Understanding the Issues
TEXAS AIR PERMITTING PROGRAM BACKGROUND
The U.S. Environmental Protection Agency has begun taking what will be a series of actions to address problems with the way the State of Texas issues air pollution permits to industrial facilities, like power plants and refineries. At issue is whether or not Texas air permitting regulations meet federal Clean Air Act standards. As EPA recently stated:
"EPA believes these actions should be read in conjunction with each other because the permits issued under these State programs are the vehicles for a significant universe of the air emissions from sources in Texas and thus directly impact the ability of the State to achieve and maintain attainment of the N[ational] A[mbient] A[ir] Q[uality] S[tandards] and to protect the health of the communities where these sources are located."
74 Fed.Reg. 48480, 48483 (Sept. 23, 2009) (emphasis added).
For years, environmental, health, local government, and community groups have claimed that the Texas air permitting rules fail to meet minimum standards for public participation, transparency, stringency and enforceability. EPA's recent actions are the first steps on a long road towards bringing the Texas air permitting program - and thousands of Texas air pollution permits - into compliance with the Clean Air Act's requirements.
What Does the Clean Air Act Require?
The Clean Air Act requires states to adopt State Implementation Plans (SIPs) that provide for implementation, maintenance, and enforcement of the health-based ambient air standards, known as National Ambient Air Quality Standards. Such plans must include, among other things, enforceable emission limitations, adequate monitoring, and air permitting programs that meet specific Clean Air Act requirements. 42 U.S.C. 7410(a)(2). States are required to carry out and enforce their EPA-approved SIPs. Any changes to the SIP must be approved by EPA.
Where Did Texas Go Wrong?
The Clean Air Act requires EPA to approve or disapprove a state's SIP, or SIP revisions, within 12 months of their submittal. Over the past fifteen years, the Texas environmental agency, the TCEQ, has made numerous changes to its air permitting program. Many of these changes are regulations that were pushed by industry, over public objection, as ways to "streamline" the permitting process. Many of these regulations fail to live up to minimum Clean Air Act standards.
But instead of immediately disapproving these state regulations, as required by the Clean Air Act, EPA took no action at all. EPA neither approved nor disapproved them. TCEQ meanwhile began implementing and enforcing these regulations. As a result, the TCEQ has for years been issuing air permits under a permitting program that is markedly different from the one that EPA has approved as the federally enforceable Texas SIP. The legitimacy of thousands of permits issued pursuant to the non-approved Texas regulations are in question, and many industrial facilities that have relied on state regulations will need to obtain new authorizations that comply with federal requirements.
What Should EPA Do Now?
In August 2008, a consortium of Texas industries sued EPA in order to force the agency to act on many pending SIP submittals. As part of the settlement of that lawsuit, EPA agreed to a timeline to take final actions on these so-called "SIP gaps." EPA is required to act on Texas' individual SIP submittals in accordance with its settlement and consent decree with industry. But filling in the SIP gaps will not remedy a problem that has only been exacerbated by years of inaction. Therefore, EPA must:
- Issue a "SIP call" to Texas for its failure to implement and enforce the approved SIP. Such action will trigger deadlines and mandatory sanctions if Texas fails to correct its program.
- Respond to environmental groups' petitions, which raise several systemic permitting and enforcement problems that are not addressed in the EPA-industry settlement.
- Ensure that every new Texas permit, amendment, revision or renewal is issued in compliance with the federal Clean Air Act. If Texas continues to authorize emissions through non-SIP approved rules, EPA must take action to stop construction and operation of these facilities until they comply with federal law.
- Begin recalling the already issued Texas permits that are not in compliance with federal law (including all flexible permits, qualified facility authorizations, PCP standard permits, and others).
Texas Permitting Program Timeline:
- Early 1990s to current: Texas adopts and implements numerous air permitting program changes. Texas submits the rules to EPA. EPA takes no action on many of the rules.
- September 2007: EPA sends "fair notice" letter to 120 flexible permit holders warning that their permits were not issued pursuant to SIP-approved rules and that they are subject to enforcement action.
- January 2008: Environmental groups file Petition for EPA action regarding Texas PSD permitting program.
- August 2008: Industry group files Clean Air Act deadline suit for EPA's failure to act on Texas SIP submittals.
- August 2008: Environmental groups file second Petition for EPA action regarding Texas' failure to comply with its SIP-approved air permitting requirements.
- November 2008: EPA proposes limited approval/limited disapproval of Texas' air permitting public participation rules.
- January 2009: Environmental groups file supplement to Petition to EPA
- March 2009: EPA responds to request for information from State Senator Kirk Watson and outlines the EPA's identified deficiencies with Texas' rules and EPA's plan for acting on outstanding SIP proposals.
- May 2009: EPA meets with TCEQ, identifies problems, and suggests possible "fixes"
- July 2009: Industry group and EPA settle deadline suit and agree to timetables for acting on outstanding Texas SIP provisions.
- September 8, 2009: EPA proposes disapproval of Texas' flexible permit, qualified facility and NSR Reform rule packages.
For questions, contact these experts:
Kelly Haragan
Director, Environmental Law Clinic, University of Texas School of Law
512-587-9318
kharagan@law.utexas.edu
Ilan Levin, Senior Attorney, Environmental Integrity Project
512-637-9479
ilevin@environmentalintegrity.org
Neil Carman, Clean Air Program director, Sierra Club Lone Star Chapter
512-288-5772
neil_carman@greenbuilder.com
Elena Craft, M.S., Ph.D., Air Quality Specialist, Environmental Defense Fund
(512) 691-3452
ecraft@edf.org