EPA rejects 'flexible' permitting in Texas

U.S. EPA has "disapproved" the Texas Commission on Environmental Quality's system of "flexible" air pollution permits, the agency announced today, adding to the conflict between federal officials and regulators in the Lone Star State.

It is the second time this year that federal officials have rejected a Texas air permitting program, rankling state regulators and Gov. Rick Perry (R), who say that federal regulators are overreaching their authority under the Clean Air Act and ignoring the fact that the state's programs have produced significant air quality improvements.

Environmental and public health groups claim the flexible permitting program has allowed higher pollution levels in Texas than would be acceptable in other states. They say the state's policy of allowing a single emissions cap for a group of units rather than regulating them in smokestack-by-smokestack fashion has led to dirtier air for Texans.

With today's decision, TCEQ must now rework the permitting system or run the risk of having federal officials take over. With more than 100 of the state's largest polluters currently operating under flexible permits, federal regulators intend to examine "how to convert flexible permits into more detailed permits," EPA said in a statement today.

"Today's action should be a wake-up call for Texas. This is real now," said Larry Soward, a Perry appointee who served as TCEQ commissioner until last year. "There is a chance to resolve the differences between TCEQ and EPA, but it will take genuine cooperation. Everyone needs to leave their politics and rhetoric at the door and work together to protect Texans' health."


According to figures touted by Perry and state regulators, Texas beat national averages over the past 10 years by achieving a 22 percent reduction in ozone emissions and a 27 percent drop in nitrogen oxide emissions.

State regulators approved revisions to the flexible permitting program earlier this month "in an effort to address alleged deficiencies" pointed out by federal regulators, TCEQ said in a recent statement. The agency then sued EPA over its rejection of the state's "qualified facilities" program (Greenwire, June 15).

"We are defending our flexible air permitting program because it works," TCEQ Chairman Bryan Shaw said earlier this month. "EPA is not able to demonstrate how our program is less protective of the environment than the bureaucratic federal approach. EPA's philosophy of more bureaucracy by federalizing state permits will not lead to cleaner air, but will drive up energy costs and kill job creation at a time when people can least afford it."

EPA has already started bypassing TCEQ while leaving the state agency's air quality program in place. Al Armendariz, administrator of the EPA Region 6 office in Dallas, has revoked three of TCEQ's air pollution permits, threatening to take over dozens more. And earlier this month, the agency unveiled a proposed program that would allow permit holders to ensure Clean Air Act compliance through voluntary third-party audits (Greenwire, June 16).

In exchange for making any pollution-control upgrades deemed necessary during the audit, companies would get a promise from EPA not to pursue any civil liability claims for past violations.

Environmental groups are happy to see federal officials pressuring state regulators, though they do not foresee much progress "until TCEQ faces up to the problem of having an air pollution program that doesn't meet some of the federal air pollution requirements," said Ilan Levin, a senior attorney for the nonprofit Environmental Integrity Project.

"We have a lot of concerns about the audit program," Levin added. "It's a slow process, but we also understand that we need to be pragmatic about moving forward and that the audit program is a compromise position. We're hopeful that EPA finalizes that audit proposal, and we're hopeful that some Texas facilities -- power plants, refineries, chemical plants, cement kilns -- line up and sign up for this self-audit."

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