Public Citizen Comments to the Texas Commission on Environmental Quality Regarding the Section 185 Fee Program
Background
The Federal Clean Air Act requires the Texas Commission on Environmental Quality (TCEQ) to implement a Section 185 Failure to Attain Fee for major stationary sources of volatile organic compounds (VOCs) and nitrogen oxides (NOx) located in severe or extreme ozone nonattainment areas, if the area fails to attain the National Ambient Air Quality Standard for ozone by the attainment date.
Revisions to the State Implementation Plan must include procedures for the assessment and collection of a penalty fee against major source polluters. If the state does not impose and collect the fee, the Environmental Protection Agency (EPA) is required to impose and collect the fee with interest, and the revenue is not returned to the state.
To: TCEQ Chairwoman Brooke Paup and Commission Members
From: Kathryn Guerra, Public Citizen, kguerra@citizen.org
Re: TCEQ Section 185 Fee Program
The commission’s proposed Section 185 Fee Program, specifically, the Alternative Fee Program, is a complex machination that accomplishes nothing and fails its only goal – to improve the air quality in the Dallas-Fort Worth and Houston-Galveston-Brazoria non-attainment areas that communities not only badly need, but that the federal Clean Air Act requires.
Congress established the National Ambient Air Quality Standard to protect the public health. This program is supposed to be a tool to bring severe and extreme non-attainment areas into compliance. Instead, the TCEQ is proposing is a paper game – utilizing publicly-funded TERP money from mobile sources of emissions to offset or pro-rate the penalties of private corporations and industry, specifically, major stationary sources of NOX and VOCs in severe non-attainment areas of Texas. The commission wants to make Texas drivers pay a fee owed by major industrial polluters.
I believe, as others have previously commented, that the proposed Alternative Fee Program violates the Federal Clean Air Act’s directive and puts the state at risk for not only losing delegation of the program, but also the millions of dollars that the TCEQ projects it would create and that could be reinvested into the communities impacted by poor air quality.
There are a number of other issues with the proposal, including the proposed basing of the baseline emissions on aggregation of precursor emissions, which the EPA has already stated in comments that it will not approve. The TCEQ should also clearly define the Attainment Date consistently with EPA guidance so that proper fees are assessed for the appropriate periods of time, without delay.
Our state’s air quality isn’t going to fix itself. We need the commission to implement the Clean Air Act programs as congress intended.
It is the position of Public Citizen and we respectfully request that the TCEQ not proceed with this proposal and instead propose the Section 185 Fee Program as intended – to assess and collect fees from major sources of NOx and VOC pollution to improve air quality and protect the health of residents in these communities.
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On May 1, 2025, the TCEQ Commissioners approved the publication of the proposed rulemaking and intends to open a public comment period on this rule proposal from May – June 2025. Once posted, public comments can be made from the TCEQ’s Rule Proposals website.