EPA and Texas in Power Struggle Over Air Pollution Permits

AUSTIN, Texas, May 26, 2010 (ENS) – The U.S. Environmental Protection Agency has taken over the operating permit of a Corpus Christi refinery, saying the state-issued permit violates the federal Clean Air Act.

In a letter to Flint Hills Resources dated May 25, the EPA said it will not permit the Texas Commission on Environmental Quality, TCEQ, to issue its permit.

To continue operating, Flint Hills East Refinery must submit a permit application to the federal agency by September 15 or face potential fines, the letter said.

The EPA said the decision is unprecedented because it removes from the Texas Commission on Environmental Quality a power traditionally delegated to state regulators by the federal agency.

The EPA said it will take the same action several dozen other cases in which it believes the state’s permits violate the Clean Air Act, and could take action statewide by June 30.

Flint Hills Refinery in Corpus Christi, Texas (Photo by Overprocessed)

“After 10 years, it was clear [the process] was outside the federal requirements and the EPA had to get involved,” said EPA Region 6 Administrator Al Armendariz. “It’s unprecedented for the EPA to object to 40 permits from the same state, and we intend to take over additional permits.”

The EPA decision comes after months of fruitless talks between the EPA and the state over how Texas issues permits setting limits on air pollution from refineries and other petrochemical plants.

At the core of the dispute are the emissions from the refining of crude oil into products such as gasoline, kerosene and petrochemicals. The federal Clean Air Act requires limits on emissions from each of the individual production units inside a refinery. But since 1994, Texas has issued flexible permits that place a single limit on emissions from an entire refinery.

Whether the use of flexible permits leads to more pollution is not known, but the EPA and environmentalists say the flexible permits are the problem.

For instance, a production unit near the edge of a refinery could be emitting a much higher level of toxic pollutants than allowed by law, but the violation might not be detectable if the entire refinery meets its limit. The danger arises because houses and schools are located close to refineries in many Texas cities, exposing residents to toxic emissions.

The Sierra Club welcomed the EPA’s action as a positive first step.

“The EPA action this week has been long overdue,” said Jen Powis, Sierra Club senior regional representative. “For years, hundreds of citizen complaints have fallen on deaf ears at the TCEQ.”

“The EPA has urged, begged and pled with the Commission to adequately enforce the Clean Air Act to protect citizens, Powis said. “TCEQ failed to do so and continues to fail to enforce national and state laws designed to protect the air we breathe and the water we drink.”

The Texas Commission on Environmental Quality maintains that if industrial facilities operating under flexible permits are required to apply for new permits, it will not result in cleaner air but in “substantial costs to industry in submitting these permits” that will be passed on to consumers.

“The TCEQ strongly disagrees that Texas air permits violate the Clean Air Act,” said TCEQ Chairman Bryan Shaw. “For the past 16 years the state of Texas has successfully implemented innovative air permitting programs that have resulted in significant air quality improvement throughout the state.”

“Our flexible permits, which are similar to the federal government’s PAL (Plant-wide Applicability Limits) program in that they allow site-wide caps, are protective because they are based on modeling analysis that reflect worst case scenarios. The EPA cannot deny that Texas programs work. Instead, the federal government is more interested in a blatant power grab,” Shaw alleged.

The Flint Hills Refinery was issued its flexible permit in 1995. At that time, the refinery demonstrated to the TCEQ and EPA that it met state and federal requirements and that the permit would be protective of public health, the commissioners said today.

During the Bush administration, the Flint Hills Refinery amended its permit in 2002 and EPA had no comment. The refinery received another permit in 2007. Again, the EPA had the opportunity to comment but did not reply.

TCEQ Commissioner Buddy Garcia said, “I am frustrated by Dr. Armendariz assertion that the ‘time for partnership and for compromise’ is quickly coming to an end. We should be partners; unfortunately, the federal government – after failing to act on our rules for some 15 years – has decided that instead of working with us they would just tell us how to run our state-delegated program, or else.”

The commissioners say they have provided EPA with several draft or final responses to flexible permit objection letters, but the EPA has not provided responses.

TCEQ Commissioner Carlos Rubinstein said, “Based on Dr. Armendariz’s statements and EPA actions, I do not believe the EPA is interested in serious negotiations to settle their objections to our permit program. EPA has not bothered to respond to letters and even stated they may not review proposed rules. It seems to me the outcome is predestined, regardless of any actions taken by the TCEQ.”

Texas Governor Rick Perry weighed in on the dispute today, saying, “The Obama administration has taken yet another step in its campaign to harm our economy and impose federal control over Texas. With their decision to take control of a permitting process that the Clean Air Act allows to be delegated to the states, the EPA is on the verge of killing thousands of Texas jobs and derailing a program that has cleaned Texas’ air.”

“This is not a partisan issue,” said Governor Perry, a Republican. “Our emissions control program went into effect under [Democratic] Governor Ann Richards in 1994 and was approved by the Clinton administration. Since then, the EPA’s unelected bureaucrats haven’t ruled on it once, yet, with the arrival of a new administration in Washington, they have put a bulls-eye on the backs of hardworking Texans.”

“An increasingly activist EPA is ignoring the 22 percent reduction in ozone and 46 percent decrease in NOX emissions that Texas has achieved since 2000,” Perry said. “I am calling upon President Obama to rein in the EPA and instruct them to study our successful approach for recommended use elsewhere.”

But environmentalists feel protected by the EPA’s action. The Sierra Club’s Powis said, “This is not about EPA taking over a state agency, but about TCEQ’s failure to enforce both state and federal regulations designed to protect our health.”

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