Bush's Xmas Stocking: Burning Coal?

New state and federal regulations threaten the Clean Air Act

Members of the Sierra Club, League of Conservation Voters, Texas Campaign for the Environment, Public Citizen, the S.E.E.D. Coalition, and Campaign ExxonMobil present polluters with George W. Bush's Christmas presents at the state Capitol.
Members of the Sierra Club, League of Conservation Voters, Texas Campaign for the Environment, Public Citizen, the S.E.E.D. Coalition, and Campaign ExxonMobil present polluters with George W. Bush's "Christmas presents" at the state Capitol.

Change is in the air -- literally.

On Dec. 19, the Texas Natural Resource Conservation Commission voted to change the factors considered when a company seeks to modify or apply for an operating permit. And national changes are expected any day now, with the Bush administration reportedly considering altering a key provision of the federal Clean Air Act. Environmentalists aren't happy with either development.

On the TNRCC front, enviros managed to score one victory while losing another. The commission voted to require that a company's compliance record with environmental laws for the previous five years be considered when it submits a permit application. One of the factors to be considered is "notices of violation": letters from the commission warning of infractions but carrying no penalty. The original proposal would have allowed the TNRCC to consider only notices issued after Feb. 1, 2002 -- a move that would have effectively given historic polluters a "clean slate."

After heavy lobbying, the green camp persuaded the commission to accept notices going back to September of 1999. But another provision passed that allows regulators to consider only the record of the particular company seeking the permit -- not its parent company or otherwise affiliated companies. Critics say this could allow a company with a bad record to simply create a new front company with no prior record.

"We were able to eliminate what we called the clean slate provision, which would have wiped out all previous violations before February 2002. But they kept what we call 'the corporate shell-game provision,' which basically means that if they come up with a new legal entity, but it's the same operation, that will not follow them around," said Robin Schneider of Texas Campaign for the Environment.

"This is going to be almost no protection for people, because it's so easy to set up other entities," Schneider said. "When I did research on the grandfathered polluters and their campaign contributions, the Texas Secretary of State's records were not very accurate in trying to track down these corporations, and my records were better than the state's were. This is a very dangerous provision. As others have pointed out, they are changing their legal entities all the time to take advantage of changes in the tax laws. I think we are going to need more legislation on this in the next session."

Mark Vickery, deputy director of TNRCC's office of compliance and enforcement, defended what even he admitted was a loophole, saying the commission had to realistically consider the enforcement resources at its disposal. "Part of it is a manageability aspect," Vickery said. "For instance, if a company has several hundred sister/daughter corporations that are service station kind of things, then it becomes a resource issue. If you were to do a compliance history for a particular company that had several hundred other facilities, you might have a compliance history that is somewhat overwhelming, and at some point in time, the meaningfulness of it would be lost.

"There is no question that there is some loophole here. I don't think it's as big as what people made it out to be, for one reason in particular: The compliance history for that particular site, will always be there. They could change their name repeatedly for that particular site and we would always have that compliance history."

Vickery also noted the new improvements in the rules: Now, if a permit seeker applies for, say, a waste permit, the TNRCC will also look at its compliance history for water and air, whereas before it would have only considered its waste history. And he pointed out that companies' histories outside of Texas will also be considered.

At the federal level, President Bush is widely expected to relax the 1970 Clean Air Act's New Source Review rules, which require any power plant seeking to significantly upgrade or repair its facilities to install improved pollution controls. (This is similar to the state rules that have become a thorn in the side of Alcoa's Rockdale facility; both state and federal agencies are reviewing Alcoa's maintenance records from the 1980s to determine if the company violated regulations governing new sources of emissions, and the Neighbors for Neighbors activist group just filed a lawsuit alleging that Alcoa did so.) The power industry has charged that these controls are too expensive and the rules are enforced too harshly, and the Bush administration warns that the regulations prevent new power plants from being built.

Environmentalists say the pending changes are part of a broader effort by the Bush administration to push through its anti-green agenda while the news media and voters are preoccupied with the war against terrorism. The Clinton administration more aggressively pursued enforcement and helped state attorneys general to sue violators, they say, and now Bush is looking to reverse these efforts.

The day after the TNRCC meeting, Schneider joined the Sierra Club's Neil Carman and Public Citizen's Tom "Smitty-- Smith on the steps of the Capitol to ridicule the rule rollback by singing faux Christmas carols ("Polluter Pardons Are Coming to Town") and offering "presents" symbolizing Bush's holiday "gifts" to polluters. "We have pretty strong indications that they're going to totally gut the heart and lungs out of clean air laws and undercut the lawsuits and investigations," Schneider said. "We'll have another generation suffering from dirty air."

The federal rollback may also help undo a clean-air victory that Texas greens won just after Bush left the Governor's Mansion, Schneider said. In the last legislative session, the infamous "grandfather loophole," which allowed pre-1970 facilities (including the very dirty Alcoa plant) to escape the most stringent of Texas' air pollution laws, was finally eliminated. However, since Texas law forbids the state from having regulations more stringent than federal ones, the federal rollback could automatically reverse that progress.

"In Texas, it's largely the refineries that appear to have been violating [New Source Review rules]," Schneider said. "Companies like ExxonMobil, Phillips Petroleum, and Citgo are getting off the hook. Coincidentally, they are all large Bush contributors. From our point of view, this is largely payback. They get the presents, we get a lump of coal. It's poignant -- six or seven months ago we celebrated closing the loophole in Texas, and now we're looking at an even bigger one."

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