Regional Reports: Region 6

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

Clear Skies Initiative. EPA is predicting that by year 2020, the Clear Skies Initiative will have helped reduce power generation plants' sulfur dioxide emissions by 26 percent, nitrogen oxide emissions by 65 percent and mercury emissions by 49 percent in Region 6 alone. In addition, EPA estimates that by 2020 the states comprising Region 6 will see approximately $6 billion in cost savings related to health issues. This includes 800 fewer premature deaths, 18,000 fewer asthma attacks, and 700 fewer hospitalizations and emergency room visits. The states comprising Region 6 are monitoring EPA's efforts in revamping NSR and the implementation of the Clear Skies Act of 2002. The following are some of the highlights of the activities occurring in Region 6.

Louisiana. The governor of Louisiana announced on July 22, 2002 that Dr. Hall Bohlinger will be the new secretary of the Louisiana Department of Environmental Quality (LDEQ). Dr. Bohlinger has been the deputy secretary of the LDEQ since 1996 and will replace John Givens, who is retiring after 36 years of service to the state of Louisiana.

On July 26, 2002, the regional administrator of EPA Region 6, announced the agency is recommending approval of Louisiana's Attainment and Transport Demonstration State Implementation Plan submitted by the governor of Louisiana in December 2001. The proposal contemplates extending the deadline for the Baton Rouge area to attain clean air standards by Nov. 15, 2005. The Plan will also include the withdrawal of EPA's June 24, 2002 rulemaking allowing the Baton Rouge area to maintain its current nonattainment status of "serious," and avoid the designation as a "severe" nonattainment area. By this extension, EPA hopes the pollution reduction measures will begin to work in the Baton Rouge area, as well as in southeast Texas, where there have been allegations that the ozone in this area is drifting to the Baton Rouge area, in turn, affecting its air quality.

LDEQ also announced on Aug. 13, 2002 that it has reached a settlement in an enforcement case with Georgia Gulf Chemicals & Vinyls, L.L.C. for allegations of noncompliance with air and water quality. The proposed settlement involves a $400,000 monetary penalty and $975,000 for instituting certain Beneficial Environmental Projects, such as the installation of improved technology to reduce emissions from a Cumene Storage Tank, contribution to the development of a Waterfront Park, and $30,000 in equipment to assist the Louisiana Police Department in responding to hazardous material releases.

New Mexico. New Mexico Environmental Department (NMED) has been working hard on the issues presented by the Regional Haze Rule Implementation and the impacts of implementation raised by the recent decision in American Corn Growers Association v. Environmental Protection Agency, 2002 WL 1040597 (D.C. Cir. 2002.) New Mexico is determining whether to develop a State implementation Plan (SIP) revision under either Section 40 CFR §51.309 or §51.308. 64 Fed. Reg. 35714 (July 1, 1999). As part of this process, NMED has formed a Stakeholder's Workgroup to assess the alternatives for developing a SIP to meet the requirements of the Regional Haze Rule and to assess the evaluation of the "reasonable progress" requirements. Many of the commentators to the proposed revisions to the Regional Haze Rule published in the Federal Register on May 6, 2002, 67 Fed. Reg. 30418, are also grappling with which compliance pathway is the best method for the states to achieve its goals under the Regional Haze Rule. An excellent source of information regarding the Regional Haze Rule can be found at the home page of the Western Regional Air Partnership (http://www.wrapair.org).

On June 12, 2002, the NMED announced a settlement resolving two compliance orders issued against Duke Energy Field Services, L.P. alleging carbon monoxide and nitrogen oxide emissions exceedances at several compressor stations and possible violations of new source review regulations. As part of the settlement, Duke Energy has agreed to replace certain engines and add emission controls, which will result in overall emission reductions of around 5,700 ton per year of nitrogen oxides and 1,500 tons per year of carbon monoxide.

Texas. Two managers formerly with the Huntsman Petrochemical plant in Port Arthur, Texas were sentenced on Aug. 15, 2002 to three (3) years in prison each for three counts of operating a tank in violation of federal law, one count of conspiring to withhold information on emissions releases and one count of filing a false statement with the U.S. Environmental Protection Agency. One of the men convicted was a former employee of the Texas Air Control Board. These are the first individuals to be convicted of violating the Clean Air Act in Texas.

The Texas Natural Resource Conservation Commission (TNRCC) also approved an agreed administrative order requiring Holcim (Texas) Limited Partnership, a cement manufacturing plant, to pay a fine of $223,125 for alleged air violations. The Order involved a Supplemental Environmental Project, which was a reduction in the amount of actual cash paid for the fine based on the company's agreement to contribute a significant portion of the penalty for the purchase of emergency equipment by the local fire department.

Texas continues to have its ups and downs with the State Implementation Plans (SIPs) for the Houston/Galveston and Dallas/Fort Worth areas. On July 25, 2002, EPA announced that the lack of funding for the Texas Emission Reduction Program (TERP), passed as part of Senate Bill 5 by the 77th Texas Legislature in May 2002, may hold up the final approval of the Dallas Fort Worth SIP. EPA further stated that this lack of funding to the TERP causes the Agency to propose that the approved severe area clean air plan for the Houston/Galveston area is not being implemented appropriately. The major source of funding for TERP was to be a tax on out-of-state vehicle registrations even though this method of taxation had already been struck down by other states. This fee was slated to raise the approximately $100 million of the $133 million needed for the implementation for the emission reduction program. As was predicted, the tax was challenged in the courts and found to be in violation of the commerce clause of the Fourteenth Amendment to the United States Constitution and Article I. §3 of the Texas Constitution. H.M. Dodd Motor Co. Inc. and Autoplex Automotive, LP. v. Texas Department of Safety, et al., Cause no. GNID2585 (200th Judicial District Court, Travis County, Feb. 21, 2002).

The TNRCC also recently adopted some significant rule packages. On Aug. 7, 2002, the Agency adopted rules regarding the use of Compliance History, which, among other things, requires the agency to track and rank companies' compliance histories and describes the use of these histories in obtaining and maintaining permits to operate in Texas. Also, on Aug. 21, 2002, the agency adopted new rules regarding emissions involved in upset, maintenance, startup or shutdown events. The commission will determine when events are excessive and require facilities to reduce emissions from these events. The rule attempts to thwart a company from claiming it has not violated its permit, because the exceedance occurred during an upset or maintenance event and therefore should not count as a reportable event or a violation. Although some startup, maintenance, and upset events will still not be considered a violation, the rules try to better define these events so as to preclude the abuse of claiming an exceedance is one of these events when it is really a violation of the permit parameters. The rule requires reporting of emissions events to centralized database.

Note, the TNRCC will change its name to the Texas Commission on Environmental Quality (TCEQ) effective Sept. 1, 2002.