Texas regulators quietly worked with the coal industry to illegally exempt 19 coal-fired power plants from parts of the Clean Air Act, environmental groups claimed in a petition filed today with the Environmental Protection Agency.
The petitioners said Texas had acted illegally by loosening a federal law that restricts toxic emissions without obtaining––or even seeking––EPA approval. The petition asks the EPA to force Texas to tighten the coal plants' air permits. It also asks EPA to step in with a federal implementation plan if the Texas Commission on Environmental Quality (TCEQ)—the state's environmental regulator—fails to fix the issue within two years.
If the allegations are true, then the petitioners have "a good case" for their complaint, said Thomas McGarity, a University of Texas law professor who studies administrative and environmental law.
"What Texas has done requires the approval of EPA, or else the [coal plants] may be subject to enforcement action by the EPA," said Craig Oren, a law professor at Rutgers University-Camden who has worked on Clean Air Act issues since 1979.
(Because news about the petition was embargoed for today, neither McGarity nor Oren knew of the petition's existence. However, they were informed about the environmentalists' allegations.)
TCEQ has frequently been accused by environmental groups of being too close to industry, and the anti-regulatory atmosphere in Texas has only grown since Greg Abbott was elected governor last year. As the state's attorney general, Abbott sued the EPA 19 times from 2010-14.
Last year, an investigation by InsideClimate News and the Center for Public Integrity found the TCEQ was more intent on helping the state's oil and gas industry than the residents whose health was being affected by air pollution.
This petition specifically addresses emissions of particulate matter, a mixture of tiny, sometimes microscopic particles that can get deep into the lungs and cause respiratory or cardiovascular problems. Scientists have found that the smaller, finer particles—which are less than 1/30th the thickness of an average human hair—cause the most harm.
The Clean Air Act sets a federal standard for particulate matter concentrations in the air. Individual states then create EPA-approved State Implementation Plans that aim to ensure the state can meet that standard.
These state plans, or SIPs, include limits on the amount of particulate matter emitted from industrial sources. According to the petition, TCEQ gave 19 coal plants revised air permits between 2011-2013 that allow them to exceed that limit during startup, shutdown and maintenance activities. The exemptions can be used for up to 1,008 hours (or six weeks) per year.
In one case, the Texas-approved hourly emissions cap for particulate matter is 30 times more lenient than the power plant's previous limit, according to calculations conducted by the Environmental Integrity Project, a Washington, D.C.-based advocacy group that filed the petition on behalf of nine Texas environmental and citizen groups.
The Integrity Project based its findings on a review of the plants' former and current air permits, and on TCEQ correspondence obtained through a public records request.
"Texas is in effect departing from the terms of its SIP," Oren said, adding that EPA could sue to enforce the original terms of that SIP.
The situation would be quite different if the Texas regulators had sought EPA approval to relax the state's implementation plan, he said. If the TCEQ could show the state can still meet federal particulate matter standards while allowing its power plants to emit more of the pollutant, then the EPA might grant Texas a variance. In that case, the state would be free from potential federal enforcement, though citizen groups could still sue, Oren said.
But the petition states TCEQ never submitted its proposed changes to the EPA. Nor did the agency provide adequate public review of the new, looser regulations, said Eric Schaeffer, executive director of the Environmental Integrity Project.
"There was a very limited public comment period for some of these permits --but without [a] public hearing, obligation on the state's part to respond to comments, or chance to contest the state's decision," Schaeffer said in an email. "Without those rights, the comment process is a charade."
These exemptions now apply to "basically all the big coal plants" in Texas, and the average Texas citizen has no idea the changes were systematic, he said.
The TCEQ did not respond to requests for comment.
A statement from Jennah Durant, a spokeswoman from the EPA regional office that oversees Texas, said, "As part of EPA's oversight role in assuring all parts of TCEQ's air permitting program meet federal Clean Air Act requirements, we are looking into these practices to determine if further action is appropriate." (Like McGarity and Oren, Durant knew about the allegations that appear in the petition, but was not informed about the petition itself due to the embargo.)
'A Certain Smell on the Thing'
Not only are TCEQ's actions illegal, Schaeffer said, but the "whole thing was rigged."
The petition says the exemptions stemmed from collaboration between TCEQ and the Association of Electric Companies of Texas, Inc., a trade group that represents the state's electric industry, including coal plant operators.
For example, public records obtained by Schaeffer's group show representatives from TCEQ and the trade group met several times to discuss air permits. In October 2010, the trade group provided TCEQ with a template for a revised air permit allowing greater particulate matter emissions.
The language in the revised air permits practically mirrors the text provided by the trade group.
"It sounds like a lot of the technical work was done by this outside group rather than by the Texas regulators," Oren said. It's probably not illegal, he said, but "it certainly puts a certain smell on the thing."
When InsideClimate asked the Association of Electric Companies of Texas to respond to the petition's allegations, CEO John Fainter responded by email, saying Texas regulators processed the revised air permits "in accordance with its applicable rules and guidance, including requirements for best available control technology (BACT), air quality protectiveness review, and public notice and comment."
He also said his organization "is proud of its members' record of compliance with state and federal regulations, both substantive and procedural."
The coal plants' revised permits didn't green light additional emissions, but simply reflected the emissions that were already being released from startup, shutdown and maintenance activities, Fainter said.
In an email, Schaeffer said his organization believes some of those plants "have been emitting at much higher levels than their permits allowed for years." And each of those cases would be a violation of the Clean Air Act, he said. "Making them 'legal' by jacking up the limits is not the answer."