Downwinders and Sierra Club File Joint Comments on the State’s DFW “Do Nothing”Air Plan

Stacks of evidence Wednesday of last week saw the deadline for filing official comments on the dreadful "plan" the Texas Commission on Environmental Quality has proposed to lower smog levels in DFW by 2018. In effect, the plan is to wait for federal gasoline changes in 2017 and hope for the best.

Shortly before closing time Wednesday, Downwinders at Risk and the Lone Star Chapter of the Sierra Club submitted 62 pages of criticisms concerning the plan. Not because either organization believes the TCEQ Commissioners will change heir minds, but because we're trying to establish a record that might eventually lead to a court challenge of the plan.

Although lengthy, the basic approach of the groups is two fold – call into question the state's computer modeling that's predicting success and challenge the state's exclusion of new pollution control measures on the Midlothian cement plants, East Texas Coal plants and Barnett Shale gas compressors.

Some of the highlights:

 – The computer modeling the TCEQ is using for its new plan is the same it used for plans in 2006 and 2011, neither one of them successful at meeting its goal of cleaner air by the assigned deadline. In fact, the last clean air plan using this same model underestimated smog levels by almost 10 parts ber billion and actually saw a slight rise in smog at its conclusion – the first time a DFW plan ever resulted in higher ozone levels.

 – In defiance of EPA guidance, the computer model TCEQ is using is more than five years old. EPA specifically recommends using an "ozone season" from 2009 to 2013. TCEQ's model is leftover from 2006, or three years older than the oldest year EPA says is appropriate. 

 – Also contrary to EPA rules, the TCEQ 2006 computer model ignores including the most relevant “meteorological conditions conducive to elevated air quality.” 2011 was the worst year for ozone levels in DFW since the beginning of this decade, in large part because it reflected the worst drought conditions. The three-year rolling average for the worst monitor, called the "design value" rose back up to 90 parts per billion after years of floating in the mid to upper 80's. But instead of using that year as a worst case baseline, the state defaulted to its 2006 model that doesn't incorporate the current drought.

 – TCEQ's prediction of success is built on a series of unrealistic assumptions about the quantity of oil and gas pollution. For example, it underestimates the number and impact of air pollution from hundreds of large compressor stations and thousands of smaller "lift" compressors as the Barnett Shale ages. Fully 60 to 70% of all air pollution from the gas industry comes from these kinds fo facilities, so a mistake in estimating their impact could have a large chain reaction at downwind air quality monitoring sites in Tarrant, Denton, Parker and Johnson counties. 

TCEQ also assumes that production levels in the Barnett will fall steeply. If they do not, there could be hundreds of tons more air pollution from the industry annually than what TCEQ assumes in its model.

That's important because the model predicts that the region will only barely squeak-by the 75 ppb standard required by 2018, with levels coming in at 75.87 at the Denton monitor site, 75.15 at Eagle Mountain Lake, and 75.04 in Grapevine.  A jump in oil and gas pollution – or any other surge in pollution from any other source – could make those numbers obsolete and ruin our chances fo complying with the Clean Air Act on time…again.

– TCEQ's "Contingency Measures" are illegal. Every smog plan must have a series of quantifiable back-up contingency pans in case the options the plan relies on fail to achieve success. In this case, the state is only relying on unquantified and voluntary actions, such as "incentive" programs, the effectiveness of which cannot be measured. Since you can't measure them, you can't count them.

– TCEQ failed to consider all "reasonably available control technologies" and "measures." Nearly 40 pages is devoted to the wrong-headed, irrational, and illegal way TCEQ rejects off-the-shelf air pollution controls for the Midlothian cement plants, East Texas coal plants, and large gas compressors.

Under the Clean Air Act, a state's plan shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” In order for the EPA to determine whether an area has provided for implementation as "expeditiously as practicable,” the State "must explain why the selected implementation schedule is the earliest schedule based on the specific circumstances of that area. Such claims cannot be general claims that more time is needed but rather should be specifically grounded in evidence of economic or technologic infeasibility.”

Step-by-step, Downwinders and the Sierra Club explains why Selective Catalytic Reduction (SCR) is a reasonable control technology for the Midlothian cement plants and East Texas coal plants. Even as the owners of one of the Midlothian cement plants applies for a permit to install the technology, TCEQ is claiming its still not ready for prime time. The groups demonstrate how requiring SCR on these major polluters would have a large impact on DFW ozone levels.

The same level of absurdity if reveled in TCEQ's rejection of electrification of gas compressors. Despite being able to significantly lower smog-pollution in the very areas where its needed most, and despite electrification even being required by many Barnett shale municipalities, the state maintains that this option is unrealistic and unachievable.

There's probably no better compendium of the various sins committed by the TCEQ plan than these comments. If you're looking for the most solid case for compressor electrification, or SCR adaptation, or just TCEQ malfeasance, this is your one-stop shop.

You may think this is a technical document, or one full of legal mumbo-jumbo. It's not, at least not for the most part. Instead it's the kind of logical, evidenced case you'd assemble for a debate with the TCEQ. It's a blow-by-blow comprehensive look at why the state isn't any more likely to meet this clean air deadline than it has any other. A case we hope is capable of persuading EPA to reject the TCEQ plan. 

The Perry-TCEQ Plan for Cleaner Air: More Coal

When it rains, it pours, or in this case, spews.

After getting a favorable ruling that struck down the EPA's flexible permit system last week, Team Perry seemingly scored another victory for its friends with Tuesday's ruling against the cross-state pollution rule.

Written by the Obama Administration to replace a similar Bush Administration rule that also got struck down by the courts (but is now back in at least partial effect…it hurts to think about this sometimes), the cross-state pollution rule was an attempt to federalize the problem of continental air pollution, much of it caused by big ol' dirty coal plants like the ones in East and Central Texas.

Texas can't regulate the coal plant pollution that wafts in from Illinois or Kentucky. Likewise, New York can't regulate Ohio facilities that send air pollution over its state lines. A federal solution covering all 50 states is required. Tuesday's ruling agreed, but concluded EPA hadn't given Texas and other states more time to come up with their own strategies to cut air pollution from coal plants. Maybe EPA was influenced by the fact that at the same time this strategy was being proposed, Governor Perry was rolling out plans to help streamline the permitting of 17 new coal plants in Texas.

Neither one of these rulings is as dreadful as it might seem at first. Both can be appealed. And both have mitigating circumstances that cushion the blow. With the flex permit case, all the facilities in Texas got standard operating permits eventually, making the ruling on the flex program itself moot. With the cross-state pollution rules, the Obama EPA itself said that two-thirds of all the health benefits from the rules had already been achieved with the partial implementation of the Bush rules they were meant to replace. 

However, the cross state rules were not only supposed to be good in their own right, they also are the underpinning for a couple of other national pollution initiatives, including helping communities meet the new Ozone standard of 75 parts per billion, and the new, lower Particulate Matter pollution standard. Without the rules, these standards will be harder to achieve. And guess who's own plans begin to get mucked up by that failure? You guessed it, the state of Texas.

Because in the case of DFW's chronic smog problem, the Texas Commission on Environmental Quality had already factored compliance with the rule into its already obsolete 2012 clean air plan for the Metromess. That was one of the reasons we were going to see the lowest ozone levels ever recorded in DFW this summer. Without that backstop, it's going to be hard not only to just meet the old 1997 ozone standard of 85 ppb – something DFW has yet to do despite two official tries now over the last seven years – it's going to be hard to meet the much lower standard of 75 ppb.

If you've seen the TCEQ propaganda of the last couple of years, it touts how much pollution totals in Texas have decreased. The Commission uses these numbers to then promote the Perry Team philosophy of limited government intervention, suggesting that it's the TCEQ and Perry responsible for those declines. They are not. For the most part, what the state is touting are the results of federal programs that have decreased pollution systematically across the country – everything from new fuel and pollution standards for cars and trucks, to new federal standards for specific industries, like refineries and chemical plants. Throw in the things that federal citizen suits and pressure got done despite TCEQ – think cement plant pollution reduction in DFW for example – and you have most, if not all of the things reducing pollution in Texas that TCEQ is claiming credit for.

Without the cross state pollution rules, the oldest and dirtiest coal plants in Texas will continue to operate for the foreseeable future. And when the wind blows, some of their pollution will be breathed-in by DFW residents. In the short term, this is Team Perry's trophy for all you hard-working Texas residents – more crap in your lungs.

If the state keeps clearing away all the federal programs that have actually reduced pollution over the last 20-30 years, those total pollution numbers won't be going down much longer.  They'll be holding even and then going up. Left to their own devices, Team Perry would have us living in a polluter's Pottersville. And then who will the Governor blame?

Wise County in, Hood Left Out: EPA Declares New Non-Attainment Area for Smog in North Texas

At around closing time came news that the EPA had finalized the boundaries of the new “non-attainment area” for smog in North Texas that corresponds to enforcement of the “new” 75 ppb ozone standard approved last year. The 9 counties that were already in violation of the older standard are still there: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant. The only new addition is Wise County, but it’s a huge one given its prodigious amount of gas industry pollution and commuter traffic to Tarrant and Denton Counties. It also means that Wise County will be getting an ozone monitor. If it’s placed correctly by TCEQ – and that’s a big if – it could be giving us a much truer understanding of how high or low ozone levels are really going. Since predominant winds during “ozone season” (April -November) are from the southeast to northwest, much of DFW’s dirty air gets pushed into Wise County, where it then officially falls off the map because there’s no air monitors there to record it. TCEQ likes it that way because ozone readings in Wise – where DFW dirty air meets gas patch emissions – could be significantly higher than in most of the rest of DFW. And that would dampen the Austin happy talk about improving DFW air quality. Also coming to Wise are things like those Vapor Recovery units on gasoline pumps, and other stricter pollution control requirements – although the impact on the entrenched gas industry infrastructure already there is unclear. Hood County was also singled out by EPA for inclusion in the non-attainment area but is left off this final order. It also has a number of gas industry facilities, including compressor stations, although most have shown up over the last ten years as opposed to Wise, which has seen decades of oil and gas production. There was no explanation for Hood exclusion in EPA’s letter. DFW wil be classified as a “Moderate” non-attainment area under the new standard while Houston will get a more severe “Marginal” classification. Why? Because the EPA uses a formula based on percentage above the new standard and Houston has traditionally had higher readings – think Ship Channel “upsets” and belches, even if DFW had just as many.  Dallas and Houston remain Texas’ only non-attainmenta areas for smog, although that could certainly change over time. Next up is EPA’s determination of the compliance timeline for all non-attainment areas. The good news is that DFW’s deadline should be sooner than Houston’s because it’s not as severely ranked. The worse the air, the more time a region has to clean it up. The bad news is that it could still mean officials don’t have to get serious about cleaner air until around 2015 for a 2017-18 deadline. That”s been the pattern up to now – keep waiting until the last minute to think about how to dig yourself out of a multi-decade deep hole. And believe us, with this process, 2 years is “the last minute.” There could be all kinds of useful planning and researching going on right now but they’ll be none of that.  Because insuring receipt of federal highway dollars, not protecting public health, has been the primary motivating factor behind the clean air machinery in North Texas. Until those priorities are reversed and clean air is sought for its own worth, we’re likely to always be behind the curve, chasing “unattainable” smog standards.