GROUPS: EPA MUST STEP IN AND REQUIRE TEXAS TO FIX "BROKEN" AIR POLLUTION PROGRAM
EPA Officials Travel to Texas to Discuss Fate of Troubled Texas Air Pollution Program; New Backgrounder for Reporters Available at Updated www.ToxicTexas.org Web site.
HOUSTON & WASHINGTON, D.C.///October 7, 2009///Texas' state air pollution program is so deeply flawed that it requires a complete overhaul by the U.S. Environmental Protection Agency (EPA), according to environmental, health and community groups.
U.S. Environmental Protection Agency (EPA) officials from Washington DC, North Carolina and Dallas travel to Austin tomorrow to discuss the fate of the broken Texas air permitting program run by the Texas Commission on Environmental Quality (TCEQ). The EPA will convene three meetings: one with TCEQ, one with industry, and one with environmental and community groups. At issue is how quickly the state can make changes to bring its program into compliance with federal law, and whether the TCEQ should be allowed to continue running the air permitting program in the meantime.
Years of running a rogue program has resulted in thousands of facilities operating under state-issued permits that do not meet federal standards. Such permits are vague, unenforceable, and, authorize more pollution than federal law allows, resulting in serious short- and long-term ill health effects in nearby communities. If the TCEQ cannot ensure that every new permit issued in Texas meets federal requirements, then the EPA should issue a "SIP (State Implementation Plan) call" -- putting Texas on a timeline to either fix the program or face sanctions and a possible federal takeover, according to the groups. The EPA cannot simply sit by while Texas continues to issue illegal permits, jeopardizing air quality and public health.
The Environmental Integrity Project, Sierra Club, Galveston-Houston Association for Smog Prevention (GHASP), Environmental Defense Fund and individuals involved with the issues have developed a backgrounder for reporters covering the problems with the Texas air pollution program, its history, and the next steps needed. The backgrounder, which includes links to key documents, is available online at http://www.ToxicTexas.org.
For years, the TCEQ has been issuing regulations that fail to live up to minimum Clean Air Act standards. During this time, the EPA, which is required to approve or disapprove the state regulations, has not taken action. The legitimacy of thousands of air pollution permits issued under the non-approved regulations is in question. In August 2008, a consortium of Texas industry sued the EPA to force the federal agency to act on pending state regulations. As part of a settlement, the EPA agreed to a timeline to finally either approve or disapprove the questionable state regulations. The EPA has already proposed disapproval of three of the main components of Texas' air permitting program: public participation rules, "Flexible" permits, and New Source Review reform.
Ilan Levin, senior attorney, Environmental Integrity Project, said: "While these first steps by EPA are steps in the right direction, they will not be enough to remedy the situation caused by years of inaction. EPA needs to do more than fill in gaps and patch over problems. The EPA needs to bring the Texas air pollution permitting program in line with federal law. That's going to take some time, and in the meantime, EPA will need to exercise very strict oversight."
The groups are calling on the EPA to:
- Issue a "SIP call" to Texas for its failure to implement and enforce the approved SIP. Such action will trigger deadlines and mandatory sanctions if Texas fails to correct its program.
- Respond to environmental groups' petitions, which have raised several systemic permitting and enforcement problems that are not addressed in the EPA-industry settlement.
- Ensure that every new Texas permit, amendment, revision or renewal is issued in compliance with the federal Clean Air Act. If Texas continues to authorize emissions through non-SIP approved rules, EPA must take action to stop construction and operation of these facilities until they comply with federal law.
- Begin recalling the already issued Texas permits that are not in compliance with federal law (including all flexible permits, qualified facility authorizations, PCP standard permits, and others).
The EPA has repeatedly notified the State of Texas that its air pollution regulations do not comply with minimum federal Clean Air Act requirements. Environmental, community and public health groups notified the Texas Legislature that changes to the program were needed to avoid federal sanctions. The State has refused to make necessary changes to the air permitting program.
Kelly Haragan, director, Environmental Law Clinic, University of Texas School of Law, said: "While the Clean Air Act provides states with discretion to craft pollution reduction measures, it clearly spells out minimum procedural standards for air permitting programs. These standards require public participation and assurance that permits are clear, enforceable, and protective of air quality and public health. For over a decade, the Texas permitting system has failed to meet the most basic federal requirements. As home to approximately 1,500 major sources of air pollution, Texas houses a large percentage of the country's air pollution sources. If the federal Clean Air Act isn't working in Texas, the whole program is broken."
Matthew Tejada, executive director of the Galveston-Houston Association for Smog Prevention, said: "Texas has been trying to regulate our air from inside a closed, dark box, and the outcome is what you would expect – decades of dirty air. The EPA's move to force the state to use a legal, transparent and accountable air permitting program is a significant step toward shining some light inside that box."
The Clean Air Act requires states to adopt State Implementation Plans (SIPs) that provide for implementation, maintenance, and enforcement of the health-based ambient air standards, known as National Ambient Air Quality Standards. The EPA is required by the Clean Air Act to approve or disapprove a state's SIP, or SIP revisions, within 12 months of their submittal. Over the past fifteen years, the Texas environmental agency, the TCEQ, has made numerous changes to its air permitting program. Many of the changes over the past 15 years to the air permitting program were pushed by industry, over public objection, as ways to "streamline" the permitting process. These changes are regulations that fail to live up to minimum Clean Air Act standards.
Regulatory changes alone, however, will not be enough to fix the Texas program, according to the groups. The EPA must play an active oversight role in reviewing each major air pollution permit issued in Texas and ensuring that Texas actually implements and enforces a program that meets minimum federal standards.
Neil Carman, Clean Air Program director, Sierra Club Lone Star Chapter, said, "The TCEQ has problems that actually go beyond air permit issues, because the agency rarely takes enforcement action. Systemic problems, like a lack of enforcement, indicate a need for an outside audit of the TCEQ, which would show how the agency is failing to carry out its mission to protect public health."
Copies of the backgrounder are available at http://www.toxictexas.org.
ABOUT THE GROUPS
The Environmental Integrity Project (http://www.environmentalintegrity.org) is a nonpartisan, nonprofit organization established in March of 2002 by former EPA enforcement attorneys to advocate for effective enforcement of environmental laws. EIP has three goals: 1) to provide objective analyses of how the failure to enforce or implement environmental laws increases pollution and affects public health; 2) to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and 3) to help local communities obtain the protection of environmental laws.
A leading national nonprofit organization, Environmental Defense Fund represents more than 500,000 members. Since 1967, Environmental Defense Fund has linked science, economics, law and innovative private-sector partnerships to create breakthrough solutions to the most serious environmental problems.
Galveston-Houston Association for Smog Prevention's mission is to reduce air pollution in the Houston region to protect public health and environmental quality through research, education and advocacy.. GHASP seeks to accomplish its mission by being the most credible advocate for clean air in the Houston region; by supporting efforts to educate the public and intensify the political climate; and by directly engaging government officials, community leaders, the media and industry on regional air pollution issues.
The Lone Star Chapter of the Sierra Club (http://texas.sierraclub.org) is a conservation organization representing approximately 24,000 Texans and 13 regional groups. State Conservation efforts include Clean Air & Water, Smart Energy Solutions, Texas Land & Wildlife Legacy, Responsible Transportation Choices, and Water for People & the Environment. The Lone Star Chapter of the Sierra Club values diversity and promotes environmental education and environmental justice in our efforts to fulfill our mission to explore, enjoy, and protect our Texas natural heritage and to protect public health.
CONTACT: Ailis Aaron Wolf, 703-276-3265 or aawolf@hastingsgroup.com.