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Texas; Reasonably Available Control Technology in the Houston-Galveston-Brazoria Ozone Nonattainment Area

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Texas; Reasonably Available Control Technology in the Houston-Galveston-Brazoria Ozone Nonattainment Area Proposed Rule - Air Approval Plans; Texas; Reasonably Available Control Technology in the Houston-Galveston-Brazoria Ozone Nonattainment Area EPA Docket: EPA–R06–OAR–2020–0165 Proposed: March 10, 2021 Comments of Environmental and Community Groups: AIR ALLIANCE HOUSTON EARTHJUSTICE SIERRA CLUB TEXAS ENVIRONMENTAL JUSTICE ADVOCACY SERVICES April 9, 2021 Submitted via regulations.gov and email Comments of Environmental and Community Groups These comments are submitted on behalf of Air Alliance Houston, Earthjustice, Sierra Club, and Texas Environmental Justice Advocacy Services (“t.e.j.a.s.”) (collectively, “Commenters”). Air Alliance Houston is a non-profit environmental group that seeks to reduce air pollution and other health threats in the Houston region, and to protect public health and environmental integrity through applied research, education, and advocacy, which includes actions to assist our constituents in the area facing this air pollution in their daily lives. Earthjustice is the nation’s largest nonprofit environmental law organization. It fights for a future where children can breathe clean air, no matter where they live, and where all communities are safer, healthier places to live and work. Sierra Club is one of the oldest and largest national nonprofit grassroots environmental organizations in the country, with more than 820,000 members nationwide, including 28,663 members in Texas, dedicated to exploring, enjoying, and protecting the wild places and resources of the earth; practicing and promoting the responsible use of the earth’s ecosystems and resources; educating and enlisting humanity to protect and restore the quality of the natural and human environment; and using all lawful means to carry out these objectives. t.e.j.a.s. is a non-profit group whose mission is to create sustainable, healthy communities in the Houston Ship Channel region by educating individuals on health impacts from environmental pollution and empowering them to promote the enforcement of environmental laws. In furtherance of this mission, t.e.j.a.s. engages in advocacy and organizing around environmental issues in Texas, including pollution created by refineries and petrochemical facilities along the Houston Ship Channel. 2 I. Introduction EPA must not finalize this proposal. Texas’s SIP submission to EPA includes no revisions to the state’s outdated requirements for reasonably available control technology (“RACT”) emission limits for existing sources in the Houston-Galveston-Brazoria (“HGB”) nonattainment area. This failure not only contravenes the Clean Air Act and is arbitrary, but it further exacerbates an already egregious environmental justice issue in the HGB area. Under the Clean Air Act, moderate and higher ozone nonattainment areas must develop plans that require “implementation of reasonably available control technology under [42 U.S.C. §] 7502(c)(1)” for “all…major stationary sources of [volatile organic compounds]” and oxides of nitrogen (“NOx”). 42 U.S.C. § 7511a(b)(2), (f). Revisions to SIPs must incorporate RACT for sources of VOCs covered by EPA-issued control technique guidelines (“CTGs”), as well as for other major sources of VOCs and NOx. RACT “defines the lowest emission limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” Memorandum from R. Strelow, Asst. Adm’r, EPA, Office or Air and Waste Management, to Reg’l Adm’rs, EPA Regions I-X, re: Guidance for Determining Acceptability of SIP Regulations in Non-Attainment Areas at 2 (Dec. 9, 1976) (“Strelow Memo”) (Attachment 1). RACT “means devices, systems, process modifications, or other apparatus or techniques that are reasonably available taking into account: (1) [t]he necessity of imposing such controls in order to attain and maintain a national ambient air quality standard; [and] (2) [t]he social, environmental, and economic impact of such controls” 40 C.F.R. § 51.100(o). “RACT encompasses stringent, or even ‘technology forcing,’ requirement[s].” Strelow Memo 2; accord Sierra Club v. EPA, 972 F.3d 290, 294 (3d Cir. 2020) (“RACT is a technology-forcing standard designed to induce improvements and reductions in pollution for existing sources.”); see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 492 (2001) (Breyer, J., concurring) (noting that technology forcing requirements “are still paramount in today’s [Clean Air] Act”). “In every case RACT should represent the toughest controls considering technological and economic feasibility that can be applied to a specific situation. Anything less than this is by definition less than RACT and not acceptable for areas where it is not possible to demonstrate attainment.” Strelow Memo 3. Because the HGB area failed to meet its revised attainment deadline for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”), EPA reclassified the area to be in “serious” nonattainment, with a deadline of July 20, 2021. 84 Fed. Reg. 44,238 (Aug. 23, 2019). To remedy its failure to meet its attainment deadlines, Texas is statutorily required to implement RACT-level controls on existing sources in this nonattainment area. But the state has not updated its RACT rules to require more stringent measures to reduce NOx and VOC emissions in the HGB area. And Texas’s failure does not fall equally on residents in the HGB area. Instead, as we described below, the state’s nonattainment for the HGB area has a disproportionate harm on people of color and low-income populations living near 3 major emission sources. This is particularly true for ozone precursors like VOCs, which are highly concentrated in distinct census tracts. Texas’s failure is inexcusable. And the state’s failure to meet its attainment deadlines is proof that additional controls are needed. Despite comments that highlighted potential avenues for additional controls,1 the state’s submission would keep the same RACT determinations used for the 1997 eight-hour ozone NAAQS. EPA’s approval of this RACT SIP would be unlawful and contrary to the Clean Air Act. For the reasons outlined below, EPA must reject Texas’s RACT SIP submission for the HGB area and require the state issue additional RACT controls. II. Approving Texas’s RACT SIP would be unlawful and arbitrary. In its submission to EPA, Texas failed to meet its statutory requirements under the Clean Air Act by seeking approval of its existing RACT controls without rationally evaluating additional measures that could reduce emissions in the HGB area. Instead of “determin[ing] whether the existing controls or emissions reduction approach at [existing] source[s] can be updated or improved with reasonably available controls or strategies to achieve increased levels of emission reduction,” 81 Fed. Reg. 58,010, 58,037 (Aug. 24, 2016), Texas reflexively relies on its existing controls, which are more than a decade old at this point. EPA’s proposal to approve Texas’s RACT SIP is unlawful, and contrary to EPA’s own rule on implementing the 2008 ozone NAAQS and binding caselaw. In that implementation rule, EPA emphasized that only in “some cases” would a RACT determination for the 1-hour or 1997 ozone NAAQS be sufficient for the 2008 ozone NAAQS RACT requirement. 80 Fed. Reg. 12,264, 12,279 (Mar. 6, 2015). EPA stated that this decision was based on a belief that in “some cases” “a new RACT determination under the 2008 standard would result in the same or similar control technology as the initial RACT determination under the 1-hour or 1997 standard because the fundamental control techniques, as described in the CTGs and ACTs [alternative control techniques], are still applicable.” Id. Only in the circumstance where updated RACT would yield only small additional emission reductions at an unreasonable cost would reliance on an existing RACT determination be justified. Id. at 12,280. But given that many CTGs and ACTs have not been updated, EPA also emphasized that “in many cases, more recent technical information is available in other forms.” Id. at 12,278 (emphasis added). This includes “information received during the public comment period.” Id. at 12,279. Notably, existing regulatory requirements can indicate whether a particular degree of emission limitation does not constitute RACT. See Sierra Club, 972 F.3d at 300 & n.69 (“an average of the current emissions being generated by existing systems[] will not usually be sufficient to satisfy the RACT standard.”). Thus, a RACT determination is unlawful and arbitrary when other states have RACT requirements that are more stringent. Further, as RACT is technology 1 Comments on Proposed Houston-Galveston-Brazoria (HGB) Serious Classification Attainment Demonstration (AD) State Implementation Plan (SIP) Revision for the 2008 Eight-Hour Ozone National Ambien[t] Air Quality Standard (NAAQS) (Oct. 28, 2019) (TCEQ Docket No. 2019-0692- SIP) (Attachment 2). 4 forcing, existing RACT determinations are not the only relevant criteria in making a RACT determination: EPA has made explicit that best available control technology (“BACT”) determinations are relevant, too. EPA, Response to Comments on Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements 102 (Feb. 13, 2015) (EPA-HQ-OAR-2010-0885-0191). EPA’s explanation in its 2008 ozone NAAQS implementation rule is consistent with how EPA has interpreted RACT requirements in the past. EPA has repeatedly stated that states cannot rely on existing RACT determinations from previous ozone standards without explaining how these RACT measures continue to meet the “stringent” RACT standard. Strelow Memo 2; see 81 Fed. Reg. 58,037/3. The agency has found that “[p]ast experience has shown that due to ongoing innovation, cost-effective control technologies and process alternatives for many sectors continue to be developed….” 81 Fed. Reg. 58,037/3. And courts have held that “RACT is not designed to rubber-stamp existing control methods.” Sierra Club, 972 F.3d at 295. Here, Texas failed to meet the standard outlined by EPA that would allow the state to use its previous RACT determination.
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