EPA Formally Disapproves Texas’ “Flex-Permit” Pollution Program

The U.S. Environmental Protection Agency (EPA) today formally disapproved the “flexible permitting” rules that the Texas Commission on Environmental Quality (TCEQ) uses to administer the state’s air quality program.  In the last few months, EPA has requested that three Texas facilities receive their permit from the federal government due to the agency’s objection to Texas’ permitting process.

“Texans deserve the same clean air protection as citizens of every other state, and TCEQ’s flexible permitting program has been denying all of us that right for nearly 20 years,” said Luke Metzger of Environment Texas.  “The Clean Air Act is the same law that polluters in all other 49 states have to follow, and it’s time that polluters in Texas follow it, too.”

Under the federal Clean Air Act (CAA), states may request authority to administer industry compliance with the CAA. They must, however, administer a program that meets EPA standards. For years, EPA has warned Texas that the flexible permit program does not meet CAA standards. Today’s announcement is formal confirmation that flexible permits are not valid tools for authorizing air pollution.

“Today’s action should be a wake up call for Texas. This is real now,” said former TCEQ commissioner Larry Soward. “There is a chance to resolve the differences between TCEQ and EPA, but it will take genuine cooperation. Everyone needs to leave their politics and rhetoric at the door and work together to protect Texans’ health.”

More than 100 of the biggest air pollution sources in the state received their permits under the program that EPA has now officially disapproved. EPA is offering an “amnesty and self-audit” option for these permit holders – which include big oil companies like BP and ExxonMobil, chemical plants around the state, and the Lower Colorado River Authority’s (LCRA) coal-fired power plant near Austin – to try to bring them into compliance without having to take more aggressive enforcement action. 

For years, the TCEQ, Governor Perry and the lawyers and lobbyists that represent flexible permit holders have adamantly denied the program needs fixing. Instead, they have continually suggested that EPA is politically motivated to punish Texas. 

“Many people believe EPA waited far too long to act,” said Tom “Smitty” Smith of Public Citizen. “But now that it has officially acted, Governor Perry and his appointed TCEQ commissioners owe it to Texas citizens to address the EPA’s concerns quickly and in good faith.”

EPA’s recent actions regarding TCEQ are shining a spotlight on the agency as it undergoes the state’s “Sunset Review,” a process used since 1977 to identify and eliminate waste, duplication, and inefficiency in government agencies. 

“EPA’s decision about Texas’ flexible permits is merely symptomatic of a larger problem with the way Texas leaders view clean air protection,” said Ilan Levin of the Environmental Integrity Project. “Polluters’ interests get priority over public health nearly every time, and clean air standards are viewed as bureaucratic hassles. Unless and until TCEQ gets serious about working with EPA to make all air pollution permits comply with federal law, Texans’ health will continue to suffer needlessly.”