Commentary
Winds of Change are Blowing
From its inception, the federal Clean Air Act has given states primary responsibility for assuring that air emissions from sources within their borders are consistent with national air quality standards that have been developed by the Environmental Protection Agency (EPA). To implement this goal, each state is required to submit a State Implementation Plan (SIP) to the EPA for approval to ensure the implementation of air quality standards. In 1990, Congress enacted the Clean Air Act Amendments of 1990 which required: major air pollution sources to obtain an operating permit; states to develop and implement that permitting program; and EPA to review each state's proposed program and oversee the state's efforts to implement any approved program. If a state failed to adopt and implement an approved program, the EPA must develop and implement a federal permit program, and it was authorized to levy sanctions against a state that does not submit or enforce a permit program.
In keeping with these requirements, in the mid-1990s Texas began submitting various air permitting program components to the EPA for approval as SIP amendments. What ensued was over 14 years of the EPA and TCEQ trading letters and comments, both formally and informally, as to the approvability of these requested permitting program components. Until recently, no formal response from the EPA on TCEQ’s submitted SIP amendments created significant uncertainty as to the validity of Texas’s air permitting program.
However, three important events transpired in recent years which signaled that change was likely coming to this stalemate. First, and of significant note, a lawsuit was filed in August, 2008 against the EPA by a group of major Texas air permit holders, known as the Business Coalition for Clean Air (BCCA) Appeal Group, and their trade associations, Texas Association of Business and Texas Oil and Gas Association, seeking to force final decisions by the EPA on the 30 air permitting SIP amendments pending since the mid-1990s. This suit last year resulted in a settlement which required the EPA to issue final decisions on all 30 of the state’s proposed regulatory changes on a specified, expedited schedule. Secondly, in January 2008 and again in August 2008, several Citizen Petitions for Action Pursuant to the Clean Air Act were filed with the EPA specifically asking the EPA to prohibit construction of new major air emissions sources pursuant to any non SIP-approved permitting provisions, and to step in and ensure that TCEQ-issued air permits comply with federal standards. And thirdly, in November 2008, Barack Obama was elected President of the United States.
Early on in the Obama administration, EPA Administrator Lisa Jackson announced that Texas’ environmental regulation was a major concern. Singling out what she described as inadequate opportunities for the public to review key permit decisions, she stated, “Transparency is something I’m really concerned about, especially here in Texas; that’s an issue we’re going to have to address head-on.” An invigorated EPA under her leadership did just that, zeroing in on Texas’ air permitting program for close scrutiny.
The EPA scrutiny of Texas’ air permitting program raised some significant concerns with the program and the need to have those concerns effectively addressed in an effort to improve air quality as required by law. This past September, the EPA formally announced proposed disapproval of several key components of the Texas air permitting program found not to meet federal Clean Air Act requirements. Earlier, in November 2008, the EPA had proposed disapproval of the “public participation” component of the air permitting program, citing inadequate opportunities for the public to review pending permit decisions in Texas, as compared with public participation opportunities provided by other states. Citing that Texas's air permitting program should be transparent and understandable to the public, protective of air quality, and expressive of clear and consistent requirements, EPA’s notices of proposed disapproval made it clear that significant changes are necessary. Texas is the only state that has had its air permitting measures so thoroughly and critically scrutinized by the EPA.
The EPA also notified major permit holders that air permits issued under some TCEQ rules do not reflect federally applicable requirements. Similarly, because a number of Texas’s permitting rules have not been approved by the EPA, the regulated community has been notified that any action taken on pending permit applications covered by the disapproval notices may result in additional permitting requirements or federal enforcement in the future. Under the settlement of the BCCA lawsuit, the EPA must finalize its decisions on all of its pending disapproval proposals by August of this year, and is required to complete action by the end of 2013 on all 30 of the state’s proposed regulatory changes that have been submitted since the EPA approved Texas’s clean-air permitting plan in 1992.
Even with the issuance of the proposed disapprovals, the EPA has made clear its intentions of working with the TCEQ and interested parties to quickly identify and adopt necessary changes that will address the cited deficiencies. Much discussion and debate has ensued to date between the EPA, the TCEQ, industry representatives, and environmental groups, thus far leading the TCEQ to propose new air permit rules ostensibly intended to address the deficiencies identified in the EPA’s disapproval proposals.
But that effort has sometimes taken both conciliatory and defensive tones. For example, stating that it "has done everything possible and continues to do everything possible to work with the EPA," the TCEQ proposed rules on March 30th that continue to allow permitted facilities to make certain changes at their plants without permit modifications, the subject of one of the proposed disapprovals. That action failed to forestall the EPA the very next day from striking down that component of Texas’s air pollution program as violative of federal Clean Air Act requirements.
These events likely set the stage for further similar actions this summer when the EPA is also expected to strike down other components of Texas’ air permitting program identified as deficient, absent more conciliatory efforts on TCEQ’s part. The EPA’s position on all this is very simple: Texas’s air permitting program must comply with federal law. The EPA has issued fair warning, however veiled it may be viewed, of the possibility of Texas being stripped of its authority to issue major federal air permits unless it implements some significant program changes. As one EPA official has stated, “Texas can step up, or the EPA will step in.” Anyone who doubts that very real possibility should review recent federal intervention efforts relating to the nation’s banks and automakers!
Unquestionably, it’s a new day from an environmental regulatory standpoint, and change at the federal level, especially at the EPA, is astir. We are already, and will continue to be, dealing with a completely different set of environmental philosophies, policies and programs than in the past. New and expanded federal environmental statutes and regulations will be enacted to implement these new policies, and states will have to comply with, and in many cases, implement them. States are encouraged to participate in the development of new federal initiatives and regulations, and the EPA has shown its willingness to incorporate experiences and lessons learned from existing state programs. Texas can and should be a full partner in developing strategies and solutions to address environmental issues, both at home and nationwide.
