EPA voids 16-year-old air per­mit pro­gram

Fight with state ends in de­ci­sion that could cost in­dus­try mil­lions

Austin American-Statesman - - FRONT PAGE - By Ramit Plushnick-Masti

HOUS­TON — The U.S. En­vi­ron­men­tal Pro­tec­tion Agency on Wed­nes­day of­fi­cially over­turned a 16-year-old Texas air per­mit­ting pro­gram it says vi­o­lates the Clean Air Act, leav­ing some of the coun­try’s largest re­finer­ies in a state of limbo.

The move comes af­ter years of back­door bick­er­ing, ne­go­ti­a­tions and pub­lic ar­gu­ments be­tween the EPA and Texas. The ar­gu­ment re­cently es­ca­lated from a bat­tle about en­vi­ron­men­tal is­sues into a heated po­lit­i­cal dis­pute about states’ rights.

Gov. Rick Perry has been us­ing it to drive home his con­tention that Pres­i­dent Barack Obama’s ad­min­is­tra­tion is over­reach­ing, say­ing in a state­ment Wed­nes­day that “Texas will con­tinue to fight this fed­eral takeover of a suc­cess­ful state pro­gram.”

The EPA’s de­ci­sion, an­nounced in a state­ment, will force about 125 re­finer­ies and petro­chem­i­cal plants to in­vest mil­lions of dol­lars to get new per­mits. Many of the plants might also have to in­vest in up­dates to com­ply with fed­eral reg­u­la­tions.

The de­ci­sion did not come as a sur­prise to Texas or the in­dus­tries. EPA re­gional di­rec­tor Al Ar­men­dariz has said for months he would dis­ap­prove the per­mits if Texas did not com­ply with the Clean Air Act.

The Texas Com­mis­sion on En­vi­ron­men­tal Qual­ity’s chair­man, Bryan Shaw, in­sisted Wed­nes­day that the state’s per­mit­ting pro­gram com­plies with the Clean Air Act and has im­proved air qual­ity in Texas. How­ever, in an ef­fort to sat­isfy the

EPA’s con­cerns, Shaw said the com­mis­sion re­cently changed the rules but ap­par­ently the EPA “did not take them into con­sid­er­a­tion.”

Texas can chal­lenge the rul­ing in court, but a com­mis­sion spokesman said it hasn’t de­cided whether to go that route.

Ar­men­dariz said the pro­posed rules were in the first stage of a lengthy ap­proval process that could take months or even years.

“I can’t wait to take ac­tion on these per­mits. I’ve got to act soon be­cause these per­mits are se­ri­ously flawed,” Ar­men­dariz told The As­so­ci­ated Press.

The EPA’s move on Wed­nes­day ad­dresses Texas’ so-called flex­i­ble per­mits, which set a gen­eral limit on how much air pol­lu­tants an en­tire fa­cil­ity can re­lease. The fed­eral Clean Air Act re­quires state-is­sued per­mits to set lim­its on each of the dozens of in­di­vid­ual pro­duc­tion units in­side a plant. The EPA says Texas’ sys­tem masks pol­lu­tion and makes it im­pos­si­ble to reg­u­late emis­sions and pro­tect pub­lic health.

Texas has been is­su­ing the per­mits since 1994 even though it never re­ceived the re­quired fed­eral ap­proval. The EPA made clear at least five years ago that it thought the per­mits vi­o­lated fed­eral air laws, warn­ing Texas and the refin- ery and petro­chem­i­cal in­dus­try it would take ac­tion. The in­dus­try, un­com­fort­able with the un­cer­tainty, sued the EPA in 2008, de­mand­ing the agency take ac­tion on this and sev­eral other pro­grams that re­mained in limbo.

The EPA was un­der a court-or­dered dead­line of June 30 to ei­ther ap­prove or dis­ap­prove the flex­i­ble per­mit pro­gram. On Wed­nes­day, a fed­eral court re­jected a last-minute ap­peal by the in­dus­try to ex­tend the dead­line.

Ar­men­dariz said he has in­structed his staff to work closely with Texas and in­dus­try lead­ers to fix the per­mits.

The EPA has been work­ing with in­dus­try lead­ers to find a way to ef­fec­tively and ef­fi­ciently is­sue new air per­mits to the af­fected plants, in­clud­ing the nation’s largest re­fin­ery, owned by Exxon Mo­bil in Bay­town. The EPA has of­fered them an in­de­pen­dent au­dit mech­a­nism that would al­low them to cor­rectly mea­sure air pol­lu­tants to get the new per­mits, while en­sur­ing them they would not be pe­nal­ized for vi­o­la­tions un­cov­ered.

Matthew Te­jada, ex­ec­u­tive di­rec­tor of Air Al­liance Hous­ton, one of sev­eral en­vi­ron­men­tal groups that has op­posed the per­mits, wel­comed the EPA move but said he ex­pects a state and in­dus­try-led le­gal bat­tle against the agency.

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