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Industry Smells Armendariz in EPA Barnett Rule

Controversial former Environmental Protection Agency (EPA) Region 6 Administrator Al Armendariz left his job at the end of April, but his fingerprints are on an agency rule calling for stricter ozone standards that would affect Barnett Shale natural gas interests in Wise County, TX, energy companies and industry groups said.

Late last year EPA said it was considering adding Wise and Hood counties in North Texas to the area's designation for ozone nonattainment (see NGI, Dec. 19, 2011). The agency's rule added Wise County to the nonattainment area but not Hood County. Among those seeking reconsideration at EPA and/or appealing in court the Wise county finding are Devon Energy Corp., the Texas Pipeline Association (TPA), the Gas Processors Association (GPA), the Texas Commission on Environmental Quality (TCEQ) and local governments.

Requests for partial reconsideration of EPA's "Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards" were filed with the agency last week as were petitions for review in the U.S. Court of Appeals for the District of Columbia.

"Nonattainment for Wise County is wrong and could set a precedent with national implications," Devon spokeswoman Cindy Allen said. "Reconsideration by the EPA could render moot any court action that also was filed by the various organizations. The petitioning organizations hold that EPA's inclusion of Wise County in the Dallas-Fort Worth [DFW] nonattainment area relied on a methodology that differs from the other EPA regions and is not based on sound science."

Wise County is in the heart of the Barnett Shale; it is immediately north of Parker County, which sits above Hood County. Devon is one of the most active companies in the county. "...[W]e urge the agency to reconsider the Wise County, TX, nonattainment designation anew now that EPA has made fundamental changes to the leadership of Region 6, which had primary responsibility for the designation recommendation," wrote an attorney for Devon in the EPA request. "The record demonstrates that former EPA Region 6 Administrator Dr. Al Armendariz was the decision-maker who recommended designating Wise County as being in nonattainment."

Armendariz resigned following public outcry over his remarks supporting a "crucify them" approach to enforcement of the oil and natural gas industry (see NGI, May 7). Devon's lawyer said he did not intend to rehash the controversy but wrote that "we have serious concerns that Dr. Armendariz did not bring the spirit of pure objectivity and lack of bias that is the sought-after hallmark of good government and defensible agency action."

In the 27-page request cited a number of alleged faults with EPA's modeling of emission trends in the affected counties. So did a shorter joint filing by TPA and GPA, which also mentioned Armendariz's influence. "...[S]ource apportionment modeling was a significant factor in EPA's final decision, but such modeling was unavailable during the comment period, and therefore GPA and TPA had no notice that EPA would use such modeling and no opportunity to provide comments to the agency on the use of such modeling," the associations said.

GPA and TPA wrote before the final rule was issued that the approach taken by Region 6 in the analysis of nonattainment in the counties was "fundamentally different from, and far more exacting than, the approach employed by other regional offices...[O]ne could have been left with the impression that Region 6 for some reason was determined from the beginning to add Wise County to the DFW nonattainment area, regardless of the facts," they said in their latest EPA filing.

The associations asserted that Hood and Wise counties are quite similar and that if Hood is designated as an attainment area, then Wise should be, too. "For example, the population, population density and population growth rates for both counties are comparable," they said. "Emissions inventories for NOx [nitrogen oxide] and VOC [volatile organic compounds] from the two counties are comparable. Traffic data from the two counties are comparable. And [wind modeling] and source apportionment modeling show comparable results."

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