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TX Steps Up Attack in EPA Permit Suit

Tuesday, December 14, 2010

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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.

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.


Tagged categories: Air quality; Chemical Plants; EPA; Regulations

Comment from Joe Lyons, (12/15/2010, 9:45 AM)

For as long as I can remember the epa has had the wool pulled over its eyes. We can make zero voc paints however epa is not aware of this. Because it cost so much money to re set coatings the way paint ind. works they simply take the low road and say they cant get lower in vocs than X. The industry is not willing in 25 years to swallow any bullet, especially where epa is concerned. Clinton signed in late 90s a bill that said paint could be made at certain vocs. He was not told the truth then and the ind. still doesnt tell truth. While epa is a main pain to industry leaders, vocs could be zero at much less cost than one would imagine. The lobbyist for paint ind. as well as chemical ind. are simply not be honest with american people. Epa is not being honest with their assements either. epa vs industry. Should be, ok whats the truth lets try to slowly move towards this goal. The ind. seems to have smarter lawyers. Sorry but thats the truth!

Comment from Rudi Rennert, (12/15/2010, 10:50 AM)

The EPA is an unelected band of bureaucrats who may be misinformed but their power is unchecked. Federalism is still a part of the American way. Let Texas do its best, they seem to be one of the only states that is doing well during this recession.

Comment from Joseph Schinner, (12/16/2010, 10:10 AM)

Response to Lyons (attempting to be brief): Altho. there is a "seed" of truth to your experience, as a long time formulator of various types of coatings for many industries I know the real world exists at the cutomer/supplier interface where COST is number 1 and Performance is number 2. What we "can" do and what the customer will allow (read: pay for) are not in sync. Enmeshed in this is also the "fact" that the performance properties the field conditions demand often cannot be met by no-voc technology and the customer will not compromise on what they have come to expect- esp. at a much higher price. At other times the new technology may perform but the application method/cost would have to be seriously disrupted and no one is ready to do that. I have seen all kinds of unforeseen, unwanted problems and irritations when going to "lower" voc. Going to "no voc" is not linear in the peripheral problems but exponentional. This has nothing to do with any particular EPA rules, etc. EPA, etc. ought to be given some credit for not forcing inferior performing coatings on everyone too quickly and not drivng smaller businesses out of business who can't completely rearrange their manufacturing/application processses overnight. A good example of part of this situation is coil coating- the paint purchaser wants vocs so he can use the evaporating solvents as recycled fuel in his ovens. He keeps the vocs pretty well contained ultimately but is not financially prepared to overhaul his successful plant process and maintain competitiveness with no-voc coatings. Again the EPA, etc. has helped mandate controls for the whole process of containing vocs in this industry- including solvent-fume collecting and scrubbing at the paint manufacturer with only the weaker businesses going under. To try to summarize: Yes, the EPA, etc. are moving us forward, if imperfectly, and needs to be better informed both internally and externally. Industry does need to be the driving force for better rules, etc. because they are in the trenches with the real world of coatings protection for the customer base AND BUSINESS SURVIVAL for them and their cusomers. A little more integrity here would help but they mostly are not the "wool-pullers" some would make them out to be. Finally, another framework that has been involuntarily imposed on the process is many, many companies- suppliers and users- are not the "original" companies they were but are subsidiaries of holding companies who do not see the value/direct cost return of research so don't fund it and are more likely to "protect their investment" against any changes. The total industry is not what is was and the interplay within it is much more complicated, with more good guys than bad guys than some would stereotype it as.

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