Lawmakers urge state, EPA to settle air pollution squabble


A House subcommittee urged the EPA on Thursday to resolve its differences with Texas over the unique way the state regulates industrial air pollution.

The bipartisan push came at the end of a hearing in Houston convened by a House Energy and Commerce subcommittee to review the impact of the Environmental Protection Agency’s recent actions in Texas.

The EPA and Texas are at odds over several issues, but much of the talk focused on the federal agency’s rejection of the state’s use of so-called flexible permits for refineries, chemical and plastics makers and other facilities.

Rep. Gene Green, a Democrat whose district includes the Houston Ship Channel, said industry needs regulatory certainty to grow, not lawsuits. “They just can’t have fighting between the EPA and the state,” he said.

“These issues should be resolved,” agreed Rep. Joe Barton, R-Arlington. “I can’t stress enough that we have an environmental program at the state and federal level that people can believe in.”

Difficult to negotiate

The permits in question require refineries, chemical plants and other facilities to meet an overall emissions cap but allows them to choose how to do so. Federal rules, however, require plants to limit emissions of certain pollutants from each source within a facility.

The single overall cap, the EPA argues, makes the Texas permits unenforceable and allows plants to emit more than similar facilities in other states. But Texas officials say the system cuts red tape and pollution without violating federal law.

Texas has filed suit to block the EPA’s disapproval of flex permits, asserting that there is no legal or technical justification for the agency’s action, which affected about 130 facilities statewide.

All but a few companies have informed the EPA that they will bring the state-issued flexible permits into compliance with federal law within the next year.

But Bryan Shaw, chairman of the Texas Commission on Environmental Quality, told the subcommittee he is concerned that the change in permits may hamper the state’s efforts to improve air quality. He noted that Texas reduced emissions despite gaining population during the 16-year history of flexible permits.

Shaw also told the panel there is “not a lot of fertile ground for negotiation” with the EPA over the permits.

Not just the wording

Gina McCarthy, the EPA’s air chief, said the agency wants a resolution with the state, but the differences are philosophical — not just over wording in the permits.

For example, McCarthy said, the state’s emissions limits are based on generous, industry-supplied estimates that allow a plant to make major modifications without public scrutiny. The EPA requires the use of actual emissions in writing permits, she said.

“Texas rules have allowed some industrial sources to say ‘trust us’ to protect public health without giving EPA, Texas or citizens the chance to verify,” she said. “No other state allows this.”

McCarthy also reminded the subcommittee that the Bush administration’s EPA raised similar concerns about the Texas regime, adding that the agency doesn’t believe the state’s improved air quality can be attributed to flexible permits.

Jed Anderson, a Houston attorney, said he is hopeful that the two sides will come to an agreement on flexible permits – even if it requires a push from Congress or the courts – because his industry clients want them.

“They would go back to flexible permits” if they had the opportunity, he said.