DMN Editorial: TCEQ is ceding control by digging in its heels

By Dallas Morning News - May 28, 2010

The Environmental Protection Agency hasn't asked Texas officials to read between the lines. The EPA hasn't sent mixed signals, and it hasn't acted without warning.

For more than a year, the Obama administration has been beating the same drum, telling the Texas Commission on Environmental Quality that its permitting system falls short of federal standards.

Yet some Texas leaders and regulators still seem shocked – shocked – that the EPA made good on its promise last week and stripped the state of some of its permitting powers.

In meeting after meeting, federal officials have urged the TCEQ to change its approach to regulating industrial air pollution. The Texas response to the EPA? You just don't understand.

A key sticking point for federal officials has been our state's "flexible permit" program, which limits emissions from an entire facility instead of requiring each unit to meet pollution standards. Environmental experts have argued that the Texas approach allows some individual units to spew more toxins than permitted by law. The EPA says that the program violates the Clean Air Act.

For their part, TCEQ officials have argued – again and again – that the flexible permits are simply misunderstood. Commission chairman Bryan Shaw and executive director Mark Vickery are saying some of the right things, touting the importance of a collaborative process and a willingness to work with the EPA.

But they've offered only words – not deeds – in this saga. And they continue to make the same argument, somehow expecting a different result.

Incredibly, Gov. Rick Perry has weighed in with what amounts to self-righteous indignation, claiming that the federal government has "put a bull's-eye on the backs of hardworking Texans." If anyone should shoulder responsibility for leaving industrial facilities in this uncomfortable position, it's Perry.

The TCEQ is populated entirely with Perry appointees, who have been told in no uncertain terms that businesses' interests are a top priority. Ultimately, though, it's businesses that could pay a price for the state's lack of rigor in enforcing environmental regulations.

So far, the EPA's takeover has been limited to the permit governing an East Corpus Christi refinery. But that's just a warning shot.

Federal officials have identified dozens of other Texas permits that violate the Clean Air Act. And if state regulators don't show compliance within the next month, the EPA could take decisive action.

TCEQ officials plan to continue talks with their federal counterparts. But the argument that "we're so misunderstood" doesn't amount to a strategy or a way forward.

State regulators could do Texas industry a favor by taking a more aggressive approach to enforcement. Otherwise, the state will be handing the reins to the EPA.

Clean Air Act violations
The EPA identified several problems with the draft operating permit for a Flint Hills Resources refinery in East Corpus Christi. The permit, written by the Texas Commission on Environmental Quality, violates the Clean Air Act because it:

• Improperly relies on the refinery's separate "flexible" permit, which itself does not comply with the Clean Air Act.

• Obscures key requirements by directing the reader to other documents instead of stating the requirements plainly. The Clean Air Act mandates a "clear and meaningful" statement of permit provisions so the public can monitor a facility's operations.

• Requires just three years of environmental record-keeping. The Clean Air Act requires five years.

• Fails to identify the specific equipment covered by some requirements.

• Omits information needed to determine if the refinery should have been subject to enhanced scrutiny.

SOURCE: U.S. Environmental Protection Agency
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