The Austin Chronicle

Environmental Cage Match

After a history of pulling its punches, is the EPA finally forcing TCEQ to clean up the Texas air?

By Katherine Gregor, May 28, 2010, News

"This is a big, bad fight," says Eva Hernandez with wide-eyed relish.

Twentysomethings are typically attracted to Austin for its casually hip vibe, graduate school, or a perhaps a career in high tech. But Hernandez, 29, chose to move here last year for an unusual reason: Texas' horrendous air pollution problem. A nationally respected Sierra Club organizer, Hernandez moved to Aus­tin to head up a grassroots statewide campaign to fight the state on permitting and building a dozen new coal plants. Even so, she was shocked by what she discovered about the Texas Commission on Environmental Quality, the state agency responsible for enforcing the Clean Air Act and other federal law.

"I have to admit, I moved to Texas without really understanding how big the problem is," says the Kansas native, who earned a degree in environmental policy from the University of Kansas in 2004. "The biggest surprise to me, when I got here, was that TCEQ doesn't do what the name says. It was a shock to discover how flawed our state agency really is. They're set up to protect our best interests, and the fact that they don't infuriates me. Even Oklahoma does a better job." Hernandez drives across the state weekly – to Abilene, to Bay City, to Houston, to any coal-fight front where she can help local communities organize and take action to protect themselves from the unhealthy air pollutants that a new TCEQ coal-plant permit will bring. She glows as she describes fighting the good fight: "The exciting thing about it is we can win!" As this story went to press, the U.S. Environmental Protection Agency threw a historic punch in that fight. See "Breaking News: EPA Takes Control of Permit."

TCEQ's failure to protect Texans from the illnesses, diseases, and early deaths caused by air pollutants is no shock, unfortunately, to those familiar with the agency. The litany of its laxity is long and, yes, infuriating – if you don't happen to own an oil refinery. The state environmental agency has a long record of prioritizing the needs and demands of busineses – the oil and gas industry, petrochemical companies, coal-fired power plants, and other major pollution sources – at the expense of public health. For example, the EPA and the Clean Air Act set a cap for allowable levels of carcinogenic air pollutants at a level that, statistically speaking, increases Americans' lifetime risk of cancer by 1 in 1,000,000. Yet the TCEQ puts Texans at 10 times that risk; according to Health Professionals for Clean Air, the agency "has adopted a less protective policy of 1 in 100,000 increased lifetime risk of cancer."

While critics say TCEQ is inexcusably lax across the board, its air permitting system is particularly egregious. TCEQ is charged with permitting and enforcement for the EPA, to regulate the pollutants not only in Texas air but also in water and land; it has a duty to enforce both state and federal laws, including the federal Clean Air Act and Clean Water Act. But since the Texas Legislature created a new industry-friendly state air permitting system in 1994-95, the agency has abetted Texas pollution-source operators and owners in violating federal law by issuing permits for emissions that do not conform to the Clean Air Act. TCEQ's lax environmental protection has enjoyed bipartisan political indulgence in Texas. (The agency was formerly the Texas Natural Resource Conservation Commission – a name suggestive of its economic development roots; it was also known colloquially, in a play on its initials – TNRCC - as "Train Wreck.") But during the years George W. Bush was governor (1995-2000) and then president (2001-2009), "a bad Texas air pollution program got worse," says Environmental Integrity Project attorney Ilan Levin.

But since Barack Obama took office, the EPA has filed objections to a whole string of air permit renewal applications in Texas. "A new sheriff has come to town, and it's going to put a halt to the illegal permitting by TCEQ," said Tom "Smitty" Smith, director of the Texas office of Public Citizen, who has devoted a long career to air quality and other environmental advocacy. Under fresh leadership, the EPA has taken a notably stronger approach to enforcement and has targeted TCEQ for special attention. The EPA has registered concerns about many federal requirements lacking in TCEQ's air-permitting: public notice and comment, modeling to show the pollution that will be created, effective monitoring and reviews, and other protections. "The consequences are huge," Smith said. "Our health is affected by permitting the number of plants that are polluting our cities and causing us to have difficulty breathing and increasing our costs of doing business in our polluted cities."

"It takes a lot for EPA to step in and tell a state regulatory agency that it's not doing its job right," observes Hernandez. "So the fact that EPA is going after Texas is a big deal." Going into her organizer stump speech, she adds: "But Governor Perry just sued the EPA [contesting its standing to control greenhouse gases], so we need to show that Texans do care about clean air and clean water. It's really important right now that elected officials and ordinary Texans take a stand on this issue."

The False Choice

The new top EPA administrators with authority over TCEQ – Lisa Jackson in Wash­ing­ton, D.C., and Al Armendariz for EPA Region 6, based in Dallas – are pursuing an approach to environmental policy and enforcement that differs markedly from the pro-business agenda favored by the previous administration. As first noted locally by Greg Schwartz in The Austin Bulldog ("Who Protects the Texas Envi­ron­ment?," March 30), Jackson gave a March 8 speech at the National Press Club in Washing­ton, D.C., in which she challenged directly the argument, routinely made by Gov. Rick Perry and TCEQ commissioners, that a healthy economy demands tolerating pollution.

"Poison in the ground means poison in the economy," said Jackson. "Well-conceived, effectively implemented environmental protection is good for economic growth. Let me repeat that: Environmental protection is good for economic growth." She acknowledged that the EPA and environmentalists "haven't done the best job" of making that argument in the past: "We've lost the messaging war." But citing Americans' "capacity for innovation and invention," she asserted that a commitment to clean and green new technologies can drive economic growth. In arguing for the EPA's role in reducing greenhouse-gas emissions – action she called "long overdue" – she said, "The economic costs of unchecked climate change will be orders of magnitude higher for the next generation than it would be for us to take action today." She discussed climate action as a tool for economic development, as well. "It's time to put to rest the notion that economic growth and environmental protection are incompatible. It's time to finally dismiss this false choice."

Asked how that plays out in Texas, Region 6 Associate Regional Administrator Layla Man­suri (another Obama administration appointee) said, "I think we can all agree that what applies to the rest of the country applies to Texas as well."

According to more than one observer with ample reasons to be skeptical, the change in posture at EPA is not simply rhetorical. In particular, Public Citizen's Smith said he's seen that this EPA truly is serious. The day we spoke, May 4, for example, the EPA had taken a historic action by announcing its intent to make new coal-combustion waste rules – a protection discussed but not enacted for some 30 years. "No previous EPA has had the courage to take on the coal industry," said Smith. "The coal industry has been able to dump their waste in unlined mine pits or behind poorly reinforced dams or in leaking or hazardous waste dumps for over 100 years. As a result, there's a toxic legacy leaching into our water tables that's far more dangerous to our society than smoking cigarettes or driving while drinking."

As for Texas, "I am very excited about Al Armendariz being the new regional administrator," he said. "The change in attitude, at regional headquarters and at TCEQ, has been profound in just the five months that he's been on the job. He is a scientist; he makes decisions based on data, not on politics." Neil Carman, Clean Air Program director for the Lone Star Chapter of the Sierra Club (and another longtime Tex­as air-quality advocate), agreed. He said Armen­dariz (formerly a professor in the Department of Envi­ron­mental and Civil Engineering at Southern Methodist University) had told him that he didn't fully understand until he was in his current job what a horrible mess existed at TCEQ, particularly its air permit system. Car­man paraphrased a comment made by Armendariz when he spoke in Austin earlier this year: "This mess took 20 years to be created. It's going to take a while to be resolved."

Hernandez put it more pointedly: "TCEQ is not in the business of protecting the health and well-being of Texans. They're in the business of issuing permits for big polluters."

On March 31, the EPA seriously yanked the TCEQ's chain. It disapproved the "qualified facilities exemption" rule that TCEQ had long allowed industry to use. (However, the rule never had been federally approved in Texas' State Implementation Plan.) That rule helped older, previously grandfathered, high-polluting industrial facilities to keep their existing permits, even though internal operations had changed in a fashion not allowed by federal law. With the rule, said Levin, TCEQ has assisted industry in circumventing the Clean Air Act while avoiding public accountability and scrutiny. "Today's action improves transparency by requiring companies that modify their operations to notify the public and will assure that all air emitting sources are properly permitted under the Clean Air Act," said Armendariz in the March 31 announcement. "Improved public review will better inform our communities about the environmental conditions where they live."

On June 30, the EPA is scheduled to hand down another long-awaited final determination on another rule-bending TCEQ practice – flexible permits (see "EPA to TCEQ: Too Much 'Flexibility'"). "July 1 is a very important day," Armendariz told the Associated Press. TCEQ must inform him before that deadline that it has reformed and begun issuing federally legal permits. "If they can't, we will."

On Aug. 31, EPA is scheduled to finally rule on Texas' program for new source review, which permits new operations. On Oct. 31, it will finally rule on Texas' questionable method of handling "upsets" – major emission events outside normal operational standards – which excuses high levels of "emergency" pollution. Another two dozen or so dubious TCEQ practices also are scheduled for EPA final rulings. Smith, Carman, and Levin all said they expect few of those calls to go TCEQ's way.

Mansuri responded that she couldn't speculate on how EPA might act on regulations still under review. But she emphasized, "We do have serious concerns regarding the regulations in Texas that are being used to enforce the Clean Air Act."

In addition, said Hernandez, "There's a bunch of new EPA rules that will make it really expensive to operate a coal plant, coming through in the next year to 18 months." The EPA recently reduced allowable levels for ozone (the primary air pollutant regulated) from 85 parts per billion to 75. In August, said Mansuri, the EPA will issue a final national decision on the ozone standard. That could further reduce allowable levels, in the interest of public health; scientists have recommended no more than 60-70 parts per billion. "That will double the areas in [air quality] nonattainment in Texas," Hernandez noted.

Wading in the Cesspool

The scope of the Texas air permitting problem is so huge "you can't imagine it," said Car­man. He cited a TCEQ document showing that the state has permitted 30,000 air pollution sources. Those include up to 5,000 "qualified facilities" (whose permits are now invalid) and 1,461 major sources of air pollution – including 25 petroleum refineries and 160 chemical facilities. He indicated that for all those sources, TCEQ is likely to have to either negotiate new agreements or repermit them – an enormous undertaking.

Like Smith, Carman is convinced the EPA is "very serious" about forcing Texas into Clean Air Act compliance. He's met frequently with EPA staff, including Lisa Jackson and "an army of people" the agency has sent to the Texas front. "The problem is, this whole mess is so huge, EPA is still simply trying to figure out 'How do you fix it?'" said Carman. "It's very complicated, and we've all been sitting in long meetings just trying to talk about it. It's just such a colossal mess, and it's gone on for so long. We're trying to wade through a cesspool that TCEQ created."

Carman previously worked as an air-quality investigator and inspector for the state (at a TCEQ predecessor agency, the Texas Air Con­trol Board) from 1980 to 1992. He has said he has evidence of extensive criminal acts by TCEQ that have never been investigated. By his count, TCEQ has issued about 87,000 permits allowing industry to pollute the air since 1971, and only denied about 15 applications. (TCEQ says it's unable to verify those figures but defended its process, noting that applications are thoroughly vetted by professional staff before they go before the commission for approval.) TCEQ has issued its pollution permits over the objections of affected neighbors, whole communities, state legislators, and even its own scientists, according to published reports. Environmental groups can cite a long history of specific instances in which TCEQ has forgiven (or failed to punish) the illegal releases of high levels of pollutants and toxic chemicals – carcinogens such as benzene, and heavy metals such as mercury and arsenic – into the Texas air and water.

State Sen. Eliot Shapleigh, D-El Paso, told the Bulldog's Schwartz: "When it comes to emissions, TCEQ has already seceded from America. Polluters have captured and deeply corrupted this agency ... to the point that the chairman meets in secret with the polluter lobbyists." The senator has sued TCEQ over its permitting of an ASARCO copper smelter in El Paso, in his district. "The ASARCO case is the roadmap for how polluters have captured and corrupted a Texas agency, the campaign of Rick Perry, and the emissions profile of the world," Shapleigh said. "Rick Perry wins if the truth is blocked. If the secrets at TCEQ come to the public, the public will be outraged."

TCEQ "vehemently" denied Shapleigh's allegations of corruption and secrecy. "More specifically," the agency said in its e-mailed response to the Chronicle, TCEQ's resistance to releasing relevant documents "is simply a case of upholding the ability of state agency employees ... to communicate with counsel in a confidential manner so as to encourage candid, free and frank exchanges of information and legal viewpoints."

The EPA's Hammer

In part because it has allowed illegal doings in Texas for at least 15 years, the EPA has its work cut out for it. "Flex permits are just one example of the systemic problems at the state level," said Levin. "It's certainly an important issue, and one EPA is spending a lot of time on, but it's far from the only issue. The bigger picture is that EPA is trying to bring the state of Texas in line with all federal minimum requirements, under the Clean Air Act."

Levin has been at the heart of the fight, as senior attorney and Texas program director for the Environmental Integrity Project. EIP was launched in 2002 by a former director of the EPA's Office of Civil Enforcement, who left (basically in disgust, said Levin) to create an independent group focused on "the vigilant enforcement of environmental laws." On behalf of the Sierra Club and other clients, Levin and EIP's other lawyers have sued and petitioned both the EPA and TCEQ to force them to do their jobs. Like Hernandez, Levin sees the state's air permitting mess as a positive challenge. "The opportunities to improve our environmental track record and clean up pollution remain so great – because we just have so much of it," he said.

The EPA does have a big hammer, said Levin. It can move to take air permitting control and all environmental regulatory authority away from the state. If TCEQ doesn't shape up, EPA can entirely rescind the State Implementation Plan. The SIP is "almost like a contract between the state and the feds," Levin explained, in which "EPA signs off to let TCEQ run the program in Texas." If EPA moves to cancel the contract, he believes both industry and the state would finally move to comply with the Clean Air Act.

When asked whether the EPA could be forced to take Texas air permitting into its own hands, Mansuri said she couldn't speculate. But she reiterated, "We have very serious concerns about the regulations." She added tactfully: "Permits consistent with the federal Clean Air Act need to be issued in the state. It is our hope that those permits will be issued by TCEQ."

What first spurred EPA action against TCEQ in 2007 (under the Bush administration) was a lawsuit by an industry group against the EPA, demanding a ruling on TCEQ rules in the interest of regulatory certainty. "Many companies in Texas – including major industries like refineries, chemical plants, power plants, cement plants – are operating in legal limbo," Levin explained. For 15 years, they've gotten Texas permits but have been out of compliance with federal law – not a comfortable situation. "If I'm a flex permit holder – like ExxonMobil, or the Fayette power plant operated by LCRA [and co-owned by the city of Austin] – I'd be asking some really hard questions right now of my lawyers and advisers and state regulators," said Levin. Of course, they could have chosen to meet federal standards all along: "Their hands aren't entirely clean."

When finally forced into action by the industry lawsuit, "EPA put them all on notice in 2007 by sending out a fair notice letter," about TCEQ's flexible permits, Levin explained. The purpose of the letter, stated the EPA on an accompanying FAQ sheet, was to remind all owners and operators that they are obligated to follow both state and federal laws. The EPA reasserted its superior power to enforce all permits; it specifically stated it was not bound by Texas' flex permit provisions, since the EPA never approved them in the first place. "Owners and operators must continue to meet their obligations under the federal Clean Air Act, including the requirement to comply with all federal programs," stated EPA. The EPA fair notice letter should have been the big wake-up call to industry. Yet since receiving that letter from the EPA, said Levin, "They've continued to use the flex permits – just digging themselves into a deeper hole."

At a time when state resources might have been devoted more wisely to helping Texas industry comply with EPA clean air rules, Gov. Perry (as Hernandez noted) instead chose to focus energies on suing the EPA. The Texas suit seeks to overturn the EPA's "endangerment finding" (supported by the U.S. Supreme Court) that greenhouse gases pose a threat to public health and are thus within the EPA's regulatory purview. As little as Perry and TCEQ seem to care about reducing air pollution – Texas has led the nation in mercury, ozone, and other emissions over the years – they are downright defiant about carbon pollution. (By an independent calculation, only six entire countries globally exceed Texas' carbon pollution.) Perry and TCEQ Chair Bryan Shaw both are climate skeptics who do not accept the international scientific consensus that global warming is caused by human activity.

According to Smith, the TCEQ won't even allow permit applicants to address carbon reductions or sequestration in their permits – including five new coal plants trying to do so. Basically, the TCEQ doesn't want to admit that greenhouses gases even exist as an emission to be regulated. "It's exactly as ridiculous as you think it is," he said. The EPA has said it will develop rules within two years for regulating global warming gases from industrial sources; like all states, Texas will be expected to enforce them, but TCEQ is taking a wait-and-see position in the meantime. "If and when rules are adopted by EPA," the agency said, "TCEQ will consider what the state's obligations are, particularly in light of current litigation and any future legal challenges."

While the TCEQ acknowledged it doesn't require reductions of greenhouse gases or CO2 emissions "at this time," it denied Smith's claim that permit applicants aren't allowed to address these issues, adding that three out of five new coal plants are currently proposing carbon sequestration.

We're Just Misunderstood

In facing down the EPA, the TCEQ commissioners – all three Perry appointees – give little evidence of either contrition or a change of heart. In an Earth Day post to his Modern Stewardship blog, TCEQ Commissioner Buddy Garcia ridiculed a Dallas Morning News editorial of April 7, "EPA is tough on Texas – and deservedly so," as "a masterpiece of misinformation and misunderstanding." The News said the EPA's scrutiny had "revealed a decided lack of transparency in the state's approach to permitting pollution, as well as efforts to paper over major changes to industrial plants and erroneously categorize them as minor." It urged TCEQ commissioners to "demonstrate a willingness to work with the EPA and show an interest in protecting public health."

Garcia responded that the agency is doing a fine job already: "Texans are breathing cleaner, healthier air, thanks to the TCEQ." He defended Texas' flexible permits because they "allow companies to decide for themselves how to meet emissions limits" in a manner that "best fits their business." (Federal rules also allow flexibility, but not in the way Texas permits.) He characterized some federal regulations as costing industry more, "with no appreciable improvement in air quality. That means higher costs, but no benefit, to consumers in Texas and across the nation. Texas will fight those laws with all legal tools available, as is our right and responsibility under the United States Constitution."

Levin suspects the TCEQ is just trying to drag out the process, in the hopes that Obama won't be re-elected – and the EPA then will back off. As reported by the Austin Bulldog, TCEQ Chair Shaw said its enforcement system "is just misunderstood, not broken," at a Texas Public Policy Foundation panel discussion in Austin in February on "New Ozone Standards: The Texas Challenge." Shaw claimed the state needs its flexible, customized approach "to get the [economic] success we've seen."

In 2007, the year he was appointed to the commission, Shaw openly scoffed at evidence showing a connection between human activities and global warming. Does he still hold that position today? "Yes, and in light of the Climategate scandal and continuing scandals involving the global warming alarmists, now more than ever," Shaw declared in a written response to the Chronicle via TCEQ's press office.

As the EPA vs. TCEQ drama plays out, Her­nan­dez isn't trusting either agency to make sure the 12 new "dirty coal" plants actively being proposed or built in Texas don't harm Texans' health. The Sierra Club is devoting more resources and staff to the Texas fight and to Hernandez's team this summer, because, like the EPA, it regards Texas as a critical front on air quality, clean energy, and climate action.

According to the calculations of environmental groups, if all 12 new Texas plants are permitted and open, Texans annually will breathe an additional 53,630 tons of sulfur dioxide (which causes increased respiratory symptoms and disease, difficulty in breathing, and premature death), 29,660 tons of nitrogen dioxide (another chemical that increases hospital admissions for asthma), 14,180 tons per year of particulate matter (asthma, heart disease, lung cancer), and 3,434 pounds of mercury (which harms the brain and nervous system). In addition, the plants would contribute significantly to global warming by emitting a total of 77 million tons per year of CO2 (endangering civilization as we know it).

"This is an exciting moment in time," said Hernandez with youthful conviction. "But I think EPA is poised to force change, if enough people voice their concerns." The EPA's rulings this year – on June 30, Aug. 31, and Oct. 31 – will be the actions to watch.

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