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Texas is turning up the heat against the Environmental Protection Agency over its unilateral rejection of the state’s 16-year-old program for flexible air-pollution permitting.
At issue is EPA’s decision July 15 to reject Texas’ Flexible Permits Program, which was submitted for EPA approval in 1994 and has been in place since then. (EPA did not act on the plan until compelled by a lawsuit to do so.)
On July 26, Texas Attorney General Greg Abbott filed suit in the U.S. Fifth Circuit Court of Appeals to block the decision, saying the agency had improperly overreached its authority.
Last week, Abbott threw new fuel on the fire: a blistering 63-page brief defending the state’s program.
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| Texas State Attorney General Greg Abbott is leading the state’s charge against EPA. |
‘Arbitrary, Capricious’
“EPA’s disapproval of Texas’s Flexible Permits Program is arbitrary, capricious, in excess of its authority under the federal Clean Air Act, and otherwise not in accordance with the law,” the brief says.
“EPA’s disapproval demonstrates its fundamental misunderstanding of the program’s scope, purpose, and requirements, all of which are designed to protect air quality consistent with the federal Clean Air Act, as well as the Texas Clean Air Act.”
National Repercussions
The case could have national repercussions. More than a dozen business, chemical, manufacturing, environmental and oil and gas groups, including the Chamber of Commerce, Environmental Defense Fund and the National Association of Manufacturers, have weighed in on the case, formally or informally.
Moreover, EPA’s critics smell blood, as the agency has recently sought repeated delays in implementing other controversial air-quality standards.
Flexible Permitting
In the original action, Abbott noted that the Texas program was established in 1994—years before EPA addressed the issue—to try to incentivize grandfathered operations to voluntarily enter into the state’s air permitting and environmental regulation program.
The program allowed participants to allocate emissions on a facility-wide basis rather than by source point in exchange for emissions regulations.
The EPA considers the program too lax, but neither EPA nor the Texas Commission on Environmental Quality (TCEQ) has the authority to impose controls on—or require permits for—the grandfathered facilities, the suit said.
Minor New Source Review
Moreover, the program was designed to address minor new source pollution only, not major new source pollution, Texas notes.
“Flexible Permits cannot be used to authorize major new construction or major modifications of existing facilities; such authorizations are obtained through Texas’s major new source review rules,” the suit says.
Although operators may make certain changes without amending the permits, they do not authorize any change that would result in:
- Any increase in actual emissions at facilities not covered by the permit;
- Any emission increase exceeding the limitations specified in the permit;
- Any representation made in the permit application; or
- Any other general or special condition of the Flexible Permit.
Not until 2002 did EPA issue its cap-based Plantwide Applicability Limit (PAL) Program, a major new source review program that differed markedly from the Texas program. By then, Texas argued, its own program had “reduced emissions and complied with all state health standards, as well as all applicable federal Clean Air Act requirements.”
Fundamental Misunderstanding
Texas argues that EPA fundamentally mistakes the FPP “for a substitute major new source review program, and, accordingly, disapproves of the program as a major new source review state implementation plan revision.”
This interpretation persists, the suit says, “despite TCEQ rules, regulatory history and guidance that unambiguously require applicability determinations for major new source review.”
The federal agency also “fails to give proper deference to” the state’s interpretation of the rules “as the law requires-and instead EPA imposes its own mistaken interpretation,” Texas argues.
Ironically, the suit adds, EPA also disapproves of the program as a minor NSR state implementation plan revision, based in part on its conclusion that the program is a substitute major NSR program.
‘Various Hypothetical Concerns’
EPA exceeds the federal Clean Air Act’s requirements regarding minor NSR by imposing its own policy preferences, based on criteria “that are found nowhere in the Clean Air Act, EPA’s regulations for approval of minor new source review program revisions, or even relevant EPA guidance.”
For example, it says, “EPA would require specific and detailed monitoring, recordkeeping, and reporting rules where general rules suffice under the Act, regulations, and guidance.”
Finally, the suit says, EPA bases its disapproval of the program “on complaints that ignore the explicit program rules.” For example, EPA complains that it is difficult to determine which facilities are covered by the permit "when the rules require such information to be identified" in both the application and the permit.
“EPA’s various hypothetical concerns do not survive its duty to rationally connect available data with its decision to disapprove the program when those concerns have failed to materialize during the program’s 16 years,” the state argues. “EPA’s failure to explain its disapproval in connection with the program’s 16-year history is arbitrary and capricious.”
The EPA has not yet responded to the Texas brief.
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