EPA Disapproves Texas Flexible Air Permit Program

Today, EPA announced final disapproval of the flexible permit program that the Texas Commission on Environmental Quality (TCEQ) had submitted for inclusion in its clean-air implementation plan. EPA has determined that this program does not meet several national Clean Air Act requirements that help to assure the protection of health and the environment. EPA is disapproving the permit program after determining that it allows companies to avoid certain federal clean air requirements by lumping emissions from multiple units under a single “cap” rather than setting specific emission limits for individual pollution sources at their plants.

The Clean Air Act ensures that businesses across the country operate efficiently and cleanly to safeguard public health from harmful levels of air pollution. Under the Act, all states must develop State Implementation Plans for meeting federal requirements to protect public health. Those plans must include an air permitting program to set pollution levels for industrial facilities.

In 1992, EPA approved Texas’ State Implementation Plan but since 1994 the state has submitted over 30 regulatory changes to the air pollution permitting part of the plan. Today’s action represents a final EPA decision to disallow one of the most important changes made by Texas for failing to meet the protective measures of the Clean Air Act.

In September 2009, EPA proposed to disapprove the state's flexible permits program and invited public comment. EPA has carefully reviewed comments and decided to finalize its proposed disapproval of the program. To insure no disruptions for facilities, EPA has reached out to industry, the environmental community and TCEQ to discuss how to convert flexible permits into more detailed permits that comply with the Clean Air Act. One tool proposed by EPA is encouraging flexible permit holders to participate in a voluntary compliance audit program. The program will expedite efforts to identify emission limits, operating requirements and monitoring, reporting and recordkeeping data. Public comment on the proposed audit program closes on July 2, 2010.

On June 16, 2010, the TCEQ approved proposed revisions to the state’s flexible permit rules. The public comment period on the rules package opens on July 2, 2010 and runs through August 2, 2010. The state must then finalize its proposal and submit it to EPA for review. EPA will examine the new rules when submitted but believes that public health and federal law require disapproval of the existing program without further delay.

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