EPA and, Texas Clash Over Air Quality Permits

Published June 13, 2010

The simmering conflict between the U.S. Environmental Protection Agency (EPA) and Texas officials over air quality requirements has reached the boiling point with EPA seizing control of a key permit governing the Lone Star State’s fifth-largest refinery.

In what could lead to further escalation of the row, a high-level EPA official has threatened to strip Texas of its power to issue such permits, unless the government in Austin bows to Washington’s regulatory demands.

Flexible Permits
Attention is currently focused on the Flint Hills Resources East Corpus Christi refinery. EPA says the refinery operates under a permit issued by the Texas Commission on Environmental Quality (TCEQ) that violates the Clean Air Act.

In a May 25 letter to Flint Hills Resources, which is owned by Wichita, Kansas-based Koch Industries, EPA said the company must submit a permit application to the Washington agency by September 15 or face potential fines. More ominously, the agency threatened to take similar action on more than three dozen other facilities in Texas, most along the Gulf coast where the state’s oil and gas industries are located.

The bone of contention between EPA and TCEQ is Texas’ decade-and-a-half-old practice of issuing “flexible” permits to refineries. Flexible permits place limits on emissions from an entire refinery. EPA claims emissions permits are required for each of the dozens of production units within a refinery. It is not known which of the two systems results in lower emissions, but the route preferred by EPA would undoubtedly lead to more paperwork.

“The EPA is serious about requiring that air-quality permits held by companies in Texas are federally sufficient,” EPA regional administrator Al Armendariz told the Dallas Morning News (May 26). “If the state agency is unwilling or unable to issue these permits, the EPA must and will do so.”

Unprecedented Crackdown
EPA acknowledges its action is unprecedented in removing from TCEQ the power traditionally delegated to state agencies by Washington. This has not gone down well in Austin.

Texas Governor Rick Perry (R) blasted EPA’s move.

“The Obama administration has taken yet another step in its campaign to harm our economy and impose federal control over Texas,” he said in a press statement. “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.”

Perry pointed out the dispute was not a partisan one. Flexible permits went into effect in 1994 under Democratic Governor Ann Richards and were accepted by both the Clinton and Bush administrations.

State’s Air Quality Improving
With its heavy concentration of refineries and other facilities associated with oil and natural gas, Texas has traditionally faced unique air-quality challenges, yet levels of pollution in the state have declined sharply over the past decade.

Since 2000, ground-level ozone (smog) levels have declined 22 percent in the state, and nitrogen oxide (NOX) levels have dropped 46 percent.

All major metropolitan areas in Texas, with the exception of Dallas-Fort Worth, are in compliance with EPA’s 1997 eight-hour-a-day ground-level ozone standard. Heavily industrialized Houston met the standard for the first time last year.

Feds’ Intimidation Alleged
Talks between EPA and Texas officials have been dragging on for over a year. If the level of acrimony being lobbed back and forth is any indication, the two sides are nowhere near resolving the conflict.

John Dunn, M.D., a Texas-based emergency services consultant, says there is more to the fight over air quality than meets the eye. He points out Texas Attorney General Greg Abbot is one of several state attorneys general suing EPA over the agency’s plan to regulate manmade greenhouse gases. According to Dunn, EPA may be seeking payback in its recent focus on Texas air quality.

EPA, Dunn says, has declared Texas a “rogue state” as part of a strategy to “intimidate states into submission.”

Bonner R. Cohen, Ph. D. ([email protected]) is a senior fellow at the National Center for Public Policy Research.