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EPA Signals Truce in TX Clean Air War

Monday, June 11, 2012

More items for Environmental Controls

The Environmental Protection Agency may be ready to say “uncle” in its long-running tussle with Texas over that state’s clean air plan.

The federal agency announced late Thursday (June 7) that it planned to approve the state’s revisions to its permitting program for major air pollution sources under the Clean Air Act’s New Source Review (NSR) program.

EPA

Modifying a facility to increase production capacity may significantly increase pollution. The new Texas program would use “Plant-wide Applicability Limits,” or PALS, to cap a site’s total emissions while allowing some flexibility among individual sources.

“These changes to the State’s clean air plan meet federal clean air goals by establishing state rules for existing major facilities that are consistent with federal permitting requirements,” EPA said in a statement.

‘Flexible’ or Lax?

Formal approval must await a 30-day public comment period, but the move could help douse the heat that has raged between the parties for several years over Texas’s so-called “flexible permitting” rules for industrial plant emissions.

Texas has used the system since 1994, but EPA has refused to approve it, saying it is too lenient.

The dispute led to a long and ugly federal-court suit by Texas, which alleged that EPA’s “improper overreach” violated the federal Clean Air Act.

In January 2011, EPA announced that it was taking over the Texas program, forcing more than 100 industries, including major refineries, to deal directly with the federal agency on operating permits.

In March 2012, the U.S. Court of Appeals for the Fifth Circuit vacated EPA’s disapproval of the Texas permitting system and ordered EPA to reconsider the matter “most expeditiously.”

The court said EPA had no “discretionary authority” in reviewing state plans for implementing the Clean Air Act. “Only the states enjoy discretion in implementing the dictates of the CAA,” the court said.

‘We Can Work Together’

Still, EPA said its tentative acceptance of the proposal by the Texas Commission on Environmental Quality (TCEQ) was a compromise, not a capitulation.

“They have their disagreements with us still on policy levels, and we’re still working with them on those in various forms,’’ Carl Edlund, EPA’s director of the air, waste and toxics division in Region 6, told the Associated Press.

“This is not a panacea, but it’s an improvement, and it shows that we can work together.’’

In a statement, TCEQ said EPA’s announcement “clears the way for companies to have regulatory flexibility and certainty.’’

The revised plan establishes site-wide emission caps known as “Plant-wide Applicability Limits,” or PALS, for existing sources. PALS allow for minor fluctuations in pollutants so long as the site’s total emissions remain under the cap level.

Congress established the New Source Review (NSR) permitting program as part of the 1977 Clean Air Act Amendments. NSR is a preconstruction permitting program. The permit specifies what construction is allowed, what emission limits must be met, and often how the emissions source must be operated.

Comment from Tom Schwerdt, (6/12/2012, 8:29 AM)

Well, now that the feds have replaced the EPA regional head who wanted to "crucify" folks "like the Romans did" - we can actually have some progress.

Comment from James Johnson, (6/13/2012, 12:48 PM)

Since each of the 50 states has it's own EPA it seems to me the federal EPA should capitulate to the states. The 10th Amendment is pretty clear in saying any power not granted to the federal government within the enumerated powers of the Constitution belong to the state and it's people. That makes it pretty clear the state law prevails. If the feds feel otherwise they could sue the states and see what the courts determine. I really doubt they would do that because they just might lose!