Texas swings back at EPA in permitting dispute

The permitting battle between U.S. EPA and the Texas Commission on Environmental Quality escalated again yesterday, with Texas filing a federal court challenge to EPA's efforts to override the state's air pollution rules.

In question is Texas' 15-year-old "qualified facilities" program. EPA says the program fails to comply with the Clean Air Act and "allows companies that have Texas-issued air permits to avoid certain federal clean-air requirements including public review when they modify their plants." Texas contends that federal regulators who rejected the program in March were required to act on the state's rules within one year.

Texas Attorney General Greg Abbott (R) filed yesterday's petition with the 5th U.S. Circuit Court of Appeals, asking the New Orleans-based court to review EPA's decision. Described by Abbott's office as an effort to "defend the state's legal rights and challenge improper overreach by the federal government," the legal move is the latest riposte in an ongoing duel between regulators in Austin and Washington, D.C.

The federal Clean Air Act gives states authority to craft their own air permitting programs, prompting criticism from TCEQ officials who feel that EPA has been heavy-handed in its oversight of permits for pollution sources such as power plants and refineries.

"Unfortunately, the federal government -- after failing to act on our rules for some 15 years -- has decided that instead of working with us, they would just tell us how to run our state-delegated program, or else," TCEQ Commissioner Buddy Garcia said (Greenwire, June 7).


Al Armendariz, administrator of the EPA Region 6 office in Dallas, said last month that federal regulators would take over air permitting in Texas if the state's program was not brought into compliance with the Clean Air Act. The agency then backed up its threat by revoking the TCEQ permit for a Corpus Christi refinery -- the second largest in Texas -- and threatening to do the same to 39 other permits.

EPA then tried to cut out the middleman last week, offering a measure of legal immunity to businesses that undergo a third-party air pollution audit. Companies that might have avoided review under Texas' qualified facilities program would be protected from civil prosecution but would be required to add any emissions-control equipment needed to meet air pollution standards.

"This is not something that's going to be required of companies in Texas. What we've done is put together what we believe is a tool that companies can use to fix their permits and to get them consistent with the Clean Air Act," Armendariz told the Houston Chronicle last week, saying the audit offer would let companies "get out of the uncertainty they're all under" (Greenwire, June 11).

Federal regulators have also attacked TCEQ for the agency's use of "flexible permits," which establish emissions limits for clusters of facilities rather than individual smokestacks. Federal regulators argue that the permitting system violates the Clean Air Act by allowing plants to produce more air pollution than allowable in any other state.

Lawmakers in Texas say those claims are not borne out by the numbers. According to statistics touted by Texas lawmakers such as Gov. Rick Perry (R) and Rep. Pete Olson (R), the state beat national averages over the past decade by achieving a 22 percent reduction in ozone emissions and a 27 percent cut in nitrogen oxide emissions.

"If the EPA moves to take control of a permitting process that the Clean Air Act allows to be delegated to the states, it will kill thousands of Texas jobs and derail a program that has improved Texas air quality considerably. If the federal government is to regulate sensibly, it must use common sense and consider the practical implications of its actions," Olson wrote earlier this month in a letter to EPA Administrator Lisa Jackson. "America needs Houston's refining industry to meet our energy demands. That fact is not going to go away anytime soon."

Click here to read yesterday's petition.

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