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EPA vs TCEQ: Texas regulator’s system clouds air-quality waters



Greg Harman
gharman@sacurrent.com

I don’t know where you get your air, but I'll wager it doesn’t pass through an air treatment plant or labyrinthine network of pipes before blowing down your street. Unlike our centralized water system in San Anto, air comes to us as is. When polluted by heavy industry or our millions of combusting engines there are only overburdened trees and periodic rain showers to help us out. But when we’re talking tens of millions of pounds of industry-created toxic chemicals hitting the Texas sky each year, we can’t bank on our trees to keep the cancer away.

Eight years ago, the U.S. EPA examined national skies for 124 air toxics (80 of which are known cancer-causers), and labeled San Antonio as one of those special red-dot cities where the cancer risk was elevated. That, should the air stay as fouled as it was at the time, those forced to breathe it over a lifetime would develop cancer at a rate as high as 25 50 per million*, higher than the national average of 36 per million.

And while powers now are lining up to correct Texas’ regulatory Clean Air flounderings, the toxics in Texas have been declining — just not as fast as they should have, according folks at the state Sierra Club. Many of the older refineries and chemicals plants in the state were “grandfathered” and never required to go through a review of their air pollution emissions. Sometimes only part of a plant is required to submit to review by the Texas Commission on Environmental Quality.

“It’s a giant quagmire,” said Neil Carman, clean air program director of the state Sierra Club. “There’s nothing like Texas. Nothing.”

The list of complaints against the TCEQ include a miasma of alleged violations of the Clean Air Act, Carman said, including: accepting “flexible” permits from plants, where only a portion of the total emissions are considered, rather than adhering to the more stringent federally mandated New Source Review (NSR) process; the bundling of several smaller permit actions at a facility to avoid NSR; changing legal definitions to allow installation of weaker pollution control systems; and the illegal grandfathering of facilities to keep them from having to go through the permitting process at all.

Texas has more industrial plants that any other state in nation. Nearly About 2,000 individual air-emission reports were filed with the TCEQ in 2007, the most recent year for which data is available. And while the EPA is prowling to take over the air permitting process from the TCEQ if it doesn’t change its ways, the Sierra Club has announced it is preparing to sue the EPA to force stricter federal oversight on Texas.

According to the TCEQ, all of the criteria air pollutants regulated by the Clean Air Act have been in decline in recent years. Statewide emissions of nitrogen oxides, sulfur dioxide, particulate matter, and carbon monoxide all saw minimal reductions between 2004 and 2006. A larger reduction appeared in 2007, the year the global recession kicked in.

The same is true of air toxics like those studied by the EPA in 2002.

Between 1995 and 2006, a million pounds of toxic chemicals regulated by the U.S. EPA were either sent straight into the air or into flares in Bexar County. Ten years later, that amount had only been trimmed back to 965,878 pounds. In 2006, however, toxics in Bexar County dropped to 847,624 pounds. And once the recession gripped the state in 2008, the toxics dropped precipitously to 505,842 pounds. Statewide, air toxics have dropped from 93 million pounds in 2002, according to EPA figures, to 82 million pounds in 2006. Toxic emissions statewide dropped more rapidly, down to 69 million pounds in 2008.

No one can say how large the reductions would have been if the changes the feds now want to make had been implemented years ago, but Carman said, “We think it would have been greater.”

“If these flexible permits weren’t any better or cheaper than a New Source Review permit, why would industry want them? Why would industry say, ‘We want a flexible permit rather than an NSR permit’? … Our concern is that some of the plants, but we don’t know, may have made reductions that are inadequate.”

Al Armendariz, EPA Administrator for Region 6, also couldn’t say definitely if air would be cleaner today if TCEQ had never adopted the “flexible” permit program. But he did suggest the whole thing has served to keep such data difficult to divine, a fringe benefit that would serve any polluter’s interest.

Al’s Point One: The Lone Star State is the only state in the Union that uses the so-called “flexible” permits to help regulate the federal Clean Air Act. (And, no, these permits were never approved by the EPA.) “All of the 50 states operate a standard New Source Review program. The state of Texas has chosen to also establish the flexible permitting program, which sits alongside and runs parallel to the standard program,” Armendariz said. “That program was never approved by the federal government. It was never approved at all.”

And, you know what else? Those companies are doing fine outside Texas. “The vast majority of them also operate large, very complicated facilities in Louisiana, in Ohio, in Pennsylvania, and the other large industrial states. And they operate very profitably in those states without flexible permits … under the traditional mechanisms of the Clean Air Act. If they can do it in those states, they can certainly do it in Texas.

Al’s Point 2: “When you look at the permits that these facilities operate under, in Texas they are much more difficult to interpret and understand. That makes it very difficult for my enforcement staff who do inspections and do oversight to properly do their jobs at these facilities. It also makes it more difficult for the public and the media to understand what the requirements are. And I do think that enforcement and public oversight and media scrutiny can all provide a very strong incentive for facilities to comply with the law and then also go above and beyond that and reduce their emissions. Unfortunately in Texas, with the flexible permitting program the permits are simply too opaque for those kinds of incentives to take hold.”

Al’s Point 3: The Clean Air Act is an economic motivator. “There are people … every time we revise an air quality standard, who claim that EPA’s actions are going to cost jobs and shut down factories,” Armendariz said. “What you find is that the empirical evidence does not support that whatsoever. … When you actually look at the financial benefits that happen in terms of public health — the fact that people are healthier, they live longer lives, workers are more productive, children have fewer asthma attacks and fewer missed days in schools, which means their parents don’t have to stay home with them and miss work. There are so many public health benefits that translate into real-world dollars because of the Clean Air Act.

EPA staff are currently trying to determine if TCEQ also may have allowed some facilities to be grandfathered illegally, exempting them entirely from any regulation, he said.

Bexar County officials and members of the Alamo Council of Governments recently passed resolutions against toughening federal air-quality rules (based on the suggestion of Metro Health that asthmatics in Texas were a tougher breed than asthmatics elsewhere), we have yet to see them step out on this related issue.

I wasn’t able reach any officials with TCEQ by press deadline on Tuesday, but we’ll be following up on the situation here at QueBlog.

*corrected Wednesday, 11:30 am.

Posted by gharman on 6/1/2010 5:02:41 PM
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