Regional Reports: Region 6

Elizabeth Hurst
Vial, Hamilton, Koch & Knox, LLP
Dallas, Texas
Elizahurst@aol.com

MACT Hammer

The states comprising Region 6 (Louisiana, New Mexico, Arkansas, Texas, and Oklahoma) are encouraging the owners and operators of any major source to submit a Part 1 application to implement case-by-case MACT pursuant to Section 112(j) of the federal Clean Air Act. At this stage of the "MACT Hammer," no one is entirely sure what specific pieces of equipment are covered, so states are encouraging companies to submit a Part 1 application for all sources that they are unsure of its application and ask for an applicability determination. Oklahoma, New Mexico, Texas, and Louisiana are using their own application forms that are similar to the EPA proposed Part 1 Application form. Arkansas is not developing a specific form, but is asking that the sources' Part 1 MACT application include: (1) the name and address (physical location) of the source, (2) a brief description of the major source and an identification of the relevant source category, (3) an identification of the types of emission points belonging to the relevant source category, (4) an identification of any affected sources for which a §§112(g) [case-by-case] MACT determination has been made. Most of the states spent resources to get the word out about the application of the MACT Hammer. Louisiana even sent information to "minor sources," so that they could understand the application of the MACT Hammer. Also, most of the Region 6 states indicated that the applications were coming in slowly, but they expected the bulk of the applications to come in the week of May 12, 2002, just a few days before the May 15, 2002, deadline.

Significant Enforcement Cases

EPA, Region 6, and the Texas Natural Resource Conservation Commission (TNRCC) issued a joint enforcement action in January 2002 against ALCOA related to modifications to upgrade boilers and auxiliary equipment at its Rockdale power plant from 1983 through 1987. EPA and TNRCC allege that ALOCA spent $62 million on these modifications which led to an increase in NOx, sulfur dioxide, and particular matter emissions without obtaining an air permit. The TNRCC states that this ALCOA facility is the largest grandfathered facility in the state and has been for several years.

SIP Issues

On Jan. 14, 2002, various parties, including the Galveston-Houston Association for Smog Prevention (GHASP), the Galveston Bay Conservation and Preservation Association (GBCPA), Sierra Club, Environmental Defense, and others, filed a petition for review concerning the Houston-area State Implementation Plan (SIP). The Petitioners claim the Houston-area SIP is not adequate to protect public health. The parties are in the process of preparing briefs on the issue of the adequacy of the SIP to be presented to the U.S. Court of Appeals for the Fifth Circuit for review, with the Petitioners briefs being due to the court on May 24, 2002.

In the meantime, as part of the SIP for the Houston-Galveston and Dallas-Fort Worth areas, stricter vehicle testing began May 1, 2002. From the beginning, station operators expressed concern about obtaining the equipment to perform the testing in time for the start up of the program and the huge investment cost in purchasing the new testing equipment. At the start of the program, there were reports of testing station operators who had to shut down their businesses due to late equipment delivery by the manufacturer on time or equipment costs too high for operators to bear.

The stricter testing requires model year 1996 and newer vehicles to be subject to On Board Diagnostic-Second Generation (OBD II) testing and model years 1995 and older vehicles to be subject to Acceleration Simulation Mode (ASM) testing. OBD II is a computerized system on newer vehicles that monitors the emissions-related components and systems for suitable performance. The station operator plugs into the vehicle's computer system through use of a scan tool, which downloads stored information from the vehicle's computer to identify whether the emissions systems are working as they should. In an ASM test the vehicle is driven on a dynamometer, acting as treadmill stress test for vehicles. It provides a test of pollutants under more realistic driving conditions then the old tail pipe analyzer method.

There have been various concerns regarding the new OBD II test on 1996 and newer vehicles. Some 1996 model year cars were not built with the OBD II circuitry and thus cannot be tested on the OBD analyzers. Moreover, some of the very new vehicles have different testing protocols and the software for these protocols does not exist or is not reliable. In addition, problems have arisen with vehicles owned by heavy smokers, as the connectors become lined with smoke residue making the connection inadequate, thus giving a false reading of a failed test. The Texas State Inspection Association contends that other states now mandated to conduct emissions testing defaults to a dynamometer test if OBD II communication cannot be established with the vehicle and tried to persuade TNRCC to follow suit, but was initially unsuccessful in its discussions with the TNRCC. The concern of the Texas State Inspection Association is that a small percentage of the vehicles that are being tested by the OBD II method may be failing the test when the vehicle is not really out of compliance, but unresolved software and connection issues make it appear as if the vehicle has a problem. The owner of the vehicle may then have a problem trying to fix something that is not broken. Less then two weeks after the start of the program, the Texas Department of Public Safety (DPS) determined that vehicles failing the OBD test could be tested again using another method, while the agency figured out why the initial test showed failure.