EPA to Throw Out Texas Clean Air Permitting Programs

The U.S. Environmental Protection Agency (EPA) on Tuesday proposed to throw out three aspects of the Texas clean air permitting program because they do not meet requirements of the federal Clean Air Act. Rejections could include the state’s flexible permit system, which allows power plants, factories, refineries, and other industrial plants to exceed emission limits in certain areas as long as they stay within overall limits.

The federal agency said it plans to disapprove the Texas Commission on Environmental Quality’s (TCEQ) revised flexible permits program, a new type of New Source Review (NSR) program, because it does not meet NSR requirements (PDF) of the federal Clean Air Act. For similar reasons, the EPA also plans to throw out revisions to a program relating to the modification of existing qualified facilities (PDF), and to the Texas major and minor NSR state implementation plan (PDF).

Final decisions will be made by summer 2010 under a settlement with Texas businesses. “During that time EPA intends to work with the state and interested parties to quickly identify and adopt changes that will better protect air quality for all Texans,” the agency said.

“These notices make clear our view that significant changes are necessary for compliance with the Clean Air Act,” said Acting EPA Region 6 Administrator Lawrence Starfield, adding that plans were under way to bring together state regulatory officials, industry representatives, and community leaders to find ways to address concerns with the air permitting program. “Texas’ air permitting program should be transparent and understandable to the communities we serve, protective of air quality, and establish clear and consistent requirements.”

TCEQ Executive Director Mark Vickery contested that the state permitting rules were detrimental to the environment. “EPA is proposing to disapprove certain TCEQ air quality permitting rules that have proven to be extremely successful in the reduction of air emissions in Texas,” he said in an e-mailed statement. “The flexible permit program is one of several programs that have achieved large reductions in emissions, particularly from grandfathered facilities over the past 15 years.”

He said that now that the EPA had “placed its cards on the table,” TCEQ would deal with the agency’s “specific objections with [its] programs.” TCEQ hoped that the EPA would look at the programs’ achievements and continue to build on those successes, he said. “Our environment is too important to be a casualty of the bureaucratic process."

The EPA stressed in its statement on Tuesday that under the Clean Air Act, all states must develop plans approved by the EPA for meeting federal requirements to protect public health—and that its disapproval of Texas programs could be followed in other states.

Since the EPA approved Texas’ major clean-air permitting plan in 1992, the state has submitted more than 30 regulatory changes to the EPA-approved plan. In November 2008, the EPA issued an official notice proposing to disapprove some of the state’s public participation program. “The state’s proposed program provided inadequate opportunities for the public to review permit decisions in Texas, as compared with public participation opportunities provided by other states. EPA will issue its final decision on this proposal by November 30, 2009,” the agency said.

The EPA has less than one year to issue its final decisions on the three proposals, finalizing the qualified facilities revision, flexible permit revision, and NSR reform revision no later than March 2010, June 2010, and August 2010 respectively. It is also required to complete action on all 30 of the state’s proposed regulatory changes by Dec. 31, 2013.

Sources: EPA, TCEQ