCEQ suggests that the monitoring strategy guidance be clarified to specifically state that a state’s participation in the IMPROVE monitoring program fully satisfies its monitoring obligation with respect to regional haze.
DATE SUBMITTED: 08/10/16
SHORT TITLE: Protection of Visibility: Amendments to Requirements for State Plans
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
TCEQ Comments
- The proposed amendments to the RHR would make it the principal driver of pollution control expenditures in the U.S., pushing them beyond the costs of meeting the National Ambient Air Quality Standards, which are set to protect public health.
- The EPA asserts that the proposed amendments would streamline the process of regional haze SIP development; however, the TCEQ concludes that the net impact of the proposed amendments would increase the burden on states in the preparation of the comprehensive SIP revisions, increase the frequency of comprehensive SIP revisions through amendments to the RAVI rules, and increase the compliance costs for the program.
- Lack of timely access to the revised guidance on developing regional haze SIPs thwarts the process of reviewing the proposed RHR changes and the effectiveness of the proposed rules. Texas believes that this proposal does not provide adequate notice since the guidance was not made available with sufficient time for reviewers to do a thorough analysis of how the guidance influences implementation of the proposed rule before the comment deadline.
- The EPA should have provided a derivation/disposition matrix to clearly indicate what parts of the modified rule were derived from existing rule language and what parts are new. The EPA should either provide such a matrix along with reopening the comment period or only adopt those changes that are specifically and clearly explained and justified in the preamble.
- The EPA is proposing to remove the discretion states have in determining appropriate techniques for certifying RAVI from a source or small group of sources at a Class I federal area. The TCEQ opposes the proposed change to the definition of “reasonably attributable” and other changes that would remove the role of the state in identifying or concurring in the identification of RAVI and unduly expand FLM authority.
- The TCEQ opposes the proposed expansion of the RAVI program. The TCEQ urges the EPA to withdraw all the proposed changes to the RAVI rules and program as they would overwhelm state administrative capabilities and are redundant to existing requirements.
- The TCEQ opposes requiring regional haze SIP revisions more often than every 10 years in most cases.
- It is unclear how the burdensome proposed RAVI requirements provide any additional improvement to visibility protection over existing requirements.
- Criteria must be established in §51.302 for determining sources that the FLMs certify for RAVI.
- The proposed changes to RHR monitoring requirements are unnecessary as there are already reliable, scientifically sound methods that are in use for quantifying the impact of a source or a small group of sources on visibility impairment at each Class I area with an IMPROVE monitoring site.
- The TCEQ strongly objects to the EPA’s apparent attempt to give itself and the FLM the authority to require additional monitoring from the states. The EPA has not accounted for the potential additional monitoring costs to states and the proposed monitoring provisions should be removed in the final rulemaking.
- The TCEQ's SIP-approved major new source review permitting program already provides for case-by-case consultation with the FLM for new or modified sources that may affect visibility in Class I federal areas.
- Texas concurs with the EPA’s proposal that the uniform rate of progress line begins on December 31, 2004, at the end of the 2000 – 2004 base period and ends at December 31, 2064, for every implementation period.
- Texas asks that the EPA allow common-sense approaches to considering the impact of natural events and international transport so that states can focus their efforts on anthropogenic emissions under the state’s control.
- Separate approval by the Administrator should not be required for a state to adjust the uniform rate of progress to the impact of international transport on base period and projected visibility impairment at a Class I federal area significantly affected by international transport of visibility impairing pollution.
- The TCEQ supports allowing a state to use the 20% of days with the most impairment from U.S. anthropogenic emissions to track progress under the RHR. The TCEQ supports allowing states that choose to do so to continue to use the method allowed during the first planning period. Further, the TCEQ supports allowing states the choice to use the method laid out in the draft guidance or a different method that emphasizes the trends in visibility impairment caused by U.S. anthropogenic pollution.
- §51.308(d)(3)(v)(E) requires that states consider, at a minimum, smoke management techniques for agricultural and forestry management purposes, including those that already exist, as part of its long term strategy. Air quality management agencies are not solely responsible for regulating and managing wildfire, prescribed burning, and agricultural burning to minimize smoke impacts both on members of the public and on regional haze affecting Class I federal areas. Requiring a state air quality agency to summarize the burning regulation practices of other agencies in its long term strategy is a burden that does not contribute to an actual visibility improvement.
- The default procedure for selecting the 20% most impaired days for each year should assume that the anthropogenic components contributing to visibility impairment are ammonium sulfate and ammonium nitrate.
- The EPA should revise the text of 40 CFR 51.308(f)(1)(vi) to allow states to use scientifically valid methods to account for the impacts of all internationally transported pollution affecting visibility regardless of whether it is anthropogenic or natural in origin, especially if it is impractical to separate anthropogenic and natural portions of the pollution.
- The EPA has not justified the proposed requirement that states must consider any potentially affected groups of sources as part of the LTS. The EPA should clarify how groups of sources should be considered and that these sources are specifically stationary point sources.
- The changes to §51.308(f) are not consistent with the ‘long-standing interpretation” of existing requirements. This interpretation was first enunciated in the proposed federal implementation plan for Texas and Oklahoma in December 2014.
- Requiring states to consider measures being adopted by other states in establishing their LTS introduces confusion and problems rather than serving as the clarification the EPA claims it to be. Consideration of other states’ measures should only be a recommendation through guidance and not a rule requirement.
- The EPA should not use ambiguous terminology for state requirements in the rule, such as requiring a "robust" demonstration.
- If the RPG for a mandatory Class I federal area is below the uniform rate of progress line at the end of a planning period, no further analysis of additional potential controls for sources affecting that Class I area should be required for that planning period.
- Texas encourages the end of progress reports. However, if they are continued, Texas concurs with the one time deadline change of the next progress report to midway between 2021 and 2028 and the proposal to remove the SIP procedural requirements for these reports.
- Eliminating the requirement for progress reports would conserve state agency resources for the much expanded scope of four-factor analysis and other analyses that the proposed amendments would require in the periodic comprehensive SIP revisions. Progress reports require 12 to 18 months lead time.
- The EPA’s proposed changes to FLM consultation requirements should be clarified but appear to be burdensome to states and unnecessary to achieve the goals of the regional haze program.
- The TCEQ supports the EPA’s proposed extension of the deadline to submit the next comprehensive regional haze SIP revision from 2018 to 2021.
DATE SUBMITTED: 06/23/16
SHORT TITLE: Integrated Review Plan for Particulate Matter
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACTS: Lindsey Jones, Sabine Lange, Stephanie Shirley, and Heather Schaefer
SUMMARY OF COMMENTS:
Comments
The TCEQ strongly urges the EPA to use available systematic literature review techniques, employ quantitative methods for accounting for uncertainty, and conduct a quantitative exposure assessment in this review of the PM NAAQS. The TCEQ also encourages the EPA to use the IRP to more fully clarify how it will:
- select and include key studies in its evaluation;
- treat studies with significant study design limitations;
- weigh available evidence related to PM composition and its effect on health endpoints;
- account for known regional and seasonal heterogeneity in PM composition and concentration;
- make causality determinations or consider biological plausibility of the health effects it evaluates;
- consider and present the shape of the PM dose-response curves and what types of studies will inform them;
- account for exposure measurement error in epidemiology literature;
- account for known issues with its benefits mapping software; and
- address uncertainty.
DATE SUBMITTED: 06/20/16
SHORT TITLE: Bureau of Ocean Management's Proposed Rule for Air Quality Control, Reporting, and Compliance
SUBMITTED TO: U.S. Department of the Interior
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
Comments
- The BOEM should withdraw the proposed rule until it has completed the appropriate studies to determine whether the revised regulations are necessary.
- The BOEM should have involved affected state environmental agencies more before proposing the rule.
- The BOEM has not provided sufficient detail to allow for meaningful comment regarding the proposal to allow sources in the OCS to use emission credits generated from onshore sources. The provisions regarding the use of emission credits from onshore sources should be withdrawn and reproposed after the BOEM has conducted outreach with states that implement emission banking and trading program and taken into consideration the United States Environmental Protection Agency (EPA) guidance for such programs.
- The BOEM does not appear to have considered potential conflicts or issues with existing state-run emission credit programs.
- The TCEQ requests that the BOEM clarify the proposed rules in §550.309(e)(1) regarding the location where emission reductions for credits must occur and whether the use of such credits requires approval by the applicable state authority.
- The TCEQ requests that the BOEM clarify the proposed rules in §550.309(e)(2) regarding inter-pollutant use of emission credits.
- The BOEM should clarify why the use of offsets by a facility in the OCS might necessitate a state implementation plan (SIP) revision. Additionally, the BOEM should remove the provision requiring entities to notify the state of the need for a SIP revision and only require them to notify the state of their intent to use offsets as well as the location of the source from which the emission credits were generated.
- The TCEQ supports the use of photochemical models to quantify impacts from facilities in the OCS but encourages the BOEM to work with states in developing the requirements for using photochemical modeling.
- The BOEM's proposed deadline of 2020 for implementing the new emission exemption thresholds does not help areas with attainment dates prior to the deadline
- The BOEM should continue to evaluate air quality impacts at the shoreline rather than the state seaward boundary.
- The BOEM should consider how the proposed rule impacts the Regional Haze obligations of states.
- Transport obligations should be addressed when setting the emission exemption thresholds.
DATE SUBMITTED: 06/01/16
SHORT TITLE: Revisions to the General Definitions for Texas New Source Review (NSR) and the Minor NSR Qualified Facilities Program
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
The TCEQ agrees with the EPA's conclusion that the Qualified Facilities Program as submitted is approvable as a component of the Texas Minor NSR program because it cannot be used to authorize the emission of a new air contaminant or the construction of a new source, will not lessen the already-required level of control technology in the existing permits or reduce the permitted monitoring and recordkeeping requirements, does not result in a net increase in allowable emissions, and will not result in degradation of air quality. The TCEQ also agrees with the EPA's determination that the other definitions and rule changes the EPA has proposed to approve in this action are consistent with applicable federal Clean Air Act requirements. Therefore, the TCEQ supports the proposed approval of these rules as a revision to the Texas SIP.
DATE SUBMITTED: 05/11/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
Comments
- The TCEQ does not support the proposed partial disapproval of Texas' Infrastructure and Transport SIP revision for the 2008 ozone NAAQS pertaining to the FCAA, §110(a)(2)(D)(i)(I) requirement to address interstate transport.
- The EPA failed to issue guidance in a timely manner for states to use in developing infrastructure and transport SIP revisions for the 2008 ozone NAAQS.
- It is inappropriate for the EPA to state that the TCEQ’s analysis of ozone contributions to other areas is incomplete when it did not provide timely guidance stating what would constitute a complete analysis.
- The EPA prematurely prepared a FIP before even proposing action on Texas' timely submitted SIP revision to address 2008 eight-hour ozone transport requirements. Despite the EPA's claims of not pre-judging submitted SIPs, the EPA took unwarranted action by proposing a FIP for states that had outstanding SIPs awaiting EPA action.
- The EPA inappropriately states that Texas should have considered possible contributions to downwind areas that are not designated nonattainment, but may nonetheless measure exceedances of the NAAQS.
- The EPA states that Texas failed to give independent consideration to possible contributions that may interfere with maintenance in downwind areas. However, the EPA has consistently failed to identify any balance between local controls in areas with potential maintenance problems and reductions that it is requiring of states upwind that it models as contributing at least 1% of the relevant NAAQS to these areas with modeled, not monitored, issues.
- The EPA has not proven that a contribution by upwind states of 1 percent of the relevant NAAQS will "interfere with" maintenance in identified maintenance areas.
- The TCEQ supports the use of ambient air quality monitoring data as the only valid basis for making nonattainment designations and identifying nonattainment and maintenance receptors.
- During the public comment period for the SIP, the EPA failed to give Texas comments on the adequacy of its analysis and its use of data in areas geographically close to Texas.
DATE SUBMITTED: 03/31/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Walker Williamson
SUMMARY OF COMMENTS:
TCEQ Comments
- The TCEQ agrees with the EPA’s designations that are consistent with Governor Abbott’s September 18, 2015 recommendation (unclassifiable/attainment designations for Atascosa, Goliad, Lamb, Limestone, and Robertson Counties).
- The EPA should change its proposed designations for McLennan, Milam, Potter, and Fort Bend Counties, and portions of Freestone, Anderson, Rusk, Gregg, Panola, and Titus Counties.
- The EPA’s proposed designations of unclassifiable for McLennan County and nonattainment for a portion of Gregg County dismiss the monitoring data in those counties. The Governor’s attainment designations recommendations for these counties were based on quality-assured 2012 through 2014 ambient air monitoring data. Further, McLennan County should not be designated at this time because Sandy Creek Power Station’s 2012 actual emissions are below the emissions threshold established in the EPA’s consent decree.
- The EPA should revise its proposed designation for Gregg County to attainment to comply with federal regulations, specifically 40 Code of Federal Regulations (CFR) Section 50.17(b) , and to reflect the observed air quality data from the regulatory monitor located in that portion of the county (TCEQ’s Longview SO2 monitor 48-183-0001 has continuously monitored attainment of the 2010 SO2 NAAQS since the NAAQS was promulgated).
- The nonattainment designations that the EPA proposes for portions of Freestone, Anderson, Rusk, Gregg, Panola, and Titus Counties appear to have been based solely on third-party, non-peer reviewed, modeling that has errors and clearly overestimates actual SO2 concentrations as evidenced by the actual monitoring data in the proposed Gregg County nonattainment area.
- The TCEQ also disagrees with the proposed nonattainment designations for portions of Anderson and Panola Counties as their contributions to their respective proposed nonattainment areas are negligible, and therefore including portions of these counties is unnecessary to control additional SO2 sources and should be designated as unclassifiable/attainment.
- For Fort Bend, Milam, and Potter Counties, the recommended unclassifiable/attainment designations are more appropriate than the EPA’s unclassifiable designation because no SO2 monitoring data exists for Fort Bend and Milam Counties and the regulatory monitor in Potter County does not have three complete years of data but has been monitoring well below the standard.
DATE SUBMITTED: 02/24/16
SHORT TITLE: Draft Integrated Science Assessment for Sulfur Oxides—Health Criteria
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Toxicology
STAFF CONTACT: Lindsey Jones
SUMMARY OF COMMENTS:
Comments
The TCEQ highly recommends that the EPA use adjustment factors or another quantitative method in its final analysis to better account for the uncertainties it correctly identified with regard to exposure measurement error and available epidemiology literature. It was unclear from the information presented in the draft ISA if these sometimes quite severe limitations would be accounted for in the final analysis or whether the limitations would merely be noted. Exposure measurement error should be better articulated and seriously considered in this document when interpreting results from studies that use ambient concentrations as surrogates for personal exposures. Further, the EPA should more fully weigh uncertainties inherent to epidemiology studies, including inaccuracy in mortality and morbidity risk estimates, the shape of concentration-response curves at environmentally-relevant SO2 concentrations, and frequent lack of controls for confounders such as co-pollutants. The EPA’s reliance on basic assumptions (i.e., surrogates for personal exposure, exposure measurement error bias toward the null, and linear concentration-response) that are unsupported by the scientific literature can inflate both the importance of the study results and causal determinations. Failure to properly account for these issues will result in inappropriate characterization and communication of SO2-mediated health risks and, ultimately, a flawed standard.
DATE SUBMITTED: 02/24/16
SHORT TITLE: Revisions to the Public Notice Provisions in Clean Air Act Permitting Programs
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
The TCEQ supports the concept of allowing a permit applicant or permitting authority the flexibility to provide notices relating to air permitting in an electronic format, instead of the traditionally-required newspaper notice. Since the time that the original public notice requirements for these programs were promulgated, there have been substantial changes in communication technology, the media business, and in how the public chooses to access information and interact with public and private entities. The TCEQ generally agrees with the EPA’s analysis that, in many cases, widespread public access to the Internet, e-mail, and to other electronic means of communication allows for an electronic form of notice to be an effective method to provide information to the public.
However, there may be specific cases where the traditional newspaper approach may still be appropriate or necessary. Therefore, the TCEQ urges the EPA to provide sufficient flexibility so that the permitting authority can choose the type of notice that is appropriate for the location and the circumstances of the project to be permitted, and comply with any applicable statutory requirements for public notice.
DATE SUBMITTED: 02/03/16
SHORT TITLE: Preparation of Exceptional Event Demonstrations for Wildfire Events That May Influence Ozone Concentrations
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Erik Gribbin
SUMMARY OF COMMENTS:
Comments
- Texas supports the concept of a three-tier approach to the submission of exceptional event demonstrations.
- The EPA should spend considerably more time and effort considering wildfire events that include long-range transport.
- Providing guidance for exceptional events demonstrations is only a start. The EPA must also ensure that its regional offices evaluate states’ demonstrations in a nationally consistent manner that reflects the guidance.
- The initial EPA review period is uncertain and the communication process is not specified adequately. A more structured process should be built into the rule.
- The proposed guidance should suggest additional options for satisfying requirements to identify specific wildfires and wildfire related information when this detailed fire information is not readily available.
- The TCEQ appreciates the EPA’s inclusion of appendices with examples of conceptual models, explanations of the EPA’s technical approach to transport, and uses of trajectory models to this guidance. We hope to see more as EPA is able to create them.
- The EPA’s methodology to evaluate historical comparisons between claimed exceptional event days and non-event days is inappropriate.
- A simple comparison of an exceptional event day to historical records is not evidence of a clear causal relationship or acceptable criteria for designation of an exceptional event.
- The EPA's guidance should consider how implementation of rules and other control strategies affects the representativeness of historical data.
- The TCEQ suggests that a box-whisker plot for a given time period with whiskers set at the fifth percentile/95th percentile or first percentile/99th percentile could also illustrate the percentile ranking or “exceptionality” of an event day.
- A summary table/chart of the Tier requirements in Section 3.3 is needed.
- An over-reliance on seasonal comparisons between days influenced by wildfire and days not influenced by wildfire is not appropriate for areas that experience peak local ozone production during fire season.
- The EPA suggests in Section 3.4.1, Evidence of the Event, Monitor(s), and Exceedance Meet the Key Factor for Tier 1 Demonstrations, “…event-related exceedances should be at least 5-10 ppb higher than non-event related concentrations for them to be clearly distinguishable.” This guidance is based on the false premise that a high percentile or big number equals a clear causal relationship.
- Lidar data is available that can help establish a clear causal relationship as suggested in Section 3.4.2, Evidence that the Fire Emissions Were Transported to the Monitor(s).
- The EPA should do more work to look at the use of satellite products with plume depth and altitude data and how it will evaluate this evidence.
- The EPA's use of the ratio of fire emissions to distance (from fire to impacted monitor) in Section 3.5.1, Evidence that the Event, Monitor(s), and Exceedance Meet the Key Factors for Tier 2 Demonstrations is an inappropriate method for evaluating demonstrations and applying tiers.
- Wildfire emissions information may be available for wildfires occurring on federal land, but the quantity and quality of emissions information for fires occurring off federal land is much less consistent.
- The proposed guidance for the Tier 2 Key Factor #2 lacks an explanation or methodology for how the EPA will use an event’s exceptionality as a factor to establish the existence of clear causal relationship in evaluating a State’s exceptional event demonstration.
- Including photographic evidence of smoke at an impacted monitor as a part of an exceptional event demonstration is impractical in cases where smoke has been transported farther than a short distance.
- The variable “Q” in Section 3.5.1, Evidence that the Event, Monitor(s), and Exceedance Meet the Key Factors for Tier 2 Demonstrations, is not well defined.
- The TCEQ believes it will be difficult for states to provide the level of detail requested by the EPA in Section 3.5.1, Evidence that the Event, Monitor(s), and Exceedance Meet the Key Factors for Tier 2 Demonstrations.
DATE SUBMITTED: 02/03/16
SHORT TITLE: 40 CFR §50.1 and §50.14 Treatment of Data Influenced by Exceptional Events
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Erik Gribbin
SUMMARY OF COMMENTS:
Comments
- The EPA should modify existing rule language to show more transparency regarding the standards it uses to evaluate exceptional event demonstrations and ensure more consistency in how regional offices evaluate demonstrations by creating a more structured evaluation process for exceptional event demonstrations.
- Section 50.14 (a)(1)(i) narrowly limits the situations in which the exceptional event rule would apply and should be widened to reflect additional situations in which a state submits an exceptional event demonstration for a previous NAAQS. Such a demonstration will provide Texas with relief from ongoing obligations associated with the standard. For example, Texas would like to be able to show that it has attained the 1990 One-hour ozone NAAQS using an exceptional events demonstration.
- The definition of Exceptional Event in §50.1 Definitions, should include situations where multiple events (spread over a large geographic area) may become aggregated in such a way that causes a monitored exceedance or NAAQS violation downwind.
- The TCEQ supports the inclusion of §50.14(b)(7)(v), which provides that states will not have to demonstrate that events occurring outside of their borders were not reasonably controllable or preventable.
- The EPA should eliminate §50.14 (c)(3)(iv)(C) because there is no transparent standard or methodology by which it will determine whether a state has met this requirement and the notion that an exceptional event day’s percentile ranking somehow supports a clear causal relationship is false.
- Given that the EPA defines ozone monitoring seasons in Table D-3 to Appendix D of Part 58: "Ozone Monitoring Season by State", the EPA should clarify what it means by "seasonal" in the context of 40 CFR §50.14 if it chooses not to delete §50.14 (c)(3)(iv)(C).
- The TCEQ supports the proposal to allow states 12 months to provide new evidence when requested to do so by the Administrator (§50.14 (c)(3)(vi)). However, if some demonstrations are to be given this second chance then all demonstrations should be provided that same opportunity. The EPA should include a commitment in the rule language to notify a state of any shortfalls that could jeopardize the approval of the state’s demonstration prior to the EPA’s formal disapproval of that demonstration. The state should then be given that 12-month period to address the identified shortfalls. This proposed revision should also expressly note if the additional evidence provided by a state would require additional public notice.
- The EPA should finalize revisions to the Exceptional Events Rule in a timely manner in order for it to be used in making state designation recommendations. The final 2015 Ozone NAAQS rule (80 FR 65292) establishes October 1, 2016, as the deadline for exceptional event demonstration submittals for 2013 through 2015 data years (the years upon which state recommendations will be based). Considering that the analysis of exceptional events is critical for developing state designation recommendations, the TCEQ requests that revisions to the Exceptional Events Rule be finalized as soon as possible. (Preamble III. Executive Summary)
- The TCEQ urges the EPA to finalize the guidance entitled Draft Guidance for Excluding Some Ambient Pollutant Concentration Data from Certain Calculations and Analyses for Purposes Other than Retrospective Determinations of Attainment of the NAAQS no later than October 1, 2017, when nonattainment designations are made for the 2015 ozone NAAQS, so that it can be used in developing conformity analyses for any new nonattainment areas, which are due one year after final designations.
- In Section IV.B of the preamble, the EPA references the Natural Resources Defense Council (NRDC) lawsuit in which the D.C. Circuit held that the high wind events section of the 2007 Exceptional Events Rule was a legal nullity because the final rule published in the Code of Federal Regulations (CFR) did not mention high wind events. The TCEQ believes that, despite the noted shortcoming, the EPA still has not adequately justified its reliance upon certain passages of the high wind events section of the 2007 Exceptional Events Rule.
- The rule should explicitly declare that a state can submit an exceptional event demonstration for any monitored exceedance or NAAQS violation that is caused by an exceptional or natural event within that state’ borders (regardless of what entity operates the affected monitor).
- The TCEQ believes that the EPA has not adequately demonstrated that Federal Land Managers have the legal authority to prepare and submit an exceptional event demonstration request directly to the EPA.
- The TCEQ supports the EPA’s removal of the "but for" regulatory language (40 CFR 50.14(c)(3)(iv)(D)) to instead emphasize the clear causal relationship criterion that is expressly required under Section 319(b)(3)(B)(ii).
- In Section V.E.1 of the preamble, the EPA requests comment on its proposed guidance regarding recurrence at a particular location in respect to whether human activity is unlikely to recur at a particular location outside a state's borders. Given that events such as fires may last for periods of multiple days and affect air quality over several days, the TCEQ recommends that the EPA codify in rule that a single event can encompass multiple days for purposes of determining whether human activity is unlikely to recur at a particular location.
- In Section V.E.1 of the preamble, the EPA requests comment on its proposed guidance regarding recurrence at a particular location in respect to whether human activity is unlikely to recur at a particular location. The TCEQ believes that the rule should not require states to demonstrate that events associated with human activity outside of its borders are unlikely to recur at a particular location.
- In Section V.E.2 of the preamble, the EPA requests comment on its proposal to codify a five-year rebuttable presumption window following approval of a SIP submittal in which the control measures included in the SIP are presumed sufficient for purposes of satisfying the not reasonably controllable or preventable criterion. The TCEQ supports the EPA’s proposal that controls in the SIP should be given deference for purposes of satisfying the not reasonably controllable or preventable criterion but recommends that deference be given to the controls in the SIP so long as the SIP remains in effect.
- The EPA notes in the preamble (80 FR 72886), that it anticipates formally responding to an air agency’s Initial Notification within 90 days of receipt. The TCEQ recommends that the EPA indicate what information the EPA intends to provide air agencies in the formal response.
DATE SUBMITTED: 01/21/16
SHORT TITLE: Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller/Daphne McMurrer
SUMMARY OF COMMENTS: Comments Joint Comments by TCEQ, PUCT and RRC
Electric Reliability and Energy Policy
- The EPA should reevaluate the reliability impacts of the Clean Power Plan using the reliability assessments performed by the Electric Reliability Council of Texas (ERCOT) and similar local reliability authorities. The ERCOT Analysis of the Impacts of the Clean Power Plan (October 16, 2015) is attached for the EPA’s consideration.
- The proposed federal plan would implement the Clean Power Plan emission guidelines, which continue to be based upon the EPA’s flawed approach to establishing the best system of emission reduction (BSER) by evaluating the electric grid and states’ energy policies as a whole, instead of the individual sources that it has authority to regulate under §111(d). A state’s energy generation mix is not BSER as the EPA claims; it is the direct result of a state’s energy policy.
Federal Plan
- The EPA should include an effective reliability safety valve in the federal plan, and the use of the safety valve provision should be at the discretion of the state public utility commission and local reliability authority. Regional trading does not necessarily assure reliability.
- Rather than finalizing only a single approach (i.e., either mass-based or rate-based) for the federal plan, the EPA should finalize both approaches and evaluate the best approach for each state on a case-by-case basis upon promulgation of the federal plan in each state.
- If only a single approach is finalized for the federal plan, that should be made clear in the final rule, especially if the EPA’s intention is to only provide public notice of a federal plan as part of a finding of failure to submit a state plan or disapproval of a submitted state plan. Effectively, this final rule would serve as the only federal plan proposal.
- The federal plan should make clear the criteria states must use and the steps needed to transition from the federal plan to an approvable state plan and allowance tracking system.
- The EPA’s proposed federal plan will not have the benefit that the EPA claims towards reducing global CO2 emissions. Emissions of CO2 in other countries, such as China, are growing so rapidly that the total annual reductions from the Clean Power Plan in the United States by 2030 will barely offset a single year of CO2 emissions increases from other countries.
- The EPA has not provided a single quantifiable climate benefit of the proposed federal plan. The EPA’s purported climate benefits of the rule are based solely on the Office of Management and Budget’s Social Cost of Carbon (SCC). Furthermore, the EPA used the global SCC yet did not consider the potential global impacts of the rule or other international changes in CO2 emissions.
- The proposed federal plan would implement the Clean Power Plan emission guidelines, which require the use of net generation to demonstrate compliance with the state goals. This reliance on net generation does not consider the source-specific actual operation of facilities that have installed pollution control equipment that increases onsite parasitic load.
Rate-Based Implementation Approach
- The EPA should not limit options to generate ERCs in the federal plan from the full list of options discussed in the emission guidelines.
Mass-Based Implementation Approach
- Zero-emitting EGUs, such as renewable energy (RE) and nuclear sources, should be provided allowances as part of the output-based allocation approach so that states can take advantage of already existing units in the state's fleet.
- A mass-based trading program itself will not incentivize new and existing low- and zero-emitting generation and, in particular, the construction of new RE generation. Simply creating a set-aside of allowances designated for a specific source type will not cause the construction of that source type such that states can further use those new sources to mitigate leakage.
- The EPA should inform states of how much time it expects to need to review eligibility of projected megawatt-hours for distribution of RE set-aside allowances.
- The EPA should reevaluate the proposed deadlines for submission of state allowance-distribution methodologies to replace federal plan allowance-distribution provisions.
Legal Authority
- The EPA’s attempt to force reductions in the use of coal and natural gas-fired EGUs through the proposed federal plan and model trading rule is beyond its legal authority and is inconsistent with Texas’s approach to electricity regulation, which relies on market forces to incentivize efficient development and operation of power plants. The EPA’s proposed federal plan and model trading rules would require Texas to fundamentally reorganize its electric grid in the way it generates and transmits power. By unlawfully rationing the amount of electricity that can be produced by fossil-fueled generation assets and forcing expenditures on transmission infrastructure that would otherwise not be necessary, the federal plan and proposed trading rules would result in increased prices and reduced reliability.
- The EPA does not have the authority to regulate “outside the fence” through FCAA §111(d) in either the newly finalized existing source rule, or in this proposed federal plan. In finalizing the existing source rule and, thus, in this proposal, the EPA has interpreted BSER too broadly. Section 111 applies to sources within a discrete identified source category. The EPA’s proposed rule continues the illegal establishment of CO2 emission guidelines for existing EGUs based upon regulating the entire energy sector under §111(d).
- The EPA’s authority to regulate EGUs under FCAA §111(d) is without legal basis because those sources are already subject to regulation under FCAA §112.
- The EPA’s authority to regulate under FCAA §111(d) is inherently limited by the requirement that the EPA must have already regulated new sources under §111(b). Given the legal uncertainties with the EPA’s newly finalized rule under §111(b), the EPA should withdraw the proposed federal plan until the §111(b) rule is legally resolved.
- The EPA must make a separate endangerment finding under FCAA §111 based on emissions from the source category and cannot rely on the FCAA §202 finding to regulate under §111.
- The EPA’s proposal to add new plan revision authority in §60.27(l) and error correction authority in §60.27(k) is unsupported, unworkable, and without legal basis for emission guidelines promulgated under FCAA, §111(d), particularly for the Clean Power Plan.
- While the EPA’s requirement to address leakage in the final Clean Power Plan was in response to comments, the EPA has not provided states and the public with adequate opportunity to comment on the leakage requirement for mass-based plans. The EPA is exceeding its legal authority by attempting to affect the operation of new units in any manner via FCAA §111(d).
- The EPA does not have authority to enforce or compel RE electric generating production or re-dispatch of NGCC EGUs in lieu of electrical generation by coal-fired EGUs under the FCAA or Texas law. If it were to issue a federal plan for Texas, the EPA has no practical mechanism to enforce these components of BSER finalized in the Clean Power Plan, and relied upon in this proposed federal plan, which would open the door for citizen suits against the EPA on these components of the BSER. The EPA should not propose rules that are not enforceable.
General Comments
- The EPA has not demonstrated why a trading program satisfies the FCAA requirement to allow consideration of the remaining useful life of existing sources that would be subject to this rule.
- The TCEQ agrees with the EPA’s proposed interpretation that FCAA, §111(d) would not apply to existing sources that modify or reconstruct. Instead, these sources should be subject to the New Source Performance Standards (NSPS) regulations under FCAA §111(b) as a new source and not as an existing source under §111(d).
- The EPA should allow for RE and energy efficiency (EE) projects implemented on or after September 6, 2016 to be eligible for the Clean Energy Incentive Program (CEIP).
- The EPA should expand the scope of CEIP-eligible projects beyond just wind and solar RE and low income EE, as it has provided no reasonable justification for limiting CEIP eligibility to only these measures.
DATE SUBMITTED: 01/15/16
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: Caroline Sweeney
SUMMARY OF COMMENTS:
Comments
- TCEQ recommends that EPA start over and perform a formal cost-benefit analysis to justify that it is “appropriate and necessary” to regulate HAP emissions from EGUs under Section 112.
- TCEQ disagrees with EPA’s inclusion of, and reliance on, co-benefits from other pollutants not regulated under Section 112 in the formal cost-benefit analysis as a basis for the final Mercury Air Toxics Standard (MATS) RIA. (80 FR 75039)
- The TCEQ disagrees with the use of cost absorption as basis for EPA’s conclusion it is appropriate and necessary to regulate HAPs under FCAA Section 112(n)(1).
- The TCEQ disagrees with the EPA’s assertion that the costs of compliance for EGUs are reduced because EGUs can ultimately pass some of the costs of compliance on to consumers.
- EPA’s consideration of costs does not address the deficiencies in reasoning identified by the Supreme Court in Michigan v. EPA, 135 S.Ct. 2699 (2015).
DATE SUBMITTED: 12/04/15
SHORT TITLE: Oil and Natural Gas Sector: Emission Standards for New and Modified Sources
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: John Minter
SUMMARY OF COMMENTS:
Comments
EPA states that the goal of this proposal is to provide certainty to the oil and gas industry. Both options raise numerous and significant implementation issues that will result in an overly broad aggregation policy and create additional uncertainty by bogging down the permit review process, usurping state authority to review and regulate what would otherwise be minor sources, and failing to account for the realities of oil and gas operations and permitting challenges.
In proposing these options, EPA fails to truly recognize the unique realities of oil and gas operations and permitting challenges that Congress acknowledged when it revised the Clean Air Act in 1990, specifically, the prohibition on oil and gas aggregation for regulating hazardous air pollutants under section 112. These existing regulatory requirements should guide EPA’s policy and rulemaking decisions and not be in contrast to them without sound legal and scientific bases. EPA has failed to include this analysis.
EPA states that its preferred option, Option 1, relies solely only on proximity as the determinative factor for defining the term “adjacent” requiring aggregation of oil and gas sources that are within ¼ mile of each other. TCEQ does not support this option. Adopting in rule any distance between sources, without consideration of how those sources function together, is arbitrary and furthermore does not “approximate a common sense notion of ‘plant’” nor “fit within the ordinary meaning of ‘building,’ ‘structure,’ ‘facility,’ or ‘installation’.”
EPA’s Option 2 would consider facilities beyond ¼ mile that are exclusively functionally interrelated as a basis for adjacency. As examples, EPA suggests that exclusive functional interrelatedness could include connection via pipeline, delivery via truck or train, and facts such as whether one group of equipment would be able to operate if the other group of equipment was not operating. TCEQ does not support such a broad and misplaced application of this concept. In parts of the proposal, EPA uses the term “operationally dependent” interchangeably with functional relatedness. Functional relatedness has nothing to do with adjacency and more to do with the groupings of activities that are the basis for the standard classification codes. Operational dependence, on the other hand, is the extent to which each activity relies on the other for its operations.
EPA suggests Option 2 could be further defined and limited to a ‘hub and spoke’ model, where “oil and gas produced from one or more wells has a dedicated flow to only one possible downstream point for further compression, processing or storage.” However, even this configuration could lead to the absurd result where several oil and gas wells located over an area of many square miles could be aggregated merely because the product is transported by pipeline, or even rail or truck, to one central point.
There is no public health benefit to adopting either option proposed in this rule. EPA states that one potential outcome of aggregating oil and gas sources is to create major sources resulting in better control of emissions through major source permitting. Texas’s experience is that these sources are already well-controlled and protective of public health. The vast majority of oil and gas sources are authorized under permits by rule (PBRs) or standard permits (SPs). The controls required under these authorizations are appropriate to the equipment at the facility or site and are developed to be protective of public health. Thus, there is no benefit to the major source permitting process that includes a site specific impacts evaluation, air dispersion modeling, and an extensive public notice and participation process with the potential for a contested case hearing. By EPA’s own admission, the revised oil and gas methane NSPS “makes it less likely that major source permitting would result in substantial additional pollution control.”
EPA should allow states to utilize their existing processes and guidance and develop additional guidance and policies that best fit their state since oil and gas permitting is primarily a minor source process for which the states “have broad authority to determine the methods and particular control strategies they will use to achieve the statutory requirements.” This position is supported by EPA guidance memos stating that permitting authorities retain the discretion to make aggregation decisions using the factors relevant to the specific circumstances of the permitted activities.
According to Texas Railroad Commission (TRRC) data, there are almost 300,000 regular producing oil and gas wells in the state of Texas. Considering the way oil and gas fields are developed in Texas (and across the nation for that matter) and the TRRC well spacing requirements for oil and gas production in the state, there are very few areas that would not be affected by either of EPA’s proposed adjacency definitions should any additional development occur. This will increase the TCEQ staff permit review workload, significantly lengthen the permitting process, and create uncertainty in the regulatory process. Depending on the EPA’s final rule, hundreds if not thousands additional oil and gas sources would be required to annually report emissions to the EI. The potential large increase in the number of sources reporting would provide minimal additional benefit compared to the significant annual reporting burden for industry and the state resources to receive, track, review, and store the additional data.
If EPA either option, EPA should include a prohibition on daisy chaining. Without such a prohibition, this option could lead to situations where numerous sources within and beyond one-quarter mile apart could be linked together as one large source even though there is no functional relationship between all the sources collectively.
It is inappropriate and arbitrary for EPA to focus this rulemaking on the oil and gas sector exclusively. The policy reasons for this rule’s focus on this sector are misguided. First, EPA claims that “….because permitting decisions are difficult and time-consuming. Providing this guidance will promote a consistent regulatory treatment for this industry.” In Texas, the TCEQ has developed streamlined permitting mechanisms for minor sources and the oil and gas sector specifically that reduce review timeframes significantly. TCEQ does not agree that permitting decisions for this industry are more difficult and time consuming than any other industry sector. In addition, by EPA’s own admission, a better approach to controlling emissions from this sector is through the NSPS or NESHAP programs, and in ozone nonattainment areas, control techniques guidelines (CTGs). These programs do not rely on an expansive definition of a source for applicability, thus they will typically apply to minor sources.
The EPA should not finalize this source determination rule for Major New Source Review and Title V. Texas’ recommendation is for EPA to retain the existing definition and interpretation of adjacency, allow states to develop applicable minor source programs as provided under the FCAA as Texas has done, and further allow the states to develop and adopt appropriate major source guidance for PSD and NNSR programs and the Title V programs. This approach would be consistent with the plain meaning of the term and common sense notion of plant, and take into account the physical, operational, and regulatory realities of oil and gas operations across the country.
DATE SUBMITTED: 12/04/15
SHORT TITLE: Release of Draft Control Techniques Guidelines for the Oil and Natural Gas Industry
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
Comments
- The EPA should not finalize this CTG and should instead retain the control recommendations to be used for non-CTG major source RACT determinations or to develop reasonably available control measures (RACM) strategies for those areas needing VOC emissions reductions to provide for attainment of the ozone National Ambient Air Quality Standards (NAAQS).
- The FCAA intended for the EPA to develop CTG documents to reduce VOC emissions to help areas attain the ozone NAAQS. The EPA should not be using authority granted expressly regarding the ozone NAAQS for the purposes of greenhouse gas reductions.
- In light of the upcoming implementation of the 2015 ozone NAAQS, the due date to submit SIP revisions in response to the final CTG should be flexible to account for ozone planning in nonattainment areas that are simultaneously subject to multiple ozone standards.
- The EPA should make clear that the model rule language includes example rule requirements but that only emission control levels established in the CTG are presumptive RACT.
- The EPA should clearly define the scope of applicability for pneumatic controllers and pneumatic pumps in the CTG preamble discussion and in the model rule language.
- The EPA should clarify the intent of the closed vent systems model rule D.1(b)(2) requiring closed vent systems routing to a process to be ‘operational’ 95% of the year but have ‘no detectable emissions.’
- The EPA should clarify whether the requirements for equipment leaks at natural gas processing plants apply to compressors.
- In addition to the use of Optical Gas Imaging (OGI), Method 21 should be recommended as RACT and be provided as a compliance option to detect leaking components at well sites and compressor stations.
DATE SUBMITTED: 12/04/15
SHORT TITLE: Source Determination for Certain Emission Units in the Oil and Natural Gas Sector
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: John Minter
SUMMARY OF COMMENTS:
Comments
EPA states that the goal of this proposal is to provide certainty to the oil and gas industry. Both options raise numerous and significant implementation issues that will result in an overly broad aggregation policy and create additional uncertainty by bogging down the permit review process, usurping state authority to review and regulate what would otherwise be minor sources, and failing to account for the realities of oil and gas operations and permitting challenges.
In proposing these options, EPA fails to truly recognize the unique realities of oil and gas operations and permitting challenges that Congress acknowledged when it revised the Clean Air Act in 1990, specifically, the prohibition on oil and gas aggregation for regulating hazardous air pollutants under section 112. These existing regulatory requirements should guide EPA’s policy and rulemaking decisions and not be in contrast to them without sound legal and scientific bases. EPA has failed to include this analysis.
EPA states that its preferred option, Option 1, relies solely only on proximity as the determinative factor for defining the term “adjacent” requiring aggregation of oil and gas sources that are within ¼ mile of each other. TCEQ does not support this option. Adopting in rule any distance between sources, without consideration of how those sources function together, is arbitrary and furthermore does not “approximate a common sense notion of ‘plant’” nor “fit within the ordinary meaning of ‘building,’ ‘structure,’ ‘facility,’ or ‘installation’.”
EPA’s Option 2 would consider facilities beyond ¼ mile that are exclusively functionally interrelated as a basis for adjacency. As examples, EPA suggests that exclusive functional interrelatedness could include connection via pipeline, delivery via truck or train, and facts such as whether one group of equipment would be able to operate if the other group of equipment was not operating. TCEQ does not support such a broad and misplaced application of this concept. In parts of the proposal, EPA uses the term “operationally dependent” interchangeably with functional relatedness. Functional relatedness has nothing to do with adjacency and more to do with the groupings of activities that are the basis for the standard classification codes. Operational dependence, on the other hand, is the extent to which each activity relies on the other for its operations.
EPA suggests Option 2 could be further defined and limited to a ‘hub and spoke’ model, where “oil and gas produced from one or more wells has a dedicated flow to only one possible downstream point for further compression, processing or storage.” However, even this configuration could lead to the absurd result where several oil and gas wells located over an area of many square miles could be aggregated merely because the product is transported by pipeline, or even rail or truck, to one central point.
There is no public health benefit to adopting either option proposed in this rule. EPA states that one potential outcome of aggregating oil and gas sources is to create major sources resulting in better control of emissions through major source permitting. Texas’s experience is that these sources are already well-controlled and protective of public health. The vast majority of oil and gas sources are authorized under permits by rule (PBRs) or standard permits (SPs). The controls required under these authorizations are appropriate to the equipment at the facility or site and are developed to be protective of public health. Thus, there is no benefit to the major source permitting process that includes a site specific impacts evaluation, air dispersion modeling, and an extensive public notice and participation process with the potential for a contested case hearing. By EPA’s own admission, the revised oil and gas methane NSPS “makes it less likely that major source permitting would result in substantial additional pollution control.”
EPA should allow states to utilize their existing processes and guidance and develop additional guidance and policies that best fit their state since oil and gas permitting is primarily a minor source process for which the states “have broad authority to determine the methods and particular control strategies they will use to achieve the statutory requirements.” This position is supported by EPA guidance memos stating that permitting authorities retain the discretion to make aggregation decisions using the factors relevant to the specific circumstances of the permitted activities.
According to Texas Railroad Commission (TRRC) data, there are almost 300,000 regular producing oil and gas wells in the state of Texas. Considering the way oil and gas fields are developed in Texas (and across the nation for that matter) and the TRRC well spacing requirements for oil and gas production in the state, there are very few areas that would not be affected by either of EPA’s proposed adjacency definitions should any additional development occur. This will increase the TCEQ staff permit review workload, significantly lengthen the permitting process, and create uncertainty in the regulatory process. Depending on the EPA’s final rule, hundreds if not thousands additional oil and gas sources would be required to annually report emissions to the EI. The potential large increase in the number of sources reporting would provide minimal additional benefit compared to the significant annual reporting burden for industry and the state resources to receive, track, review, and store the additional data.
If EPA either option, EPA should include a prohibition on daisy chaining. Without such a prohibition, this option could lead to situations where numerous sources within and beyond one-quarter mile apart could be linked together as one large source even though there is no functional relationship between all the sources collectively.
It is inappropriate and arbitrary for EPA to focus this rulemaking on the oil and gas sector exclusively. The policy reasons for this rule’s focus on this sector are misguided. First, EPA claims that “….because permitting decisions are difficult and time-consuming. Providing this guidance will promote a consistent regulatory treatment for this industry.” In Texas, the TCEQ has developed streamlined permitting mechanisms for minor sources and the oil and gas sector specifically that reduce review timeframes significantly. TCEQ does not agree that permitting decisions for this industry are more difficult and time consuming than any other industry sector. In addition, by EPA’s own admission, a better approach to controlling emissions from this sector is through the NSPS or NESHAP programs, and in ozone nonattainment areas, control techniques guidelines (CTGs). These programs do not rely on an expansive definition of a source for applicability, thus they will typically apply to minor sources.
The EPA should not finalize this source determination rule for Major New Source Review and Title V. Texas’ recommendation is for EPA to retain the existing definition and interpretation of adjacency, allow states to develop applicable minor source programs as provided under the FCAA as Texas has done, and further allow the states to develop and adopt appropriate major source guidance for PSD and NNSR programs and the Title V programs. This approach would be consistent with the plain meaning of the term and common sense notion of plant, and take into account the physical, operational, and regulatory realities of oil and gas operations across the country.
DATE SUBMITTED: 10/23/15
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daniel Menendez
SUMMARY OF COMMENTS:
Comments
TCEQ is generally supportive of the EPA's proposed changes to the Guideline, and offers numerous technical comments on various aspects of the proposal. TCEQ supports the flexibility provided in the proposed Guideline because many air quality analyses involve unique characteristics that are not specifically addressed in general guidance. Selected excerpts from TCEQ's detailed comments follow.
With respect to the AERMOD modeling system, TCEQ supports the proposal to make the surface friction velocity adjustment option a part of the regulatory default version, and supports the proposed LOWWIND3 model option. These changes should address issues with model overprediction under low wind speed conditions. TCEQ suggests that the proposed line source option (BOUYLINE) be included in AERMOD as a non-default/beta option, and the BLP model continues to be listed as a preferred model until further investigation can be conducted.
TCEQ does not agree that the screening models AERSCREEN and CTSCREEN should be listed as preferred or recommended screening models. Listing AERSCREEN as a preferred or recommended screening model may limit the use of other simple and widely-used screening models, such as SCREEN3. AERSCREEN is rarely used by permit applicants due to its complexity.
TCEQ encourages the EPA to allow continued use of the existing ARM approach as a conservative technique given its familiarity and ease of use within or outside of a model platform, as an alternative to the proposed use of ARM2. TCEQ supports the inclusion of the Tier 3 screening approaches (Ozone Limiting Method [OLM] and Plume Volume Molar Ratio Method [PVMRM]) as part of the regulatory default version of AERMOD.
TCEQ supports the development of screening tools to assist with the evaluation of secondarily formed pollutants; specifically, Significant Impact Levels (SILs) and Model Emissions Rates for Precursors (MERPs) for PM2.5 and ozone. TCEQ encourages the EPA to complete rulemaking for the SILs and MERPs before the proposed revisions to the Guideline are final.
TCEQ supports the proposed screening approach of using the modeling results from the appropriate near-field screening/preferred model at 50 kilometers to determine the significance of the impacts with respect to Class I PSD increments for distances beyond 50 kilometers. The TCEQ also supports the continued use of CALPUFF as part of a screening analysis.
TCEQ is concerned with having the Model Clearinghouse review and provide formal concurrence memoranda for use of alternative models. This has the potential to add a significant amount of time to the permit review process.
TCEQ supports the option to rely on multiple sources of data for obtaining meteorological data for dispersion modeling, including the use of the Weather Research and Forecasting (WRF) prognostic meteorology model in conjunction with the EPA's Mesoscale Model Interface program (MMIF) conversion tool. Furthermore, the TCEQ encourages continued flexibility for how those meteorological data are processed for use with dispersion models.
TCEQ encourages the EPA to add additional flexibility when designing receptor grids. While the proposed Guideline discusses receptor placement, most of the guidance focuses on receptor density and no consideration is given to the potential for public exposure.
DATE SUBMITTED: 10/15/15
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller and Daphne McMurrer
SUMMARY OF COMMENTS:
Comments
- The TCEQ will provide comment on the appropriate threshold level for determining significant contributions when the EPA solicits comment on the proposed federal implementation plan to address interstate ozone transport for the 2008 ozone NAAQS, anticipated in December 2015.
- Using the attainment deadline for moderate nonattainment areas as the projected analysis year is not appropriate, and the EPA should instead select a projected analysis year for each downwind site based on the actual attainment date that applies to that site.
- The TCEQ has updated 2011 area source oil and gas emissions estimates for several source categories based on research studies completed after the 2011 national emissions inventory (NEI) submission deadline and will provide this data to the EPA. The EPA should revise its 2011 base-year inventory to incorporate these updates.
- The method used by the EPA to develop the 2017 area source oil and gas emissions inventory may underestimate emissions for counties in basins that have experienced significant increases in production in the last few years, while counties in basins that have had relatively flat production may be overestimated. The TCEQ encourages the EPA to revise its approach to forecasting oil and gas emissions using more recent data.
- The EPA should account for the impact of current oil and gas prices on the projected 2017 oil and gas production and other upstream emissions estimates for both point and area sources. Gas well drilling has decreased statewide in Texas beginning in 2012 due to continuing low natural gas prices. A significant decrease in oil well drilling has occurred over the past year due in part to declining oil prices. These decreases in drilling will result in declining future production. Therefore, the 2017 oil and gas growth factors should be adjusted to account for this decrease.
- The TCEQ has updated 2011 non-road mobile source railroad emissions estimates for several source categories based upon reductions from Texas-specific control strategies completed after the 2011 NEI submission deadline and will provide this data to the EPA. The EPA should revise its 2011 base-year inventory to incorporate these updates.
- Discrepancies exist between the EPA’s 2011 on-road mobile source activity and extended idle (hoteling) emissions data set and the TCEQ 2011 mobile source inventory that was originally submitted to the EPA. The EPA should revise its 2011 base-year inventory to incorporate the originally submitted TCEQ activity data and provide more time to states to review EPA updates to base-year and future-year hoteling emissions.
- The EPA’s 2017 forecasted on-road mobile source emissions inventory provided in the NODA will not be the same inventory used to develop the final rule to address interstate transport for the 2008 ozone standard. The EPA should provide a separate notice and comment opportunity for a complete 2017 on-road mobile source emissions inventory.
- When projecting on-road mobile source emissions from 2011 to 2018, it appears the EPA used an outdated 2012 dataset and relied on the Annual Energy Outlook’s transportation projections to forecast vehicle miles traveled. Instead, the EPA should use more recent data as well as state-specific information to forecast mobile source emissions.
- In general for Texas electric generating units (EGU), the EPA should not use worst-case NOX and sulfur dioxide (SO2) emissions rates resulting from 40 Code of Federal Regulations Part 75 data substitution. Instead, the EPA should replace any data substitution values with TCEQ-reported emissions rates, which are more representative of actual emissions.
- The TCEQ’s review of the Integrated Planning Model (IPM) data files used for the ozone transport modeling indicates errors have been made in the EPA’s assumptions. The EPA should make a more concerted effort to confirm the assumptions inputted into and generated by IPM.
- The EPA’s methodology to identify maintenance sites is flawed and does not give distinct and separate meaning to maintenance sites. By using the maximum design value from the 2011-centered five-year period, the methodology ignores any emissions reductions trends that might exist in recent years. The TCEQ recommends that the EPA revise the method for identifying sites with projected maintenance problems to be based on the 2013 design value (the latest year in the 2011 centered five-year period) in order to account for design value trends.
- The EPA should use only contributions from days that were accounted for in the calculation of the relative response factor when calculating an upwind state’s contributions to future design values.
DATE SUBMITTED: 09/23/15
SHORT TITLE: Reclassification of Several Areas Classified as Marginal for the 2008 Ozone National Ambient Air Quality Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The Texas Commission on Environmental Quality (TCEQ) appreciates the opportunity to comment on the United States Environmental Protection Agency’s (EPA) proposal to grant a one-year attainment date extension for the HGB marginal nonattainment area for 2008 eight-hour ozone NAAQS under FCAA, §181(a)(5). The TCEQ supports the EPA’s proposed attainment date extension to July 20, 2016, which acknowledges that the HGB area is in compliance with all requirements and commitments pertaining to its applicable implementation plan as required under FCAA, §181(a)(5)(A). The TCEQ also supports the EPA’s evaluation that certified air quality monitoring data for 2014 met the air quality requirements of FCAA, §181(a)(5)(B) and EPA’s interpretation of that statutory provision in 40 Code of Federal Regulations §51.1107, which concludes that all monitors in the HGB area had a fourth highest daily maximum eight-hour average of 0.075 parts per million or less.
DATE SUBMITTED: 09/09/15
SHORT TITLE: Clean Air Act Redesignation Substitute for the Houston-Galveston-Brazoria 1-hour Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
Comments
The TCEQ supports the EPA’s proposed approval of this redesignation substitute demonstration and the EPA’s analysis, which concludes that the HGB area has attained the revoked one-hour ozone NAAQS due to permanent and enforceable emission reductions and that it will maintain that standard for 10 years from the EPA’s approval of this demonstration. The TCEQ agrees that the EPA’s final approval of this demonstration would serve as a redesignation substitute under the EPA’s implementing regulations (80 FR 12264) and that Texas would no longer be required to adopt any additional applicable one-hour ozone NAAQS requirements for the HGB area that have not already been approved into the SIP.
DATE SUBMITTED: 09/01/15
SHORT TITLE: Determination of Attainment Houston-Galveston-Brazoria 1997 Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
Comments
The Texas Commission on Environmental Quality (TCEQ) appreciates the opportunity to comment on the EPA’s proposed determination that the HGB 1997 eight-hour ozone nonattainment area is currently attaining the 1997 ozone NAAQS via a Clean Data Determination (CDD). The TCEQ supports the EPA’s CDD, which acknowledges that the HGB area is currently attaining the 1997 eight-hour ozone standard based on the most recent three years of quality-assured monitoring data and preliminary 2015 monitoring data. The HGB area monitors have had significant decreases in their ozone values. The eight-hour ozone design value in the HGB area has decreased nearly 33% over the past 24 years, from a design value of 119 ppb in 1990 to a design value of 80 ppb in 2014. Based on the redesignation substitute demonstration submitted to the EPA on August 18, 2015, the TCEQ expects that the HGB area will continue to attain the 1997 eight-hour ozone NAAQS through 2028.
DATE SUBMITTED: 08/11/15
SHORT TITLE: Revisions to the Minor New Source Review State Implementation Plan (SIP) for Portable Facilities
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Mike Wilhoit
SUMMARY OF COMMENTS:
The TCEQ concurs with the EPA’s determination that the Portable Facilities program codified in these rules meets the applicable requirements of the Federal Clean Air Act, and the TCEQ supports the EPA’s proposed approval of the rules covered in the notice as revisions to the Texas SIP.
DATE SUBMITTED: 06/25/15
SHORT TITLE: Primary National Ambient Air Quality Standards for Nitrogen Dioxide: Risk and Exposure Assessment
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Dr. Sabine Lange, Ph.D.
SUMMARY OF COMMENTS:
Comments
Main Comment
The Texas Commission on Environmental Quality (TCEQ) agrees that there is little new health effect information since the last review, and if the EPA does create a new risk assessment, the health effect information from epidemiology studies is not strong enough to be used in a risk assessment. TCEQ recommends that the EPA not use a national factor to convert near-road monitoring data to on-road modeled NO2 concentrations, and that general caution must be taken when using multiple models because of the problems with compounding uncertainties. The TCEQ recommends that an updated exposure assessment only be done if there is sufficient new monitoring data, or if the new monitoring data shows a significant difference in NO2 concentrations compared to EPA’s previous modeled concentrations. If these are the case and the EPA does a new exposure assessment, then a new risk assessment may be warranted.
Significant Comments
- TCEQ agrees that the data on the health effects of NO2 have not substantially changed since the last REA. We also agree that there is evidence for a causal relationship between short-term NO2 exposure and respiratory effects in asthmatics. Data based on the effects of NO2 exposure measured during controlled human exposure studies can and should be used for a human health risk assessment. On the other hand, the uncertainties in the epidemiology studies (exposure measurement error, confounding, etc), makes these data unsuitable for deriving a risk assessment.
- The EPA proposes to obtain modeled concentrations at varying distances from a road to develop on-road simulation factors based on either road-side or away-from-road concentrations. The TCEQ is concerned that the influential factors (such as temporal variability, traffic flow, temperature and meteorology) of the study areas used to derive these factors will not be the same for all areas of the country and should not be used to develop national factors.
- The TCEQ thinks that monitoring data obtained from the near-road NO2 monitoring network, designed to measure NO2 concentrations near heavily-trafficked roadways, will help address some of the uncertainties in previous assessments. In fact, monitoring data collected in Texas do not support a large difference in NO2 concentrations measured near roadways compared to concentrations measured farther away from those roads.
- The TCEQ urges the EPA to be cautious with the modeling used in their NO2 exposure assessment, and to carefully consider the uncertainties in the models. Each model and approach has individual and collective uncertainties. Results derived from certain models used to provide input into other models could confound results in the last model in the series. For example, it is not well known how uncertainty related to the use of MOVES, AERMOD, and finally APEX affects the results of studies and analyses that would be used to set the NAAQS. [EPA Motor Vehicle Emission Simulator (MOVES), American Meteorological Society/EPA Regulatory Model (AERMOD), Air Pollutants Exposure (APEX) model].
- The TCEQ thinks an updated exposure assessment may be warranted when enough data from recently deployed NO2 near-road monitors becomes available. If any significant updates are made to the air quality analysis and/or exposure assessment, it may be necessary to determine how or if these updates will affect the risk assessment.
DATE SUBMITTED: 05/29/15
SHORT TITLE: Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
Comments
- The TCEQ is concerned about continued technical challenges related to implementing requirements for PM2.5 in the permitting process and the precedent set by the EPA’s proposal regarding addressing PM2.5 precursors in nonattainment new source review (NNSR) and new source review (NSR) prevention of significant deterioration (PSD) permitting.
- The TCEQ supports the EPA’s approach to phase-in the regulation of PM2.5 precursors in both the NNSR and NSR PSD permitting programs (80 FR 15436).
- As the EPA states in this proposal, much more analysis is needed to determine technically justifiable major source thresholds, significant emission rates, and associated permit and modeling guidance. The EPA should conduct this analysis so states and applicants do not have to expend significant resources to establish the contribution of PM2.5 precursors.
- The EPA should not create any additional emissions inventory requirements beyond those in the current Air Emissions Reporting Rule.
- The EPA should be consistent with use of control–related terminology and not redefine existing permitting terms.
- The TCEQ does not agree with the EPA that a requirement for the imposition of "other control measures" outside of a designated nonattainment area is legally required for an attainment demonstration.
- The TCEQ objects to the proposed rule language that requires states to identify all potential control measures. States do not have unlimited resources to research every possible control measure that might exist for all source types within the state boundaries. States should not be required to include in a SIP those control measures that are absurd, unenforceable, or impractical.
- Moderate nonattainment areas for which the state cannot demonstrate attainment by the statutory attainment date should only be required to implement those technologically and economically feasible measures identified for sources in the area that would effectively reduce ambient PM2.5 concentrations.
- The TCEQ does not agree with the EPA’s interpretation of the Federal Clean Air Act regarding the authority to require early adoption of Best Available Control Measures or the EPA’s discretionary authority to reclassify an area as a serious nonattainment area.
- The EPA should provide the option of a case-by-case determination of significant contribution since NNSR permits will be issued before the SIP is effective and for demonstrations to use higher major source thresholds or major modification Significant Emission Rates for precursors for NSR PSD and NNSR permit review.
- Volatile organic compounds and ammonia should not be included in PM2.5 rules at this time due to ongoing technical challenges related to evaluating their contribution as PM2.5 precursor gases.
- The EPA should allow NSR PSD permits to be issued after the effective date of a nonattainment designation under certain conditions.
- The EPA should allow states the flexibility to consider both approaches outlined in the proposed rule to develop a control strategy for an area affected by international transport of emissions.
- The EPA should clarify requirements related to:
- evaluation of economic feasibility;
- how states should demonstrate attainment and implement SIP requirements at near-road monitoring sites; and
- the relationship between PM10 and PM2.5 in the major source applicability evaluation process.
- The TCEQ supports the following aspects of the proposal:
- including de minimis thresholds for exempting certain source categories from consideration for reasonable control measure determinations;
- the EPA’s Option 1 for demonstrating attainment in unmonitored areas and for developing a reasonable further progress analysis;
- that major source applicability determinations should continue to be based on individual precursor pollutant emissions;
- the proposed transitional approach to establish a phased-in process for regulating PM2.5 precursors in the NNSR program; and
- Option 2 for revoking the 1997 primary annual PM2.5 NAAQS.
DATE SUBMITTED: 05/28/15
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The TCEQ supports the EPA’s Clean Data Determination, which acknowledges that the DFW area is currently attaining the 1997 ozone standard based on the most recent three years of quality-assured monitoring data (2012 through 2014). The DFW area monitors have all had significant decreases in their ozone values. For example, the Fort Worth Northwest monitor readings dropped 17 parts per billion (ppb), from 96 ppb in 2003 to 79 ppb in 2014. The TCEQ agrees that there is no need for the submission of an attainment demonstration, a reasonable further progress plan, contingency measures, and other requirements relevant for the 1997 ozone standard since the DFW area is attaining the 1997 ozone standard.
The TCEQ does not support a SIP disapproval for a revoked standard that may result in future obligations for that revoked standard.
DATE SUBMITTED: 04/21/15
SHORT TITLE: Approval and Promulgation of Implementation Plans; Texas; Public Participation for Air Quality Permit Applications
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
The TCEQ concurs with the EPA’s conclusion that the public participation provisions that the EPA is approving into the SIP in this action are consistent with all applicable federal requirements for public notice for PAL permit applications and minor New Source Review (NSR) permitting. The TCEQ supports the EPA’s approval of these rules into the Texas SIP.
The preamble to this direct final rule notes that the EPA will address the conversion of the remainder of the conditionally-approved Texas Flexible Permit Program (FPP) to a full approval in a separate rulemaking. The TCEQ agrees with the EPA’s findings in the December 31, 2014, proposed final approval that the FPP rules as submitted meet all applicable requirements for federal minor NSR and the Federal Clean Air Act, and therefore, can be approved as part of the Texas SIP. The TCEQ looks forward to the conversion of the conditional approval of the FPP rules to a final full approval.
DATE SUBMITTED: 04/20/15
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACTS: Daphne McMurrer
SUMMARY OF COMMENTS:
The United States Environmental Protection Agency (EPA) proposed to partially approve and partially disapprove a revision to the Texas state implementation plan (SIP) addressing regional haze. The EPA proposal also includes a regional haze federal implementation plan (FIP) for Texas.
Together, the TCEQ and Public Utility Commission (PUC) submit the following overarching comments:
- The TCEQ and PUC do not support the proposed partial disapproval of Texas’ regional haze SIP or adoption of the proposed FIP. The EPA’s proposed partial SIP disapproval and FIP ignore the Federal Clean Air Act’s flexibility with regard to states crafting regional haze plans; and thus are arbitrary, capricious, and an abuse of discretion. The EPA’s action is based not on current law or guidance but rather the agency’s preference of what the law and guidance should be.
- The projected visibility improvement from the proposed FIP requirements are imperceptible at all three Class I areas. The 2009 Texas Regional Haze SIP, as submitted, would ensure more than Texas’ proportional contribution to progress toward improved visibility conditions at Wichita Mountains Class I area through the first planning period.
- The requirements in the proposed FIP are untimely for the first regional haze planning period due to the EPA’s delay in acting on the 2009 SIP submittal.
- Texas disagrees with the EPA’s technical approach of evaluating only Texas sources when considering more controls to reduce haze at the Wichita Mountains.
The comment document includes the following responses to specific aspects of the EPA’s action:
- The Proposed FIP: Inadequacies in a SIP submission should be addressed with the subsequent SIP revision, not a FIP. The EPA’s cost analysis for the proposed FIP is not adequate, in particular regarding the scrubber upgrades. The proposal exaggerates the potential benefits of the proposed FIP.
- Nationwide Scope and Effect: The TCEQ disagrees with the EPA’s assertion that this action is a rulemaking of nationwide scope and effect. Any appeal of the EPA’s final action on Texas’ regional haze plan and FIP should be filed with the 5th Circuit Court of Appeals.
- Electric Reliability: The EPA should consider the findings of the Electric Reliability Council of Texas (ERCOT) report Impacts of Environmental Regulations in the ERCOT Region. The proposed FIP affects a significant portion of Texas’ base load power generation fleet and the EPA should evaluate and consider the impacts of the proposed FIP on the reliability and price of electricity in Texas. If the EPA does finalize the FIP, the EPA should include a reliability safety valve provision in the final rule. The comments also include specific responses related to the following legal and technical topics: visibility transport; natural and baseline visibility conditions; natural visibility impairment; the uniform rate of progress; reasonable progress goals; reasonable progress four factor analysis and consultation; best available retrofit technology determinations; long-term strategy requirements; and the proposed disapproval of the infrastructure SIPs.
DATE SUBMITTED: 03/24/15
SHORT TITLE: Receipt of Approval Requests for the Operation of Pressure-Assisted Multi-Point Ground Flare Technology
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACTS:Anne Inman, P.E., Dana Vermillion, P.E., Jeff Greif
SUMMARY OF COMMENTS:
Comments
The TCEQ supports the proposed AMEL for Dow and EM, and believes it is reasonable to expand and simplify the approval of additional pressure-assisted flares, also known as "sonic" flares. The TCEQ concurs with the EPA’s analysis that tests of pressure-assisted ground flares have measured high combustion efficiencies during stable flame operation. The TCEQ suggests that the EPA recognize pressure-assisted flares as a separate or unique category of flares, rather than trying to categorize them under one of the three flare types (non-assisted, steam-assisted, and air-assisted) currently recognized under EPA regulations. The TCEQ further suggests that the EPA move to modify the underlying rules at 40 Code of Federal Regulations (CFR) § 60.18 and § 63.11 to be consistent and specifically address a "pressure-assisted" or "sonic flare" type that would not require individual AMEL approval.
Although TCEQ supports the parameter limits for net heating value and lower flammability limit in the combustion zone being established in this AMEL, the TCEQ notes that detailed engineering is required for each flare system to address the potential variability in waste gas composition, flammability, and flow. The TCEQ suggests that each burner manufacturer and system designer show, through qualitative testing, what minimal operating parameters (i.e. net heating value or LFLcz) are necessary to achieve stable flame operation for the expected waste gas compositions and flows.
The TCEQ objects to the requirement in the AMEL that owners or operators calculate certain parameters by referencing a proposed federal regulation (specifically 40 CFR § 63.670(l)-(m), proposed at 79 FR 36980). It is inappropriate for the EPA to require owners or operators to commit to a method in a proposed rule, due to the uncertainty of the final promulgated requirements. TCEQ recommends that the applicant and the EPA agree to an AMEL Plan Appendix which details a specific variable calculation methodology, and may be based on the underlying research used in the proposal of the referenced federal regulation.
The TCEQ notes that the language in this AMEL, in 40 CFR § 60.18, and in 40 CFR § 63.11 relating to the presence of a flame is slightly different, and the TCEQ requests that the EPA clarify the reason for the differences. Specifically, the EPA states in the AMEL, "The flare system must be operated with a flame present at all times when in use," and TCEQ requests that the EPA confirm that this means combustion and a flame in each active tip when flow is present.
The TCEQ offers a number of additional comments relating to monitoring and testing of these types of pressure-assisted flares. Finally, the TCEQ suggests that the EPA allow sufficient flexibility within the AMEL requirements to allow for enhanced testing, monitoring, and recordkeeping requirements or approaches in the future, with the least possible administrative burden.
DATE SUBMITTED: 03/24/15
SHORT TITLE: Second External Review Draft Integrated Science Assessment for Oxides of Nitrogen - Health Criteria
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Executive Director
STAFF CONTACT: Shannon Ethridge, M.S., DABT
SUMMARY OF COMMENTS:
Comments
There is great complexity associated with multiple issues relevant to the assessment of health and welfare risk and exposure assessments of oxides of nitrogen, especially at low exposure levels. The TCEQ developed comments based on a cursory review and additional time would have allowed the TCEQ to: (1) perform a more detailed review of the volumes of relevant information; (2) more fully examine statistical procedures and the rationale and scientific support for key EPA decisions and analyses; and (3) provide more detailed specific comments on all problematic issues associated with the ISA. Key points are:
- In general, USEPA made significant improvements in the second draft NO2 ISA.
- In the second draft NO2 ISA, USEPA continued to use ecological epidemiology studies to support causal associations between NO2 exposure and certain health endpoints. Key uncertainties remain regarding this procedure.
- Respiratory effects (short-term exposure): TCEQ agrees with the causal determination between short-term NO2 exposure and increased airway responsiveness in asthmatics for concentrations at or above the current 1-hour NAAQS of 100 ppb, based on evidence from controlled human and animal studies and to a limited extent, epidemiological studies. Evidence for causal associations between other respiratory effects and short-term exposure to NO2 concentrations is inconsistent, weak, or limited to high exposure concentrations.
- Respiratory effects (long-term exposure): In the second draft ISA, USEPA strengthened the causal determination to "likely to be a causal relationship" based on new evidence from epidemiological studies for asthma incidence and respiratory symptoms in children, and respiratory effects in adults. In the absence of more conclusive evidence from controlled exposure studies in humans or animals, TCEQ does not agree with strengthening this causal determination based on the information presented in the second draft ISA.
- Cardiovascular effects (short-term and long-term exposure): In the current NO2 ISA, the USEPA concluded that available evidence is suggestive but not sufficient to infer causal relationships for cardiovascular disease with short- and long-term NO2 exposure. These conclusions represent a change from the 2008 ISA based upon epidemiologic evidence linking myocardial infarction to short-term exposure and new evidence linking heart disease to long-term exposure. The majority of available epidemiological studies fail to demonstrate that the observed outcomes are independently associated with NO2 exposure (i.e., inclusive to). Some experimental studies indicate that short-term NO2 exposure increases inflammation and oxidative stress in the blood or heart tissue. While increases in inflammation and oxidative stress reveal a possible mechanism for NO2 exposure to induce cardiovascular and related metabolic disease, the available data does not link these observations to the manifestation of disease (in epidemiological studies) or demonstrate that these effects occur at environmentally-relevant concentrations (in animal studies). Thus, the TCEQ agrees that available evidence is suggestive of a causal relationship for cardiovascular disease and NO2 exposure.
- Metabolic effects (short-term and long-term exposure): The TCEQ agrees that available evidence is suggestive, but not sufficient to infer, a causal relationship for short- and long-term NO2 exposure and metabolic effects. Importantly, available data is limited by uncertainties produced by confounding factors and lack of definitive data from well-controlled exposure studies in humans and animals.
- Mortality (short-term exposure): In the second draft ISA, USEPA concluded that the evidence for short-term NO2 exposure and total mortality is suggestive, but not sufficient to infer a causal relationship. This conclusion is the same as the conclusion reached in the 2008 ISA for Oxides of Nitrogen. The TCEQ agrees that the causal association should not be strengthened based on the available information. Additionally, the TCEQ thinks that a strong case can be made for reducing the causal determination to "inadequate to infer a causal relationship" because of major uncertainties in the available evidence for short-term NO2 exposure and total mortality.
- Mortality (long-term exposure): Based on the available evidence presented in the draft ISA, the TCEQ thinks that it is not appropriate to conclude the overall evidence is "suggestive of a causal relationship" between long-term exposure to NO2 and mortality among adults.
- Reproductive and Developmental Effects (long-term exposure): Based on the evidence presented in the second draft ISA, TCEQ agrees with the causal determination for long-term NO2 exposure and fertility, reproduction, and pregnancy as well as postnatal development of "inadequate to infer a causal relationship." TCEQ agrees with the causal determination for long-term NO2 exposure and birth outcomes of "suggestive, but not sufficient, to infer a causal relationship," but only at high concentrations. The experimental evidence available suggests that effects such as maternal toxicity and reduced litter size only occur at concentrations high enough to cause overt toxicity.
- Cancer (long-term exposure): TCEQ does not agree with strengthening the causal determination to "suggestive, but not sufficient, to infer a causal relationship" based on the existing body of evidence. Not only is there a lack of clear experimental evidence and mechanistic data to inform a potential mode of action for NO2 acting as a direct carcinogen, but the epidemiological studies used as supporting evidence show weak, inconsistent, or no association between cancer and long-term exposure to NO2. Based on the existing body of evidence, the TCEQ thinks that the causal determination for this endpoint should be "inadequate to infer a causal relationship."
DATE SUBMITTED: 03/19/15
SHORT TITLE: Determination of Nonattainment and Reclassification of the Dallas-Fort Worth 1997 Eight Hour Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
DFW Monitors Attainment for 1997 Standard
The DFW area is currently measuring attainment of the 1997 eight-hour ozone standard and, as such, a change in designation from serious to severe is unnecessary. Based upon data from 2010, 2012, and subsequent years, the area would likely have attained the standard by the attainment date but for the 2011 measurements, which appear to be outliers.
The TCEQ has submitted ambient monitoring data for 2014 to the EPA with a letter requesting a determination of attainment for the DFW area for the 1997 eight-hour ozone standard.
Ensure Revocation
The TCEQ urges the EPA to ensure that revocation of the 1997 eight-hour ozone standard is effective prior to adoption of this reclassification so that resources can be focused on attaining the more stringent 2008 ozone standard.
Provide Regulatory Certainty
Provision 5(b) of the consent decree resolving Sierra Club v. McCarthy, Case No. 1:14–cv–00833–ESH (D.D.C.), imposes specific conditions that must occur in conjunction with the EPA's decision to revoke the 1997 ozone standard in order for the EPA to be released from its obligation to make a final determination regarding whether or not an area failed to attain the standard. The proposed consent decree is silent regarding how these provisions would be interpreted in the event that the final rule revoking the 1997 ozone standard is challenged or overturned. The EPA should ensure that the revocation is completed in a manner that satisfies all the conditions in the consent decree.
DATE SUBMITTED: 03/17/15
SHORT TITLE: Proposed Rule for National Ambient Air Quality Standards for Ozone
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
- The Primary Standard: The TCEQ recommends that the 2008 ozone NAAQS level of 0.075 ppm be maintained, and levels lower than 0.075 ppm not be considered because the scientific evidence does not support it. This recommendation is based on our assessment of the scientific evidence and risk assessment, which demonstrates multiple flaws in the underlying studies being relied upon by the EPA to support lowering the ozone NAAQS. These flaws are significant, and therefore it is irrational for the EPA to give these studies and evidence significant weight in evaluating the extent to which human health and public welfare effects are likely at lower ozone exposures. Key conclusions on the primary standard:
- The EPA failed to consider a critical flaw in the ozone epidemiology studies, which is that personal exposure concentrations are much lower than, and do not necessarily correlate with, ambient concentrations. The epidemiology conclusions are not robust to confounders, and the effect estimates have unexplained characteristics such as regional heterogeneity and a lack of dose-response between mortality effect estimates. In addition, the epidemiology studies used in this review all suffer from the same personal exposure errors and are subject to a known publication bias (the selective publication of papers showing positive effects).
- The EPA did not consider an appropriate threshold (or in some cases, any threshold) of ozone concentration for health effects. Mechanistic toxicology data and human clinical data support a threshold of effects for ozone exposure. Therefore, an appropriate threshold should have been considered when modeling forced expiratory volume in 1 second (FEV1) decrements and for modeling health effects based on the epidemiology data.
- Contrary to the conclusions drawn by the EPA, asthmatics and children have similar spirometric responses as healthy adults to ozone, and elderly adults have a lesser response. As the elderly spend almost as much time outdoors as non-elderly adults, they do not qualify as being extrinsically at-risk from ozone exposure. There is also inadequate evidence and conflicting evidence that people carrying certain genetic variants are more at-risk for adverse effects of ozone than those without these variants.
- The TCEQ is very concerned that the EPA’s modeled changes in ozone, caused by reducing nitrogen oxides, show that the greater benefit of ozone decreases will be in suburban and rural areas, whereas the greater costs would be expected to occur in the urban areas. This will cause disparate socioeconomic impacts. These differential effects on ozone in urban areas also lead to the EPA’s modeled increases in mortality in Houston and Los Angeles with decreasing ozone standards. The TCEQ strongly encourages the EPA to reconsider a decision that the EPA believes will cause an increase in mortality in Houston.
- The EPA’s modeling of FEV1 decrements and total mortality are completely inconsistent with the underlying data. Illogically, the EPA’s risk estimates show that there are more people that are experiencing lung function effects than are being exposed to ozone. Similarly, because of a linear no-threshold model, the EPA is predicting an increase in deaths with decreases in ozone in several cities, which demonstrates a flaw with this model. For all of the exposures of concern, FEV1 decrements and mortality estimates, no confidence intervals are presented, which fails to represent the uncertainties in the data.
- The EPA did not properly integrate all of the ozone health effects evidence as is endorsed by the National Research Council. The animal toxicology and human clinical data do not support the epidemiological conclusion that ozone causes mortality at ambient concentrations and exposures.
- The TCEQ agrees with the EPA that the human clinical data is the best to use to set the NAAQS ozone standard. However, the human data analysis failed to include the filtered air responses in the dose-response curve and the entire data set of exposed individuals instead of a subset. This full dataset could have been used to inform the choice of doses that would not cause adverse effects in the population.
- When using the animal toxicology studies to inform health effects in humans, the EPA did not consider dose. Most of the animal studies cited in the integrated science assessment use inappropriately high doses and are of limited utility in providing causal information to inform human health effects at ambient ozone concentrations. Therefore, it is irrational for the EPA to give these high dose studies more than minimal weight in EPA’s consideration of the potential risks to human health and public welfare.
- The EPA did not clearly choose and justify a level of adversity for each endpoint of interest, and in particular did not explain the choice of a 10% FEV1 decrement as being adverse for populations with pre-existing lung disease. The presence of adaptive biological responses to ozone should also have been considered and the EPA should not have just assumed that any response is an adverse, clinically meaningful response.
- The Secondary Standard: The TCEQ urges the EPA to leave the secondary standard at the level established in 2008 until more definitive relationships between ozone concentration and welfare effects can be established. However, if a distinct cumulative exposure (W126-based) secondary ozone standard is promulgated, the EPA should involve states in the development of implementation guidance.
- Ambient Monitoring Requirements: The EPA’s proposal of a range of standards, as well as ambient air monitoring network changes with an inadequate level of detail, precludes meaningful review and evaluation of potential impacts. Also, the proposed changes to the photochemical assessment monitoring station (PAMS) requirements will not necessarily save money or resources, as the EPA suggests in the proposed rule. The EPA should address concerns regarding the clarity of proposed changes to ambient monitoring requirements, specifically those related to moving or decommissioning monitors, mixing height data, meteorological parameters at PAMS, and data selection criteria.
- Exceptional Events: The EPA should propose revisions to the Exceptional Events Rule in a timely manner and provide states with either more time for exceptional event analysis and documentation or more detailed guidance on approvable exceptional event demonstrations. The final rule for the revised standard, if promulgated, should set deadlines for the EPA’s review of exceptional event documentation.
- Background Levels: The EPA must clearly define and describe methods to account for the effects of background ozone, especially from foreign emission sources, and clarify how states are to address the implementation challenges associated with attaining an ozone standard at or near background levels.
- Prior Standards: The EPA should complete redesignation of areas that have demonstrated attainment the 1997 and 2008 ozone standards and then revoke them prior to adopting a new standard.
- Implementation: The EPA should commit to firm deadlines for the implementation rule for the revised ozone NAAQS to provide timely guidance for state implementation (SIP) development and ensure that the effective date of the designations aligns appropriately with the end of ozone season for all areas.
- Support for EPA Actions: The TCEQ supports the conclusion that a separate form for the secondary standard is unnecessary, the option for states to submit infrastructure SIP revisions for a distinct secondary NAAQS separately and at a later date than infrastructure SIP revisions for the primary NAAQS, and the proposed Prevention of Significant Deterioration grandfathering provisions.
DATE SUBMITTED: 03/04/15
SHORT TITLE: Proposed Rule for National Ambient Air Quality Standards for Lead
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Honeycutt
SUMMARY OF COMMENTS:
Main Comment
The Texas Commission on Environmental Quality (TCEQ) supports retaining the current primary and secondary standards for lead established in 2008, in combination with the specified choice of indicator, averaging time and form. The TCEQ's review of the data confirms that the current standards provide the requisite protection of human health and welfare, with an adequate margin of safety.
Significant Comments:
- Lead continues to be one of the more challenging NAAQS substances due to several aspects highlighted in the EPA's Proposed Rule. These challenges include historically high levels of lead in the environment, studies that rely on measurements of blood lead levels rather than exposure concentrations, and a lack of data from groups exposed to concentrations that are common today. The data gaps that existed when the 2008 NAAQS lead standards were established are still present today, and the TCEQ agrees that the newly available information has not substantially altered the previous understanding of the at-risk populations, concentration-response relationships, or effects from exposures lower than what was previously examined.
- It is important to note that lead air concentrations and blood levels have significantly decreased following its removal from gasoline. The EPA notes that blood lead levels in children 1 to 5 years have decreased from 2.23 ug/DL in 1999-2000 to 1.17 ug/dL in 2009-2010 according to the National Health and Nutrition Examination Surveys (NHANES). It is also noted that the number of countries still using leaded gasoline dropped from over 20 to just 6 from 2007 to 2011.
- TCEQ agrees that it is an important consideration that "well below one tenth of one percent of the full population of children aged 5 years or younger in the U.S. today live in areas with air lead concentrations near or above the current standard, with the current monitoring data indicating the size of this population to be approximately one hundredth of a percent of the full population of children aged 5 or younger". Because of differences in exposure pathways, physiology, and historical uses, blood lead levels tend to decrease with age, so school age children are expected to have a lower level than children younger than 5 years of age. It is impossible to predict what blood lead levels these children had at a younger age, so it is difficult to say that these low levels had a detrimental effect.
- The EPA recognizes the "general consensus that the developing nervous system in children is among the most sensitive health endpoints associated with lead exposure, if not the most sensitive", and the TCEQ agrees. Although several other negative impacts have been linked to lead exposure in both children and adults, neurocognitive effects in young children appears to be the most sensitive endpoint.
- Several recent studies have looked at school age children and compared their current blood lead levels as low as 2 ug/dL with scholastic performance. TCEQ agrees with the EPA's conclusion that "it is likely that the blood lead levels of this study group at earlier ages were higher and the available information does not provide a basis to judge whether the blood lead levels in this study represent lower exposure levels than those experienced by the younger study groups."
- TCEQ understands that although "ideally air-related exposures to lead would be reduced to the point that no IQ impact in children would occur", it is not the EPA’s task to reduce risk levels to zero, but rather to "establish standards that are neither more nor less stringent than necessary." The TCEQ agrees with the final decision that "the limited amount of new information available in this review has not appreciably altered the scientific conclusions reached in the last review", and that "a level for the primary lead standard of 0.15 ug/m3, in combination with the specified choice of indicator, averaging time, and form, is requisite to protect public health, including the health of sensitive groups, with an adequate margin of safety".
DATE SUBMITTED: 01/27/15
SHORT TITLE: Approval and Promulgation of Air Implementation Plans
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Mike Wilhoit
SUMMARY OF COMMENTS:
The TCEQ concurs with the EPA's proposed determination that the TCEQ fulfilled its December 9, 2013, commitment to submit the FPP SIP revision, and with EPA's proposed finding that the TCEQ has satisfied all the elements of the EPA's July 14, 2014, final conditional approval (79 FR 40666). TCEQ also concurs with the EPA's assessment that the FPP rules comply with the requirements of the FCAA and with the EPA's rules for minor NSR SIP revisions in 40 Code of Federal Regulations §§ 51.160 – 51.164, as well as other general SIP requirements.
The TCEQ also agrees with the EPA's determination that the FPP is a component of the Texas Minor NSR program and that the FPP does not violate statutory and regulatory requirements for the FCAA permitting programs for Major NSR, Prevention of Significant Deterioration and Nonattainment New Source Review. In addition, the rules and the EPA's proposed approval appropriately and adequately respond to Texas v. EPA, 690 F.3d 670 (5th Cir. 2012), Texas' successful challenge of the EPA's prior disapproval of the FPP rules, in which the court specifically found that the FPP "affirmatively requires compliance with Major NSR, and does not, therefore, allow Major NSR evasion."
The TCEQ supports the EPA's proposed action to convert the approved conditional FPP to a fully SIP-approved FPP, and requests that the EPA issue final rules as expeditiously as possible.
DATE SUBMITTED: 12/01/14
SHORT TITLE: Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units (EGU)
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
A. General Comments
1. The TCEQ does not support the proposed rule to establish carbon pollution emission guidelines for existing power plants. The EPA should withdraw the proposed rule due to the numerous flaws with the proposal. The disparate state goals proposed by EPA would result in inequitable treatment of the states and Texas will be severely and disproportionately impacted by the rule. Texas has made extraordinary efforts in developing a diversified energy generation mix and in becoming the nation’s leader in renewable wind energy generation, yet the EPA’s proposal actually penalizes the state for making these efforts.
2. The EPA’s proposed rule will not have the benefit that the EPA claims towards reducing global CO2 emissions. Emissions of CO2 in other countries, such as China, are growing so rapidly that the total annual reductions from the proposed rule in the United States by 2030 will barely offset a single year of CO2 emissions increases from other countries.
3. The EPA has not provided a single quantifiable climate benefit of the proposed rule. The EPA’s purported climate benefits of the rule are based solely on the Office of Management and Budget’s Social Cost of Carbon (SCC). Furthermore, the EPA used the global SCC yet did not consider the potential global impacts of the rule or other international changes in CO2 emissions.
4. The EPA is misrepresenting the climate benefits of the proposed rule it claims will occur in 2020 through 2030 because the assumed benefits of the SCC are based on long term impacts. The costs of the proposed rule greatly exceed the claimed benefits by 2030. The EPA should not be claiming co-benefits from reductions in other pollutants such sulfur dioxide (SO2) and nitrogen oxides (NOX) from the proposed rule.
5. The enhanced energy efficiency programs assumed by the EPA under Building Block 4 are based on a tremendous cost impact to electricity consumers, approximately $21.8 billion per year in first-year costs as early as 2024. The EPA should make this cost impact to consumers more clear in the Regulatory Impact Analysis (RIA).
6. The EPA should provide a more clear and consistent economic analysis of its rules. The preamble of the proposed FCAA §111(d) rule presents cost information as total costs while the RIA presents the same costs as annualized costs.
7. The EPA’s claim in the Regulatory Flexibility Act analysis that the proposed rule will not have a significant economic impact on small businesses is misrepresentative and contrary to the EPA’s own economic analysis which identifies significant potential costs to electricity consumers.
8. The EPA’s RIA on the proposed rule underestimates the potential fiscal impact to the states. The EPA has underestimated the number of full time staff states will need to implement the proposed rule and has not accounted for all aspects of the proposed rule that have direct fiscal implications for the states.
9. The EPA’s proposed schedule for the rulemaking, state plan submittals, and compliance with the state goals is unreasonable and unworkable. The proposed rule’s impact to state government is unique, even among EPA’s prior utility sector rules and states need additional time for plan submittal and compliance. 10. The EPA’s open-ended comment solicitation on numerous issues associated with the proposed rule makes it impossible for states to assess the feasibility and potential impacts of the rule because the states cannot reasonably predict the possible outcomes in the final rule.
11. The TCEQ’s review of the IPM files on the proposed rule indicates errors have been made in the EPA’s assumptions.
B. State Energy Policy and Electric Reliability
1. EPA is attempting to establish the best system of emission reduction (BSER) by evaluating the electric grid and states’ energy policies as a whole, instead of the individual sources which it has authority to regulate under §111(d). A state’s energy generation mix and energy efficiency programs are not BSER as the EPA claims; they are the direct result of a state’s energy policy.
2. The EPA’s claims that the states have broad flexibility in choosing which measures to use to satisfy the state goals are misleading. In reality, the EPA would be dictating energy policy to the states via FCAA §111(d).
3. According to the EPA’s IPM predictions, the proposed rule under a state-by-state approach would result in the retirement of approximately 45% of Texas’ coal-fired power generation capacity. However, retirements from the proposed rule may be greater and earlier than the EPA projects. Companies will be less likely to incur the expense of installing controls on a unit for an earlier compliance date for other rules, such as the Mercury and Air Toxics Standards (MATS) rule if the unit will have to be shut down a few years later due to the proposed §111(d) rule.
4. A reliability “safety valve” provision should be included in the rule to address potential energy emergency situations.
5. The EPA should heed the comments and concerns expressed by Southwest Power Pool, Inc. (SPP) on the proposed rule.
6. The North American Electric Reliability Corporation (NERC) has expressed reliability concerns with the proposed FCAA §111(d) rule in a recent report.
C. State Goals
1. EPA’s state goals are very disparate from state to state, resulting in inequitable treatment of the states as well as individual EGUs.
2. While compliance with the interim goal is demonstrated on a 10-year average from 2020 to 2029, Texas will still be forced to make the majority of CO2 reductions by 2020 in order to comply with the interim goal. The EPA has not provided any quantifiable basis in terms of actual climate effects to justify the interim goals and the rule as a whole. The interim goals should be removed from the rule.
3. Section 111(d) of the FCAA requires the EPA to allow states to consider the remaining useful life of the existing sources that would be subject to this rule. However, the proposed rule’s interim goals prohibit the states from making such considerations because the EPA’s calculations used to set the interim goal rely on an assumed 50% reduction in Texas’ coal-fired EGU generation by 2020. This specific provision in §111(d) also implies the emission guidelines that EPA issues under §111(d) must be on a source basis and not the overall electric grid basis that the EPA has proposed.
4. The EPA’s use of 2012 as a base year is misrepresentative and improper due to the unusually low price of natural gas during that year. Using a recent base year also penalizes states that have been proactive on energy efficiency and renewable energy measures.
5. The proposed rule should be based on gross generation rather than net generation. The EPA requirement to use net generation to demonstrate compliance with the state goals only penalizes facilities that have installed pollution control equipment that increase the facilities onsite parasitic load. The use of net generation is duplicative with Block 1 for coal-fired EGUs.
6. The EPA is attempting to restrict the states’ ability to challenge the EPA’s assumptions in developing the state goals by refusing to change a state’s goals even if the state shows a particular block is not feasible unless the state also proves that additional reductions from the other blocks are not feasible. The EPA’s interpretation of FCAA §111(d) is not correct. The EPA does not have the legal authority to require a state to go beyond BSER to meet a standard of performance in order to account for the EPA erring in its assumptions on one or more of the blocks.
7. The EPA’s possible approaches to adjust the state goal calculation methodology for Blocks 3 and 4 discussed in the October 30 Notice of Data Availability (NODA) would result in severe impacts on states, in particular the prioritized adjustment approach in which EPA would take generation and CO2 emissions out of the calculation for coal-fired EGUs first before other sources. The prioritized adjustment approach would zero-out all of Texas’ coal-fired EGU generation for purposes of calculating the state goal, further restricting the state’s ability to consider the remaining useful life of the facilities and result in substantially more retirements of coal-fired EGUs.
8. The TCEQ’s comments are based on the state goals and individual building blocks used by the EPA in the proposed rule, but these comments are equally applicable to the alternate state goals being considered by the EPA. The EPA’s proposed alternate state goals do not lessen any of the TCEQ concerns with the proposed rule.
D. Block 1 – Heat Rate Improvement
1. The EPA’s assumptions regarding the potential for heat rate improvement at existing coal-fired EGUs are flawed and fail to recognize the significant improvement in plant efficiency that has already occurred. The EPA has not taken into consideration the effects of other regulatory requirements on coal-fired EGUs that will increase on-site energy demands or the competing effects of the other building blocks on Block 1.
E. Block 2 – Re-dispatching
1. The EPA’s selection of 70% as a reasonable capacity factor for natural gas combined cycle (NGCC) units as BSER is arbitrary and capricious. The EPA did not consider any site or regional specific factors that would affect the operation rates or dispatching of the units.
2. The EPA’s assumption that re-dispatching under Block 2 can be feasibly implemented by 2020 is arbitrary and flawed. It is not possible for Texas to implement such a significant shift in generation in the short time period assumed by the EPA. While a phase-in of the re-dispatched generation assumed in Block 2 might mitigate the impacts of Block 2, the EPA does not have the necessary expertise to decide what implementation rate is appropriate for each state.
3. The EPA has not considered local constraints which may prevent NGCC EGUs from operating at the EPA’s assumed 70% capacity factor. In addition to local electrical grid considerations, local environmental regulatory requirements may limit NGCC operation.
4. The EPA has not provided adequate notice and information for the states to consider the feasibility of incorporating co-firing of natural gas at existing coal-fired EGUs as BSER. The modifications associated with co-firing natural gas at a coal-fired EGU will likely trigger applicability under EPA’s proposed FCAA §111(b) rule for modified and reconstructed facilities.
F. Block 3 – Nuclear Energy and Renewable Energy
1. The EPA’s approach for estimating potential future renewable energy in Block 3 is arbitrary and flawed. The EPA has not justified the rationale for dividing the country into the specified regions for renewable energy. Some of the regions have multiple state renewable portfolio standards (RPS) included in the average while the South Central Region and the South Eastern Region only have one state RPS used for each region. The EPA’s assumption that Kansas’ renewable energy goal is applicable to the entire South Central Region is flawed and without any technical merit, especially considering that Texas’ total generation is ten times that of Kansas and represents the majority of generation in the South Central Region. Furthermore, the EPA’s growth rate approach penalizes states with more renewable energy in 2012 and rewards states that have little renewable energy in that year. EPA’s approach actually rewards some states by giving credit under Block 3 while Texas is assumed to be able to more than double the state renewable generation, even though Texas produces approximately 11% more non-hydro renewable energy than the combined total of the states that received credit for their renewable energy.
2. The proposed alternate regional approaches discussed in the October 30 NODA are unclear and too open-ended to allow states adequate opportunity to comment. While the EPA’s possible regional approaches to allocating renewable energy targets for the states might mitigate some of the disparate treatment of states under Block 3, the use of any regional approach does not address the underlying problem with the EPA’s proposed Block 3 approach of assuming one state’s RPS can be used to assign renewable energy targets to other states.
3. The EPA’s alternate approach to determine renewable energy targets for the states relying on the 2012 National Renewable Energy Laboratory (NREL) report and IPM predictions is flawed. The approach is biased in favor of states with very low technical potential for renewable energy and allows EPA to default to its IPM predictions for states like Texas. The EPA cannot use IPM to set federally enforceable state goals without making the data, calculation steps, assumptions, and all other aspects of IPM transparent and accessible to the public.
4. There are numerous environmental, transmission, and practical factors that must be considered in the development of renewable energy resources, such as siting issues, transmission infrastructure, and federal law compliance issues such as Endangered Species Act and Migratory Birds Treaty Act. The EPA has not considered any of these factors in either the proposed approach for Block 3 or in the alternate approach to setting renewable energy targets.
5. The EPA should abandon its attempt to incorporate renewable energy generation in its BSER determination for the proposed rule. Renewable energy should be allowed as an option for a state’s compliance but not a component of the EPA’s BSER determination.
6. The EPA’s approach to account for nuclear capacity at risk of retirement is arbitrary and flawed. The EPA identifies Texas as having 290 MW of nuclear capacity at risk of retirement; however, the smallest nuclear power plant unit in Texas is approximately 1200 MW. The EPA should have considered the actual sizes of the nuclear units in the states before arbitrarily applying the 5.8% to the states’ nuclear power plant fleets.
G. Block 4 – Demand Side Energy Efficiency
1. The EPA has incorrectly calculated the assumed benefits of future energy efficiency improvements in Block 4 because the EPA applies the energy savings to the entire electrical generation in 2012 without accounting for the fact that some of the future generation would be from new units, which would not be subject to the rule, i.e., some of the energy savings in the future will be outside of the affected EGU fleet. Energy efficiency programs should be allowed as an option for a state’s compliance but not a component of the EPA’s BSER determination.
2. The EPA cannot restrict the energy efficiency measures that a state might use to comply with their state goal to less than what EPA assumed in establishing the state goals using Block 4.
H. State Plan Issues
1. Some of the requirements in the proposed rule for state plans are more stringent than the requirements for a state implementation plan (SIP) for the national ambient air quality standards and are unnecessarily burdensome. The proposed rule creates an excessive burden on state agencies and affected entities by imposing excessive reporting requirements and creating needless bureaucracy.
2. The EPA is attempting to usurp state authority over renewable energy, energy efficiency, and similar programs through the extension provision in proposed 40 Code of Federal Regulations (CFR) §60.5760(a)(3). The EPA does not have the legal authority under FCAA §111(d) to make any demands regarding a state’s current programs that are not already federally enforceable. Furthermore, the constitutions of Texas and most other states prohibit a state agency from making a federally enforceable commitment binding the state legislature from changing state law. The commitment requirement in proposed §60.5760(a)(3) makes it impossible for a state to qualify for an extension if the state has renewable energy standards, energy efficiency standards, or any other measure in state law that might somehow limit or avoid CO2 emissions from EGUs. Proposed §60.5760(a)(3) should be removed from the rule.
3. The EPA has no need or legal basis for requiring states to submit proposed rules and legislation as a condition for the EPA to grant an extension to submit a state plan. Such a requirement is unreasonable and places state agencies in the untenable position of being forced to propose rules based on draft legislation. The TCEQ cannot propose a rule that the agency does not have legal authority to propose.
4. The EPA does not have the legal authority under FCAA §111(d) to require the states to create and maintain public databases to make records submitted by affected entities available to the public and EPA. Furthermore, EPA has not accounted for the costs of creating and maintaining such a database in the RIA of the proposed §111(d) rule.
5. The EPA’s proposed requirement for Evaluation, Measurement, and Verification (EM&V) plans for state plans that use energy efficiency measures for compliance with a rate-based approach is more stringent than EPA SIP requirements for states that want to model SIP creditable reductions from energy efficiency measures. The EPA should have developed the guidance for the EM&V plans in time for proposal so that states could comment on the specific details. As proposed, the EM&V plan is a required element of the state plan and states have the right to comment on those required elements.
6. The EPA does not have the legal authority to mandate to the state who may perform EM&V activities or what qualifications such evaluators may be required to have. Attempting to set such requirements may have unintended consequences and may preclude some state agencies from performing EM&V activities.
7. The EPA’s discussion in the proposal preamble regarding modification of an approved state plan and anti-backsliding is unclear but appears to be more stringent than FCAA §11o(l) regarding SIP revisions.
8. The EPA has no need or legal basis for requiring that affected entities must submit reports to the EPA as well as the states.
9. The EPA’s proposed reporting deadline of July 1 for the states to submit annual reports for the prior calendar year is not realistic. States will need significantly more time if the state plan includes energy efficiency and renewable energy measures or a cap and trade program. At a minimum, states should have at least a full year to submit reports from the prior calendar year. States participating in a multi-state plan may require even more time. Given the 10-year averaging time for the interim goal, requiring annual reporting from the states during the interim period is an unnecessary burden on the states. The frequency of the state reporting should be reduced during the interim period.
10. The proposed rule allows EPA twelve months to review and act on the state plans, which is almost as much time as states would be given to develop the plans. If the EPA considers itself to need additional time for the review of state plans, the EPA has no justification for holding states to an unreasonable schedule to submit state plans.
11. While the TCEQ supports including provisions in the rule allowing states additional time to correct deficiencies in the state plan, the process should be clearly spelled out in the rule and include definitive deadlines for both the EPA and the states. The EPA should include a provision in the rule specifying that state plans are considered approved by default if the EPA fails to act within the required timeline.
12. The EPA should allow but not require electronic submittal of state plans.
13. The EPA needs to clarify the review and approval process for multistate plans, in particular if the multistate plan crosses EPA regional authorities.
14. The EPA offers its recently released Avoided Emissions and Generation Tool (AVERT) as a possible tool for states to use in states’ planning efforts; however, AVERT has limited usefulness for the purposes of developing state plans because the EPA does not recommend using the tool to forecast more than five years. Additionally, the EPA did not follow a quality assurance and quality control plan in the development of AVERT and the TCEQ has found errors and questionable results using AVERT.
15. Proposed 40 CFR §60.5725 should be revised to specifically allow states the option to not submit a state plan. Unlike prior FCAA §111(d) rulemakings, the EPA has not proposed a federal plan with the proposed Carbon Pollution Emission Guidelines for Existing Power Plants.
I. Legal
1. The EPA’s authority to regulate EGUs under FCAA §111(d) is without legal basis because those sources are already subject to regulation under FCAA §112. 2. The EPA’s authority to regulate under FCAA §111(d) is inherently limited by the requirement that the EPA must have already regulated new sources under §111(b). Given the legal uncertainties with the EPA’s proposed rule under §111(b), the EPA should withdraw the proposed rule for §111(d) until the §111(b) rule is finalized and legally resolved. 3. The EPA does not have the authority to regulate ‘outside the fence’ through FCAA §111(d). The EPA has interpreted BSER too broadly. Section 111 applies to sources within a discrete identified source category. The EPA may not create different standards for these sources based on their location, i.e., the EPA cannot set different state goals for the same types of sources. The EPA’s proposed rule to establish CO2 emission guidelines for existing EGUs attempts to regulate the entire energy sector under §111(d). 4. EPA must make a separate endangerment finding under FCAA §111 based on emissions from the source category and cannot rely on the FCAA §202 finding to regulate under §111. 5. The EPA’s alternate argument that reduction of generation itself can represent BSER is flawed, conclusory, and contrary to FCAA §111. Reduction of generation, or reduction in the production of any product, is not BSER. The precedent of the EPA’s proposed interpretation of BSER would give EPA almost unlimited authority to control which types of production may be used in the country. 6. The EPA’s argument that affected EGUs may themselves implement the measures included in Blocks 2 – 4 is flawed. Utility companies do not have unfettered ability to operate their units at any capacity they choose. Blocks 3 and 4 are based predominately on state mandated programs such as state RPS and energy efficiency programs and the EPA has not evaluated the feasibility of utility companies to implement these programs outside of state legal mandates. 7. The EPA’s attempt to expand its definition of BSER and thereby its authority are contrary to a recent United States Supreme Court decision. The EPA cannot apply a standard of performance under §111(d) that it does not have the authority to enforce itself. 8. The EPA should also take into consideration the recent United States Court of Appeals for the District of Columbia Circuit decision regarding FERC authority. 9. The EPA has not provided a rational basis for its legal authority to approve multistate plans under FCAA §111(d) given the requirement for Congressional approval of interstate compacts under FCAA §102(c). 10. The EPA’s assertion that the modified or reconstructed source rule (79 FR 34960) proposed concurrently with the proposed carbon pollution emission guidelines for existing EGUs provides the prerequisite for §111(d) is contrary to the plain language of the statute and is logically flawed. 11. There is no legal basis for requiring existing sources subject to FCAA §111(d) to remain “subject to” state plans under §111(d) after modification or reconstruction, resulting in dual applicability for such sources under §111(b) and §111(d). Dual applicability under both §111(b) and §111(d) is contrary to the FCAA and prior EPA §111(d) rules.
DATE SUBMITTED: 11/06/14
SHORT TITLE: Revisions to Ambient Monitoring Quality Assurance and Other Requirements
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Deric Patton
SUMMARY OF COMMENTS:
- The EPA places undue importance on the accuracy and precision of ambient data that is near or below method and/or instrument detection limits. Instead, the EPA should focus its efforts on meaningful benchmarks intended to protect public health and the environment, such as the NAAQS, rather than setting benchmarks at lower levels simply due to lower ambient air concentrations.
- The TCEQ recommends that the EPA revise its definition of a monitoring organization. The TCEQ is recommending that the EPA define the meaning of "other monitoring organizations" that is incorporated in the definition of monitoring organization.
- The EPA proposal requiring that monitoring organizations report the submission and approval dates of quality management plans (QMP) and quality assurance project plans (QAPP) to the Air Quality System (AQS) is currently unachievable. This requirement is currently unachievable due to data entry restrictions that prevent monitoring organizations from entering these dates into AQS. The EPA should reexamine this change and determine how monitoring organizations will be able to achieve this requirement.
- The proposed language added to clarify the National Performance Audit Program (NPAP) requirements increases the burden on states to implement the program. Although the stated intent of the proposed rule language is to provide clarification, the changes expand the existing NPAP requirements resulting in redundant performance audits that carry not only a financial impact, but also raise questions as to the objective of this program. The EPA should either maintain existing rule language for NPAP or reexamine the objectives of the program and revise rule language consistent with those defined objectives.
- The EPA's proposed changes to the technical systems audit (TSA) program are unnecessarily burdensome to both monitoring organizations and the Primary Quality Assurance Organization (PQAO) and, due to current AQS technology, may jeopardize annual certification of ambient monitoring data. The proposed rule would treat monitoring organizations acting under a single PQAO as individual entities, resulting in multiple EPA audits of Texas monitors every year. The EPA should amend the language so that TSAs are performed once every three years at the PQAO level and include those monitoring organizations acting under a single PQAO.
- The modifications to the annual performance evaluation for sulfur dioxide (SO2), nitrogen dioxide (NO2), ozone (O3), or carbon monoxide (CO) requirements could result in higher data loss and decreased confidence in NAAQS compliance determinations. The proposed rule could unintentionally reduce data quality around the NAAQS and cause data used in the determination of compliance with the NAAQS to be unnecessarily invalidated. The EPA should amend the language of the proposed rule so that the data quality of values near the NAAQS level is well defined.
- The proposed Pb threshold for methods approved after March 4, 2010, will increase data loss without providing additional confidence in data quality at the regulatory level. The proposed change is being justified by a flawed premise that a reduction in the federal reference method detection limit translates to a reduction in the quantitation limit while overlooking many sources of variability that are inherent in the method which affect the quantitation limit. This proposed threshold change could result in significant and unnecessary data loss and the EPA should either revise the threshold consistent with the limit of quantitation or keep the current threshold value for all Pb methods.
- The EPA should clarify what is considered a valid measurement quality check. The proposed rule requires that the results of all valid measurement quality checks be reported to AQS but does not establish a clear definition of a valid measurement quality check.
DATE SUBMITTED: 10/30/14
SHORT TITLE: EPA Supplemental Proposal to Address Affirmative Defense Provisions in States
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Cynthia Gandee
SUMMARY OF COMMENTS:
A. EPA's Supplemental Proposal is Unlawful with Regard to the Texas SIP
- The supplemental proposal ignores the holding of the U. S. Court of Appeals for the Fifth Circuit affirming EPA’s approval of the affirmative defense for certain excess emissions that exceed limits in the Texas SIP, and as such is Contrary to Law.
- The Texas SIP does not limit the authority of federal courts in enforcement cases.
- The D.C. Circuit’s opinion in NRDC v. EPA is a legally insufficient basis for EPA’s proposed change in interpretation.
- EPA cannot require all state SIPs to conform to a broad policy preference that is not evaluated in the context of each state’s SIP.
- EPA cannot merely change its policy and legal interpretation based on a preferred outcome.
- EPA’s supplemental proposal ignores the purpose of FCAA Section 110.
B. The TCEQ’s rules contain appropriate criteria for an affirmative defense and as such are an effective control measure and use of TCEQ’s resources.
C. TCEQ’s affirmative defense rule provides for an expedited and enhanced review for the most significant excess emissions.
- The affirmative defense allows the prioritization of enforcement activities.
- The affirmative defense provides a structured approach to enforcement discretion.
- TCEQ Staff Review Each Emissions Event and Scheduled MSS Activity Reported.
- Elimination of the affirmative defense will increase TCEQ enforcement without the benefit of rigorous criteria.
- Air quality impacts: TCEQ considers the particular facts of incidents of excess emissions when responding to citizen inquiries and complaints, and in evaluating events that are reported. Texas is in attainment of the NAAQS for the most commonly released pollutants during emissions events.
D. EPA’s supplemental proposal does not meet the procedural requirements of the FCAA.
E. EPA’s SIP call for the Texas affirmative defense illegally predetermines SIP inadequacy and erroneously concludes the Texas SIP is of national scope.
F. Venue for Judicial review: If EPA proceeds with the SIP Call for Texas, it is a locally or regionally applicable action for which the proper venue is the Fifth Circuit, not the D.C. Circuit.
DATE SUBMITTED: 10/27/14
SHORT TITLE: Petroleum Refinery Sector Risk and Technology Review and New Souce Performance Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Jeff Greif, P.E.
SUMMARY OF COMMENTS:
General Comments/Overall Justification of Proposed Changes
The proposed amendments to 40 CFR 63 Subparts CC and UUU to address residual risk have not been demonstrated to be necessary and are not adequately justified.
Based on EPA's own analysis, overall risk for this source category is acceptable under the current standards, and the standards provide an ample margin of safety. EPA should retain the existing standards and withdraw the proposed new requirements.
Comments on Proposed Fence Line Benzene Monitoring
The EPA's proposed fence line benzene monitoring is not required or necessary to meet the residual risk requirements of FCAA, §§ 112(d)(6) or (f)(2); is overly complex; and would require major resources to implement. The proposed benzene concentration action level has no basis in acceptable residual risk or risk assessment and is arbitrary.
If the EPA feels that additional benzene reductions are absolutely necessary, rather than fence line monitoring, EPA should consider changes to existing regulations to encourage more frequent visual or imaging-assisted monitoring of fugitive sources in order to identify and correct emission releases in a timely manner. The EPA should also consider waiving the fence line monitoring for sites with modeled concentrations at or below the concentration action level or a threshold used by a state to demonstrate protectiveness for a permit action, and for sites with monitored concentrations at or below the concentration action level after a maximum period of 12 months.
As the implementation of the proposed fence line monitoring program is likely to be burdensome, the EPA should retain the responsibility for approving monitoring plans and corrective action plans, and not delegate this responsibility to the states.
Comments on Other Proposed Requirements
Notwithstanding the TCEQ’s previous comments that the proposed rules as a whole are unjustified and unnecessary, TCEQ provided specific comments and suggestions on certain proposed requirements relating to delayed coking, miscellaneous process vents, and flares.
The proposed standards for delayed coker vents are based on incomplete data and may not be feasible for actual refinery conditions. TCEQ suggests clarification of the definition of "Delayed Coker Vent."
The category of Miscellaneous Process Vents should not include in situ sampling systems.
The proposed change to the Subpart CC definition of Miscellaneous Process Vents which eliminates the exception for episodic or non-routine releases from startup, shutdown, malfunction, maintenance, and depressuring operations, may create economically untenable or wasteful control requirements.
The TCEQ recommends that the EPA exempt or significantly reduce monitoring requirements for flares in emergency service, especially for flares retrofitted with flare gas recovery systems or having a testable combustion device (e.g., incinerator) installed prior to the flare. If this is not possible, the proposed monitoring requirements should be amended to a flowmeter for the waste gas stream for emergency flares.
The revised visible emission (VE) requirements for flares require daily VE readings but do not address the ramifications of inclement weather interfering with the mandatory daily VE reading. TCEQ suggests that the rule allow for some relief when weather inhibits VE observation during appropriate periods.
Finally, several key definitions and parameters associated with the proposed flare requirements (such as the definitions of "premix assist air" and "perimeter assist air"; the proposed flare dilution parameters; the gas chromatograph calibration procedure; and the proposed minimum net heating value for flares with hydrogen-olefin interaction) need clarification or additional justification.
DATE SUBMITTED: 10/14/14
SHORT TITLE: Carbon Pollution Standards for Modified and Reconstructed Stationary Sources: Electric Utility Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Erik Hendrickson, P.E.
SUMMARY OF COMMENTS:
TCEQ recommends that the EPA withdraw the proposed rule, for numerous reasons. The EPA has not adequately demonstrated the need for the proposed rule; has not performed a reasonable evaluation of the projected benefits and costs of the proposed rule; and the rule as proposed is not consistent with the FCAA. Selected comments are discussed below.
DATE SUBMITTED: 09/25/14
SHORT TITLE: EPA Responses to State and Tribal 2012 Primary Annual Fine Particle Designation Recommendations
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: Terry Salem
SUMMARY OF COMMENTS:
- The TCEQ continues to support Governor Perry's attainment designation recommendation:
- Eleven Texas counties (Bexar, Bowie, Dallas, Ellis, El Paso, Harris, Harrison, Hidalgo, Nueces, Tarrant, and Travis) should be designated attainment for the 2012 primary annual PM2.5 NAAQS based on both 2012 and 2013 actual measured design values; and
- All remaining counties in Texas should be designated unclassifiable/attainment.
- The EPA has failed to explain adequately the methods by which it has identified its recommended designations and has offered no rational explanation for refusing to designate as "attainment" those areas with monitor data demonstrating that an area is actually meeting the relevant standard.
- It is the EPA's responsibility to set the requirements for, and approve of, the monitoring network and states should be able to rely on the data from these networks for attainment determinations. Additionally, for the PM2.5 NAAQS, EPA specifies in 40 CFR §§50.13 and 50.18 that the NAAQS is met when monitor values meet criteria specified in the noted Appendices to 40 CFR Part 50.
DATE SUBMITTED: 07/14/14
SHORT TITLE: Data Requirements Rule for the 1-Hour Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The following comments are included in this response to the notice.
- The TCEQ strongly disagrees with the EPA’s intention to use data developed under this proposal for future rounds of area designations under the 2010 SO2 NAAQS, for those areas that have not yet been initially designated. The EPA is well past the deadline to act on states’ recommendations and data for initial designations for the 2010 standard. The EPA must immediately designate all areas in the country based on the data already submitted, or if data is lacking for certain areas, to designate those as unclassifiable.
- The EPA’s subsequent proposed entry of a consent decree regarding the schedule for area designations conflicts with this proposal and compromises the TCEQ’s ability to effectively comment if the agreement is ultimately entered with the court.
- The TCEQ supports the use of ambient air quality monitoring data for SO2 as the only valid basis for making attainment or nonattainment designations and considers the existing monitoring network adequate for making attainment designations.
- The EPA should reconsider the proposed timeline, monitoring-related financial burden, and monitoring to modeling penalties as they appear to make modeling the only viable option states have for assessing attainment. The EPA should remove the obstacles the proposed rule places in the way of reaching its stated goal of providing states with options for characterizing air quality.
- The EPA should clarify that areas can be directly designated or redesignated to attainment based on qualifying monitoring data.
- The TCEQ disagrees with the EPA’s characterization of SO2 evolution in the atmosphere, as it may result in overprediction of ambient SO2 levels.
- To avoid potential modeled overprediction of SO2 concentrations, and subsequent wasted resources, unnecessary nonattainment designations, and unnecessary control strategies, the EPA should provide states with documentation of all technical issues and fixes that have been identified with the AERMOD modeling system.
- The EPA should provide states the flexibility to use tools that are better suited to accounting for the chemical reactions of SO2 in the atmosphere.
- The EPA should explicitly allow for alternate approaches to identify the sources that should be modeled using refined dispersion modeling.
- The EPA should allow states to use modeling inputs that support the best approximation of actual conditions, such as actual emissions and actual stack heights.
- The TCEQ considers the modeling cost estimates noted by the EPA to be under estimates for anything other than the simplest modeling scenarios.
- Because the 2010 primary SO2 NAAQS is based on protecting public health, the TCEQ supports use of emissions and population-based thresholds.
- Given SO2 emission reduction trends, the TCEQ favors an emission threshold approach to characterize only the largest sources with the greatest potential for relatively higher SO2 concentrations.
- The EPA’s preferred source emission and population threshold (Option 1 in the proposed rule) does not provide substantially more air quality information than the EPA’s other options or the TCEQ’s preferred options. The EPA’s preferred option would be much more resource intensive for the TCEQ, allowing less time for rigorous analyses, while the TCEQ’s preferred options would allow for more thorough and rigorous analysis of the highest emitting SO2 sources in Texas.
- To promote national consistency and assist states with making viable implementation plans, the EPA should develop a process or criteria to identify any sources that may be requested for evaluation beyond those determined by the rule’s thresholds. The EPA should make clear in all guidance and procedures for this rule that states truly have the option to monitor or model sources below the thresholds established in the final rule.
- The TCEQ favors allowing states the option of using either appropriately reviewed and publicly available emissions inventory data or the most recent emissions inventory data published by the EPA.
- The EPA should issue timely guidance on selecting designation levels and boundaries, including guidance on addressing areas without SO2 sources, to promote national consistency for this round of boundary recommendations.
- The TCEQ contends that, based on precedent from implementation of the lead (Pb) NAAQS, one monitor could be sufficient to obtain reasonable worst-case highest concentrations near a source or a concentrated group of sources.
- The TCEQ agrees that modeling could be useful for determining monitor placement in some cases, but should be a tool used at the discretion of states, locals, and tribal areas.
- The proposed monitoring implementation timeline is unnecessarily onerous. The EPA should allow a phased approach similar to the near-road monitoring implementation schedule, allowing full implementation to be achieved by 2020.
- The proposed overly aggressive monitoring implementation timeline could potentially force states into using modeling, despite its shortcomings for this application.
- The proposed modeling timeline is not feasible. With the potential challenge of conducting several multi-source analyses using approaches typical for permit evaluation and single-source evaluations, two to four years may be needed to complete adequate modeling demonstrations. The proposed schedule has insufficient time for informed state planning, modeling preparation, and careful modeling analysis.
- The EPA should provide a list of models, such as the CAMx modeling system, that have been used extensively in regulatory assessment, that states can use without being required to submit lengthy justification and model performance studies. Since models like CAMx have been used by many state agencies and the EPA to provide air quality assessments, states should not be required to go through the rigor specified in Appendix W Section 3.2.2(e) to use them for the SO2 NAAQS analyses.
- The EPA should establish data sharing and appeals procedures and EPA Regional Office review deadlines that provide the basis for states to plan and develop implementation plans.
- The most recent annual emissions are the only reasonable metric for determining which sources are subject to modeling or monitoring.
- The TCEQ suggests it is reasonable to use the same receptor placement policy for both monitor placement and compliance modeling demonstrations.
- The proposed options for on-going verification of attainment if modeling is used for attainment demonstrations are too onerous. The usual state implementation plan maintenance schedule should be sufficient for ongoing verification of attainment.
- As noted in correspondence from Texas Governor Rick Perry to the then EPA Region 6 Administrator Al Armendariz (April 20, 2012) and to the EPA Region 6 Administrator Ron Curry (April 5, 2013), the EPA should designate 10 Texas counties (Jefferson, Gregg, Ellis, Harris, Galveston, Nueces, Kaufman, El Paso, Dallas, and McLennan) attainment for the 2010 SO2 NAAQS based on monitored data. The EPA should designate all the remaining counties in Texas unclassifiable.
- The EPA should revise this rule and associated guidance in response to comments that the TCEQ submitted on July 18, 2013 regarding the SO2 NAAQS designations modeling and monitoring Technical Assistance Documents.
DATE SUBMITTED: 07/09/14
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
- The EPA should clarify what is meant by the term "regional cap-and-trade program." Specifically, the EPA should clarify whether this proposed rule is meant to address only CAIR and the NOX SIP Call, or if the term is meant to more generally be applied to all current or future programs that could be described as "a regional cap-and-trade program." Additionally, the EPA should make clear that this determination regarding regional cap-and-trade programs does not apply to cap-and-trade programs and similar compliance flexibility alternatives that are confined within a discrete nonattainment area.
- The proposed amendment to 40 CFR §51.912 does not include language to explicitly allow states the option to conduct a technical analysis to demonstrate that compliance by sources participating in a regional cap-and-trade program satisfies RACT for the 1997 eight-hour ozone standard. The TCEQ suggests adding language to reflect the EPA’s stated option for states to conduct a technical analysis to support reliance on a regional cap-and-trade program to satisfy RACT.
DATE SUBMITTED: 07/01/14
SHORT TITLE: Proposed Consent Decree, Clean Air Act Citizen Suit
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of the Executive Director
STAFF CONTACT: Richard A. Hyde, P.E.
SUMMARY OF COMMENTS:
The TCEQ responded to requests for comments to EPA-HQ-OAR-2014-0421.
DATE SUBMITTED: 06/24/14
SHORT TITLE: Notice of Availability of the EPA’s 2018 Emissions Modeling Platform
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The following comments are included in this response to this notice.
- The EPA should consider modeling multiple years to form a rational basis for nationwide rules or use a more appropriate base year, such as 2012, because 2011 is not representative of historical ozone formation for Texas and surrounding states. Using 2011 meteorology and related emissions may not be conducive to good model performance for Texas due to the atypical meteorology (e.g., extreme temperatures) and related events (e.g., wildfires, exceptional drought). If the EPA relies on the 2011 meteorology and projects the emissions from 2011 for its 2018 Emissions Modeling Platform, the EPA should account for any poor model performance for Texas and surrounding states, and the EPA should explain why any controls developed based on 2011 data would be appropriate for the majority of years which have more normal meteorological conditions.
- As with its 2011 base case, the EPA should address how it is accounting for a season or more of widespread wildfires and exceptional drought, and their aftereffects, in its biogenic emissions modeling estimates for the 2018 future case.
- The EPA should use average or "typical" emissions instead of 2011-based temporalization for wildfires and electric generating unit (EGU) emissions or explain the rationale for not using a typical baseline that is projected to the future.
- The EPA should use state-submitted inventory and projection data where available.
- The EPA should use data and emissions development methods equivalent in quality and refinement to the data and methods used by the TCEQ to develop the original 2011 National Emissions Inventory (NEI) on-road mobile submission from Texas.
- When implementing national consistency for NEI projection values, the EPA should not select the most conservative assumptions to predict future emissions growth when more specific information is available.
- The EPA should acknowledge the possibility that results from the Integrated Planning Model (IPM) may not account for all business scenarios and should outline mechanisms to adjust IPM’s output to account for other outcomes, especially when specific retrofit and compliance options that differ from IPM outputs are identified.
- The EPA should choose a shorter projection time frame, such as 2017-2019, to allow for a more refined representation of the EGU sector.
- The EPA should vet the inputs, assumptions, and constraints used in IPM for Texas EGUs more thoroughly. The EPA should use Texas-specific information from the Electric Reliability Council of Texas and the Public Utility Commission of Texas to characterize Texas EGUs.
- The EPA should clearly explain how the number of new model plants for each source type was determined and respond to other concerns about IPM results.
- The EPA should consider other EGU projection tools, such as the Eastern Regional Technical Advisory Committee (ERTAC) EGU projection model, to provide error bounds and independent corroboration of IPM results.
- The TCEQ questions IPM’s results for future sulfur dioxide (SO2) reductions from the electric utility power sector. The EPA may be overestimating SO2 reductions in the IPM future base case data.
- The TCEQ cannot confirm some of IPM’s specific predictions for Texas coal-fired utility units based on the information the EPA has made available. The EPA should make the assumptions being used for IPM more transparent.
- The EPA should not speculate on potential facility closures for modeling. Only announced shutdowns should be included in IPM modeling.
- The EPA should clarify and take specific public comment on certain other aspects of the modeling platform, such as the use of spatial surrogates, projection techniques, and agricultural livestock losses since 2005.
DATE SUBMITTED: 05/08/14
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Erik Hendrickson, P.E.
SUMMARY OF COMMENTS:
Legal Basis for the Rulemaking
EPA cites several government-subsidized CCS projects as examples to justify the determination that CCS is an adequately demonstrated technology. The Energy Policy Act of 2005 (EPAct05) clearly prohibits the use of CCS technology funded by the federal government as support for a finding under the Federal Clean Air Act (FCAA or CAA) section 111 that the technology is adequately demonstrated as a BSER.
EPA has not adequately justified the need for the proposed GHG NSPS rule for EGUs, and has not demonstrated any real benefit. EPA’s own projections show the rule is not expected to reduce emissions of GHG. EPA should reconsider the efficacy of the proposed rule and withdraw it.
The proposed rule will result in disparate impacts on States because it does not adequately consider regional differences in fuel availability, power infrastructure, geologic conditions, and other factors.
Environmental Impact of the Proposed Rule
EPA’s claimed health benefits of sulfur dioxide (SO2) and nitrogen oxides (NOX) reductions from the proposed rule are invalid because the rule would actually result in higher NOX emissions. Additionally, EPA has not evaluated the impact of the additional water consumption that CCS requires.
Feasibility of the Proposed Rules
EPA has not demonstrated the feasibility or cost-effectiveness of the proposed partial CCS BSER for coal-fired EGUs. Section 111 of the FCAA requires EPA to consider costs, achievability, and make a finding of "adequately demonstrated" technology when establishing a standard of performance. EPA has substantially underestimated the cost of CCS technology.
EPA’s reliance on projects receiving government subsidies to justify a cost-prohibitive NSPS standard on particular source categories is not appropriate. EPA has a legal obligation to demonstrate the economic feasibility of NSPS standards and government-supported projects do not demonstrate actual market-based economic feasibility.
TCEQ disagrees with EPA’s position that CCS should not undergo a Science Advisory Board (SAB) review, and believes that the rules should also comply with U.S. Office of Management and Budget peer review guidance for highly influential scientific assessments. The rule should also address a number of issues raised in the National Energy Technology Laboratory (NETL) 2013 report.
It is inappropriate for EPA to rely upon current low natural gas prices to justify the proposed GHG NSPS rule. Natural gas prices have historically been highly volatile, and EPA cannot be certain that natural gas will remain at current pricing.
Recent changes to EPA’s underground injection rules have established a significant disincentive for enhanced oil or gas recovery well owners to accept utility-produced CO2.
Impact to Reliability, Affordability, Public Health, and the Economy
EPA should conduct a thorough analysis of the long-term impacts of the proposed rule on energy supply, distribution, and use. Decreased fuel diversity in the power generation industry will have adverse consequences for affordable and reliable electric power. This could result in impacts on public health and safety, especially in vulnerable low-income populations. Decreased affordability and reliability in the power system will also have impacts on the productivity and revenue of businesses.
EPA Setting Energy Policy
In practical effect, EPA is ending the coal-fired power generation option. This approach effectively bars utilities from establishing a diverse energy portfolio necessary to meet use demands.
Implications for PSD and Title V Programs
EPA’s adoption of the proposed NSPS would preclude applicants for PSD permits for coal-fired power plants without CCS from making an economic reasonableness argument, because the proposed NSPS establishes a floor for BACT.
Other Comments
EPA should conduct a new endangerment finding for this source category, and not rely on the 2009 finding for mobile sources of GHG.
Under startup and shutdown conditions, EGUs are producing power less efficiently than under normal operating conditions. During these periods, it will be difficult for units to comply with the proposed output-based standard. EPA should provide a work practice standard that is appropriate for startup and shutdown emissions, or exclude these periods from the standard completely.
DATE SUBMITTED: 04/29/14
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ concurs with EPA’s determination that 30 Tex. Admin. Code §§ 116.601(a)(1), 116.617, and 116.911(a)(2) meet the applicable requirements of the Federal Clean Air Act and applicable requirements for Minor NSR under 40 CFR Part 51, and expects that this approval will resolve the litigation related to these rules. TCEQ appreciates the discussion in the notice that clarifies that the permitting program for standard permits adopted via the rulemaking process and codified in rule is SIP-approved. Therefore, TCEQ supports the approval of these rule sections as revisions to the Texas SIP. TCEQ also appreciates EPA’s acknowledgment that the non-rule PCP SP, adopted in February 2011, is a part of Texas’ SIP-approved Minor NSR permit program.
DATE SUBMITTED: 04/01/14
SHORT TITLE: Flexible Permit Program
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Mike Wilhoit
SUMMARY OF COMMENTS:
TCEQ supports EPA’s proposed conditional approval of the FPP. TCEQ also supports EPA’s proposed approval of 30 TAC § 39.402(a)(4) and (5), and 30 TAC § 116.10(9)(E).
TCEQ also provides a comment on a portion of EPA’s notice which appears to incorrectly describe the requirements of 30 TAC §116.717, relating to the establishment and adjustment of an implementation schedule for the installation of control equipment.
As part of our comments, TCEQ is also including portions of rule text from rulemaking adopted by the commission on December 14, 2010. The commission submitted only certain portions of the 2010 FPP rule amendments to EPA in 2013, consisting of certain new and removed language related to the litigation regarding EPA’s disapproval of the FPP rules for which the TCEQ prevailed when it challenged the disapproval. However, the 2010 rule amendments also included changes that improved the organization of the rules and provided clarity without altering the program. Unless these changes are provided to EPA during this comment period, these changes would not otherwise be submitted to EPA until the rulemaking by TCEQ is completed and submitted to EPA (scheduled for July 2014). TCEQ received requests (which were not granted) to remove some of this text prior to the February 12, 2014 commission agenda proposing the conforming rulemaking. EPA may receive similar requests in comments submitted by other parties on the proposed conditional approval. Therefore, the purpose of providing most of these 2010 rule amendments is to ensure that EPA has a basis to accept and approve them as part of its review.
DATE SUBMITTED: 03/31/14
SHORT TITLE: Notice of Availability of the EPA’s 2011 Emissions Modeling Platform
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer/Guy Hoffman
SUMMARY OF COMMENTS:
- The EPA should use state-submitted inventory and projection data where available.
- When implementing national consistency for NEI projection values, the EPA should not select the most conservative assumptions to predict future emissions growth when more specific information is available.
- The EPA’s release of the TSD late in the comment period did not give states sufficient time to review it before the close of the comment period for the 2011 Modeling Platform.
- The EPA should formally acknowledge that 2011 is not representative of normal ozone formation for Texas and surrounding states because of the atypical meteorology (e.g. extreme temperatures) and related events (e.g., wildfires, exceptional drought), and that 2011 may not be conducive to good model performance.
- The EPA should be more specific about the procedures being proposed for creating temporal profiles for electric generating units.
- The EPA should not rely on Biogenic Emission Inventory System (BEIS) model results for biogenic emissions and should use the most recent and highly resolved land use and cover data.
- The EPA should provide further information regarding the BEIS model and provide a comparison of BEIS output to isoprene measurements in order to gauge model performance.
- The EPA should verify that the biogenic nitrogen oxide emissions estimates from BEIS for portions of south Texas for 2011 are accurate.
- The EPA should address how it is accounting for a season of exceptional wildfires and drought, and their aftereffects, in its biogenic emissions modeling.
- The EPA should clarify and take specific public comment on certain other aspects of the modeling platform, including:
- the use of spatial surrogates;
- the use of its fire-averaging tool;
- the modeling of shipping lanes in the Gulf of Mexico;
- the use of certain chemical mechanisms for ozone modeling; and
- which inventories it is using for on-road and non-road mobile sources for Texas.
DATE SUBMITTED: 03/24/14
SHORT TITLE: Policy Assessment for Ozone and Related Photochemical Oxidants
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of the Executive Director
STAFF CONTACT: Stephanie Shirley, Ph.D.
SUMMARY OF COMMENTS:
TCEQ staff have reviewed the 2014 Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards, which will serve as the basis for the Administrator’s decision regarding the ozone NAAQS. We have a number of concerns regarding the evaluation of the available evidence by EPA.
Although EPA utilized the causal framework outlined in the Integrated Science Assessment, it is not clear that this was done in a rigorous, clear, and consistent manner. The EPA should have evaluated all relevant data using clearly-specified criteria and determined whether, evaluating across all realms of evidence, causation is more likely than alternative hypotheses. However EPA has given more weight to positive studies and discounted results that do not support ozone related health effects at concentrations below the current standard.
The Policy Assessment considered evidence for respiratory effects associated with ozone exposure. The key studies used by EPA report small changes in respiratory function, but have numerous limitations. The controlled human exposure studies that examined lung function effects at concentrations below 72 ppb do not report statistically significant differences between ozone exposure and filtered air (not background ozone levels). In addition, clinical guidelines such as those from the American Thoracic Society indicate that lung function decrements in the absence of symptoms do not constitute an adverse effect. Indeed, review of the available evidence indicates that lung function effects near or below the current standard are within the range of intra-individual variability in normal subjects, and not considered adverse with respect to clinical guidelines.
EPA also considers mortality associated with short-term and long-term exposure to ozone. However, the available evidence does not support a consistent association between ozone exposure and mortality. This is especially true if one considers the heterogeneity of effects estimates between cities and the confounding effects of co-pollutants. EPA should discuss these considerations in the context of determining a national standard for ozone and should eliminate statements in the Policy Assessment that describe this evidence as "consistent." The TCEQ finds it especially troubling that the EPA selected a single study (Jerrett et al. 2009) that reports positive associations for long-term exposure to ozone and mortality, when previous investigators analyzing this cohort have not found such associations. Combined with the observation that mortality was not determined to be a "causal" endpoint for long-term exposure to ozone in the Integrated Science Assessment, we urge EPA to remove this analysis from the Policy Assessment.
The Policy Assessment describes uncertainty separately from the core analysis of risk, leading to misperception of that risk. For example, upon reading the appendices for the underlying analysis presented in the Health Risk and Exposure Assessment, it is clear that for some areas of the U.S. (including Houston) mortality is estimated to increase for some alternative standards under consideration. We urge EPA to consider a retaining the current standard due to the significant uncertainty surrounding these estimates.
Also, the PA should more thoroughly discuss personal exposure to ozone. EPA should explain the limitations of setting standard for ambient air based on clinical exposures when HREA states that most people spend the majority of their time indoors. Similarly, it is unclear how the results of modeling presented in the HREA were paired with the information from studies indicating daily personal exposure is well below any of the benchmarks suggested. EPA points out in Figure 5-15 of the HREA that the upper end of daily average ozone personal exposure are well less than 20 ppb, well below the current standard and the range of proposed alternate standards. The TCEQ urges EPA to consider personal exposure in setting the ozone standard, which would lead to the conclusion that the current standard is more than adequately health–protective.
Finally, we would like to point out that many of these same concerns have been raised by members of CASAC in their individual comments in the past. We find it troubling that these issues have not been communicated to the Administrator in the consensus statements of CASAC. We urge the committee to continue to consider these issues and clearly highlight to the Administrator the uncertainty and ambiguity inherent in the scientific evidence. Given the significant impact of the NAAQS, we urge that no change be recommended.
DATE SUBMITTED: 03/23/14
SHORT TITLE: Health Risk and Exposure Assessment (HREA) for Ozone and Related Photochemical Oxidants
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of the Executive Director
STAFF CONTACT: Stephanie Shirley, Ph.D.
SUMMARY OF COMMENTS:
TCEQ staff have reviewed the 2014 Health Risk and Exposure Assessment for Ozone Second External Review Draft (REA, US EPA, 2014). In this draft, EPA presents its analysis of 12 urban areas, including Houston. However, EPA highlighted modeled results without a sufficient discussion of the uncertainty surrounding these estimates.
The EPA attempted to improve the science used to quantify the effects of modifying the ozone NAAQS, specifically the replacement of the quadratic rollback with a model-based approach that more realistically portrays the anticipated resulting ozone concentrations through use of the Higher-order Direct Decoupled Method (HDDM). However, a number of issues must be emphasized. For example, bias in the 2008 National Emissions Inventory (NEI) and modeling bias due to the relatively coarse resolution of 12 km. In addition, treating emission reductions uniformly across all sectors and geographic areas is clearly unrealistic. And finally, the results of EPA’s analysis wherein both NOX and VOC emissions were reduced simultaneously seem contradictory, because for many cities including Houston it appears that reducing both pollutants simultaneously would be less effective than reducing NOX alone.
Indeed, in part because of these modeling decisions, the HREA indicates a lower standard may result in additional premature mortality for some areas of the country, including Houston. In fact, the last line of the HREA states that: "[m]ortality from short-term and long-term O3 exposures and respiratory hospitalization risk is not greatly affected by meeting lower standards…" This observation does not support the necessity of a lower standard. EPA’s own modeling shows either adverse or little to no public health benefit from lowering the current standard, therefore staff urges EPA to retain the existing standard.
The draft HREA presents hypothetical health effects that are based on one or two 8-hour exposures above the various benchmarks. Based on modeling presented in the HREA it appears that the only significant potential exposures would be to 60 ppb ozone. At this concentration we would expect only mild, reversible, transient effects on lung function that are not of clinical importance. Furthermore, based on the confidence intervals presented in the document, no significant 8-hour exposure to 70 or 80 ppb would be expected even if the current standard were to be retained. This information does not support a more stringent NAAQS. Moreover, the ozone standard is based on the 4th highest 8-hour exposure averaged over 3 years. This analysis does not support a lower standard that attempts to capture a single exposure over a given benchmark.
For mortality attributable to long-term exposure to ozone, EPA chose to use the same concentration-response function from Jerrett et al. 2009 for all 12 urban case study areas despite mentioning regional heterogeneity many times throughout the draft. TCEQ would like to emphasize that in light of the substantial regional heterogeneity, it is unclear how to interpret pooled estimates, particularly given the inconsistencies across studies. Moreover, this appears to be the first time a significant association between ozone and morality has been reported for this cohort and results for six other cohorts have not reported relationships between ozone and mortality. Taken together with the fact that mortality was considered to be "suggestive" of a causal association in the Integrated Science Assessment, the long-term mortality endpoint should not be included in the HREA or subsequent analyses.
Personal exposure is not considered in any of the epidemiology studies. As EPA clearly demonstrates in Figure 5-15, the vast majority of the US population is not exposed to 8 hour ozone concentrations greater than 20 ppb. Using ambient ozone concentrations without consideration of personal exposure greatly overestimates risk and is inappropriate.
The TCEQ agrees with EPA that the NAAQS for ozone should protect public health. We would like to emphasize that modeling presented in the HREA indicates a lower standard may result in additional premature mortality for some areas of the country, including Houston. In addition, we would like to emphasize that when considering alternative O3 standards, the lower end of the proposed range is not well-supported. In fact, EPA states that at lower concentrations "…the likelihood and magnitude of a response becomes increasingly uncertain…" and elsewhere that the "…the relative importance of background O3 would increase …with a lower level of the O3 NAAQS". In summary, EPA has not made the case that a lower standard will improve public health and TCEQ urges EPA to retain the current standard. Measures designed to achieve a lower ozone standard could actually lead to increased health risk, e.g. decreased electric reliability resulting in summertime blackouts.
DATE SUBMITTED: 03/20/14
SHORT TITLE: The Welfare Risk and Exposure Assessment (WREA) for Ozone and Related Photochemical Oxidants
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of the Executive Director
STAFF CONTACT: Stephanie Shirley, Ph.D.
SUMMARY OF COMMENTS:
- The proposed cumulative standard is unnecessary. EPA’s analysis indicates that just meeting the current 75 ppb standard would generate W126 results within the range proposed by EPA. The WREA indicates that there is a strong positive correlation between the current standard and proposed form. In essence, the current standard is a surrogate for the proposed alternative form.
- There is substantial uncertainty with cumulative ozone estimates. The WREA describes a number of uncertainties relating to the proposed secondary standard. These include monitor density near urban cities, validity of Concentration Response Functions (CRFs) and data availability for W126 index estimates from studies supplying these CRFs. CRFs are only available for 12 tree species and these estimates are based on seedlings studies, rather than on mature trees.
- There are limitations with implementing the proposed standard. The existing monitoring network has been developed over decades to meet current form of the ozone standard. We have significant concerns regarding the potentially substantial challenges associated with implementing the cumulative secondary standard based on the W126 index as proposed. The current monitoring network would likely require significant redesign to address a different purpose and potentially significant differences between geographic locations. Similar issues are anticipated with modeling plans as well. EPA has not addressed whether the current monitoring, modeling, and reporting plans could be used to implement the new form or the instability that could be caused in implementing a new cumulative form of the standard.
DATE SUBMITTED: 03/20/14
SHORT TITLE: Prevention of Significant Deterioration: Greenhouse Gas Tailoring Rule Revisions
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Mike Wilhoit
SUMMARY OF COMMENTS:
TCEQ supports EPA’s proposed approval, and appreciates EPA’s prompt consideration of the proposed new and amended rules regarding the PSD program that were submitted by TCEQ on December 2, 2013. The commission is scheduled to consider these rules for adoption on March 26, 2014, with submittal to EPA shortly thereafter. TCEQ looks forward to continuing to work with EPA to ensure final approval of these rules, rescission of the FIP, and a smooth transition of authority to issue PSD permits for GHG sources in Texas.
DATE SUBMITTED: 03/12/14
SHORT TITLE: General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Dom Ruggeri, P.E.
SUMMARY OF COMMENTS:
General Comments
This rulemaking does not directly affect the Texas minor NSR program; however, TCEQ appreciates the opportunity to comment on issues related to the Texas program. While TCEQ agrees with EPA’s proposed change to allow general permits and PBRs in Indian country, it would not support a national minor NSR program that would affect the use of streamlined authorizations in the Texas state implementation plan (SIP). SIP-approved minor NSR programs can and do vary widely from state to state. TCEQ has consistently supported the position, to which EPA agrees, that states have great flexibility to create their own minor NSR permitting programs. Therefore, TCEQ is not providing comments on the specific proposed terms and conditions of the general permit or the PBRs, leaving the specifics to EPA as the permitting authority. TCEQ expects that EPA will allow the states the same flexibility in developing general permits and PBRs, including flexibility with respect to minor NSR public participation requirements.
Similar Sources
EPA’s proposed general permits are for "similar" types of emissions units or minor sources. TCEQ does not agree with EPA that this federal clean air act (FCAA) interpretation is a limitation on the ability to issue general permits. The United States Court of Appeals for the Fifth Circuit found that EPA’s imposition of a "similar source" requirement to TCEQ’s Pollution Control Project Standard Permit was neither necessary to safeguard air quality standards nor warranted by any applicable provision of the FCAA.
Summary
TCEQ supports EPA’s proposed use of general permits and PBRs as a strategy to provide a streamlined method of authorization for minor NSR purposes. TCEQ has used PBRs and general permits for many years as a key component of a minor NSR program. However, EPA’s implementation of general permits and PBRs must not interfere with states’ flexibility to manage their own minor NSR programs.
DATE SUBMITTED: 01/23/14
SHORT TITLE: Standard Permit for Oil and Gas Facilities and Standard Permit Applicability
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ concurs with EPA’s determination that § 116.620 and § 116.610(a) and (b) meet the applicable requirements of the Federal Clean Air Act and applicable requirements for Minor NSR under 40 Code of Federal Regulations Part 51. Therefore, TCEQ supports the approval of these rule sections as revisions to the Texas SIP.
DATE SUBMITTED: 01/21/14
SHORT TITLE: Integrated Science Assessment for Oxides of Nitrogen-Health Criteria
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of the Executive Director
STAFF CONTACT: Shannon Ethridge, MS, DABT
SUMMARY OF COMMENTS:
There is great complexity associated with multiple issues relevant to the assessment of health and welfare risk and exposure assessments of oxides of nitrogen, especially at low exposure levels. The TCEQ developed comments based on a cursory review and additional time would have allowed the TCEQ to: (1) perform a more detailed review of the volumes of relevant information; (2) more fully examine statistical procedures and the rationale and scientific support for key EPA decisions and analyses; and (3) provide more detailed specific comments on all problematic issues associated with the ISA.
DATE SUBMITTED: 12/19/13
SHORT TITLE: Control of Air Pollution by Permits for New Construction or Modification; Permits for Specific Designated Facilities
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Mike Wilhoit
SUMMARY OF COMMENTS:
On December 11, 2013, the commission withdrew all sections of 30 TAC Chapter 116, Subchapter L, Permits for Specific Designated Facilities, from EPA’s consideration as a revision to the SIP. In addition, on the same date, the commission withdrew 30 TAC Chapter 39, §§ 39.402(a)(10), 39.419(e)(3), and 39.420(h) as revisions to the SIP. Therefore, the commission opposes the proposed approval of any of the referenced sections as a revision to the Texas SIP.
DATE SUBMITTED: 12/06/13
SHORT TITLE: Draft Guidance for One-Hour Sulfur Dioxide (SO2) Nonattainment Area State Implementation Plan (SIP) Submissions
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The TCEQ commented previously on various concerns related to the one-hour primary SO2 standard and continues to disagree with the EPA’s proposal to use air dispersion modeling results to determine attainment status. The comments also note that:
- the EPA should allow the use of alternative modeling approaches for attainment demonstration or allow flexibilities recommended by the TCEQ when AERMOD is used for this purpose;
- the TCEQ disagrees with the approach to use maximum allowable emissions to determine existing air quality;
- the EPA should restrict the requirement to have separate enforceable limits to sources within a nonattainment area;
- requiring Title V Permits to be submitted as SIP revisions to ensure that any SO2 limits codified therein would become "permanent and enforceable" is inappropriate, unworkable, and not supported by the CAA;
- the TCEQ questions the necessity of the procedures suggested by the EPA to justify longer averaging time (e.g., 30-day) for emissions limits necessary to model attainment because the EPA is not considering that the application of reasonable controls may control emissions well below the level necessary for attainment; and
- the EPA should consider in more detail how states should verify continued attainment in maintenance plans that rely on modeling and provide alternatives to the option referenced in the EPA’s redesignation guidance.
The TCEQ also has numerous comments on the technical aspects of Appendix A to this draft guidance – Modeling Guidance for Nonattainment Areas.
DATE SUBMITTED: 11/22/13
SHORT TITLE: Permitting of Grandfathered Facilities
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ supports the EPA’s proposed approval of the rules identified in the notice as revisions to the Texas SIP, with the exception of Title 30 Texas Administrative Code (TAC) § 116.803, Additional Requirements for Existing Facility Flexible Permit Applications. On September 24, 2013, the commission withdrew 30 TAC § 116.803 from EPA consideration as a revision to the SIP, as part of a larger set of SIP actions related to the TCEQ’s Flexible Permit Program. Therefore, the commission does not support the proposed approval of 30 TAC § 116.803 as a revision to the Texas SIP.
DATE SUBMITTED: 10/31/13
SHORT TITLE: NESHAP for Reciprocating Internal Combustion Engines
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Sean O'Brien
SUMMARY OF COMMENTS:
Criteria for Operation for Up to 50 Hours per Year for Non-Emergency Situations
Certain petitioners expressed concern that the conditions in the final rule for engine operation in non-emergency situations were too broad and would be difficult to enforce, which could lead to engines operating when there is no discernible threat to the grid. The petitions recommended that EPA more clearly define the situations under which the engines could operate to ensure that the engines are only dispatched during genuine grid emergencies.
It is TCEQ’s position that EPA’s reconsideration of these exceptions (40 CFR §§60.4211(f)(3)(i), 60.4243(d)(3)(i), and 63.6640(f)(4)(ii)) is unnecessary, and that it is not practical to further define or restrict the conditions necessary to use the exceptions. The conditions and restrictions in the January 30, 2013 rule already require the engine dispatcher to follow appropriate standards or guidelines, and require the owner or operator using the exception to maintain records of what entity dispatched the engine and what specific standard or guideline was followed. TCEQ comments that these portions of the rules under reconsideration should remain unchanged.
DATE SUBMITTED: 10/08/13
SHORT TITLE: Attainment Demonstration for the Houston-Galveston-Brazoria 1997 8-Hour Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The comment document addresses the following items:
- support for the EPA’s proposed approval of these SIP revisions and appreciation for the EPA’s analysis, which concludes that the HGB area will reach attainment of the 1997 eight-hour ozone standard by the end of the 2018 ozone season;
- request that the EPA not take action on revisions to §101.396(b) related to the HECT Program to prevent a conflict with §115.722(c) and §115.761(c); and
- clarifications needed to support consistency across TCEQ and EPA documents.
DATE SUBMITTED: 08/23/13
SHORT TITLE: 8-Hour Ozone National Ambient Air Quality Standard Implementation Rule
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The proposed cost associated with the EPA’s estimated burden to implement additional SIP activities under the 1997 eight-hour ozone NAAQS during this time period is too low.
- The EPA has indicated that the 1997 eight-hour ozone NAAQS will be revoked upon finalization of the 2008 eight-hour ozone NAAQS. If this happens as expected, then there would be no additional burden to states in developing submittals for the 1997 eight-hour ozone standard. However, there could be responsibilities and costs for activities that remain applicable for the revoked standard.
- If the 1997 eight-hour ozone NAAQS is not revoked or is delayed, then the TCEQ disagrees with the methodology that the EPA used to account for the estimated agency burden in fulfilling the SIP activities associated with 1997 eight-hour ozone nonattainment in the Dallas-Fort Worth nonattainment area.
- Instead of 5,000 hours of additional burden for the Dallas-Fort Worth 1997 eight-hour ozone nonattainment area, the TCEQ recommends that the EPA use a more realistic estimate of burden in the range between 45,000 to 55,000 hours based upon historical level of effort.
DATE SUBMITTED: 08/19/13
SHORT TITLE: Air Emissions Reporting Requirements (AERR)
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
- Point source thresholds for lead: This element of the EPA proposal would place an unnecessary reporting burden on small emissions sources and place additional demands on limited state resources. The TCEQ recommends that the EPA revise the proposed point source emissions inventory reporting threshold to 0.5 tons per year (tpy) potential lead emissions for areas designated nonattainment for lead and 0.5 tpy of actual lead emissions for all other areas.
- Elimination of wildfire and prescribed fire reporting: The TCEQ agrees with this change and feels it will be beneficial.
- Elimination of emissions reporting for on-road mobile sources: The TCEQ recommends allowing states the option to report on-road emissions from the EPA-approved model similar to California and tribes rather than requiring reporting model inputs.
- Elimination of emissions reporting for non-road mobile sources: The TCEQ recommends allowing states the option to report on-road emissions from the EPA-approved model similar to California and tribes rather than requiring reporting model inputs.
- Establishment of first applicable triennial inventory per the proposed revision: The TCEQ recommends changing Section 51.30 of the proposed rule, which currently states that the first triennial inventory affected by this change will be the 2011 inventory. The TCEQ recommends changing this section to read that the first triennial inventory affected by this change will be the 2014 inventory, which must be submitted 12 months later by December 31, 2015.
- Removing requirements for agencies to report daily and seasonal emissions associated with carbon monoxide and ozone nonattainment areas and also for areas subject to the nitrogen oxides state implementation plan (NOx SIP Call): Although the TCEQ supports the streamlining efforts of the EPA in regards to states’ requirements, the TCEQ recommends keeping the requirement to submit summer day emissions, ozone season emissions, and carbon monoxide winter work weekday emissions for demonstrating milestone year compliance as well as for use when developing reasonable further progress SIPs and transportation conformity.
- Requirement to use shape file formatting for the locomotive and commercial marine vessel inventories: The TCEQ recommends continuing the use of current approved file formats since the use of shape files would result in additional cost, time, and resources to implement with little benefit.
- Proposed clarification of element names and usage for controls between the AERR and the EPA’s Emissions Inventory System (EIS): The TCEQ recommends continuing the existing file formatting for emissions calculation method, the emission factor, and the five data elements for controls. Requiring additional data elements for EIS validation would impose additional resources strain and implementation costs on states.
DATE SUBMITTED: 08/19/13
SHORT TITLE: Implementation of the 2008 NAAQAS for Ozone: SIP Requirements
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Steve Hagle, P.E.
SUMMARY OF COMMENTS:
The TCEQ responded to requests for comments to EPA-HQ-OAR-2010-0885.
DATE SUBMITTED: 07/18/13
SHORT TITLE: Sulfur Dioxide (SO2) National Ambient Air Quality Standards Designations Modeling Technical Assistance Document
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Dom Ruggeri, P.E.
SUMMARY OF COMMENTS:
General: TCEQ continues to disagree with EPA’s proposal to use air dispersion modeling to determine existing air quality that demonstrates attainment for designation purposes. Any modeling comments provided in this document are not an endorsement of modeling unclassifiable or attainment areas for designation purposes but are intended as input in the event that the EPA chooses to proceed with such a requirement.
Costs: EPA should consider the costs related to the implementation of its SO2 Strategy. Based on information discussed during the 2012 EPA stakeholder meeting, TCEQ advised EPA of significant modeling-related information, resource, and time costs.
Impractical Implementation Schedule: The guidance in the TAD is based on EPA's February, 2013 SO2 Strategy Paper and future data requirements rulemaking in 2014. The anticipated timeline is impractical. For example, one year is not enough time to develop a modeling or monitoring strategy, consult with sources and EPA, develop modeling protocols, get EPA approval, and complete the preliminary monitor deployment plan. In addition, the schedule does not provide enough time to prepare, conduct and complete required modeling.
Other-Party Participation: TCEQ disagrees with EPA's plan to require consideration of "credible" modeling presented by others ahead of any TCEQ SIP proposal. Accelerating a schedule that is not appropriate or further slowing the SIP development process by diverting resources would not benefit the public. This approach is unnecessary because states give due consideration to comments received once SIPs are proposed to the public.
Alternative Models and Approaches: The TAD states that AERMOD is the preferred model and does not explicitly allow the use of photochemical grid models. EPA should allow the use of these models and alternative modeling approaches because the required procedure to justify their use is unnecessarily time-consuming and would affect TCEQ's ability to meet the planned timeline.
AERMOD Updates: Many of the recommended modeling approaches are those used in the air permitting process and may not be appropriate for SIP designations. EPA should provide information regarding all technical issues that have been identified with the AERMOD Modeling System that could affect the determination of existing air quality.
Ambient Air: TCEQ disagrees with EPA's fence-line approach that requires a modeled concentration for areas where public access is not blocked. This approach is inconsistent with the guidance in the Monitoring TAD that does not require modeled concentrations at locations where a monitor could not be sited to determine NAAQS compliance, such as on roads or over water.
Protocol Review: EPA recommends a meeting with the Regional Modeling Contact and other technical and planning staff to discuss modeling and analysis protocols before the state starts any refined modeling. TCEQ suggests that the data requirements rule include an EPA commitment to review and comment on modeling and analysis protocols in a timely manner.
DATE SUBMITTED: 07/18/13
SHORT TITLE: SO2 NAAQS Designations Source-Oriented Monitoring Technical Assistance Document
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Stephanie Ma
SUMMARY OF COMMENTS:
- The TCEQ supports the use of ambient air quality monitoring data for SO2 as the only valid basis for making attainment or nonattainment designations and does not support the use of modeling as the basis for designations. The TCEQ also does not support the required use of modeling to determine placement of monitors. Modeling could be useful for determining monitor placement in some cases, but should be a tool to be used at the discretion of states, locals and tribal areas.
- The EPA should reconsider its implementation strategy timeline. The TAD refers to a planned data requirements rulemaking that will be finalized in late 2014 that will define the threshold criteria for SO2 sources that require either modeling or monitoring. The modeling protocols are due in January 2016 and the monitoring plan is due in June 2016. This only allows one year for states to determine the sources requiring modeling or monitoring, gather information, consult with the sources and the EPA, develop modeling protocols, and develop a monitoring deployment plan.
- The TCEQ disagrees with the statement that meteorological data collected from nearby locations may not be sufficient and that one or more meteorological stations should be deployed to assist with locating a new SO2 monitor. Installing meteorological stations to locate new SO2 sites would be resource intensive and would not allow sufficient time to meet the timeline outlined in the SO2 Strategy Paper.
- The EPA would need to provide additional funding to meet the monitoring requirements in the TAD. It could cost approximately $2 million for the initial deployment and $1.125 million annually to operate and maintain the sites, assuming just 25 monitors would be needed.
- The EPA should exercise caution when using existing modeling data for determining monitoring locations. Past modeling data represent worst case emissions and are not indicative of actual air quality. Past modeling data may have also been executed on outdated models that may not agree with current modeled results.
- The EPA should emphasize emissions thresholds in determining whether existing SO2 sources above a given threshold have potential to cause nonattainment of the NAAQS. The lead NAAQS rule, the only rule requiring source-oriented monitoring for criteria pollutants, requires at least one maximum-concentration, source-oriented ambient air quality monitor for each lead source or cluster of sources with actual annual emissions above the specified threshold.
- The EPA should clarify whether a modeling protocol is required for modeling conducted to assist in siting a new air monitoring site. If a modeling protocol is required, the timeline in the SO2 implementation strategy must be adjusted to accommodate the process for identifying and analyzing potential sources.
- The EPA should explicitly state that it is not necessary to model in locations around a source that are not feasible for monitor placement. The TAD discusses this strategy but then implies that this approach may not be acceptable.
- The EPA’s discussion of using exploratory monitoring for permanent monitoring placement is too resource intensive and does not allow sufficient time to meet the deadlines outlined in the SO2 implementation strategy paper. The TAD requires year-round collocated monitoring at each of the proposed sites using non-reference or equivalent method equipment.
DATE SUBMITTED: 05/31/13
SHORT TITLE: EPA Draft Guidance for PM2.5 Permit Modeling
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Dom Ruggeri, P.E.
SUMMARY OF COMMENTS:
While TCEQ commented on the entire guidance document, comments are focused on three areas: technical challenges; hybrid compliance demonstrations; and screening tools.
Significant Technical Challenges Remain
Applicants with major New Source Review (NSR) PM2.5 projects must demonstrate compliance with applicable NAAQS and PSD increments. The demonstration must address both direct PM2.5 emissions and PM2.5 formed secondarily through chemical interaction of precursor pollutants (currently NOx and SO2).
Meeting the NAAQS and PSD increment compliance requirements is complicated because significant technical challenges remain for PM2.5 implementation into the NSR permitting program, and EPA has not provided the necessary technical tools to quantify PM2.5 emissions or predict ambient air concentrations. The guidance recommends certain interim procedures to address the fact that compliance with the PM2.5 NAAQS is based on a statistical form, and that no existing single-source dispersion model can estimate the impacts of secondarily formed PM2.5 in the atmosphere resulting from emissions of PM2.5 precursors. The PM2.5 modeling guidance provides a screening approach to meet compliance demonstration requirements until EPA can provide effective screening tools and models and adopt implementation rules over the next 3 years. In the meantime, EPA plans to rely on interim policy and guidance and plans to use a case-by-case approach that may result in more uncertainty, inconsistent implementation, and significantly increased permit review time.
Hybrid Quantitative and Qualitative Approach
The guidance outlines four approaches based on the amount of direct PM2.5 and precursor emissions. However, because of the lack of single-source models and techniques to provide numerical concentrations for secondarily formed PM2.5, EPA suggests a hybrid approach to estimate impacts that combine numerical concentrations from direct emissions, monitored background concentrations, and secondarily formed concentrations obtained using a photochemical model or a qualitative narrative that estimates secondarily formed PM2.5.
TCEQ is concerned that the hybrid approaches will lead to inconsistent implementation and not meet NSR NAAQS and PSD increment requirements. For example, without a numerical concentration, an applicant could not clearly demonstrate that a project would not contribute to a PM2.5 NAAQS violation or increment exceedance. In addition, an applicant must provide the degree of increment consumed by the project in its public notice. It is not clear how a qualitative approach would meet this requirement.
Screening Tools
Basic screening tools that TCEQ uses to streamline the permitting process have been questioned by EPA or vacated by court decisions. One tool, the significant emission rate (SER), is used to determine if a project is a major modification. The SER is important because once a source is major for one pollutant an increase in a precursor pollutant’s emissions above the SER requires a PM2.5 compliance demonstration. Based on the National Association of Clean Air Agencies Workgroup report referenced by EPA in the guidance, the current SERs are too low and TCEQ requests that EPA consider conducting an evaluation to support increasing the SERs for NOx and SO2 from 40 tons per year (tpy) to 1000 and 400 tpy, respectively.
TCEQ agrees with EPA’s guidance to "replace" the two vacated tools, significant monitoring concentration (SMC) and significant impact levels (SILs) in the permitting process until new rules are adopted. TCEQ agrees that an applicant can use available representative monitoring data to determine existing air quality instead of source-specific preconstruction monitoring. In addition, TCEQ asks EPA to consider adding the use of conservative monitoring data to the guidance as well.
TCEQ agrees that PM2.5 SILs that were not vacated can be used and requests that EPA provide concrete examples for their use to ensure states compare impacts consistently.
DATE SUBMITTED: 05/28/13
SHORT TITLE: Oil and Natural Gas Sector: Reconsideration of Certain Provisions of New Source Performance Standards
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Anne Inman, P.E.
SUMMARY OF COMMENTS:
Applicability and Control Requirements
In this proposal, EPA acknowledges its underestimation of the number of affected sources, and the lack of availability of controls required to comply with the rule. EPA estimates that sufficient controls may not be available until 2016. If drilling continues at the current pace, it is predicted that between 8,000 and 16,000 new wells will come on line in Texas alone in each of the next few years. This activity will keep control devices in short supply much longer than EPA anticipates.
EPA proposes two approaches to address the lack of available control equipment, but these approaches are flawed. First, EPA’s approach to use an "event" as a trigger for the requirement to install controls may create a disincentive for companies to perform certain actions (including maintenance activities) and may greatly constrain the operational flexibility needed to manage the site. This approach may also have the effect of slowing production in the US at a time when increasing energy independence is a priority. In addition, the complex applicability and exemption thresholds, and the ongoing need to recheck and document emission changes, would make evaluating compliance difficult for affected facilities and for regulatory agencies.
Second, EPA's proposed strategy for the removal and reinstallation of controls is flawed in at least three respects. First, if controls are not available or are in short supply, companies are not likely to remove them, for fear of future non-compliance should the company be required to reinstall controls. Second, companies will not likely remove controls if the need to reauthorize or update permit representations presents an administrative burden. Finally, the proposed 30-day time allotted for reinstallation of controls is unreasonably short. TCEQ suggests that 180 days would be sufficient time for a site to obtain and install a control device.
Furthermore, EPA’s choice of an uncontrolled 4 tpy threshold for removal/reinstallation of control is arbitrary and unsupported. This approach could create situations of inequity where neighboring or similar facilities may have nearly identical uncontrolled VOC emissions, but very different regulatory burdens. EPA's approach may drive companies to design sites with a larger number of uncontrolled small tanks, such that no single tank will exceed the 6 tpy applicability threshold. This outcome would undermine the goal of reducing emissions from this industry sector.
TCEQ also requests that EPA confirm that the 95% control requirement is based on the uncontrolled potential to emit (PTE) for the storage vessel. If EPA does not agree with this interpretation, EPA should provide justification and explanation of how compliance with the control requirement should be determined.
Monitoring and Testing Requirements
TCEQ has several suggestions to improve the flexibility of certain testing requirements. Section 60.5413 (d)(6)(i)(B) states that flow must be measured using Methods 1 and 2, but due to the potential for measurement error and safety concerns, TCEQ recommends that Method 19 be considered as an alternative flow measurement method. Section 60.5413 (d)(7)(i) specifies collecting the gas sample in a bag for analysis, but TCEQ recommends that the rule allow the option of pulling the sample directly from the source into the instrument via a heat-traced sample line. Finally, §60.5413 specifies the use of Method 4 for determining moisture, but TCEQ notes that there are several instrumental methods available that can monitor stack moisture, which may be more efficient. See full comment document for details.
EPA requested comment as to whether enclosed combustors could be sold as "compliance ready," and whether such an approach would ease compliance. TCEQ generally supports the concept of certifying a unique control device model based on a single set of tests as stipulated in proposed §60.5413(d). The model of control device that will receive a certification should have the same physical and operational characteristics as the unit which was successfully tested.
Storage Vessel Design Requirements
EPA solicited comment on the potential establishment of requirements for proper design of storage vessels and associated closed vent systems and control devices. TCEQ does not recommend that EPA establish specific requirements for proper design of storage vessels and associated control systems. There is a high variability of materials and conditions in the field, and practices or technology that may work in one area or application may not be effective or possible or in a different area or application. Flexibility in design is key to promoting innovation and proper management of equipment.
Applicability Clarification Relating to Custody Transfer
TCEQ requests clarification on the applicability of the NSPS to storage tanks beyond the point of initial custody transfer. It appears the NSPS states that storage vessels downstream of the point of custody transfer are no longer subject to the rule. TCEQ requests that EPA confirm or clarify this interpretation.
DATE SUBMITTED: 05/13/13
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Joseph A. Janecka, P.E.
SUMMARY OF COMMENTS:
- We generally support the policy expressed in the FR notice. Our SIP approved rules are consistent with that policy.
- The EPA should not require the consideration of all start-ups as planned.
- EPA should provide the means for a state to request and obtain a state-alternative to affirmative defense criteria for recent New Source Performance Standards. This FR notice illustrates differences between the expectations of the state and the federal rules.
- We generally support the use of interpretive letters to clarify perceived ambiguities found in SIP submissions and believe it is permissible under the Federal Clean Air Act.
- We generally support the definition of the term "director’s discretion provision" included for the specific purpose in this notice. However, we do not agree that this definition would be the same where the use of director discretion is included in other rules. In addition, federal courts have upheld the use of this discretion in TCEQ’s rules.
- TCEQ has authorized emissions from startup and shutdown activities.
DATE SUBMITTED: 05/07/13
SHORT TITLE: National Program Manager Guidance
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Steve Hagle, P.E.
SUMMARY OF COMMENTS:
Introduction: EPA should identify and discuss in more detail the guidance that is applicable to state and local programs. Texas is a State Implementation Plan (SIP) - approved state, and the guidance is not clear as to which measures, if any, EPA believes to apply to TCEQ’s air permitting program. States with SIP-approved programs may have their own permitting targets and goals, and it would not be appropriate for such programs to be subject to duplicative or conflicting performance measures.
The prioritization within the guidance was established by the EPA/State Priorities Workgroup, which consisted of representatives from ECOS, NACAA, and EPA. Many states do not belong to ECOS or NACAA. All affected states and programs should have the opportunity to be involved in the guidance’s creation.
In addition, the guidance should specifically direct EPA regions to tailor expectations to consider state resources, reflect a state's status (delegated or approved), and acknowledge requirements adopted into approved SIPs.
EPA should address the increasingly complex issue of background ozone, the definition and the impact background may have on attaining the lowered ozone standard. International background is a complicated matter that has significant impact on how states proceed and how this issue is addressed with stakeholders.
Program Guidance: National Ambient Air Quality Standards (NAAQS): The guidance states that EPA will work closely with air agencies on all aspects of implementing the NAAQS. TCEQ finds that past engagement to develop regulations and guidance has not been effective. EPA has not provided sufficient guidance for states to implement the PM2.5 standards into new source review (NSR) permitting programs, yet continues to include performance measures in Performance Partnership Grant (PPG) agreements. EPA should not require performance measures for new NAAQS until necessary implementation rules and guidance documents are provided.
Regional Offices should prioritize review of exceptional event flagging, especially when making final designations. The length of time it takes EPA to review and provide a decision to states on the acceptance of flagging has been an ongoing issue.
It is critical that the guidance documents and rules for exceptional events flagging receive continued input for revision. Predicted drought conditions can likely lead to more uncontrolled wildfires and the impact on areas reaching the ozone standard will be increasing critical. The Guidance/Rulemaking statement must be more inclusive.
In addition to implementing the good neighbor provision of the Clean Air Act, HQ should prioritize providing guidance on how states should address CAIR in their existing SIPs and how CAIR will be administered moving forward.
Title V and New Source Review Permitting and Appendix A Measure Text: EPA should identify and clearly address the measures and national targets that apply to state and local programs. SIP-approved states expect that they will be able to develop specific language with their respective EPA regional office, and will not be held to a double standard of meeting an EPA requirement in addition to their own requirements. If EPA does not agree with this viewpoint, EPA should explicitly address this in the guidance, and provide justification as to why these types of performance measures should apply to SIP-approved states.
Program Guidance: Air Toxics Program Implementation: The guidance should specifically reflect a state's status (delegated or approved), and acknowledge requirements adopted into approved SIPs. Under "Expected State and Local Agency Activities," items 2 and 3 should clearly provide flexibility to assume implementation of toxic standards and residual risk standards in recognition of state resources and applicable laws and rules. In addition, EPA should provide guidance concerning specific delegation responsibilities for these programs before they can be accepted and incorporated into a state's SIP.
DATE SUBMITTED: 03/31/13
SHORT TITLE: Notice of Availability of the EPA’s 2011 Emissions Modeling Platform
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer/Guy Hoffman
SUMMARY OF COMMENTS:
- The EPA should use state-submitted inventory and projection data where available.
- When implementing national consistency for NEI projection values, the EPA should not select the most conservative assumptions to predict future emissions growth when more specific information is available.
- The EPA’s release of the TSD late in the comment period did not give states sufficient time to review it before the close of the comment period for the 2011 Modeling Platform.
- The EPA should formally acknowledge that 2011 is not representative of normal ozone formation for Texas and surrounding states because of the atypical meteorology (e.g. extreme temperatures) and related events (e.g., wildfires, exceptional drought), and that 2011 may not be conducive to good model performance.
- The EPA should be more specific about the procedures being proposed for creating temporal profiles for electric generating units.
- The EPA should not rely on Biogenic Emission Inventory System (BEIS) model results for biogenic emissions and should use the most recent and highly resolved land use and cover data.
- The EPA should provide further information regarding the BEIS model and provide a comparison of BEIS output to isoprene measurements in order to gauge model performance.
- The EPA should verify that the biogenic nitrogen oxide emissions estimates from BEIS for portions of south Texas for 2011 are accurate.
- The EPA should address how it is accounting for a season of exceptional wildfires and drought, and their aftereffects, in its biogenic emissions modeling.
- The EPA should clarify and take specific public comment on certain other aspects of the modeling platform, including:
- the use of spatial surrogates;
- the use of its fire-averaging tool;
- the modeling of shipping lanes in the Gulf of Mexico;
- the use of certain chemical mechanisms for ozone modeling; and
- which inventories it is using for on-road and non-road mobile sources for Texas.
DATE SUBMITTED: 03/18/13
SHORT TITLE: EPA Responses to State and Tribal 2010 Sulfur Dioxide Designation Recommendations
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The TCEQ continues to support Governor Perry’s attainment designation recommendation:
- ten Texas counties (Jefferson, Gregg, Ellis, Harris, Galveston, Nueces, Kaufman, El Paso, Dallas, and McLennan) should be designated attainment for the 2010 SO2 NAAQS; and
- all remaining counties in Texas should be designated unclassifiable.
DATE SUBMITTED: 03/07/13
SHORT TITLE: Emergency Orders
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Steve Hagle, P.E.
SUMMARY OF COMMENTS:
The TCEQ responded to requests for comments to EPA-R06-OAR-2006-0600.
DATE SUBMITTED: 02/08/13
SHORT TITLE: Public Participation for Air Quality Permits Applications
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: Janis Hudson
SUMMARY OF COMMENTS:
- TCEQ is pleased that EPA is proposing approval of most of the public participation rules submitted in 1998, 1999, 2010 and 2011.
- EPA acknowledges TCEQ’s submittal addressed concerns previously identified, and that TCEQ’s rules meet, and in some cases exceed, minimum federal requirements for public participation.
- TCEQ acknowledges EPA’s position of taking no action on certain rules at this time, which include: (a) delay due to need for coordination with rules scheduled for review at a future date (portable facilities and Future Gen permitting programs); (b) the public participation rules for flexible permit applications which are also pending EPA re-review; (c) two rules which EPA already returned to TCEQ; and (d) § 39.405(h)(1)(B), which EPA erroneously listed as a submitted rule.
DATE SUBMITTED: 01/07/13
SHORT TITLE: National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
- The HAP-by-HAP approach used by the EPA to develop numerical emission standards does not consider overall technical feasibility. The EPA’s arbitrary acceptance of the results of the HAP-by-HAP analysis when establishing MACT emission standards is contrary to the federal Clean Air Act (FCAA) Section 112. The TCEQ suggests an alternate MACT analysis approach using the HAP-by-HAP approach initially to screen facilities to determine the "best controlled similar source" while basing the final MACT floor determination on a holistic approach.
- The EPA has not properly considered the impacts of its approach for establishing MACT emission standards on reconstructed units.
- The TCEQ continues to have feasibility concerns with some of the emission standards for new and reconstructed units under the MATS rule, particularly the mercury emission standard for coal-fired EGUs designed to burn coal with ≥ 8,300 British thermal units per pound (Btu/lb). Further subcategorization of coal-fired EGUs is necessary to account for inherent performance differences between fluidized bed units and conventional boilers. The EPA should also reevaluate the MACT floor analysis for HCl on petroleum coke-fired EGUs.
- The TCEQ disagrees with the EPA’s unsupported assertion regarding its authority to utilize sources in different source categories to establish any MACT limits for other sources.
- The EPA’s approach of setting MACT emission standards based on three times the representative detection limits (RDL) of the reference methods is arbitrary and capricious. The EPA has failed to consider the practical enforceability of emission standards set at levels so close to the method detection limits (MDL).
- The EPA’s own technical experts on emission test methods have indicated that the margin between an emission standard and the MDL of a method should be greater than the arbitrary factor of three that the EPA is using for three-times-RDL approach.
- The EPA has made significant errors in the analysis provided in the technical support document for the determination of the reference method RDL values used to set MACT emissions based on the three-times-RDL approach for the MATS rule.
- The EPA is misrepresenting the results of the Reference Method Accuracy and Precision (ReMAP): Phase 1 study. The results of the ReMAP study do not support the EPA’s claims of the accuracy and precision of the EPA reference methods at a level three times the method detection limit.
- The requirement regarding operation of pollution control equipment during startup operations (Table 3 to Subpart UUUUU of Part 63 – Work Practice Standards) should be revised to be more general or provide for case-by-case exemptions beyond the specific list of equipment EPA has exempted. The EPA may not have accounted for all equipment and scenarios requiring exemption. Additionally, the EPA cannot predict future control technology development and the provision may become a disincentive to the deployment of newer technology.
- The EPA is not providing adequate notice on potential revisions to the rule under consideration and not being sufficiently transparent with the information that the EPA relied upon for the proposed revisions to the MATS rule.
- The EPA has ignored impacts to electric power grid in the proposed rule.
DATE SUBMITTED: 12/20/12
SHORT TITLE: Section 610 Review of Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements
SUBMITTED TO: U.S. Environmental Protection Agency
OFFICE PREPARING: Office of Air
STAFF CONTACT: Morris Brown
SUMMARY OF COMMENTS:
Staff recommends that the agency provide comments to the EPA supporting the continuation of the Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements rule. The TCEQ has incorporated the air quality benefits from the implementation of the Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements rule into the state implementation plan (SIP) for the state’s ozone nonattainment areas. The Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements rule continues to ensure improvements to air quality as older engines and vehicles are retired and replaced with newer engines and vehicles certified to the rule’s stricter exhaust emissions standards. The outcome of the EPA’s Section 610 review of this rule could have a major impact on the SIP if the EPA determines to withdraw the rule or significantly modify the rule to relax any of the rule’s requirements.
DATE SUBMITTED: 10/18/12
SHORT TITLE: Approval and Promulgation of Implementation Plans; Texas; Beaumont/Port Arthur Ozone Maintenance Plan Revision to Approved Motor Vehicle Emission Budgets
OFFICE PREPARING: Office of Air
STAFF CONTACT: Daphne McMurrer
SUMMARY OF COMMENTS:
The TCEQ supports the EPA’s approval of this revision to the BPA SIP as it is based on use of the latest available tool for estimating on-road mobile source emissions. In addition, the TCEQ supports the parallel processing approach that is being used to accomplish review and approval of this SIP revision. Parallel processing allows amendments to the BPA Transportation Plan and transportation improvement program to proceed more rapidly. In this instance, the EPA is exhibiting flexibility on the SIP revision to provide consideration of state and local needs.
DATE SUBMITTED: 10/18/12
SHORT TITLE: Approval and Promulgation of Implementation Plans; Texas; Reasonably Available Control Technology for the 1997 Eight-Hour Ozone National Ambient Air Quality Standard
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
The TCEQ submits the following comments:
- The TCEQ supports the EPA’s proposed approval of the HGB area RACT SIP revisions submitted on June 13, 2007, and April 6, 2010, and requests that the EPA expedite review and approval of the remaining CTG RACT SIP submittals and associated rules for the HGB area.
- The TCEQ requests that the EPA provide clarification on the how long the VMEP measures submitted on June 13, 2007, must remain in place.
DATE SUBMITTED: 09/24/12
SHORT TITLE: National Uniform Emission Standards for Storage Vessels and Transfer Operations, Equipment Leaks, and Closed Vent Systems and Control Devices; and Revisions to the National Uniform Emission Standards General Provisions
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
General Comments: While TCEQ supports the concept of providing uniform requirements for similar types of facilities and processes, it is difficult to provide substantive comments without knowing more about the circumstances under which these standards may apply. TCEQ reserves the right to comment on the appropriateness of the inclusion of the proposed uniform standards in any future standard which references the NUES.
Storage Vessels and Transfer Operations: Under 40 Code of Federal Regulations (CFR) §65.315(b)(1)(iii), the proposed standards provide an exemption from the restrictions on landing a floating roof when a change of service to the material contained in the storage vessel is necessary due to an incompatible liquid. However, the term "incompatible liquid" is not defined in §65.295, or elsewhere within EPA’s proposal. TCEQ suggests that EPA define the term "incompatible liquid", and further suggests using the established definition in Title 30 Texas Administrative Code (TAC) §115.110(b)(3).
Equipment Leaks: In the preamble of the proposed NUES for equipment leaks, EPA indicates plans to propose a revised protocol for using optical gas imaging technology for the LDAR requirements, and plans to allow optical gas imaging as a standalone technique for LDAR monitoring. TCEQ supports the use of optical gas imaging as an effective means of detecting leaks, when the technology is used appropriately. Using optical gas imaging as a standalone alternative to traditional Method 21 instrument monitoring for LDAR purposes might be appropriate in some circumstances, but is dependent on the effectiveness and enforceability of EPA’s revised protocol, which has not yet been proposed. EPA should delay the use of optical gas imaging for LDAR until the new Appendix K protocol for optical gas imaging has been finalized.
Closed Vent Systems and Control Devices: The type and level of monitoring appropriate for a specific type of control device may depend on the size of the device and the type of compounds or streams routed to the control device. The level of monitoring and recordkeeping deemed necessary for a large control device handling a number of compounds may not be necessary for a small device handling a single consistent waste stream.
General Provisions: As previously stated under the section for Storage Vessels and Transfer Operations, TCEQ recommends that EPA provide a definition for the term "incompatible liquid" in 40 CFR §65.295. TCEQ suggests that EPA use the definition in TCEQ rules at 30 TAC §115.110(b)(3).
DATE SUBMITTED: 09/07/12
SHORT TITLE: Draft Guidance to Implement Requirements for the Treatment of Air Quality Monitoring Data Influenced by Exceptional Events
OFFICE PREPARING: Office of Air
STAFF CONTACT: Erik Gribbin
SUMMARY OF COMMENTS:
The TCEQ submits the following comments:
1. The EPA needs to move beyond particulate matter (PM) issues such as dust storms, wildfire, and fireworks and establish specific guidance for exceptional events that impact levels of other criteria pollutants.
2. The EPA needs to establish guidance specifically to address exceptional events that may occur in the aftermath of natural or human disasters.
3. The EPA should make a concerted effort to consolidate the disparate pieces of exceptional events guidance into a single document like it has done with some of its established modeling guidance (e.g. "Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze"). The EPA should also commit to a specific date by which it will complete this guidance.
4. The EPA provides a mixed message regarding time lines for its review of exceptional event demonstrations. It should make an unequivocal statement regarding its willingness and ability to work with states on developing and reviewing exceptional event demonstrations in addition to committing fully to an expedited review within a specific timeframe.
5. The EPA has proposed an overly complex and burdensome demonstration and review process that is overly ambitious within the time constraints proposed in Section 5.2 of Attachment 2.
6. The EPA should continue posting all exceptional event demonstrations along with a reasoned description of its concurrence/lack of concurrence with the state’s analysis (including any Federal Register notices published in conjunction with its decisions).
7. The EPA should establish the reasonableness of an area’s control strategies based on what that area is required to do under its SIP or maintenance plan.
8. The EPA should not review existing control strategies as part of its review of whether an exceptional event was reasonably controllable or preventable.
9. The EPA should extend the applicability of voluntary, proactive exceptional events plans from three years to ten and actively use these agreements to help streamline the exceptional events process.
10. The EPA should work with states to develop additional methodologies for characterizing the difference between normal historical fluctuations and exceptional events.
11. The EPA should reconsider the fairness of its "no exceedance but for" requirement in the Proposed EER Guidance. This requirement treats exceptional events in two different ways depending on whether an area has already been designated as nonattainment or not.
12. The EER guidance needs to address issues such as seasonal fires in Mexico and Central America and extreme drought and provide a mechanism for the EPA to address state specific issues.
13. The TCEQ supports the use of the exclusion policy for New Source Review (NSR) permitting.
DATE SUBMITTED: 08/31/12
SHORT TITLE: National Ambient Air Quality Standards for Particulate Matter
OFFICE PREPARING: Office of Air
STAFF CONTACT: David Brymer
SUMMARY OF COMMENTS:
The TCEQ submits the following comments:
- The Texas Commission on Environmental Quality (TCEQ) does not support revision of the NAAQS as the proposal is based on flawed and incomplete analysis.
- The EPA has failed to explain adequately the methods by which it has identified its recommended range of revised and alternative PM2.5 NAAQS.
- The distinct secondary standard as proposed by the EPA addressing PM-related visibility impairment is very poorly justified, not supported by quantitative data, and duplicative and any efforts to address any PM-related visibility concerns in urban areas should be done in other programs, such as the Regional Haze Program, the PM2.5 permitting program, and other initiatives like the Cross-State Air Pollution Rule.
- The TCEQ disagrees that a calculated visibility index should be used in comparison to the PM2.5 visibility NAAQS. A direct measurement of light extinction should be used instead (77 FR 39003).
- The TCEQ disagrees that historic monthly average relative humidity should be used in the visibility index calculation and believes that direct measurements of relative humidity should be used in the calculation instead (77 FR 39003).
- The TCEQ requests that the instructions on calculating the visibility index for the secondary PM2.5 NAAQS should be written more clearly (77 FR 39003).
- The TCEQ recommends that the EPA include a mechanism in rule to address exceptional events related to relative humidity and other meteorological factors that could affect the compliance with the proposed visibility-based secondary standard.
- The TCEQ disagrees with the placement of monitors used to represent long-term public exposure at near-road sites because the data is not representative enough to compare to a national standard.
- The EPA should issue all implementation guidance in the form of an official implementation rule on which the public will have the opportunity to comment.
- The EPA should issue formal implementation guidance to address near-road nonattainment areas.
- The TCEQ concurs with the EPA’s proposed grandfathering provision for pending Prevention of Significant Deterioration (PSD) permit applications. The TCEQ also suggests that the EPA amend its policy requiring that any PSD permit issued on or after the effective date of a NAAQS must have a demonstration of compliance.
- The TCEQ concurs with using a surrogate approach to demonstrate compliance of the visibility-based secondary standard under the PSD program.
- The TCEQ does not agree with the use of the metropolitan area as the presumptive boundary for nonattainment areas for the proposed revised primary annual PM2.5 NAAQS and the proposed secondary PM2.5 visibility index NAAQS.
- The TCEQ agrees with the EPA’s decision to not establish classifications for nonattainment areas for the proposed revised primary annual PM2.5 standard.
- The EPA should commit to firm deadlines for the proposed and finalized implementation rule for addressing the revised PM2.5 NAAQS and revised monitoring regulations. Specifically, the EPA should commit to providing timely implementation guidance for reasonably available control technology (RACT) and reasonably available control measures (RACM) and Federal Clean Air Act (FCAA), §110 infrastructure requirements.
- The EPA’s FCAA, §110 infrastructure guidance should include detailed guidance on how states should address the interstate transport obligations in FCAA, §110(a)(2)(D).
- The EPA should extend the deadline to submit the secondary PM2.5 visibility index NAAQS infrastructure SIP (77 FR 39018).
- The TCEQ agrees that a reasonable further progress (RFP) demonstration should not be required for areas that are able to demonstrate attainment within five years but encourages the EPA to seek further flexibility in demonstrating RFP for areas that cannot demonstrate attainment within five years.
- The EPA should not prescribe the amount of reductions required for contingency.
- The risk of exposure to PM2.5 to public health is overstated.
- The estimated benefits of the proposed standards are overstated.
- The presentation of available data is limited and, in some cases, misleading.
- There are errors in the RIA.
- The fraction of benefits that occurs in projected nonattainment areas has not been estimated.
- There appears to be double counting of benefits across multiple rules.
- Including PM2.5 co-benefits in multiple non-PM2.5 NAAQS is redundant.
- Baseline calculations for proposed rules are inconsistent with best practices.
- The consequences of overlapping rules include lack of transparency and miscommunication with the public and policy makers.
- The EPA should demonstrate a peer-review process that reflects transparency and commitment to representing all data, not just data that supports its policy goals.
- An apparent conflict of interest exists in recent EPA activities related to the hand-picking of experts.
- The rule should state that the air quality index (AQI) will be based on primary NAAQS.
- The EPA should consider the states’ obligation to have a minor source permitting program and resulting economic impact on small businesses when developing rules and implementation guidance.
DATE SUBMITTED: 08/20/12
SHORT TITLE: Third External Review Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Neeraja Erraguntla, Ph.D.
SUMMARY OF COMMENTS:
There is great complexity associated with multiple issues relevant to the assessment of health effects of ozone, especially at low exposure levels close to background ozone levels. Several reports have indicated Texas background ozone levels to range from 25 to 58 parts per billion (ppb) and U.S. background ozone concentrations in some regions to be up to 60 -70 ppb.
The TCEQ developed comments based on a cursory review and additional time would have allowed the TCEQ to: (1) perform a more detailed review of the volumes of relevant information; (2) more fully examine statistical procedures and the rationale and scientific support for key EPA decisions and analyses; and (3) provide more detailed specific comments on all problematic issues associated with the ISA. The EPA does not clearly indicate what the updates were from the second ISA. To make the review more efficient, EPA should provide its stakeholders a clear description of the revisions.
While the available scientific evidence supports a casual relationship between short-term acute ambient ozone exposures and respiratory effects, these effects are dose dependent, and the weight of evidence does not suggest a causal relationship at concentrations below the current NAAQS of 75 parts per billion (ppb).
Further, the TCEQ disagrees with the EPA that the available scientific evidence supports a likely to be causal relationship between long-term exposures to ozone and respiratory effects. EPA needs to consider and discuss the different environmental triggers for asthma (e.g., allergens, tobacco smoke, dust, and animal dander). The ISA lacks a discussion of these important factors and their role in the development of asthma. EPA does not provide a discussion of how other environmental triggers and indoor pollution levels can contribute to respiratory ailments. TCEQ further disagrees with the suggestive determination between short-term and long-term ozone exposures to ozone and cardiovascular, central nervous system, reproductive effects, and mortality. Whether adverse cardiovascular effects related to both short-term and long-term ozone exposures were observed in the animal studies discussed in the ISA is uncertain, as there are only limited studies with unknown relevance to humans.
It is crucial that EPA distinguish true risk from just causal association because associations are not causations. Statistically, one can find associations by making many comparisons. This does not necessarily demonstrate causation.
The roles of uncertainty and bias in EPA’s assessments have been severely downplayed and should be clearly and transparently presented. For ozone, EPA relies on studies that estimate personal exposure (the amount of ozone a person actually breathes) by using ambient monitoring data as a surrogate for personal exposure. However, it is very unlikely that people would ever be exposed to those pollutants at concentrations measured at outdoor monitors for very long periods of time.
Additionally, the TCEQ questions the need for a separate secondary ozone standard that is different in form and level from the primary standard.
DATE SUBMITTED: 08/17/12
SHORT TITLE: NESHAP for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
- The EPA's approach of setting MACT emission standards based on three times the representative detection limits (RDL) of the reference methods is arbitrary and capricious. The EPA has failed to consider the practical enforceability of emission standards set at levels so close to the method detection limits (MDL).
- The EPA’s own technical experts on emission test methods have indicated that the margin between an emission standard and the MDL of a method should be greater than the arbitrary factor of three that the EPA is using for three-times-RDL approach. The EPA has not considered the practical limitations of the methods required to demonstrate compliance with the emission standards.
- The EPA has made significant errors in the analysis provided in the technical support document for the determination of the reference method RDL values used to set MACT emissions based on the three-times-RDL approach for the Portland cement NESHAP and the MATS rule.
- The EPA is misrepresenting the results of the Reference Method Accuracy and Precision (ReMAP): Phase 1 study. The results of the ReMAP study do not support and in some instances contradict the EPA’s claim that the EPA reference methods are accurate to within 10 – 20% at a level three times the method detection limit. It is misleading, inappropriate, and not scientifically valid for the EPA to rely upon the ReMAP study for its claims of accuracy of the reference methods in setting the organic HAP emission standard using the three-times-RDL approach for Method 18 and Method 320 because neither of these methods were included in the ReMAP study.
DATE SUBMITTED: 08/09/12
SHORT TITLE: NESHAP for Reciprocating Internal Combustion Engines; New Source Performance Standards for Stationary Internal Combustion Engines
OFFICE PREPARING: Office of Air
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
The TCEQ offers the following comments:
- The EPA should not be attempting to address the negative consequences from the MATS rule indirectly through separate rules such as the current proposal. Instead, the EPA should grant the various petitions for reconsideration before the agency regarding MATS and repropose 40 CFR Part 63, Subpart UUUUU to directly address the issues created by the MATS rule.
- The EPA’s proposed allowance for peak shaving for emergency stationary compression ignition engines at area sources is not likely to provide the benefit that the EPA claims for relieving electric reliability issues created by the MATS rule.
- The TCEQ supports the EPA’s expansion of the amount of time allowed for emergency demand response programs under 40 CFR Part 63, Subpart ZZZZ, and the extension of the demand response provisions to 40 CFR Part 60, Subparts IIII and JJJJ.
- The EPA should not be including temporary provisions in 40 CFR Part 63, Subpart ZZZZ based on negative consequences from a separate EPA rule on a separate source category. Peak shaving must be considered within the context of Subpart ZZZZ and the EPA’s determination of generally available control technology (GACT) for area source emergency engines.
- If the EPA finds 100 hours of non-emergency operation including maintenance, testing, demand response, and voltage stabilization acceptable through its analysis of the rule, then there should be no limitation on how the 100 hours of non-emergency operation are used for area or major sources.
DATE SUBMITTED: 07/26/12
SHORT TITLE: Proposed Consent Decree
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Shelley Naik
SUMMARY OF COMMENTS:
General Comments
The U.S. Environmental Protection Agency (EPA) published a proposed consent decree to resolve lawsuits alleging that the EPA violated a nondiscretionary duty under the Federal Clean Air Act to complete a five-year review of the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM). Under the proposed consent decree, the EPA will sign a notice of final rulemaking concerning its review of the PM NAAQS, promulgating revisions to the PM NAAQS no later than December 14, 2012. The EPA should not bind itself to a deadline for final action on the PM NAAQS prior to the expiration of the comment period while PM NAAQS revisions are pending.
DATE SUBMITTED: 06/25/12
SHORT TITLE: Standards of Performance for Greenhouse Gas (GHG) Emissions for New Stationary Sources: Electric Utility Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
General Comments
These comments are being submitted jointly with the Public Utility Commission of Texas.
Legal Basis for the Rulemaking
The proposed NSPS rule violates federal Clean Air Act (FCAA) Section 111(b)(5), because it effectively requires a particular fuel (natural gas) and a particular type of operation (NGCC) in order for an EGU to meet the standards. EPA’s proposal to combine existing NSPS source categories Subparts Da and KKKK exceeds FCAA authority and is inconsistent with long-held precedent relating to consideration of fuel type and unit type for development of NSPS.
EPA has not adequately demonstrated the need for the proposed GHG NSPS rule for EGUs, and EPA’s own arguments to support the rule actually indicate the rule has no true regulatory purpose. EPA’s own projections show the rule is not expected to reduce emissions of GHG. EPA should reconsider the efficacy of the proposed rule and withdraw it.
EPA goes beyond the scope of the settlement agreement, yet claims the settlement agreement is litigation directly leading to this rule.
The proposed rule does not comply with Executive Order 12866 or 13563, because EPA failed to perform a reasonable cost evaluation for the proposed rule.
EPA’s Integrated Planning Model (IPM) predictions regarding new coal-fired generation are the result of EPA’s own actions, which place extreme regulatory pressure on new coal-fired generation. It is not appropriate for EPA to use a hypothetical future scenario to avoid performing a proper economic evaluation of the proposed rule when the scenario relies upon the outcome of EPA rules subject to ongoing litigation.
Feasibility of the Proposed Rules
EPA has not demonstrated the feasibility or cost-effectiveness of the proposed CO2 standard for new EGUs other than NGCC EGUs. Section 111 of the FCAA requires EPA to consider costs and achievability when establishing a standard of performance.
It is inappropriate for EPA to rely upon current low natural gas prices to justify the proposed GHG NSPS rule. Natural gas prices have historically been highly volatile, and EPA cannot be certain that natural gas will remain at current pricing.
The proposed exemption of Hawaii and other non-continental areas from the proposed NSPS regulation is a biased regulatory action and further supports that the proposed CO2 standard is not feasible for coal-fired plants and other non-NGCC EGUs. If the proposed standards and CCS are feasible as EPA claims, EPA has no justification for holding Texas and the other continental states to a different regulatory standard than non-continental areas.
EPA’s reliance on government subsidies to justify imposing a cost-prohibitive NSPS standard on particular source categories is not appropriate. EPA has a legal obligation to demonstrate the economic feasibility of NSPS standards, and future government funding for the subsidies is not a certainty.
EPA’s noncommittal statements regarding a review of the GHG NSPS rule in eight years as provided in FCAA Section 111(b)(1)(B) only serve to further support that EPA is proposing a standard that is not feasible by current measures. The FCAA provides EPA with discretion on performing an NSPS review every eight years, and EPA has routinely missed statutory deadlines. If EPA adopts the final rule without providing design- and fuel-type specific standards, EPA should incorporate a default clause that revokes the second phase of the 30-year averaging approach and allows new coal-fired EGUs to continue to meet the 1,800 lb/MWh standard should EPA fail to perform and publish in the Federal Register a comprehensive review of the GHG NSPS.
If EPA decides to proceed with a GHG NSPS for EGUs, EPA should repropose the rule with design- and fuel-type specific standards based on demonstrated technology as intended by the FCAA, not a single standard based on NGCC EGUs. The feasibility of CCS on coal-fired EGUs has not been adequately demonstrated for EPA to rely upon CCS technology as a means for coal-fired EGUs to comply. The proposed 1,800 lb/MWh standard for the first phase of the 30-year averaging option is not feasible for all coal-fired EGUs.
Impact to Reliability, Affordability, and Public Health
EPA should conduct a thorough analysis of the long-term impacts of the proposed rule on energy supply, distribution, and use. Decreased fuel diversity in the electric power generation industry will have adverse consequences for affordable and reliable electric power. These adverse impacts in turn have serious impacts on public health, especially in vulnerable low-income populations.
Applicability to New, Modified, and Reconstructed Sources
EPA is inconsistent in the interpretation of the FCAA definition of "new source" as it applies to transitional sources, modifications, and reconstructions. This could unintentionally lead to a situation where transitional sources, modified sources, and reconstructed sources become subject to the standards for new sources.
EPA Setting Energy Policy
In practical effect, EPA is ending the coal-fired power generation option. This approach effectively bars utilities from establishing a diverse energy portfolio necessary to meet use demands. FCAA Section 111 does not give EPA the authority to establish air regulations that make EPA the energy policymaker for the country.
Implications for PSD and Title V Programs
TCEQ urges EPA to delay promulgation of this NSPS until litigation over the several GHG regulatory actions being challenged, in particular the Tailoring Rule, is final.
EPA’s adoption of the proposed NSPS would preclude applicants for PSD permits for coal-fired power plants without CCS from making an economic reasonableness argument, because the proposed NSPS establishes a floor for BACT.
Rationale for Proposed Standards for New Sources
EPA must conduct a new endangerment and cause or contribute finding, as required under FCAA Section 111, for this newly created source category, and cannot rely on the 2009 finding for mobile sources of GHG.
EPA’s rationale for not performing a separate, pollutant-specific endangerment finding for GHG emissions from EGUs is inadequate. EPA assumes that because an existing source category is already listed, because sources in that category emitted a particular pollutant, that the source category must cause or contribute to an endangerment of public health and welfare for a different pollutant. GHGs are newly regulated pollutants by EPA and have never been evaluated for impacts on a source category by source category basis.
Other Comments
Under startup and shutdown conditions, EGUs are generally not producing power (they have no output), or are producing it less efficiently, than under normal operating conditions. During these periods, it will be difficult for units to comply with the proposed output-based standard. EPA should provide a standard that is appropriate for startup and shutdown emissions.
DATE SUBMITTED: 05/15/12
SHORT TITLE: Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5): Amendment to the Definition ‘‘Regulated NSR Pollutant’’ Concerning Condensable Particulate Matter
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
General Comments
The use of the term particulate matter in the Integrated Science Assessment or ISA (previously called the Air Quality Criteria Document) can be confusing in light of the changes made to the indicators used to measure PM air quality standards over the years. It is unclear to TCEQ how the proposed rule change will affect major source applicability determinations under the PSD, nonattainment, and minor NSR permitting programs, since the state implementation plan (SIP) includes condensable emissions for total PM.
Applicability Determinations
TCEQ is confused by EPA’s statement "... there is no compelling reason for requiring that the condensable PM portion be counted toward the measure of "particulate matter emissions" from stationary sources for PSD applicability determinations and in establishing emissions limitations." This statement makes it unclear how TCEQ should conduct the major source applicability determination. For example, the PM significant emission rate is 25 tons per year (tpy). Is EPA’s intent to limit the emissions for PM to only the fraction larger than PM10 and PM2.5? Or, is EPA’s intent to limit the emissions for PM to only the filterable fraction larger than PM10 and PM2.5, but include the filterable and condensable emissions for PM10 and PM2.5? TCEQ requests clarification as the answer directly impacts the applicability determination.
Source Impact Analysis and Emissions Control
TCEQ understands that no source impact analysis under PSD is required for PM because EPA considers PM -- as total suspended particulates -- to be a non-criteria indicator pollutant similar to sulfuric acid mist. Thus, TCEQ would evaluate impacts under the state’s minor NSR program. In addition, TCEQ understands that EPA would only require a control technology review for the filterable fraction of PM. TCEQ requests confirmation of this understanding.
Pollutants Regulated Under Section 111 of the Act
EPA indicates that the reviewing authority may establish a policy to apply the PSD requirements for particulate matter emissions to sources for which a New Source Performance Standard (NSPS) does not apply. Since the concern with PM rests with NSPS applicability and control technology review, TCEQ recommends that EPA remove the major modification significant emission rate (25 tpy) for PM from the PSD major modification portion of the PSD rules, and rely on the state’s minor NSR program to conduct the technology review under the NSPS program. The major source thresholds of 100 tpy for named sources and 250 tpy for un-named sources would still apply. The significant emission rates for PM10 and PM2.5 would remain intact and emissions would still include filterable and condensable requirements, as well as control technology and source impact analyses.
Structure of Proposed Rule
EPA indicates (77 FR 15661) that there are three cases where condensable PM should still be counted:
a. Where the applicable NSPS requires that the condensable PM fraction be included in the determination of compliance;
b. Where the applicable SIP already requires that the condensable PM fraction be included in the measurement of PM; or,
c. Where a source emits a pollutant regulated under Section 111 of the FCAA but the source itself is not subject to the NSPS regulation.
However, in the proposed rule language in 40 CFR §51.166(b)(49)(ii) and §52.21(b)(50)(ii), EPA appears to have only accounted for the first and third cases. TCEQ suggests that EPA specifically list the SIP requirement case in the rule language to avoid confusion in regulatory intent. EPA’s preamble description of these three cases is clear and the rule language should be revised to accurately reflect that intent.
DATE SUBMITTED: 04/20/12
SHORT TITLE: Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Tailoring Rule Step 3, GHG Plantwide Applicability Limitations and GHG Synthetic Minor Limitations
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ offers the following comments:
General Comments
TCEQ opposes EPA’s GHG regulatory program, and has challenged EPA’s GHG actions in federal court. It is TCEQ’s position that Steps 1 and 2 of EPA’s Tailoring Rule are not consistent with the purposes of air quality planning and major stationary source permitting requirements of the federal Clean Air Act (CAA); violate statutory thresholds established under the Act; and significantly raise the cost of implementing PSD and Title V programs without meaningful reductions of GHGs on a worldwide level. TCEQ agrees with EPA’s conclusion in the Step 3 proposal that any reduction of the Step 1 and 2 applicability thresholds would not result in significant additional reductions of GHGs, and would only increase the burden on regulated entities and permitting authorities. Nevertheless, TCEQ is encouraged that EPA is supporting the types of streamlined permitting processes that TCEQ has implemented for years, namely plant-wide applicability limits, minor new source review (NSR) PTE limitations, and standard permits.
Plantwide Applicability Limitations
TCEQ is opposed to EPA issuing PALs that include non-GHG pollutants in states which have an approved PSD program. Lack of a clear division of permitting authority will lead to confusion among sources over where to submit applications, and could lead to other jurisdictional and enforcement issues. Any action by EPA to issue non-GHG permits at a GHG-only major source clearly usurps Texas’s authority to issue minor NSR permits under state law and the federal CAA. In addition, EPA proposes to allow a source to "Opt-In" to major source status to receive a PAL. Minor sources are not currently eligible to obtain a PAL. Allowing a source to "Opt-In" essentially allows a source to be considered a major source voluntarily, and to obtain a PAL without any new construction or modification. Nevertheless, TCEQ supports the issuance of PALs for sources that "Opt-In" to major source status where EPA issues the PAL for GHGs only, and states issue the PALs for all other non-GHG pollutants under their approved PSD program. Under EPA’s proposed Minor Source Approach, EPA proposes to amend the PSD regulations to allow a GHG-only source to submit an application for a GHG PAL and maintain its minor source status. TCEQ does not agree that the imposition of the Tailoring Rule is ample justification for the Minor Source Approach. EPA should not use the burden created by the Tailoring Rule as justification for giving GHG sources special treatment under a PAL. Furthermore, TCEQ has a minor source PAL program and is currently working with EPA Region VI to have these rules approved into the SIP. TCEQ does not agree that prohibiting extension of PALs to non-GHG minor sources would burden a state’s permitting resources.
Synthetic Minor Source Permitting Authority for GHG
The federal CAA and current federal rules do not provide EPA with the authority to issue minor source permits. If EPA proposes to move in the direction of authorizing synthetic minor source permits for GHG, EPA must clarify its authority to issue synthetic minor source permits by providing a legally sufficient basis under the CAA. It must be clear that any synthetic minor source permit issued by EPA must be limited to areas subject to a GHG FIP, and be limited to GHG emissions only. TCEQ does not regulate minor GHG sources and does not intend to do so. GHGs are not considered air pollutants under the Texas CAA or TCEQ rules. TCEQ does not believe it would be the best use of limited resources to engage in regulating minor (or major) stationary sources of GHGs until the scope of EPA’s authority to do so under the CAA is fully vetted through the courts.
Redefining Potential to Emit and Source Category Specific PTE
EPA requested comment on the time period that reflects a source’s maximum historical operations, which could be used to establish (through rule or guidance) the PTE for sources in certain source categories. EPA also requested comments on how states enforce maximum hourly limits, and whether states have limits on the hours of operation of permitted facilities. TCEQ provided brief comments to explain that TCEQ does authorize an hourly maximum emission rate (pounds per hour, lb/hr), which is based on design parameters (throughput, fill rates, firing rates, etc), and is enforceable. TCEQ confirms that, although TCEQ permits typically do not have limits on hours of operation, some permits do specify an operating schedule in the permit conditions.
General Permits and Presumptive BACT for GHGs
TCEQ is concerned that the precedent for EPA to authorize non-GHG emissions under a general permit may be established through this or future rulemaking. TCEQ has been using general permits for both Title V and minor NSR purposes for a number of years. EPA should not interfere with state authority to authorize minor sources through a GHG-only general permit. TCEQ does not support the use of general permits by EPA in situations where a state has an approved program for non-GHG pollutants. However, TCEQ is not opposed to the use of general permits by states where appropriate. With respect to presumptive BACT, TCEQ is concerned that EPA lacks clear authority to implement presumptive BACT for any PSD source or source category. Section 169 of the federal CAA clearly defines BACT to be established on a case-by-case basis. Permitting of GHGs was never contemplated by Congress to be carried out under PSD, and EPA cannot now say that its self-created case-by-case GHG PSD permitting burden creates some implied authority to resolve a problem of its own making.
DATE SUBMITTED: 03/14/12
SHORT TITLE: Implementation of the 2008 NAAQS for Ozone: Nonattainment Area Classifications Approach, Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Shelley Naik
SUMMARY OF COMMENTS:
The TCEQ offers the following comments:
- The TCEQ supports not applying Texas’ voluntary reclassification request for the Houston-Galveston-Brazoria (HGB) area for the 1997 eight-hour ozone NAAQS to the area’s classification for the 2008 eight-hour ozone NAAQS.
- The TCEQ supports the EPA’s preferred option of specifying the attainment date as a certain number of years from the end of the calendar year in which the area’s nonattainment designation is effective.
- The TCEQ supports the proposed revocation of the 1997 eight-hour ozone NAAQS for transportation conformity and other purposes and requests that the EPA provide a timeline for other 1997 eight-hour ozone NAAQS revocation actions.
DATE SUBMITTED: 02/21/12
SHORT TITLE: National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
The TCEQ offers the following comments:
- The TCEQ supports the proposed new exemptions for temporary, residential, and electric boilers to clarify the rule and exempting sources with insignificant emissions. However, the EPA should include a de minimis size-based exemption for very small oil-fired and biomass-fired boilers.
- While the TCEQ supports voluntary energy efficiency measures, mandating energy efficiency evaluations through regulatory action, such as the energy assessment required in 40 CFR 63 Subpart JJJJJJ, is beyond the EPA’s authority under FCAA, Section 112. An energy assessment is neither a work practice nor an operational standard; it is merely a requirement to evaluate possible improvements in work practices and operations. The EPA has not justified the energy assessment as a "beyond the floor" measure and the requirement for the energy assessment should be removed from the final rule.
- The definitions of startup and shutdown should be clarified to specify that the 25% load threshold refers to a percentage of normal operating load.
- The definition of hot water heater should be expanded to include tankless water heaters and needs to be clarified regarding the 1.6 MMBtu/hr heat input threshold and 120 gallon capacity threshold.
- The definition of qualified energy assessor should be substantially stream-lined and made more general. Some of the qualification criteria in the definitions are more applicable to large industrial facilities, and the inclusion of these criteria in the definition may force small businesses to contract over-qualified and more expensive energy assessors to evaluate simple boiler applications.
DATE SUBMITTED: 02/21/12
SHORT TITLE: National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
The TCEQ offers the following comments:
- The TCEQ supports the proposed new exemptions for temporary and residential boilers to clarify the rule and exempting sources with insignificant emissions. However, the EPA should include a de minimis size-based exemption for very small boilers and process heaters. The EPA should also include an exemption for electric boilers similar to the exemption proposed for 40 CFR 63 Subpart JJJJJJ for boilers at area sources.
- While the TCEQ supports voluntary energy efficiency measures, mandating energy efficiency evaluations through regulatory action, such as the energy assessment required in 40 CFR 63 Subpart DDDDD, is beyond the EPA’s authority under FCAA, Section 112. An energy assessment is neither a work practice nor an operational standard; it is merely a requirement to evaluate possible improvements in work practices and operations. The EPA has not justified the energy assessment as a "beyond the floor" measure and the requirement for the energy assessment should be removed from the final rule.
- The EPA uses the term "delegated authority" in the context of submission, review, and approval of the emissions averaging implementation plans in §63.7522 and the emission credit implementation plans in §63.7533. The EPA should use the standard term of "the administrator" used elsewhere in the proposed rule to avoid confusion. The TCEQ also requests that the EPA revise the rule to only require submitting the implementation plans for review and approval upon request by the administrator as the EPA did with a similar emissions average approach for the recently adopted utility NESHAP rule in 40 CFR 63 Subpart UUUUU, §63.10009.
- If the EPA retains the mandatory review of the implementation plans for the emission averaging option in §63.7522 and use of emission credits in §63.7533, the EPA must provide an estimate of the fiscal impact to state environmental regulatory agencies that receive delegation of the rule. Additionally, if case-by-case review of each plan is necessary, the EPA should reconsider whether the options are appropriate for inclusion in the rule.
- The TCEQ requests that the EPA revise the terminology used in §63.7533 to refer to efficiency credits or similar terminology rather than emission credits. The term efficiency credit is more appropriate for the approach in §63.7533 and would avoid possible confusion with the emission credit terminology used in emissions banking and trading programs.
- The definitions of startup and shutdown in §63.7575 should be clarified to specify that the 25% load threshold refers to a percentage of normal operating load.
- The definition of hot water heater in 40 CFR 63 Subpart DDDDD should be consistent with the definition of hot water heater in 40 CFR 63 Subpart JJJJJJ and needs to be clarified regarding the 1.6 MMBtu/hr heat input threshold and 120 gallon capacity threshold.
- The definition of qualified energy assessor in §63.7575 should be substantially stream-lined and made more general. Some of the qualification criteria in the definitions are not applicable to some of the industrial facilities subject to the rule, and the inclusion of these criteria in the definition may force businesses to contract over-qualified and more expensive energy assessors to evaluate applications at their site or even prohibit a company from using its own staff that are more qualified for the facility’s applications.
DATE SUBMITTED: 02/16/12
SHORT TITLE: Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology Determinations, Limited SIP Disapprovals, and Federal Implementation Plans
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Margaret Earnest
SUMMARY OF COMMENTS:
The TCEQ submitted the following comments:
- Texas supports the EPA’s acknowledgement that emission reductions made by electric generating units to comply with other federal requirements will suffice to meet the obligation to implement BART.
- The EPA should withdraw the proposed rule or re-propose after resolution of the CSAPR litigation.
- The EPA’s proposed limited disapprovals and FIPs are inappropriate since the District of Columbia Circuit Court of Appeals granted a stay of CSAPR, requiring CAIR to continue to be implemented.
- The EPA should negotiate an extension of the Regional Haze SIP consent decree deadlines, due to the uncertainty resulting from the CSAPR stay.
- Texas requests the EPA extend the deadline for five-year progress reports under the Regional Haze Rule (40 CFR § 51.308(g)).
- The proposed rule reinforces the CSAPR requirements that will require substantial reductions in sulfur dioxide emissions in an unprecedented short period of time.
- The basic information EPA used in the Integrated Planning Model runs was not thoroughly evaluated by the states and should not be used for regulatory decisions.
- The proposed rule should identify if and how state air quality planning obligations are impacted as a result of the state’s inclusion in CSAPR if the basis for the state’s inclusion in CSAPR is different than the basis for the state’s inclusion in CAIR.
DATE SUBMITTED: 01/11/12
SHORT TITLE: EPA Responses to State and Tribal 2008 Ozone Designation Recommendations: Notice of Availability and Public Comment Period
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Susana M. Hildebrand, P.E.
SUMMARY OF COMMENTS:
The comment requests that EPA reverse its plan to expand Texas nonattainment areas in the HGB and DFW areas because there is no scientific justification for the proposed expansion. The counties in question neither measure nonattainment at a federal regulatory monitor nor do they significantly transport ozone precursors to violating monitors. The EPA said the counties should be designated nonattainment because of high emissions and back trajectories that indicate emissions could at times impact violating monitors. TCEQ technical staff disagrees with the EPA’s analysis because the most current emissions inventory data show that emissions are in fact substantially lower than those cited by the EPA and because the model used by the EPA, i.e., the National Oceanic and Atmospheric Administration Single Particle Lagrangian Integrated Trajectory Model (HYSPLIT), was unsoundly applied by EPA as corroborative support for expanding the HGB and DFW nonattainment areas. HYSPLIT cannot provide evidence directly linking emissions from one area to ozone formation in another area. Furthermore, HYSPLIT does not have the ability to calculate pollutant concentrations, the types of pollutants added along the transport path from different areas, pollutant dispersal rates along the transport path, or ozone formation rates that may result from different pollutant interactions.
DATE SUBMITTED: 12/02/11
SHORT TITLE: Proposed Guidance for 1-Hour Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS) SIP Submissions
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
The TCEQ commented previously on various concerns related to the 1-hour primary SO2 standard1 and continues to disagree with EPA’s proposal to use air dispersion modeling results to determine attainment status for designations in an air quality control region. In addition, TCEQ does not agree with EPA’s requirement to set attainment dates for unclassifiable areas, proposals to develop criteria for re-designating areas from unclassifiable to attainment, or the requirement for maintenance plans for unclassifiable and attainment areas.
The TCEQ does not agree with EPA’s plan to require both monitoring data and refined modeling results showing no violations for an attainment designation. States should not have to expend resources to utilize modeling to demonstrate what a monitor is already documenting. The TCEQ maintains that monitoring is required to determine attainment status, and modeling should not generally be required unless monitored violations of the NAAQS are seen. EPA’s requirement is not appropriate for section 110(a) SIPs for all attainment and unclassifiable areas. Implementation guidance should be finalized and issued at least two years prior to the SIP due date to allow states enough time to develop a SIP revision utilizing the guidance and time for adequate public participation. Because SIP deadlines were not extended by at least the amount of time this guidance has been delayed, states are placed under extreme requirements within unrealistic timelines.
EPA’s proposed modeling guidance appears to be largely based on NSR permit modeling guidance. The TCEQ believes that SIP modeling should allow for more flexibility, including alternative approaches to determining the sources that should be modeled with "refined" dispersion modeling. The proposed guidance states that AERMOD is the preferred model for SO2 SIP evaluations; the TCEQ questions whether AERMOD is the only suitable model for analyzing emission control strategies. TCEQ requests that EPA provide a list of other models, such as CAMx and CMAQ, that states can use without being required to submit lengthy justification and model performance studies. TCEQ also provides numerous additional comments relating to modeling source inputs, parameters, and meteorology.
EPA’s guidance suggests that the state SIP submittal must apply PSD to sources that emit greenhouse gases (GHG). The TCEQ reiterates that the section 110(a)(2)(C)and (J) elements of an infrastructure SIP for a NAAQS are totally unrelated to control or enforcement of GHG emission limits. GHG PSD program requirements do not provide the infrastructure for implementing the SO2 NAAQS because GHG emissions controls are not required to meet this standard, and EPA has not demonstrated that GHG affect SO2 concentrations in the atmosphere.
1TCEQ Petition for Reconsideration of Final Rule: Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35520, June 22, 2010 ("Final Rule"). EPA Docket Number EPA-HQ-OAR-2007-0352, August 23, 2010.
DATE SUBMITTED: 12/01/11
SHORT TITLE: Integrated Science Assessment for Ozone and Related Photochemical Oxidants (Second External Review Draft
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Neeraja Erraguntla, Ph.D.
SUMMARY OF COMMENTS:
The conclusions derived by EPA deserve careful scrutiny, especially when they are used for regulatory decisions such as the setting of the NAAQS for ozone. To indicate a health effect having "sufficient evidence of an association", there must be an observed relationship between the exposure and health outcome in studies in which chance, bias, and confounding variables are ruled out with reasonable confidence. However, some key studies used by EPA in the ISA are inadequate to demonstrate sufficient evidence of an association between short-term and long-term exposures to ozone and cardiovascular and central nervous system effects, and mortality.
The roles of uncertainty and bias in EPA’s assessments have been severely downplayed and should be reexamined. This is particularly true in EPA’s analysis of personal exposure. For ozone, EPA relies on studies that estimate personal exposure (the amount of ozone a person actually breathes) by using ambient monitoring data, which oversimplifies personal exposure by assuming that ambient monitoring data accurately reflects personal exposure. Further, EPA doesn’t acknowledge or account for this potential overestimate in their standard calculations. Also, it is essential that EPA clearly discuss the uncertainties associated with adverse health effects reported in both ecological epidemiology and clinical studies. These uncertainties should also be clearly communicated in publicly accessible documents in consideration of new standards.
Below are some of the main issues which, if addressed properly, would result in more accurate estimates to base the ozone NAAQS.
1) The tenuous connection between the air pollution data and the mortality data.
2) The difference between imprecise population-wise exposures and more precise individual exposure estimates.
3) The concerns of the Committee of the National Academy of Sciences (NAS) with EPA’s methodology. For example, one key concern of the NAS is EPA’s consistent failure to document how studies are selected for review.
4) EPA's bias in study selection. For example, the exclusion by EPA of well-conducted studies if their results showed no adverse health effects and the EPA’s policy of discounting or ignoring studies showing no association between ozone exposure and asthma exacerbation.
5) The exclusion of a recent report showing no association between ozone and cardiovascular morbidity.
6) EPA acceptance of a positive result for one pollutant from the very same study that was rejected as "notoriously unreliable" for showing a negative result for a second pollutant.
7) The discounting of multiple no-effect studies in favor of a solitary study showing an adverse health effect.
8) EPA calculating the "benefits" from reductions in particulate matter and ozone concentrations that are far below those said to be safe by the Clean Air Scientific Advisory Committee (CASAC).
9) A lack of comprehensive analysis of uncertainty and variability (in some cases, an error in one assumption can virtually eliminate all claimed benefits for particulate matter and ozone reduction).
10) Lack of sensitivity analysis of results to assumptions. Given the highly dependent nature of EPA’s overall benefit analysis on this one assumption, TCEQ questions whether EPA is conducting an objective analysis of the data.
DATE SUBMITTED: 11/30/11
SHORT TITLE: Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
EPA’s assumptions and data underlying the proposed rules dramatically underestimate the number of affected facilities and sources. EPA has seriously underestimated the impact of these rules on industry and regulatory bodies. Specifically, these rules will significantly increase the permitting and enforcement workload for TCEQ as the delegated administrator. Implementation of these rules will dramatically increase the fiscal burden on Texas and other delegated administrators across the nation. The proposed NSPS compliance date is unrealistic and will result in thousands of affected facilities out of compliance on the date the rules are adopted.
The proposed rules are a departure from EPA’s historical practices regarding regulation of emissions from drilling and well completions. The TCEQ’s historical interpretation of sources applicable to major and minor NSR in accordance with the definitions in the Texas Clean Air Act (TCAA) does not include authority to regulate drilling or wells prior to 72 hours after the well test. The proposed rule would regulate drilling and well completions under NSPS beyond the TCEQ’s statutory jurisdiction under the TCAA.
The EPA’s control proposal for wells is impractical, confusing, and overly broad. It is not typical that production wells will always be drilled in areas where a pipeline exists or is readily available at the time of drilling. Where pit flaring is proposed to be required, there is substantial concern about fire danger, particularly in urban areas or during drought conditions.
The TCEQ recommends the EPA provide an emissions-based applicability trigger for certain affected facilities (storage vessels, pneumatic controllers) in addition to the proposed throughput-based triggers.
The proposed NESHAP and NSPS standards would apply at all times, including startup and shutdown. The entity may petition for an affirmative defense for malfunctions if certain criteria are met and confirmed by the delegated Administrator. The affirmative defense criteria, as proposed, are inconsistent with Texas’ existing EPA-approved rules for Emission Events and Scheduled Maintenance, Startup and Shutdown Activities. This proposal would create a substantial workload issue for TCEQ to process a parallel set of requests under the federal and state regulations. The rules should allow state rules for affirmative defense that are EPA-approved as part of a SIP to be used in lieu of the federal procedures.
TCEQ has also provided detailed comments relating to the calculation of emissions from produced water ponds, the use of optical gas imaging as a sole compliance tool, and on suggested techniques for outreach and compliance assistance for small operators.
DATE SUBMITTED: 11/28/11
SHORT TITLE: Revisions to Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Heather Evans
SUMMARY OF COMMENTS:
The TCEQ submitted the following comments:
- The proposed additional 70,067 tons of sulfur dioxide (SO2) allowances for the Texas SO2 emissions budget do not address the TCEQ’s concerns regarding the feasibility of the remaining 120,000 tons per year of reductions in SO2 emissions in an unprecedented short period of time.
- The TCEQ does not expect that any SO2 allowance trading among the Group 2 states will be sufficient to cover the expected SO2 reductions necessary in Texas to meet the revised Texas SO2 budget by 2012, despite the proposed delay of the assurance provisions and variability limits until 2014.
- The EPA’s assumption that an emissions banking and trading market can develop within the unprecedented and unreasonable compliance timeline that the EPA is mandating by requiring huge SO2 reductions in some states by next year is flawed.
- The 1% threshold that the EPA is using to define material impact is arbitrary and biased against states with larger budgets and small utility companies.
- The EPA’s public claims, in both oral testimony and on its web site, that the rule will not be implemented until March 1, 2013, are misleading and do not reflect the actual rule requirements or the real world implications of the significant SO2 reductions that the EPA is mandating Texas make by 2012.
- The CSAPR is placing Texas electric grid reliability at risk. The EPA did not properly evaluate the current status of the electrical grid in Texas and did not provide opportunity for comment on the reliability assessment the EPA provided with the final rule.
- The EPA has failed to adequately assess the full economic impacts of CSAPR on Texas.
- The justifications that the EPA used for the group classifications and the restriction that limits states to trading within their group classification are arbitrary and faulty.
- The EPA is still significantly over-predicting point source nitrogen oxides emissions for Texas in 2012 and 2014 by at least 70,000 tons per year, which can lead to faulty conclusions by the EPA concerning Texas’ potential impact on other states.
DATE SUBMITTED: 10/24/11
SHORT TITLE: Infrastructure and Interstate Transport Requirements for the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ supports the EPA’s proposed finding that the Texas SIP meets the infrastructure requirements of FCAA, § 110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and portions of (C), (D)(i)(II), (D)(ii), and (J). The TCEQ agrees with the EPA’s approval of these infrastructure elements. Texas is committed to implementation of the 1997 eight-hour ozone and 1997 and 2006 PM2.5 NAAQS.
TCEQ is opposed to the EPA’s proposed finding that the Texas SIP does not meet the infrastructure requirements at FCAA, § 110(a)(2) for portions of (C), (D)(ii), and (J) on the basis that Texas has stated it does not have the authority to regulate GHG. The lack of a GHG PSD program is not an appropriate justification for disapproving an infrastructure SIP, which is a plan that demonstrates a state has all the necessary elements to implement specific NAAQS. The § 110(a)(2)(C) and (J) elements of an infrastructure SIP for ozone or PM2.5 are totally unrelated to control or enforcement of GHG emission limits. Further, EPA guidance on infrastructure SIPs does not include GHG as a required element for approval.
TCEQ also disagrees with EPA’s finding that portions of Texas’s Interstate Transport SIP do not meet the § 110(a)(2)(D)(i)(II) requirement because that infrastructure element of § 110 cannot be met for pollutants such as GHG where no significance level has been established. EPA has not set a standard, increments, or significance levels for GHG. Therefore, no state can meet this requirement without prohibiting all GHG emissions, a requirement that EPA’s own tailoring rule acknowledges is an impossibility. Transport requirements were never contemplated to apply to such pollutants. EPA has not justified how a GHG PSD program is a required element to meet transport obligations for ozone or PM2.5.
Texas’ infrastructure-specific SIP submittals were made in 2008 and 2009, well before the effective dates of EPA’s April 2010 final reconsideration of its interpretation of pollutants covered by PSD (the Timing Rule) and the June 2010 final PSD and Title V Tailoring Rule. Therefore, no state was on notice of any infrastructure requirement to submit a revision subjecting GHG sources to PSD permitting.
Finally, EPA cannot partially disapprove Texas submittals for the ozone or PM2.5 infrastructure SIPs based on lack of a GHG PSD program because these submittals are already deemed complete and meet the requirements of the Act for basic program elements.
DATE SUBMITTED: 10/10/11
SHORT TITLE: Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Sulfur
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Air
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
TCEQ supports retention of the current NO2 and SO2 secondary standards, but opposes the proposed 1-hour NO2 and SO2 secondary standards, unless the EPA revokes the current standards. Maintaining multiple standards is counterproductive and not necessary to maintain protection of welfare. In addition, TCEQ does not concur that the EPA has the authority to adopt deposition-based NAAQS under the federal CAA. Lastly, TCEQ encourages the EPA to use appropriate authority to meet clean air and clean water goals, and provide the requisite rule, guidance, and technical support to accomplish those goals.
DATE SUBMITTED: 08/11/11
SHORT TITLE: Regulation of Fuels and Fuel Additives: 2012 Renewable Fuel Standards
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Morris Brown
SUMMARY OF COMMENTS:
The Texas Commission on Environmental Quality (TCEQ) has implemented a number of regulatory air quality control strategies in its State Implementation Plan (SIP) revisions to reduce NOX emissions in the areas of Texas that have been designated by the EPA as nonattainment for ground level ozone. In addition, the EPA’s proposed rule to lower the NAAQS for SO2 may require the TCEQ to implement additional SIP controls to reduce SO2 in several areas of Texas that could potentially be designated by the EPA as nonattainment or unclassifiable for the revised SO2 standard.
Staff recommends the TCEQ comment on the potential negative impact that the increased use of biomass-based diesel will have on criteria pollutant emissions that are of critical importance for compliance with the NAAQS for ground level ozone, primarily the expected increase in NOX emissions. As noted in the preamble, Clean Air Act section 211(v) requires the EPA to analyze and mitigate, to the greatest extent achievable, adverse air quality impacts of the renewable fuels required by the RFS2 rule. The EPA has indicated that it intends to address any potential adverse impacts from increased renewable fuel use and will promulgate appropriate mitigation measures in a separate rulemaking. The recommendation is for the EPA to immediately pursue mitigation methods so that states will not have to bear the burden of addressing emission increases caused by federal actions in ongoing state SIP development.
DATE SUBMITTED: 08/04/11
SHORT TITLE: Standards of Performance for Fossil Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Minor Hibbs
SUMMARY OF COMMENTS:
- In general, the TCEQ supports the EPA’s concurrent approach for the proposed changes to the NSPS rules in 40 CFR Part 60 and the National Emission Standards for Hazardous Air Pollutants (NESHAP) rule for EGUs (40 CFR Part 63, Subpart UUUUU); however, the EPA should consider the complexity of both of these proposed rules and the overlapping impact to the affected regulated community.
- The proposed total PM limit for new, reconstructed, or modified EGUs in the NSPS is technologically infeasible and is more stringent than current Best Available Control Technology (BACT).
- The EPA’s approach for determining the proposed total PM limit for the NSPS rule is based on flawed assumptions because the EPA is ignoring total PM regulatory and permit requirements at the state level.
- The DC Circuit Court decision regarding emission limits during startup, shutdown, and malfunctions periods (Sierra Club vs. EPA, DC Circuit Court, 2008) was specifically regarding NESHAP rules and not the NSPS rules. The EPA has not provided any reasoned explanation or justification for why it is applying the same approach for new, modified, and reconstructed sources in the proposed NSPS rule revisions.
- The EPA has not appropriately evaluated applying the same emission limits for normal operations and for startup, shutdown, and malfunction periods.
- The proposed rules should be revised to enable the EPA to allow state rules for affirmative defense that are EPA-approved as part of a state implementation plan (SIP) to be used in lieu of the federal procedures. This flexibility would eliminate duplicative or potentially even conflicting requirements for both state agencies and regulated entities.
- Certain provisions in the EPA’s proposed affirmative defense rules need clarification or appear to be contradictory.
- The initial notification is required if a source wishes to claim an affirmative defense and the proposed rules specify notification by telephone or facsimile. An electronic reporting mechanism should be allowed for the initial notifications. However, telephone notifications should not be allowed because such notifications are difficult to verify and enforce.
DATE SUBMITTED: 08/04/11
SHORT TITLE: National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Minor Hibbs
SUMMARY OF COMMENTS:
- The Texas Commission on Environmental Quality (TCEQ) staff’s evaluation indicates that the proposed rule is not feasible for coal-fired EGUs. Based on the current state of technology, the TCEQ anticipates that no new coal-fired EGUs will be built in the country if the EPA adopts the rule as proposed and that many existing coal-fired EGUs will be shut down. The TCEQ is very concerned about the severe adverse impacts that the EPA’s proposed NESHAP rule and other EPA regulatory initiatives targeting EGUs may have on the reliability of the electrical power system in Texas. The EPA’s decision to make Texas subject to the annual nitrogen oxides (NOX) and sulfur dioxide (SO2) programs in the recently finalized Cross-State Air Pollution Rule (CSAPR) will greatly exacerbate this problem because the EPA has placed an unrealistic compliance burden on coal-fired EGUs in Texas to reduce SO2 emissions by almost 50% in less than a year.
- The EPA should re-propose the utility NESHAP rule due to the multiple and significant errors that EPA made in the MACT analysis for the proposed mercury limits on coal-fired EGUs as well as other aspects of the proposed rule.
- The EPA’s economic analysis misrepresents the actual costs and benefits of the proposed rule and should be based on the direct health benefits associated with reductions in HAP emissions rather than including co-benefits associated with emission reductions of non-HAP pollutants.
- Compliance and enforceability problems resulting from the issues identified by the TCEQ and discussed in these comments do not only impact regulated entities. State agencies that receive delegated authority for the NESHAP rule, once finalized and delegated, will also be impacted.
- The EPA improperly disregards States’ role in protecting air quality.
- The EPA’s 2000 "Appropriate and Necessary" finding is arbitrary and capricious and contrary to law, and the proposed utility NESHAP rule is not consistent with Section 112(n) of the FCAA.
- The EPA’s subsequent findings and legal arguments cannot backfill the deficiencies of its 2000 finding.
- Section 112 regulation of EGU emissions is not "necessary" because other clean air authorities effectively address EGU emissions.
- Section 112 regulation of EGUs due to mercury emissions is not "appropriate" and EPA’s finding to the contrary is arbitrary.
- The EPA’s rationale for determining that it is appropriate and necessary to regulate non-mercury HAP is contrary to its 2000 finding, scientifically unsound, arbitrary, and neither appropriate nor necessary.
- The EPA is inconsistent with its discretionary use of the acceptable margin of safety defined by Congress. The EPA was given the latitude, not the requirement, to regulate cancer risks that are greater than one in one million.
- The EPA’s MACT floor analysis for existing lignite coal-fired EGU subcategory (designed to burn coal with a caloric value less than 8,300 Btu/lb and a height-to-depth ratio of 3.82 or greater) is flawed and does not include the minimum number of units required by Section 112(d)(3)(A). Furthermore, the beyond-the-floor analysis of this same category is flawed and the EPA has provided no clear technical justification regarding the feasibility of coal-fired EGUs in this subcategory being able to meet the proposed beyond-the-floor mercury limit.
- The EPA’s multiple approaches to selecting data for the MACT floor analyses are inconsistent and arbitrary. Emission limits should not be based on single test runs.
- The EPA’s piece-meal approach to developing numerical HAP limits does not consider overall technical feasibility and is contrary the FCAA and to the EPA’s proposed rule. The speciated non-mercury metal HAP limits for new units are derived from eight different coal-fired EGUs with different fuels (lignite, bituminous, and subbituminous fuels) and different designs (conventional boilers and fluidized bed-fired) and are not feasible based on the data that the EPA relied upon to perform the MACT analysis.
- The feasibility of the proposed total PM limits for new EGUs in the NESHAP is questionable and is more stringent than current Best Available Control Technology (BACT). The surrogate PM limit should not be determined as a HAP limit via a MACT floor analysis as the EPA has proposed. The EPA approach to developing the PM surrogate limit is also legally questionable because the EPA is attempting to establish the PM surrogate limit in the same manner as required by FCAA Section 112; however, PM is not a HAP and should not be treated as such by the EPA.
- The EPA’s MACT floor analysis for the proposed output-based PM surrogate limit for new coal-fired EGUs is not correct. The power output used to determine the output-based PM emissions limit for new EGUs appears to include both units at the site (AES Hawaii – ORIS Code 10673) which artificially reduces the projected output based emissions by a factor of two. The EPA must reevaluate output-based emission calculations for the facility and all others to ensure that similar error have not been made evaluating the MACT floor values for other pollutants.
- The proposed hydrogen chloride (HCl) emission limit for new coal-fired EGUs is based on three test runs on a single unit that had non-detects on all three runs. EPA calculated the limit based on three times the minimum detection limit (MDL). In-stack detection limits for HCl using Method 26A can be highly variable from source to source and are greatly affected by factors such as flue gas moisture. Basing the proposed HCl emission limit and some of the other new unit emission limits on the MDL of the methods used for the information collection request is technically unsound and may be impossible for sites to achieve or even demonstrate using the prescribed methods.
- Subcategorization is only done for coal units for the purposes of the mercury emissions limit. However, the EPA’s proposal preamble acknowledges that coal type and unit design affect emissions performance of some of the other HAPs being regulated by the proposal. Subcategorization for coal-fired EGUs should be extended to other pollutants. The TCEQ suggests that a specific subcategory for subbituminous coal-fired EGUs should be established with different emission limits for all the targeted pollutants.
- The definitions used for the purpose of coal subcategorization need clarification.
- Subcategorization and alternative emission limits should be provided for peaking units.
- The EPA has not appropriately evaluated applying the same emission limits for startup, shutdown, and malfunction periods as for normal operations because the EPA only has emissions data during normal operations for some pollutants. The EPA’s approach to incorporating compliance with the proposed utility NESHAP rule and other NESHAP rules during periods of startup, shutdown, and malfunction is inconsistent and arbitrary.
- The mandatory output-based emission limits for new units is problematic because the calculated output-based emissions can exponentially increase due to low power production rates during startup and shutdown operations and may become infinite during a malfunction situations. The EPA must re-evaluate the proposed approach of applying exclusively output-based emission limit compliance in combination with requiring compliance with the same emission limits during startup and shutdown operations. The 30-boiler-operating-day average may not be sufficient to account for the exponential spikes caused in calculated output based emissions.
- The proposed rule needs clarification regarding how to determine emission rates during a startup, shutdown, or malfunction situation.
- The proposed rule must be revised to provide for proper calculation of emissions during a malfunction.
- The proposed rules should be revised to enable the EPA to allow state rules for affirmative defense that are EPA-approved as part of a SIP to be used in lieu of the federal procedures. This flexibility would eliminate duplicative or potentially even conflicting requirements for both state agencies and regulated entities.
- Certain provisions in the EPA’s proposed affirmative defense rules need clarification or appear to be contradictory.
- The initial notification is required if a source wishes to claim an affirmative defense and the proposed rules specify notification by telephone or facsimile. An electronic reporting mechanism should be allowed for the initial notifications. However, telephone notifications should not be allowed because such notifications are difficult to verify and enforce.
- The TCEQ supports the proposed emissions averaging approach; however, the EPA uses the term "applicable regulatory authority" exclusively in the context of submission, review, and approval of the emissions averaging implementation plan. The EPA should use the standard term of "the administrator" used elsewhere in the proposed rule to avoid confusion.
- The proposed emission limits for some of the pollutants are very near and in some cases significantly less than the documented MDL of the required emissions testing and monitoring methods and even contradict certain recordkeeping provisions, which makes it impossible for companies to demonstrate compliance with the emission limits. The EPA must bring the emissions limits into harmony with the capabilities of the prescribed methods and procedures for demonstrating compliance.
- The proposed rule places an unnecessary burden on affected sources and on investigators overseeing the stack testing events by requiring initial and frequent periodic testing for certain HAP pollutants even if the source is complying with the NESHAP rule using the surrogate emission limit.
- Clarification is needed regarding the window specified for monthly and bimonthly stack testing. Additional flexibility regarding the testing schedule is needed in the rule for certain situations.
- The EPA is inappropriately relying on states to provide a one-year extension to the compliance time allowed rather than delay finalization of the NESHAP rule. States are encouraged to begin working with utility company early to assess which sites may need extension; however, the EPA has provided no clear guidance on how states should handle such extensions. Inconsistency in how states handle requests for extensions could create localized grid reliability issues and possible interstate conflicts for EGUs that service multiple states.
- The TCEQ requests clarification regarding the EPA’s interpretation of FCAA Section 112(i)(3)(B) that the complete reconstruction of a facility could be considered as "installation of controls" and the facility would therefore qualify for a one-year extension. Additional clarification is needed for states to enforce the proposed EGU NESHAP rule as well as other NESHAP rules given this new interpretation of the FCAA by the EPA, especially since Section 112(i)(3) is limited to existing sources.
- The TCEQ supports and incorporates all comments submitted by the Public Utility Commission of Texas (PUCT) on the proposed utility NESHAP rule. The EPA needs to work with the PUCT and ERCOT to evaluate the impact of the EPA rules rather than rely upon the EPA’s modeling.
- The TCEQ requests clarification on EPA statements made in the Federal Register regarding the federal government taking action to ensure grid reliability.
- The TCEQ does not agree with the EPA’s assumptions in their electrical power system reliability assessment or the EPA’s assertions that there is sufficient surplus reserve margin in the electric generating capacity to avoid grid reliability problems from EGU retirements that the EPA anticipates from the proposed rule. The EPA’s assumptions and conclusions are not consistent with recent information from ERCOT. The EPA must reevaluate the impact of their regulatory initiatives on the nation’s electric grid reliability based on regional program information such as ERCOT’s instead of relying on EPA’s IPM to assess reliability. Reliability of the electrical power system cannot be evaluated in the grossly simplistic way that the EPA proposes.
- If the EPA adopts the utility NESHAP rule as proposed, the TCEQ expects severe consequences to the reliability of the Texas electrical power system in the short term for the existing coal-fired EGU fleet and in the ability of the utility industry to meet the future energy demands of Texas. The consequences of the risks to the electrical power system are beyond the EPA’s superficial analysis of the potential impact to the cost of electricity. In the public health and environmental evaluation for this proposed NESHAP, the EPA must consider the consequences to public health and the environment resulting from unavailable, unreliable, or unaffordable electricity.
DATE SUBMITTED: 07/15/11
SHORT TITLE: Draft Integrated Science Assessment for Lead
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Gulan Sun
SUMMARY OF COMMENTS:
The assessment of the health hazards associated with airborne lead has great implications in a regulatory context. However, the 74-day comment period is insufficient for regulatory agencies and others to provide thorough and meaningful comments on the draft ISA, which alone is over 1,000 pages. EPA should extend the comment period at least 60 days.
More strictly regulating lead in air accomplishes nothing in terms of any real risk reduction because current typical airborne lead exposure for children (the sensitive population) is insignificant compared to normal exposure by other routes (perhaps no more than about 0.5% of childhood lead exposure is through air). Meeting a new NAAQS for lead, no matter how low, will not significantly improve protection of public health. This is confirmed by USEPA’s lead model for children, which shows that 0% percent of children exceed the blood lead level of concern (10 µg/dL) using background soil/dust lead concentrations and either a lead NAAQS of 1.5 µg/m3 or 0.15 µg/m3 (the geometric mean of blood lead decreases by only 0.27 µg/dL).
None of the studies selected for estimating slopes for blood-to-air lead relationships in humans are generalizable to current lead exposure scenarios for the general public (children or adults) due to the study lead sources and/or populations (e.g., leaded gasoline, workers, other countries) and limitations of regression models (e.g., exclusion of important parameters). EPA’s interpretation of some studies is also questionable, particularly those that found factors other than lead (e.g., parental education) accounted for the vast majority of poor academic performance. Additionally, since the health outcomes of concern for lead (e.g., IQ loss, poor academic performance) have complex causal origins and all important risk factors (e.g., parental IQ/education, socioeconomics, head circumference at birth, alcohol/drug/tobacco use, home environment) are difficult to obtain data on and adjust for in epidemiology studies, the dose-response assessment for lead specifically is unlikely to be accurate.
Lastly, the EPA should acknowledge that significant decreases in ambient air lead and child lead exposure are inconsistent with concurrent increases in the prevalence of attention deficit hyperactivity disorder (ADHD) if lead exposure plays any appreciable causal role in ADHD.
DATE SUBMITTED: 07/11/11
SHORT TITLE: National Emissions Standards for Hazardous Air Pollutants: Secondary Lead Smelting; Proposed Rule
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Jay C. Tonne Jr., P.E.
SUMMARY OF COMMENTS:
TCEQ comments on the proposed NESHAP rule for Secondary Lead Smelting include the following:
- The TCEQ requests clarification on the qualifications, implementation, and enforceability of the EPA’s proposed alternative to full enclosures for fugitive lead-dust generating process areas under §63.544(d).
- TCEQ requests clarification regarding the definition, status, and purpose of the monitors required under the alternative provision in proposed §63.544(d)(1).
- The TCEQ requests clarification regarding the proposed 40 CFR §63.544(d)(5) through (d)(8).
- The EPA is proposing that lead continuous emissions monitoring system (CEMS) be required on all new and modified point source stacks that emit lead, however, the EPA proposes to delay this requirement until the technology is available and the EPA can issue performance specifications. The TCEQ questions the prudence and transparency of this requirement as the EPA has given no indication as to when they intend to finalize the performance standards. The TCEQ therefore recommends removing the CEMS requirement for new or modified sources until they are able to fully implement the rule requirements with available and proven technology.
- The proposed rules should be revised to enable the EPA to allow state rules for affirmative defense that are EPA-approved as part of a state implementation plan (SIP) to be used in lieu of the federal procedures. This flexibility would eliminate duplicative or potentially even conflicting requirements for both state agencies and regulated entities.
- Certain provisions in the EPA’s proposed affirmative defense rules need clarification or appear to be contradictory.
- The initial notification is required if a source wishes to claim an affirmative defense and the proposed rules specify notification by telephone or facsimile. An electronic reporting mechanism should be allowed for the initial notifications. However, telephone notifications should not be allowed because such notifications are difficult to verify and enforce.
DATE SUBMITTED: 05/13/11
SHORT TITLE: Approval and Promulgation of Implementation Plans; Proposed Disapproval of Interstate Transport State Implementation Plan Revision for the 2006 24-Hour PM2.5 NAAQS
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Melissa Kuskie
SUMMARY OF COMMENTS:
- The September 25, 2009, EPA "Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)" was published four days after the FCAA-required deadline for submittal of such SIPs, and it did not adequately describe how to complete the required technical analysis, in light of the gap between the remand of CAIR and the finalization of the replacement Transport Rule.
- If the finalized Transport Rule serves as the FIP that the EPA intends to implement for Texas, the TCEQ strongly objects to the EPA proposing a rule that might apply to Texas at finalization without providing adequate notice and information necessary for meaningful comment in the Transport Rule proposal.
- Because the Transport Rule is the EPA’s intended remedy for certain states’ §110(a)(2)(D)(i)(I) SIP deficiencies, the TCEQ reiterates its request first stated in comments for the proposed Transport Rule that the EPA should provide guidance for states whose participation in the Transport Rule program is fundamentally different from their participation in the CAIR program.
DATE SUBMITTED: 04/28/11
SHORT TITLE: Draft Integrated Review Plan for the National Ambient Air Quality Standards for Lead
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Jim Price
SUMMARY OF COMMENTS:
Lead fits awkwardly into the regulatory structure established for dealing with air pollutants through a NAAQS. For the vast majority of the public, inhalation of lead in ambient air and exposure to contemporary lead deposition from ambient air are minor sources of lead exposure.
Because there are multiple pathways for lead exposure, meeting a NAAQS for lead, no matter how low the standard cannot alone ensure protection of public health from lead toxicity. Key elements in protecting the public from lead toxicity include protection from: (1) lead in both interior and exterior house paint; (2) lead in household items; (3) lead in food storage and cooking containers, serving containers, and utensils; (4) lead in toys and jewelry; (5) lead in food and water; (6) lead in soil to which children have access; and, (7) lead in ambient air. Since the EPA is now planning its review of the lead NAAQS, now is the time to take the opportunity to conduct an integrated review of programs to protect sensitive members of the public, i.e. children, effectively from the health hazards of lead.
The TCEQ suggests that the EPA carefully reexamine how the dramatic decreases in ambient air lead and children’s blood lead are consistent with the suggestion made in the previous review of the lead NAAQS that lead is a causal factor in the increased frequency of attention deficit hyperactivity disorder (ADHD).
The EPA Staff Paper ( EPA-450/R-07-013 ) for the 2008 revision of the lead NAAQS discusses the Lanphear, et al. (2005) pooled analysis of seven epidemiologic studies. Given the gross differences in IQ level across these studies compared to the much smaller differences shown within the studies, additional discussion is necessary to demonstrate the ability of these studies to accurately identify and quantify adverse effects and to control issues related to the potential for confounding of study effects/responses by non-lead exposure-related factors or variables (e.g. socioeconomic status).
DATE SUBMITTED: 04/12/11
SHORT TITLE: National Ambient Air Quality Standards for Carbon Monoxide
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Compliance and Enforcement
STAFF CONTACT: Bryan Lambeth, P.E.
SUMMARY OF COMMENTS:
TCEQ agrees with EPA that the level of the Carbon Monoxide (CO) standards should remain unchanged and that monitoring should be conducted in areas with the highest population exposure. However, TCEQ disagrees with EPA on the location of the highest population exposure. TCEQ believes that the highest population exposure to ambient CO concentrations will occur in populated areas adjacent to the heaviest traffic areas and that population exposure in highway vehicles does not constitute ambient air. Even if EPA wants to control ambient CO levels related to non-ambient population exposure in highway vehicles, monitoring at a single maximum concentration location would not accurately represent the actual exposure in moving vehicles that traverse much larger areas and would add an unnecessary margin of safety to the standards. TCEQ also notes that the interpretation that sample intake must occur on highway right-of-way in some cases will cause a variety of severe logistical problems and time delays in implementation. TCEQ also does not agree with the broad discretion left to the EPA Administrators in requiring additional CO monitoring locations and would like to see consistent criteria established for any additional monitoring requirements. Finally, TCEQ believes that determination of non-attainment areas and appropriate control strategies will be difficult.
DATE SUBMITTED: 03/07/11
SHORT TITLE: Finding of Substantial Inadequacy of Implementation Plan; Call for Kansas Section 110 SIP for Interstate Transport for the 1997 NAAQS for Ozone
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Melissa Kuskie
SUMMARY OF COMMENTS:
The TCEQ offers the following comments:
- The EPA’s proposed action is premature prior to a finalized Transport Rule.
- The Kansas §110(a)(2)(D)(i)(I) SIP was based on the same August 15, 2006, EPA guidance that was relied upon for states included in the CAIR rulemaking. It is arbitrary and capricious for the EPA to issue a finding of "substantial inadequacy" for Kansas, yet revert back to the 2005 findings of "failure to submit" for CAIR states. The EPA is providing CAIR states with significantly less or no time to address a finding of inadequacy with their SIP submittals before initiating a Federal Implementation Plan (FIP).
- Any need for additional emissions reductions between the remand of CAIR and the final Transport Rule should be addressed through the SIP process as envisioned by the FCAA. The delay between the remand of CAIR and the replacement Transport Rule resulted in the need for an expedited schedule, and thereby forces Kansas into a FIP.
- The EPA is denying states the opportunity to address transport and §110(a)(2)(D)(i)(I) of the FCAA appropriately through the SIP process.
DATE SUBMITTED: 02/14/11
SHORT TITLE: Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval and Federal Implementation Plan regarding Texas Prevention of Significant Deterioration Program
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: John Minter
SUMMARY OF COMMENTS:
EPA is attempting to usurp permitting authority from Texas without following procedures of the Clean Air Act. EPA’s action arbitrarily finds fault in Texas’ PSD program, even though less than one month prior, EPA gave Texas 12-months to revise its SIP to ‘correct’ this perceived flaw. EPA’s action totally eviscerates the SIP Call and the process that is due Texas to allow time to revise its SIP to avoid a FIP if it so chooses.
Texas’ PSD program meets all federal CAA requirements for an approvable program. It was not, and is not flawed. Texas has always maintained adequate legal authority to implement the PSD program. And as EPA states clearly in the preamble to the interim final rule, correspondence from Texas and TCEQ bears this out. The history of Texas’ PSD SIP submittals shows that federal rules were incorporated by reference with specific dates that would require subsequent change by the state if federal rules or interpretations changed. In fact, EPA alluded to this in the Interim Final Rule: "It is clear from the record that both Texas and EPA were well aware that the Texas PSD rules’ IBR of EPA PSD regulatory requirements did not automatically update." EPA has consistently approved SIP submittals based on this understanding. Furthermore, EPA acknowledges it has never asked Texas to provide assurances that its PSD program apply to pollutants subject to regulation in the future.
Section 110(k)(6) has been used historically by EPA to correct previous actions that were deemed in error, such as removing from the state implementation plan (SIP) out-of-date state rules, correcting an inadvertent listing or omission of SIP-approved rules, correct a designation or classification, removing rules that are not required for attainment/maintenance of a NAAQS. In so doing, EPA has revised its own previous action on a state SIP submittal; but it cannot singlehandedly change what the state has submitted.
As an alternative to §110(k)(6), EPA proposes to use what it calls "its inherent administrative authority to reconsider" its prior approval actions, as a basis for revising the prior approvals of the Texas PSD SIP under § 301(a). No such clear authority is found in this section. Texas does not agree that the language used in 40 CFR § 52.2303 satisfies EPA’s partial disapproval action. It is quite obvious from EPA’s failure to ‘correct’ its approval for over 18 years that this action and the FIP are about GHG regulation and not any other pollutants and is more clear by reference to the new definition of ‘subject to regulation’ added by the GHG Tailoring Rule only months ago.
DATE SUBMITTED: 02/14/11
SHORT TITLE: Reconsideration of the National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
Comments on the above referenced notice of reconsideration include the following:
- The TCEQ supports the petitioners’ request for reconsideration to revise the NESHAP regulatory limitation on the hours allowed for emergency demand response operation of emergency engines.
- Operation of emergency engines under an emergency demand response program should be limited by a definition of what is considered emergency response program operation rather than by a limit on the total hours an engine may operate under such programs. The rule should classify operation of an engine under emergency demand response programs as emergency operation provided the operation is in direct response to an energy emergency declared by the regional transmission or balancing authority and is required by the conditions of the emergency demand response program.
- The EPA should consider expanding the provisions regarding emergency demand response programs to existing emergency engines rated more than 500 brake horsepower at major sources of hazardous air pollutant that were installed prior to June 12, 2006, under 40 Code of Federal Regulations Part 63, §63.6640(f)(2).
DATE SUBMITTED: 02/07/11
SHORT TITLE: Proposed Rulemaking, Reasonable Further Progress (RFP) Requirements for the 1997 Eight-Hour Ozone NAAQS
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Jamie Zech
SUMMARY OF COMMENTS:
TCEQ comments on the above-referenced proposal include the following: (1) a recommendation that the EPA conduct a rulemaking regarding specific requirements that states would have to meet to address the policy change; (2) a recommendation that the EPA clarify the RFP planning requirements to which this policy change applies; and, (3) an objection to the solicitation of comments regarding implementation requirements for a NAAQS that does not exist.
DATE SUBMITTED: 02/07/11
SHORT TITLE: EPA Disapproval and Promulgation of Air Quality Implementation Plans; Revisions to the Administrative Rules of Montana-Air Quality
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Vincent Meiller
SUMMARY OF COMMENTS:
TCEQ comments on the above referenced notice of reconsideration include the following: 1. The TCEQ disagrees with the EPA regarding its determination that sight, sound, and smell leak detection techniques are unenforceable based solely on a perceived lack of sophistication. These techniques should not be unilaterally disapproved by the EPA due to a perceived lack of technological sophistication. 2. If EPA is taking a position that sight, sound, and smell as leak detection techniques are not enforceable in any circumstance, then some of the EPA’s own LDAR regulations would not be enforceable.
If the EPA has specific reasons why sight, sound, and smell are not appropriate for the purposes of the Montana LDAR rules, then the EPA should cite those specific reasons and not generalize about the sophistication level of sight, sound, and smell inspection techniques.
DATE SUBMITTED: 02/07/11
SHORT TITLE: Notice of Data Availability Supporting Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Melissa Kuskie
SUMMARY OF COMMENTS:
TCEQ comments on the above-referenced NODA for the Transport Rule proposal include the following:
- objections to the EPA’s release of data and alternatives that may significantly change the original rulemaking with limited comment periods and without re-opening the entire rulemaking for comment
- objections concerning the EPA’s intent to subject existing units that may not be on the list of existing units to allowance-holding requirements regardless of whether such units are allocated allowances, and a request that the EPA provide a mechanism for such units to receive allocations
- a critique of the two allocation methodology alternatives in the NODA: Option One does not consider technological feasibility of available pollution controls, and Option Two is not clearly explained in terms of the logic and rationale behind the allocation methodology and appears to favor uncontrolled sources in allowance allocation
- objections concerning potential allocations for the annual trading program, to which Texas may become subject, because Texas has not been provided a proposed budget for the annual program and so is effectively denied the opportunity to comment on potential allocation methodologies
- comment noting that the TCEQ has already submitted SIP revision addressing 1997 eight-hour ozone transport obligations
- a critique of the EPA’s unrealistic timeline regarding the SIP submittal deadline for states seeking to allocate allowances for the 2014 control period and a request for clarification of the submittal date discrepancy in the Federal Register publication
DATE SUBMITTED: 12/20/10
SHORT TITLE: Finding of Substantial Inadequacy of Implementation Plan; Call for Utah SIP Revision
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Margie McAllister
SUMMARY OF COMMENTS:
The EPA has determined that a Utah rule previously approved by the EPA is insufficient to protect the National Ambient Air Quality Standards (NAAQS), and therefore Utah must revise the rule and its state implementation plan (SIP) within 12 months or the EPA will issue a SIP call and begin a sanctions clock. As part of its proposal, the EPA has requested comments on using its discretionary authority to implement highway sanctions statewide, as opposed to only in Utah’s nonattainment areas.
TCEQ comments on the above referenced proposed rule include the following:
- The EPA should not impose statewide highway sanctions, especially when a SIP call is based on disapproval of a rule that the EPA had previously approved into a state’s SIP.
- Because the EPA proposes to impose sanctions statewide, EPA must adequately explain how the requirements of 40 CFR §52.30(b) have been satisfied, as is necessary for the EPA to be able to implement the proposed action to impose state highway sanctions.
DATE SUBMITTED: 11/24/10
SHORT TITLE: Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone: Revisions to Emission Inventories
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer’s Office
STAFF CONTACT: Melissa Kuskie
SUMMARY OF COMMENTS:
TCEQ comments on the EPA NODA for the Transport Rule proposal include the following:
- Objections to the EPA’s proposed use of the revised data identified in NODA to make changes to the final Transport Rule because it is unreasonable and does not provide adequate notice to the public of the potential changes to the final Transport Rule;
- A request that if the EPA continues to revise emissions inventory data and place additional information in the docket to support changes to the final rulemaking, it should make such data available for comment and reopen the complete rulemaking for comment to allow the public to evaluate the potential impact of the rule and provide meaningful public comment;
- Objections to the EPA’s unreasonably short comment period based on the large amount of data provided in the NODA and the fact that the data may or may not be used to expand the scope of the proposed Transport Rule, thereby resulting in potentially affected parties being provided inadequate notice of rulemaking;
- A request that the EPA consider as creditable for the Transport Rule certain EPA-approved enforceable state control measures included in state implementation plan revisions in addition to the unenforceable ancillary nitrogen oxides reductions from federal measures it proposes to include in the NODA;
- A request for the EPA to provide an explanation of the assumptions used to grow or control the emissions data that the TCEQ provided on oil and gas drilling rig emissions; and,
- A request that the EPA identify specifically which latest public release of the Motor Vehicle Emissions Simulator (MOVES) it intends to use in estimating on-road emissions data and a request that the EPA ensure this latest version has been made available for public use.
DATE SUBMITTED: 11/18/10
SHORT TITLE: Air Quality Implementation Plans; Revisions to Rules and Regulations for Control of Air Pollution; Permitting of Grandfathered and Electing Electric Generating Facilities
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting and Registration
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
Section 116.911(a)(2) was adopted to provide a means of authorizing collateral emissions increases for grandfathered EGF that were required to reduce and permit sulfur dioxide (SO2), nitrogen oxide (NOx), and particulate emissions (PM) under Senate Bill 7, 76th Legislature (1999). These SO2, NOx, and PM emission reductions from sources previously exempt from permitting improved air quality and supported the attainment of federal air quality standards. The collateral CO emission increases did not result in any increase in Prevention of Significant Deterioration increments or any violation of National Ambient Air Quality Standards.
The EPA’s proposed disapproval of § 116.911(a)(2) cites the DC Circuit Court of Appeals decision, New York v. EPA, 413 F.3d (D.C. Cir. 2005), which disallowed the use of PCP SPs for major new source review (NSR) requirements. The TCEQ acknowledges that the court’s opinion left the EPA little choice in disapproving paragraph (2) of the rule. However, the TCEQ notes that at the time of adoption, this paragraph was in compliance with all applicable state rules and federal regulations and policies. Additionally, paragraph (2) applied only to initial applications of grandfathered EGFs, which were required to be submitted by September 1, 2000. This paragraph has no current application since this date has long passed and there will be no new initial applications from EGFs.
The PCP SP was revised in 2006 to preclude the use of the PCP SP to authorize new major sources and major modifications, thus addressing the court’s decision in New York v. EPA. The EPA has not adopted any rules that provide detailed requirements for this type of permit, nor any rules prohibiting it. The applicable rule in 40 CFR § 51.160 is broadly written and has been interpreted by the EPA to provide states the discretion to tailor their own minor NSR permit programs. The commission’s standard permit program is part of the approved Texas SIP and the EPA has determined it meets 40 CFR Part 51.
The TCEQ has recently proposed a new non-rule PCP SP and has received comments from the EPA regarding that proposal. The executive director will present his response to those comments to the commission for consideration of a new non-rule PCP SP. In the interim the TCEQ maintains that § 116.617 is an efficient and legally supportable authorization for pollution control projects in Texas.
DATE SUBMITTED: 10/04/10
SHORT TITLE: Proposed Action to Ensure Authority to Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call; Federal Implementation Plan (FIP)
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Legal Services
STAFF CONTACT: John Minter
SUMMARY OF COMMENTS:
In EPA’s rush to regulate GHG from stationary sources, it is expediting this SIP Call and FIP through at an unprecedented pace with little time to deliberate the appropriateness or legality of these actions. In little more than one year, EPA has determined that a pollutant that has never been regulated before under the FCAA (or Act) should be done beginning January 2, 2011, without proper guidelines on what controls should apply and how states are to implement this program. EPA acknowledges that subjecting stationary sources of GHG to permit requirements according to the Act’s specific thresholds is "absurd" yet EPA is on a course to do just that. TCEQ is concerned that the proposed SIP Call and FIP are merely additional elements of a scheme that short-circuits the statutory process for regulating major stationary sources.
In comments on EPA’s Endangerment Finding, the Light-Duty Vehicle Rule, the Johnson Memo Reconsideration and the Tailoring Rule, TCEQ has consistently questioned the legality of EPA’s iterative approach to regulating GHGs at major stationary sources. The basic purpose of the PSD program is to safeguard the maintenance of a National Ambient Air Quality Standard (NAAQS or Standard) in areas of the country designated for a NAAQS as attainment or unclassifiable. EPA to date has not established a Standard for GHG, therefore PSD does not and should not apply. Congressional intent not to cover GHG under the Act is clear. Pursuant to the FCAA major source thresholds are set at levels that make permitting such sources for GHG unfeasible. Buildings with small boilers such as schools, apartment complexes, and office buildings are potentially subject to PSD permitting for GHG under the Act’s statutory limits. Furthermore, SIP control strategies and corresponding permitting programs are structured to address pollutants affecting a localized and discrete area. GHG are uniform in concentrations throughout the environment. They do not lend themselves to be controlled through the CAA’s SIP statutory and regulatory framework. EPA freely acknowledges that the regulation of GHG is irreconcilable with the FCAA’s stationary source thresholds, and it relies on a series of invalid legal theories to support its re-writing of the express language of the statute to raise the GHG thresholds to levels it deems reasonable.
Both the SIP Call and FIP are unlawful because the Tailoring Rule itself is unlawful. The Tailoring Rule is contrary to the express statutory commands of the FCAA and is subject to several challenges, including one by the State of Texas, in the United States Court of Appeals for the District of Columbia Circuit. If that Court stays implementation of the Tailoring Rule, EPA should immediately suspend the actions to which these comments are addressed.
EPA proposes this SIP Call and FIP as the solution to a problem of its own making. As we stated in our comments to the Tailoring Rule, and repeat here, EPA actions magnify the inappropriateness of regulating GHG under the FCAA and are a further attempt to alter the literal application of the Act. The proposals by EPA are an attempt to write policy that should be contemplated by Congress. EPA’s actions exceed its administrative authority to execute the laws that Congress has written. The legally-flawed reliance on section 110(k)(5) as a basis for a SIP Call and lack of regulatory certainty on what constitutes BACT for GHG emissions, as well as the practical effect of no new major construction or modification under state-or EPA-issued GHG permits in the near future, compels TCEQ to urge the Administrator to withdraw these proposals.
DATE SUBMITTED: 10/01/10
SHORT TITLE: Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Melissa Kuskie
SUMMARY OF COMMENTS:
Comments on the above referenced Transport Rule proposal include the following:
- A reiteration of our original request for a 90-day comment period extension;
- A critique of the EPA’s preferred option based on the potential limits to market activity, difficulty for compliance assessment, and potential impact on energy consumers;
- A critique of the EPA’s technical analysis for the proposal, including its assessment of design values, modeling program flaws, cost-assessments for NOX controls, and the failure to consider certain existing controls;
- An objection to EPA’s analysis regarding Texas’ potential inclusion in the PM2.5 program;
- A request for information regarding SIP criteria for states seeking to replace the Transport Rule FIP; and,
- An objection to our inclusion in the program altogether based on EPA’s significant technical flaws.
DATE SUBMITTED: 09/23/10
SHORT TITLE: Proposed Rule to Implement the 1997 8-Hour Ozone NAAQS: New Source Review Anti-Backsliding Provisions for Former 1-Hour Ozone Standard
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Walker Williamson
SUMMARY OF COMMENTS:
The TCEQ generally supports the EPA’s efforts to address removal of burdensome nonattainment new source review (NSR) permitting requirements for the one-hour ozone standard, but wishes to comment on a few specific points included in the EPA’s proposed rule:
- A request for one-hour ozone nonattainment NSR provisions to be removed for 1997 eight-hour ozone attainment areas based on eight-hour ozone monitoring data should only require a request letter.
- The EPA should not prevent any provision of a major NSR permit that was established during the time the one-hour ozone standard applied from being modified.
- The EPA is not providing adequate public notice for its proposal to revise the Code of Federal Regulations (CFR) as it relates to section 181(b)(4) of the FCAA.
- For a finding of attainment for the one-hour ozone standard, only applicable and appropriate monitoring data should be required to determine whether an area is eligible to remove one-hour nonattainment NSR requirements.
DATE SUBMITTED: 09/13/10
SHORT TITLE: Transportation Conformity Rule Restructuring Amendments
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Heather Evans
SUMMARY OF COMMENTS:
TCEQ supports EPA’s proposed restructuring of 40 CFR 93.109 and 93.119 and the clarification of the conformity test options for clean data areas. The proposal provides a more clear and concise organization of the sections. The new structure will allow implementing organizations to know the requirements for performing regional conformity tests for any new or revised NAAQS before designations are even made, rather than waiting for updated guidance and regulations to follow the designation process, as has been the case in the past.
TCEQ supports the clarification of the general applicability of conformity requirements to secondary standards; however, the proposal is unclear as to the specific requirements for showing compliance with any secondary standard. Therefore, it is difficult to provide any meaningful comments at this time. The proposal does indicate that EPA will issue guidance as needed to assist areas in implementing conformity requirements for new standards, including secondary standards.
DATE SUBMITTED: 08/30/10
SHORT TITLE: Review of the National Ambient Air Quality Standards for Particulate Matter
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Jim Price
SUMMARY OF COMMENTS:
If the EPA decides to propose a secondary standard for urban visibility, the TCEQ urges the EPA to propose a direct measurement of visibility impairment or light extinction as the indicator for urban visibility impairment. We urge use of data from the large, existing network of Automated Surface Observation System (ASOS) visibility monitors rather than the establishment of a new monitoring network on which to base a possible standard.
The suggestion to use average chemical speciation profiles for PM2.5 would be inappropriate for areas such as Texas that can have diverse causes of visibility impairment, which can change from day to day. The types of episodes that affect Texas visibility include continental haze, African dust transported across the Atlantic Ocean, biomass burning smoke from southern Mexico and Central America, dust transported from dust storms in the northern Mexican deserts, and dust from wind storms within Texas. Using an average PM2.5 composition would be inadequate to represent these varied events. Taking daily PM2.5 samples and carrying out chemical speciation analysis for each visibility impairment event is costly and would require additional federal funding.
The TCEQ urges the EPA to consider only a robust form of the standard set at the 9oth or lower percentile. The more robust the standard, the more appropriate any resulting control strategy would be for achieving broad improvement in particulate matter air quality and visibility. The TCEQ urges the EPA not to propose or adopt a separate PM standard for visibility until visibility data have been collected and validated successfully from at least a prototype monitoring network. Additionally, the range discussed for the annual PM2.5 standard will produce measurable visibility improvement without adoption of a different secondary standard for visibility.
DATE SUBMITTED: 08/16/10
SHORT TITLE: EPA Responses to State and Tribal 2008 Lead Designation Recommendations
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Holly Brightwell
SUMMARY OF COMMENTS:
The TCEQ agrees with the EPA’s preliminary designation determination; however, non-ambient data was used in the EPA’s data calculation. The TCEQ requests that calculations not include this data as part of the designation determination.
DATE SUBMITTED: 07/23/10
SHORT TITLE: Clean Alternative Fuel Vehicle and Engine Conversions
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Morris Brown
SUMMARY OF COMMENTS:
TCEQ comments on whether vehicles that have exceeded their useful life based on mileage, but not in age, should be required to meet the same compliance criteria as intermediate age vehicles. TCEQ recommends that the EPA establish criteria for categorizing an "outside useful life" vehicle based solely on vehicle age without consideration for mileage accumulation, thereby negating the need to establish a subcategory of "younger" outside useful life vehicles that may have exceeded their useful life in mileage, but not in age; e.g., a 2006 model year vehicle with an odometer reading of 160,000 miles. The annual vehicle emissions inspection and maintenance testing requirements in Texas, which are based on federal rules, apply to conventional gasoline fueled motor vehicles of 2 to 24 years of age, regardless of high mileage accumulations.
In addition, TCEQ comments on the options that EPA is proposing for the demonstration criteria for outside useful life vehicles. TCEQ recommends that the EPA finalize the rule using Option 2 as the demonstration criteria for clean alternative fuel conversions of outside useful life vehicles to ensure that alternative fuel conversions of older vehicles and engines without OBD systems do not result in increased emissions. The rule already proposes to require outside useful life vehicles equipped with OBD systems to maintain proper OBD system functions.
DATE SUBMITTED: 06/16/10
SHORT TITLE: Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Beaumont/Port Arthur Ozone Nonattainment Area
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Jamie Zech
SUMMARY OF COMMENTS:
The TCEQ submitted the 1997 Eight-Hour Ozone Redesignation Request and Maintenance Plan for the Beaumont/Port Arthur (BPA) Ozone Nonattainment Area to the U.S. EPA on December 18, 2008. That SIP revision included a request to redesignate the BPA area to attainment for the 1997 eight-hour ozone standard with evidence of fulfillment of the remaining requirements for redesignation, including a 1997 eight-hour ozone standard maintenance plan. The EPA proposes to approve the 1997 Eight-Hour Ozone Redesignation Request and Maintenance Plan for the BPA Ozone Nonattainment Area. The EPA also proposes to determine that the BPA area is in attainment of the one-hour ozone standard. The TCEQ concurs with the EPA’s findings and wishes to submit general comments to the EPA in support of the proposed approvals, which include the following: a statement of agreement with the EPA’s proposed approval for the 1997 Eight-Hour Ozone Redesignation Request and Maintenance Plan for the BPA Ozone Nonattainment Area; a statement of agreement with the EPA’s proposed determination that the BPA area is in attainment of the one-hour ozone standard; and, a statement of acknowledgement and praise for the efforts of the BPA area in attaining the 1997 eight-hour ozone standard and the one-hour ozone standard.
DATE SUBMITTED: 06/11/10
SHORT TITLE: Mandatory Reporting of Greenhouse Gases: Injection and Geologic Sequestration of Carbon Dioxide
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Kathy Pendleton
SUMMARY OF COMMENTS:
Based on state legislative mandate, TCEQ and Rail Road Commission plan to administer federally authorized Class VI Underground Injection Control programs for CO2-GS in parallel to the EPA-administered GHG reporting rule. Consequently, the TCEQ’s comments on the GHG reporting rule make recommendations for greater clarity and consistency of rule criteria and wording on interrelated issues that must be efficiently coordinated between these state and federal programs. Specifically, the TCEQ recommends against use of the proposed criterion for the duration of GHG reporting dependent on determination of stabilization of the injected CO2 plume and pressure front. In this consideration of duration of GHG reporting, the TCEQ recommends adoption of the listed criteria limiting the necessary periods of post-injection site care and (appropriately) GHG reporting for CO2-GS projects as proposed by the Ground Water Protection Council (of which TCEQ is a member) and a broad range of other industry and environmental group stakeholders in comments on the proposed UIC Class VI well rule for CO2-GS. The TCEQ recommends minor revisions of wording in specified subsections of the proposed rule for greater clarity and consistency.
The TCEQ acknowledges that a most significant concern about the proposed GHG reporting rule is the reporting burden that would be placed on facilities subject to the rule. The TCEQ urges the EPA to reassess emissions collected from sources and, if for any assessed to be insignificant, remove them from reporting requirements. Also, because data reported under the proposed rules will be used to inform future rule and policy decisions on GHG regulation, the accuracy of data should remain a high priority for EPA and all persons concerned. The TCEQ urges the EPA to update the rule as appropriate for burden reduction, regulatory efficiency, and environmental protection as informed by accrued operating experience and data from CO2-GS projects over-time.
DATE SUBMITTED: 06/11/10
SHORT TITLE: Mandatory Greenhouse Gases: Additional Sources of Fluorinated Gas Systems
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Kathy Pendleton
SUMMARY OF COMMENTS:
When determining the sources and thresholds required for inventory reporting, the TCEQ cautions the EPA to consider unintended adverse environmental or health impacts. The risk that some sources would choose to replace an ozone precursor or toxic contaminant with a GHG to avoid reporting and future regulatory action on GHG emissions is a possibility that the EPA must evaluate.
The TCEQ supports the use of approved, standard emissions factors based on equipment type or process type over direct monitoring, where feasible, to minimize the cost of complying with the Federal Mandatory Reporting Rule. First year reporting costs at $0.51 per metric of CO2e from the electronics industry remains higher than the EPA’s estimate average of $0.04 for all sources.
Anthropogenic greenhouse gas emissions are driven by manufacturing and consuming raw products and the Executive Director of the TCEQ is concerned that an accurate portrayal of each state’s emissions will not be obtained and that values may be skewed to suppliers of commodities consumed in other sectors or parts of the country. The TCEQ urges the EPA to update the rules as appropriate for burden reduction, regulatory efficiency, and environmental protection as informed by accrued operating experience and data over time.
DATE SUBMITTED: 06/11/10
SHORT TITLE: Mandatory Greenhouse Gases: Petroleum and Natural Gas Systems
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Kathy Pendleton
SUMMARY OF COMMENTS:
TCEQ comments that a reporting burden for sources remains a concern because much of the data requested are not currently known nor can be obtained from a central location for many of the reporters. A phased-in approach reporting is recommended for types of equipment and component counts. The TCEQ urges the EPA to reassess emissions collected from sources and, if emissions are insignificant, remove them from reporting requirements.
The accuracy of data remains a high priority and the TCEQ urges the EPA to update the factors and estimation methodologies in the rule as improved factors become available. The TCEQ supports the EPA’s proposal using fugitive factors for estimating emissions from many sources, including component fugitives, instead of direct monitoring to reduce the emissions estimation and reporting burden. However, emissions factors in some cases may be draft or out of date. The data collected reflects significant effort on the part of the reporting companies and may have significant impact on future regulatory activities. The oil and gas industry covers a large territory and locating or developing the data for reporting by the first due date will be resource intensive and expensive. A phased-in approach reporting is recommended for equipment level information and component counts.
The TCEQ urges the EPA to update the rule as appropriate for burden reduction, regulatory efficiency, and environmental protection as informed by accrued operating experience and data over time.
DATE SUBMITTED: 03/22/10
SHORT TITLE: National Ambient Air Quality Standards for Ozone
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Brian Foster
SUMMARY OF COMMENTS:
The Texas Commission on Environmental Quality (TCEQ) is in disagreement with the U.S. Environmental Protection Agency’s (EPA) proposal to revise the eight-hour standard to a level within the range of 0.060 to 0.070 parts per million (ppm) because of uncertainties relating ambient ozone concentrations to personal exposures and limitations of the epidemiological and clinical studies used as the basis of the revisions. Because of the considerable implications of these revisions, it is extremely important that this policy decision incorporate all of the relevant scientific data and that the data be analyzed using appropriate statistics.
The TCEQ does not agree with the proposal to establish a distinct secondary ozone standard, different from the primary standard, because the proposed secondary standard: is arbitrary in form; the selected level is indistinguishable from background; does not yield appreciable benefits; is based on studies that may be inappropriate for identifying empirical vegetation effects; and may inappropriately overestimate damages. The TCEQ is opposed to the EPA's proposal to require that all decimal digits supported by the calculation software must be retained for actual calculations of eight-hour averages and three-year average ozone values.
The TCEQ does not support the EPA’s proposed broad and unfettered general discretion to use incomplete data and any other data known to EPA but not a part of the federal or state monitoring network to calculate design values for comparison to the National Ambient air Quality Standards (NAAQS) for purposes of determining attainment or nonattainment.
The TCEQ does not support the EPA’s proposed broad and unfettered general discretion to consider data collected from non-federal reference method monitors that has not been submitted to EPA’s Air Quality System.
The TCEQ is opposed to the accelerated designation schedule. This schedule, combined with the reconsidered standard proposed as a range rather than at a specific level, does not allow for meaningful public input, nor does it provide adequate time for states to conduct technical analysis in support of designation recommendations. The EPA should extend the time for states to submit designation recommendations.
The EPA’s statement that the proposed ozone standard reduction would have no significant impact on small business is disingenuous. Changes to the NAAQS do directly impact requirements for emissions of all sources, both large and small. The proposed range of the primary ozone NAAQS will drastically increase the number of distant emission sources that can contribute policy-relevant quantities of ozone to cities.
DATE SUBMITTED: 03/15/10
SHORT TITLE: New Source Review (NSR) Program for PM2.5; Rulemaking to Repeal Grandfathering Provision and End the PM10 Surrogate Policy
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Office of Permitting and Registration
STAFF CONTACT: Michael Wilhoit
SUMMARY OF COMMENTS:
The TCEQ does not support EPA’s proposal to repeal the grandfathering provision for PM2.5 and end the use of the PM10 surrogate program. The use of the PM10 surrogate program has ensured consistency and has allowed TCEQ to meet its obligations under the Texas and Federal Clean Air Acts. Texas has no nonattainment areas for PM2.5. The TCEQ believes that there are still substantial technical difficulties and regulatory uncertainties associated with the implementation of PM2.5 in PSD and minor NSR. The TCEQ does not have the technical tools to implement the PM2.5 major and minor NSR programs. SIP-approved states such as Texas should be allowed to continue using the PM10 NSR surrogate program until the EPA can fully implement and integrate PM2.5 into the NSR program.
DATE SUBMITTED: 02/16/10
SHORT TITLE: Revisions to Lead Ambient Air Monitoring Requirements
SUBMITTED TO: U.S. Environmental Protection Agency (EPA)
OFFICE PREPARING: Chief Engineer's Office
STAFF CONTACT: Jim Price
SUMMARY OF COMMENTS:
The TCEQ recognizes that lead in settled dust presents the main lead absorption hazard for children, who are the most susceptible population. An appropriate additional screening test for waiving the ambient air lead monitoring requirement would be a test for lead content in settled dust or in surface soil in the area of predicted maximum ambient air impact to which children have meaningful access.
The EPA’s methodology used to develop the proposed 0.5 ton per year lead emissions threshold for requiring lead monitoring at airports is flawed because children do not have meaningful access to the type of area represented by the monitor that the EPA used to calculate the emissions threshold for including airports. For most airports the threshold should not be below 1.0 ton per year.
There is a lack of information on piston-engine aircraft landing and take-off operations at some airports. The EPA should consider developing a methodology for using the annual amount of leaded aviation gasoline sales at an airport to calculate the annual lead emissions from the airport. An alternative would be to develop a methodology for using the ratio of the leaded aviation gasoline to turbine engine fuel sold at an airport together with the total number of landings and take-off operations at the airport to calculate the annual lead emissions.
A one-year timeline for deploying monitors to NCore (name derived from "National Core") sites is reasonable; however, if new equipment procurement is involved a deadline shorter than one year after federal funding is provided is not reasonable. An 18-month timeline would be more reasonable for point-source oriented ambient lead monitors. Monitoring for airports creates complications because of potential Federal Aviation Administration approval and an appropriate timeline for this monitoring would be 20-to-24 months.