Commentary
Is There An Air Pollutant Watch Near You?
The Texas Commission on Environmental Quality (TCEQ) maintains the Air Pollutant Watch List (APWL), a list of areas in various cities and counties in the state that have elevated concentrations of special-interest air pollutants. The APWL is intended to heighten public awareness in these areas of concern; encourage efforts to reduce emissions; help the TCEQ focus its resources to conduct facility inspections and field investigations, pursue enforcement activities, increase pollution prevention efforts, prioritize mobile monitoring efforts; and, help in the review of air permits.
The APWL provides the area of concern listed by county, city and TCEQ Region; APWL site number; year added; pollutant of interest; and area boundaries. An area of concern is defined as an area in which one or more particular pollutants has been measured at a level that can potentially cause adverse short-term or long-term health effects (or both) or odor.
An area or pollutant (or both) is added to the APWL when persistent elevations of measured concentrations of the pollutant of interest are determined to be of concern for potential to cause adverse short- or long-term health effects (or both) or odor. An area or pollutant (or both) is removed from the APWL when monitored concentrations of the pollutant of interest in an area of concern indicate a downward trend over time and the TCEQ determines that no potential to cause adverse short- or long-term health effects or odor remains. Legislative officials whose districts fall within the APWL areas are notified of any addition to or removal from the list prior to the public notice and 30-day comment period provided prior to an addition or deletion. The public or other interested parties may suggest that the TCEQ consider specific pollutants and locations for addition to or removal from the APWL.
Recently, the TCEQ initiated two changes to the APWL important to the Houston area. First, in November, 2011, the TCEQ revised the APWL boundary map for the listing for benzene in the Galena Park area. Since 2000, Galena Park has been listed on the APWL for benzene as a result of elevated annual average concentrations above established long-term health-based standards. Benzene is a clear, liquid, industrial chemical that is widely used to make glues, lubricants, and certain drugs, and also contained in crude oil and gasoline. It readily evaporates into the air and is commonly regarded as a human carcinogen. Some of Harris County’s largest benzene emitters are located in Galena Park and neighboring Pasadena.
Since 2008, the annual average benzene concentration has been at or below the health-based standard at the air monitor sites in Galena Park and Pasadena. Based on these monitoring results/trends, as well as an evaluation of currently available data and information, obviously more extensive than in 2000 when the APWL listing was made, the TCEQ reevaluated the Galena Park APWL boundary by identifying any new potential contributing sources in or near the APWL area; recognizing any changes to the contributing sources previously identified or the designated land use of the APWL area; evaluating the results of any/all additional ambient air monitoring data and field reconnaissance investigations; analyzing sources and trends; and evaluating relevant health effects reviews. In that process, significant benzene sources located outside of the Galena Park APWL boundary were identified that have the potential to affect benzene concentrations at the Galena Park and Pasadena monitoring sites. Thus, the Galena Park APWL boundary has been expanded to include these additional sources of benzene in order to ensure that the annual average benzene concentrations are below the health-based standards.
The second important APWL action recently undertaken by the TCEQ involves a change to the Lynchburg Ferry APWL boundary for styrene. Since 2002, the Lynchburg Ferry area along the Houston Ship Channel has been listed on the APWL for styrene as a result of concentrations exceeding the TCEQ's odor-based standard, thus creating the potential to cause odor-related health effects, such as nausea and headaches. Styrene is a colorless to slightly yellowish oily liquid with a sweet, sharp odor, widely used for the manufacture of polystyrene, rubber resins, and insulators, and a common cross-linking agent in glass fiber-reinforced and unsaturated polyester resins.
Lynchburg Ferry was previously listed on the APWL for benzene, but was delisted in 2010 due to significant reductions in benzene emissions and ambient monitoring concentrations below levels of concern. While the boundary maps for the two Lynchburg Ferry APWL areas are identical, most of the listed companies emit benzene and do not handle or process styrene. To address this issue, the TCEQ reevaluated the Lynchburg Ferry APWL area boundary, and now proposes to reduce the size of the Lynchburg Ferry APWL area to help better focus on the styrene sources that potentially contribute to the elevated styrene levels observed at the Lynchburg Ferry monitor. The TCEQ accepted public comments on this proposed revision of the Lynchburg Ferry APWL boundary through December 23, 2011, and is currently evaluating those comments.
Further information on APWL areas can be obtained on the TCEQ website. To sign up to receive email updates regarding the APWL, visit the TCEQ GovDelivery website and check the box for Air Pollutant Watch List under the Air Quality heading.
Houston’s Failure to Meet Smog Limits Can Lead to Opportunities to Improve Air Quality
The fact that Houston failed to meet a national air quality standard for ozone by the established deadline is no big surprise, but what is surprising is that the Environmental Protection Agency (EPA) officially announced that fact and then began wavering back and forth on the matter. What may be even more surprising are the potential consequences for that failure if they come to fruition. A lot of confusion surrounds this whole matter, and a lot of discussions, debate and decisions loom in the future. However, significant opportunities for greater efforts to clean up the air in the Houston region could result in the end.
The EPA just announced its determination that the Houston-Galveston-Brazoria (HGB) area has failed to meet the 30-year-old 1-hour standard for ozone. Notably, Houston joins Baltimore as the only two U.S. cities that have failed to meet that standard. This determination comes after a recent settlement with the Sierra Club, which had accused the EPA of failing to enforce the standard set in 1979 which required that air contain less than 125 parts per billion (ppb) of ozone for any one hour. Houston had a November, 2007 deadline to comply with that ozone limit, but fell short despite significant improvements in air quality over the years, having lowered its 1-hour levels from 220 ppb in 1991 to 125 ppb in 2011.
But here the confusion begins. In 1997, the EPA determined that a standard based on an average of ozone levels over eight hours would better protect health and the environment than the 1-hour standard, and tightened the national ozone standard to 85 ppb. In implementing the new standard, the EPA revoked the 1-hour standard in all areas of the nation where air quality met that standard for three consecutive years in an effort to allow those areas to redirect their focus toward meeting the new 8-hour standard. Importantly, though, the EPA did not revoke the 1-hour standard in areas that continued to violate that standard, such as the HGB area. Thus, as the HGB area continues to struggle to meet the 8-hour ozone standard, it must also continue to deal with the “superseded” 1-hour standard.
So, what is the practical significance of Houston’s failure to meet the old 1-hour standard? The significance is that the federal Clean Air Act (FCAA) requires the state to impose a penalty fee upon major sources of ozone-producing pollutants [primarily volatile organic compounds (VOCs) and nitrogen oxides (NOx)] in any area that fails to attain the ozone standard by the applicable attainment date. This penalty fee, commonly known as the “Section 185 fee” after the principal section in the FCAA that establishes it, is required to be imposed for each calendar year after the attainment date until the area attains the ozone standard. The FCAA sets the fee at $5,000 per ton of ozone-producing pollutants emitted by a source during the calendar year in excess of 80% of an established “baseline amount” for each year beginning after the attainment date until the area is re-designated to attainment for ozone. The fees must be adjusted annually for inflation based on the Consumer Price Index.
To meet its responsibilities under the FCCA, the Texas Commission on Environmental Quality (TCEQ) proposed rules in December, 2009, designed to implement the required fee program for the HGB area. In the 2009 legislative session, the Texas Legislature gave express statutory authority for the TCEQ to collect these fees and place them in a dedicated account. The TCEQ was also appropriated all fees collected and directed to spend this revenue “to support activities associated with the state’s efforts to comply with federal air quality standards and to address other air pollution issues in the Houston-Galveston-Brazoria nonattainment area.” In 2009, the TCEQ estimated the amount of fees to be collected at somewhere between $73 and $125 million.
However, the TCEQ halted its efforts to implement the fee program when the EPA issued “guidance” in January, 2010, which stated that if a 1-hour nonattainment area is attaining either the 1-hour or the 1997 8-hour ozone standard, the area sources of ozone precursors would not be obligated to pay the fee. Accordingly, since the HGB area met the 1997 8-hour ozone standard in 2009, the TCEQ placed its proposed rules on hold, and in May, 2010, requested a determination from the EPA that a fee program is not required for the HGB 1-hour ozone nonattainment area because ambient monitoring data has indicated measured attainment of the 1997 8-hour ozone standard.
Now, this saga has taken another confusing turn in that the EPA advised the TCEQ in July, 2011, that it was unable to approve TCEQ’s fee termination determination request, stating that its previous Guidance had been vacated by the District of Columbia Circuit Court of Appeals. The EPA also said the HGB area has not attained the 1-hour standard and, although tremendous progress in reducing ozone has been made, preliminary data for 2011 indicated that the Houston area was not monitoring attainment of the 1997 8-hour ozone standard.
Likely as a result of all the confusion, the budget authorization for the TCEQ to spend any fees collected to support efforts to comply with federal air quality standards and, importantly, to address other air pollution issues in the HGB area, did not get carried forward for the 2012-2013 biennium. Even though the statutory authority to collect the fees and deposit them into a dedicated account still exists, there is no appropriation to TCEQ of any fees collected, and thus no authority to spend them. The TCEQ must now go back to the Legislature and again get express authority to spend the fees, as was done in 2009. Unless and until the Legislature expressly appropriates any fees collected to the TCEQ, they will simply accumulate in the dedicated account. Of course, the Legislature doesn’t convene again until January, 2013, and then any action taken will not be effective until September 1, 2013, unless the Legislature makes an emergency appropriation of such fees during the session, which is highly unlikely.
However, if all this confusion gets settled so that the fees are collected and the TCEQ has authority to spend them, significant opportunities for greater efforts to clean up the air in the HGB region can result in the end. The TCEQ's original rules would have applied to industrial sites that release 25 tons or more of ozone-forming pollutants each year, estimated to be as many as 300 oil refineries, chemical plants and other large industrial facilities in the region. It is estimated that fees coming from such facilities could generate as much as $125 million annually for programs to improve air quality in the HGB area, starting with 2008 and continuing each year until the area reaches attainment of the 1-hour ozone standard.
As it currently stands, the TCEQ is re-evaluating its previously proposed penalty fee program before moving forward, and it is unclear how the program will be implemented now. Importantly, though, if the fee collection program is not implemented in Texas, then federal law provides that the EPA is required to collect any unpaid fees, with interest, and deposit them in the federal treasury. Obviously, any fees thus collected by the EPA would not be available to Texas and accordingly would not go towards improving air quality in the HGB region.
Ozone continues to be a serious health threat, impacting children, the elderly, those with respiratory ailments, and those who work outdoors, yet the HGB area has consistently failed to meet ozone standards in the past. In 2004, Houston passed Los Angeles as the city having the worst ozone levels in the U. S., but “improved” in 2008 to the 4th worst in the nation, just behind Los Angeles, Bakersfield and the San Joaquin Valley. Despite significant improvements in air quality over the years, the HGB is barely meeting the 1997 8-hour standard of 85 ppb. Now, the new ozone standard is 75 ppb and may go even lower in 2013 after a scientific review required by the FCCA.
Millions of dollars annually collected through the required fee program will create significant opportunities to support efforts in Texas to comply with federal air quality standards. If those same millions of dollars are likewise available to address air pollution issues in the HGB area, those who live and work in the area and bear the burden of ozone air pollution may likely reap some very positive benefits from Houston’s failure to meet the ozone standard.
Further information on the Section 185 fees and the status of program implementation can be obtained on the TCEQ website at .
Keystone Pipeline Side-tracked But Not De-railed
Faced with a February 21 deadline imposed by Congress, President Obama rejected, at least temporarily, a permit to allow a Canadian energy company, TransCanada Corporation, to build and operate the $7 billion, 1,700-mile Keystone XL pipeline. The proposed pipeline would carry over 700,000 barrels a day of tar sands crude from Alberta, Canada across six states in America’s heartland to the Texas Gulf Coast.
Tar sands, also known as oil sands, are a combination of clay, sand, water and a heavy, black viscous oil called bitumen. Tar sands can be mined and processed to extract the oil-rich bitumen, which is then refined into oil. The bitumen in tar sands cannot be pumped from the ground in its natural state, but must be mined, usually using strip mining or open pit techniques, or extracted by using steam injection, solvent injection or other underground heating techniques. Because it is so thick, bitumen also requires dilution with lighter hydrocarbons before it can be transported by pipeline and refined. About one barrel of oil is produced for every two tons of tar sands.
In rejecting the application, President Obama stated that the deadline for the decision was “rushed and arbitrary” and had "prevented a full assessment of the pipeline's impact". As a practical matter, the President really had no final pipeline route to approve. As originally proposed, the pipeline would have crossed the Sandhills region of Nebraska, a large wetlands ecosystem, and the Ogallala Aquifer, one of the largest fresh water aquifers in the world, spanning eight states, providing drinking water for two million people, and supporting $20 billion in agriculture. Concerned that a major leak could ruin this vital water supply and devastate the mid-western U.S. economy, the State of Nebraska opposed the pipeline’s original route, and asked TransCanada to reroute the pipeline. TransCanada agreed to do so and has been working towards an acceptable pipeline route through the state. The President’s decision has temporarily halted the environmental-review process underway in Nebraska for a new pipeline route, and it is presently unclear if the permit process there must start over or if the parties can continue working on a route that takes the pipeline away from the environmentally sensitive region.
The President’s decision was praised by environmentalists, but decried by the U.S. oil and gas industry and Republican presidential candidates and lawmakers, who had pushed the President to approve the project as a way to create jobs. TransCanada claims that the project will create 20,000 jobs and pump $7 billion into the U. S. economy. However, an independent study conducted at Cornell University found that the project would result in only 2,500 to 4,650 temporary construction jobs, and the State Department likewise reported that the pipeline would create only 5,000 to 6,000 temporary construction jobs during the two years needed to build the pipeline.
Pipeline proponents also argue that it will allow the U.S. to increase its energy security by reducing dependence on foreign oil. They also argue that if this Canadian oil doesn't reach the Gulf through an environmentally friendly buried pipeline, the alternative is oil being brought in by tanker, a mode of transportation that produces higher greenhouse gas emissions and puts the environment at greater risk. However, in 2011, it was reported that the U.S., for the first time since 1949, had become a net fuel exporter. This fact has led many to question the validity of the energy security argument since it appears that additional Canadian tar sands oil processed in the Gulf region is likely to be exported to foreign nations.
On the environmental front, even if the pipeline is rerouted to avoid the environmentally sensitive Sandhills region of Nebraska and the Ogallala Aquifer, both the mining and processing of the tar sands still involve a variety of environmental impacts, such as global warming and greenhouse gas emissions; disturbance of mined land; impacts on wildlife and air and water quality; and the consumption of great amounts of energy and water.
Texas has a strong interest in the pipeline’s fate. The proposed route runs the length of East Texas from the Oklahoma border to refineries in Houston and Port Arthur. Its construction and presence in the state means jobs, temporary and long-term, and thus positive economic impacts. However, as with Nebraska, there are significant environmental concerns here in Texas. Chiefly, the proposed pipeline route crosses the Carrizo-Wilcox Aquifer, which supplies water to 60 Texas counties and millions of Texans.
So, where does the pipeline stand as a result of all this? Unquestionably, the Keystone XL pipeline is not dead. First, immediately after the President’s action, legislation was filed that would take approval authority over the pipeline away from the President and place it with the Federal Energy Regulatory Commission. That legislation, which would also require the permit to be approved for construction within 30 days of a new application, has already been scheduled for a hearing before the friendly House Energy and Commerce Committee’s energy and power subcommittee.
Finally, and importantly, even in rejecting the application, the President invited TransCanada to reapply once a final route for the pipeline has been established, and the company has promptly indicated that it will do so. The company has also indicated that it may build U.S.-only pipeline segments, which won't require federal approval, and apply later for permission to connect the pipeline to Canadian oil sands, thus completing it as originally proposed. After a thorough review of TransCanada’s final proposals for the pipeline and all attendant risks and benefits, in a less politically charged setting than presented by the current national election cycle, it is highly likely that the Keystone XL pipeline ultimately will be approved and built. After all, the Keystone pipeline extends and expands an existing pipeline --- one that is part of approximately 2.5 million miles of pipeline infrastructure that already crisscross the nation, moving essential the same type of products. And, defeating the pipeline won’t stop the production of Canadian tar sands, nor force a move to alternative energy sources here in the U. S.
