The Environmental Protection Agency said this week it will “correct” the passing designation for El Paso’s air quality due to the impact the city has on air pollution levels in Doña Ana County.
The EPA designates an area with “attainment” if it has a passing air quality grade, and labels an area as “nonattainment” if the area violates pollution standards.
The agency’s reversal on the grade it gave El Paso County in 2018 is the culmination of a 3-year-old lawsuit brought by cities and counties around the nation that disputes the federal agency’s pollution grades under the Trump administration. A federal appeals judge ordered the EPA in July 2020 to reexamine grades for several counties, including Doña Ana and El Paso.
Attorney David Baake, who represents the local Sierra Club, Sunland Park and Las Familia Unidas del Chamizal in the lawsuit against the EPA, said the decision is a first step in addressing local air pollution.
“I think the public’s perception is that if you get a failing grade from the EPA, that’s not something you want,” he said. “But actually, it is something we want, we want the EPA to be relying on the data, we want people to be working to fix the problem.”
In a 21-page technical support document, the EPA said the decision to “correct” the passing grade it gave the county’s pollution levels in 2018 is based on data collected from 2014 to 2016, because the agency didn’t properly account for the city’s pollution impact on neighboring Sunland Park at the same time.
“Despite the lack of violating monitors, El Paso County contributes to the violation in Doña Ana County and, therefore, the EPA intends to expand the existing nonattainment area (to) include El Paso County,” the report states.
The report describes a five-step process looking at air quality, population, emissions, geography and weather patterns affecting an air quality monitor in Sunland Park that showed pollutants exceeding federal standards.
The report said the EPA previously attributed poor air quality in New Mexico to emissions from Ciudad Juárez. But in the reevaluation, the agency found “demonstrable evidence” that in more than half of the high pollution days studied, the emissions flowed through El Paso County.
“The existence of international emissions, though relevant and greater, cannot discount that contribution,” the report said.
The final decision, according to a letter the EPA sent to Gov. Greg Abbott, is expected in the fall after a 120-day period allowing the state an “opportunity to demonstrate why any proposed modification is inappropriate” using data from 2014-2016, when the designation was determined.
Abbott’s office did not respond to requests for comment.
Baake said he was optimistic that the limits to the objection requirements would mean a faster decision for the EPA.
“I don’t see what (Texas) is going to be able to say, based on the existing record, that would change the outcome,” Baake said.
The pollutant at the center of the lawsuit is ozone, a key ingredient in smog and a health hazard when it’s near the ground, especially to people with asthma, children and the elderly. Ozone occurs when emissions from cars, refineries, power plants and industrial boilers react with the sun’s heat.
In 2020, the American Lung Association ranked the El Paso-Las Cruces area as the 13th worst in the nation for ozone pollution.
Baake said both Doña Ana and El Paso counties are “trending in the wrong direction” on air quality, citing Texas monitor data that showed El Paso had seven violations of federal standards in 2019 and 2020.
How the EPA got here
This designation process started in 2015, after the EPA strengthened the rule around ozone emission levels that required cities and counties to stay below the new federal contamination standard. A violation occurs if ozone levels exceed 71 parts per billion in the air for longer than eight hours. After that rule change, the 1970 Clean Air Act required the agency to evaluate cities and counties across the country to determine if pollution levels were above or below the new standard, a process the agency finished in 2018.
According to the report, the state of Texas flip-flopped on its position on El Paso’s designation, first telling the EPA in 2016 the state recommended designating the area as non-attainment. But Texas also requested an exemption of some of 2015’s data, saying wildfires in the area impacted monitors, which the EPA allowed. Texas updated its recommendation in 2017, asking for El Paso to pass with an attainment designation, which the EPA granted.
The Clean Air Act only requires the agency to update the air quality grades when a new standard is introduced: there’s no requirement to check back in. That made joining the lawsuit in 2018 more urgent, Baake said.
“If we didn’t get in under the 2018 designation, we weren’t ever going to get in,” he said.
Baake said places can be “locked in for life” with a designation because there isn’t a mechanism for the EPA to reevaluate air quality grades without major changes.
The Newman 6 connection
The ruling could have an impact on a project to build a natural-gas-fired power plant in Northeast El Paso. The Newman 6 plant is already at the center of pushback from area cities and environmental groups.
El Paso Electric is still waiting on the Texas Commission on Environmental Quality to issue a permit allowing for changes to Newman 6’s air permit. Environmental groups and members of the public requested a public hearing through the State Office of Administrative Hearings that oversees conflict with state agencies like TCEQ, set for next week.
Austin-based Administrative Law Judge Rebecca Smith will hear arguments from environmental groups and residents in Chaparral, New Mexico, during a June 3 video conference on the permit.
If the state is delayed in granting El Paso Electric the permit, Baake said the entire process might be upended if the EPA makes a change to the air quality grade. A change to a nonattainment designation will place limits on building new infrastructure that would increase ozone pollution, according to state law. That could place Newman 6 on the chopping block.
“I’m cautiously optimistic that this decision would, you know, could cause them to cancel the plan for Newman 6, or, at the very least, send it back to the drawing board,” Baake said.
El Paso Electric spokesman Javier Camancho said the Newman 6 project would eliminate ozone precursors by 95% after the retirement of older generators.
“El Paso Electric is continuing through the air permit approval process for Newman Unit 6. We stand by the merits of the permit application and do recognize that the TCEQ made no changes to the draft permit based on the public comments they received,” Camancho said. “EPE will continue to meet all regulatory requirements and work with all parties to do so.”
Cover photo: A brown haze hung over El Paso and Ciudad Juárez earlier this week, a common site on warm mornings. (Robert Moore/El Paso Matters)
Disclosure: El Paso Electric is a financial supporter of El Paso Matters. Javier Camacho, an El Paso Electric spokesperson, is a member of the El Paso Matters board. Donors and board members do not have input in El Paso Matters editorial decisions and policies.