Things to know about the TCEQ air-permitting controversy

Background: What the controversy is all about

On May 25, 2010, the US Environmental Protection Agency (EPA) barred the Texas Commission on Environmental Quality (TCEQ) from issuing a permit to a refinery in Corpus Christi. EPA said that the process used to justify that permit violated the Clean Air Act.  EPA’s Region 6 Administrator, Al Armendariz, also stated that the EPA would block future permits and force polluters to comply with EPA standards if the TCEQ did not change its rules. On June 14th, EPA announced it was taking over the process for two additional air-quality permits

At issue are two types of air permits used in Texas – one known as a “flex permit” and one known as a “plant-wide applicability limit.” In both cases, instead of issuing permits that limit pollution from each individual point-source (e.g. a smokestack), TCEQ limits pollution for entire facilities, allowing operators to emit more pollution from one stack if another stack was emitting less. Studies indicate that there would be greater emission reductions if limits were done on a stack-by-stack basis.

These permits make enforcement extremely difficult at vast petrochemical and refining facilities. They also fail to protect people from emission clouds that can occur as a result of letting one stack emit more than would be allowed under the Clean Air Act.

Suppressed reports add fuel to the fire

The flex permit controversy had been brewing for some time as EPA and TCEQ battled behind closed doors, secretly playing a game of chicken with air pollution regulations. Meanwhile, another controversy was broiling beneath the surface in Fort Worth.  Elected officials from the area felt they were getting the run-around from TCEQ when they asked whether natural gas drilling and processing on the Barnett Shale was putting residents’ health at risk.

On June 1st, TCEQ admitted they had failed to divulge (i.e. suppressed) reports showing elevated benzene levels in the area.  In a statement, Mark Vickery said TCEQ “missed an opportunity” to “bolster their confidence in the quality of the air.” In reality, TCEQ knowingly presented inaccurate air-quality information to leaders and decision makers for months. Soon after, TCEQ admitted that 3 additional air-quality reports had not been made public.

Governor Perry’s politically-motivated response isn’t helping

In response to the EPA’s move, Gov. Rick Perry took to rhetoric already familiar from his reelection campaign.  He called the move a “power grab” and said the EPA sought “to destroy Texas’s successful clean air program.” TCEQ executive director Mark Vickery took a more moderate tone, saying he looked forward to “constructive, law- and science-based discussions with EPA.”

The same day Perry and Vickery made their announcements, Republican Congressman Dr. Michael Burgess said TCEQ had a “credibility problem” which “calls into question virtually everything else they have done so far.” He was talking about the suppressed benzene tests and called for an investigation into TCEQ by the state attorney general. Burgess later rescinded his call for an investigation, making the debatable assertion that the TCEQ Sunset Review process would be a more appropriate forum for dealing with these issues.

Although Gov. Perry and others have insinuated time-and-again that EPA’s actions are politically motivated, the truth is that environmentalists contested these permitting processes beginning in 1995.  Even the EPA under President George W. Bush warned TCEQ that the processes did not meet federal standards and should be reformed.

The facts stack up against the TCEQ

These problems which have garnered so much media attention only begin to outline the many problems with the way TCEQ has operated for years. Final decisions at TCEQ are made by three governor-appointed “commissioners,” who have seen fit to provide permits to virtually every refinery, coal plant, waste dump, etc. that crosses their collective desk.

  • Of more than 88,000 air permits that have been pursued through the TCEQ, not more than 12 have been denied – a denial rate of approximately 0.0001%.
  • When administrative law judges warned that scrubbers on the Oak Grove coal plant wouldn’t meet legal requirements, the commissioners approved its permit anyway.
  • When a committee of eight TCEQ staff experts unanimously recommended denying a license to Waste Control Specialists (WCS) to operate a radioactive waste dump in Andrews County, the commissioners overruled them and granted the license.  In the case of the Andrews County radioactive waste dump, Glenn Shankle, the head commissioner who had overruled the recommendations of technical staff (causing 3 to quit the agency), left TCEQ and began working for WCS as a consultant in 2008.

Two options to restore public trust… and shrink government

We know what a good environmental agency looks like: It’s one that can protect our health resources. But changing this agency will be an uphill battle against the powerful and well-connected. We’ll prevail only if the EPA really does get serious about cleaning up Texas air and you join us in calling for fundamental reform.

Lawmakers could take action, reduce the size of government and save taxpayers money by getting rid of the three TCEQ commissioners and replacing them with a rubber stamp.  However, this would do little to restore public confidence.  Another small government solution would be to allow EPA to simply take over TCEQ, letting technical staff report directly to the EPA Region 6 office, and cutting out the TCEQ leadership who seem to be preventing staff from doing their jobs.

But really neither of these is ultimately desirable.  Instead, lawmakers should take advantage of the Sunset Review process in the 2011 legislative session to reform the TCEQ and make it a shining example of transparency, scientific-review, and regulatory enforcement.

What can you do about it?

Contact your sunset commissioners and tell them to change the TCEQ’s mission statement to put health and the environment ahead of business interests, instead of putting profit first (as it does now).  Tell them that the collapse of Wall Street and the BP oil spill demonstrate the dangers deregulation and non-enforcement pose to our economic vitality. It is up to elected leaders to make sure these tough lessons are learned and put into policy.  The 2011 sunset review process may be our best opportunity to do that.

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By promoting cleaner energy, cleaner government, and cleaner air for all Texans, we hope to provide for a healthy place to live and prosper. We are Public Citizen Texas.