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EPA and TCEQ settle lawsuits over flex permits

One less court fight for us and the feds.

The EPA and Texas on Wednesday said they have reached a deal over state permits for industrial air pollution, ending a four-year fight that to some had become a symbol of regulatory overreach by the federal government.

The agreement comes after the federal agency initially rejected Texas’ permitting system, which allows some operating flexibility to oil refiners, chemical makers and others to meet emissions limits.

Despite the EPA’s earlier reservations, the Texas Commission on Environmental Quality’s permit system appears largely unchanged – leaving environmentalists disappointed.

Ilan Levin, an Austin-based attorney for the Environmental Integrity Project, said the system has the same potential loopholes as before. “The flexible permit program has a long history of abuse, and a lot of the damage is already done,” he said.

But Bryan Shaw, the TCEQ’s chairman, said the agreement shows that the federal government “now understands why the program is legal and effective.”

The EPA invalidated the flex permit system in 2010, and later that year threatened crackdowns on plants that didn’t meet federal standard. All of the flex-permitted plants agreed to abide by federal standards in 2011, but in 2012 the Fifth Circuit Court of Appeals – yes, them again – ruled that the EPA had overstepped its authority. The EPA chose not to appeal that ruing, and this settlement is the conclusion of that litigation. The Sierra Club statement on this agreement sums it all up nicely.

“The history of TCEQ’s flexible permitting program in Texas has been almost 20 years of confusion and litigation. As TCEQ itself has acknowledged, every single former holder of flexible permits has now received new standard permits, without a single plant closure or loss of a single Texas job, contrary to the heated rhetoric we got from Chairman Shaw and Governor Perry several years ago.

“Moving forward, if TCEQ stays true to the wording of the new program and only issues flexible permits to truly minor facilities, we don’t foresee major problems.

“However, if our large refineries and chemical plants once again try to hide their emissions with unenforceable flexible permits, we’ll have another 20 years of confusion and litigation.”

Scheleen Walker
Director, Sierra Club Lone Star Chapter

The details always matter. Having the right people at the TCEQ, people who will care about those details, matters as well. TCEQ members are appointed by the Governor. Consider that yet another reason to vote for Wendy Davis this November.

That pollution isn’t our fault!

You have to admire the creativity.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Harris County’s problem with tiny, lung-damaging particles in the air can be blamed partly on African dust and crop-clearing fires in Mexico, the state’s environmental agency has told federal regulators.

If the Environmental Protection Agency agrees with the state’s finding, then the county would avoid stringent pollution controls and sanctions for particulate matter, or soot.

The Texas Commission on Environmental Quality is making the case after Harris County last December failed to meet new federal limits for soot. The EPA tightened the limits after a federal court concluded that previous standards were too weak to protect public health.

The state agency has flagged seven days from 2010 to 2012 when high soot levels were “not reasonably preventable” because of particles from faraway places. If not for pollution from Africa and Mexico, also known to regulators as “exceptional events,” the county would have met the new limits, the agency concluded.

Maybe this is what Ted Cruz is talking about when he demands tighter control over the border. Who knew he cared about the environment?

Environmentalists sharply criticized the state’s assertion, saying the agency is “looking for an easy way out” instead of cracking down on harmful pollution.

“It’s not the way to address a serious issue,” said Elena Craft, a Texas-based toxicologist for the Environmental Defense Fund. “Whether the pollution comes from an exceptional event or not, the public health risk is the same.”


Larry Soward, a former state commissioner who is now board president of Air Alliance Houston, said he expects the EPA to approve the state’s request.

But Soward said he is concerned that progress on air quality would stall if federal regulators allow the exceptions.

“The practical effect will be that no one does anything to ensure the new (particulate matter) standard is met other than what is being done now, which is very little,” he said. “In other words, Houston will come to parade rest.”

The EPA isn’t expected to make its decision till late next year. All snark aside, whether or not this is a real thing shouldn’t distract from the real need to deal with the problems and factors that we do control. A bit of dust that blows in from elsewhere doesn’t change the fundamentals.

Texas loses another lawsuit against the EPA

Getting to be a habit.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A federal appeals court on Friday rejected a legal challenge by Texas and Wyoming to the U.S. Environmental Protection Agency’s efforts to curb greenhouse gas emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 vote, said the states and various industry groups did not have standing to sue because they could not show that they had suffered an injury or that a ruling throwing out the EPA plan would benefit them.

The decision comes after the same court upheld the EPA’s first wave of greenhouse gas regulations in 2012, and is another win for the EPA, which has a strong track record in the courts in challenges to its rules, particularly those targeting greenhouse gas emissions.

“The states and industry groups trying to block EPA from curbing carbon pollution under the Clean Air Act are on a long losing streak,” said David Doniger, climate policy director for the Natural Resources Defense Council.

Friday’s decision concerned a challenge to the EPA’s efforts to make states include carbon dioxide and other greenhouse gases when they issue permits to industrial facilities setting limits on various types of pollution they emit.


Frank O’Donnell, president of the not-for-profit group Clean Air Watch, said Friday’s ruling strengthens the hand of the EPA as it starts to implement President Barack Obama’s climate action plan. Obama in June directed the agency to write rules to curb carbon emissions from the country’s fleet of existing power plants.

But O’Donnell said Texas and other states opposed to federal environmental regulations are likely to drag their heels when forced to comply with EPA timelines.

“I predict they will be late filing their plans, due in 2016 under the scenario the president set forth, and will dare the federal government to intervene,” O’Donnell said.

You can see the ruling here, via the Environmental Defense Fund. There have been so many of these lawsuits that I have a hard time keeping track of which one is which, so I’ll just turn this over to the Sierra Club for the last word.

“The U.S. Supreme Court and other federal courts have now ruled in favor of controlling climate disrupting-pollution nine times,” said Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club. “Attorney General Greg Abbott and Commissioner Bryan Shaw preferred to spend their time and resources on lawsuits doomed to fail, regardless of the consequences for Texas’s economy, rather than cooperating with the Environmental Protection Agency and upholding the law. Carbon pollution protections are the law, even in Texas. After three years of damaging droughts, it is time for the large polluters and state agencies alike to join the environmental community in working to reduce emissions.”

“While Texas officials were wasting taxpayer dollars with fights against the federal government, Texas legislators were quietly updating state laws in early 2013 to require TCEQ to regulate greenhouse gases under the Clean Air Act,” continued Reed. “Abbott and Shaw have spent millions of taxpayer dollars on these frivolous lawsuits rather than letting regulators do their jobs.”

Be sure to tell Latino voters about this one, Greg.

“An accident waiting to happen”

I don’t even know what to say.

There were no sprinklers. No firewalls. No water deluge systems. Safety inspections were rare at the fertilizer company in West, Texas, that exploded and killed at least 14 people this week.

This is not unusual.

Small fertilizer plants nationwide fall under the purview of several government agencies, each with a specific concern and none required to coordinate with others on what they have found.

The small distributors — there are as many of 1,150 in Texas alone — are part of a regulatory system that focuses on large installations and industries, though many of the small plants contain enough agricultural chemicals to fuel a major explosion.

The plant in West had ammonium nitrate, the chemical used to build the bomb that blew up the Alfred P. Murrah federal building in Oklahoma City in 1995, killing 168 people. According to a document filed in 2012 with the Texas Department of State Health Services, the maximum amount of this “extremely hazardous substance” the plant could store in one container was 90 tons, and the most it could have on site was 270 tons. It is unknown how much was onsite at any given time, or at the time of the explosion.

It was also authorized to handle up to 54,000 pounds of anhydrous ammonia, a substance the Texas environmental agency considers flammable and potentially toxic.

“This type of facility is a minor source of air emissions,” Ramiro Garcia, the head of enforcement and compliance at the Texas Commission on Environmental Quality, told The Associated Press.

“So the inspections are complaint driven. We usually look at more of the major facilities.”

No federal agency determines how close a facility handling potentially dangerous substances can be to population centers, and in many states, including Texas, many of these decisions are left up to local zoning authorities. And in Texas, the state’s minimal approach to zoning puts plants just yards away from schools, houses and other populated areas, as was the case in West.

That plant received a special permit because it was less than 3,000 feet from a school. The damage from the blast destroyed an apartment complex, nursing home and houses in a four-block area.

In the city of Houston, sexually oriented businesses are forbidden to be within 1,500 feet of a school. Say what you want about strip clubs, they are generally not prone to exploding. From a safety perspective, it’s no contest.

It’s pretty simple. We can simply accept that this sort of thing will happen from time to time, and chalk up the death and destruction as one of the costs of our society, or we can decide that’s not acceptable, and be willing to pay some amount of money to mitigate those risks. I’m pretty sure I know which one we’re going to choose – we already have chosen it, we’re just going to reaffirm that choice – I just wanted to be clear about that fact that it is a choice. It doesn’t have to be like this, we want it to be like this.

Protecting polluters


Ship Channel circa 1973

It’s never been easy fighting powerful polluters in Texas. A bill approved by a Senate committee today would make it even harder. With a big push from the Texas Chemical Council and the Texas Association of Business, the Senate Natural Resources Committee voted 6-3 today for legislation “streamlining” (read: weakening) the process that communities and environmental groups can use to challenge permits to pollute. (Democrats Rodney Ellis and Carlos Uresti as well as Republican Robert Duncan were the ‘no’ votes.)

“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land.”

Senate Bill 957 by Sen. Troy Fraser (R-Horseshoe Bay) would put limits on contested case hearings, mini-trials in which each administrative law judges hear testimony and evidence from each side. Environmental groups already complain that the process is flawed: The judges can only offer recommendations to the Texas Commission on Environmental Quality. That agency, run by corporate-friendly Rick Perry appointees, often ignores or downplays the judge’s proposals.

However, SB 957 would weaken it even further. Fraser’s proposal would shift the burden of proof from the company seeking the permit—often some of the most lucrative and powerful corporations in the world—to the protestant, often a hastily-formed grassroots group or an environmental organization. The bill would also strictly limit how long the contested case hearing could last; limit who could participate; narrow the scope of the hearing; and eliminate discovery.

Here’s SB957. It’s not the only polluter-friendly bill out there.

Some county governments have found that when it comes to suing corporations over polluted property, hiring a private law firm on a contingency fee basis is the way to go.

But against the backdrop of a multi-billion dollar dioxin case in Harris County, there’s an effort to outlaw those arrangements in pollution lawsuits. The House Committee on Environmental Regulation has scheduled a hearing today on a bill that would ban counties from using private firms, HB 3119.

The bill has the support of the Texas Conservative Coalition Research Institute that compiled a report on what it calls the “dubious practice of employing private lawyers on a contingency basis.”

“The arrangement creates a variety of perverse incentives. A county faces no risk in bringing a suit and the outside, contingency-based counsel has no incentive to settle the suit,” said Brent Connett, communications director for the group.

The group argues that instead, contingency fee deals encourage private firms to enrich themselves at the expense of adequately funding the cleanup of toxic sites.

Harris County, which was the focus of the conservative group’s report, says contingency fee arranagements are vital to its efforts to litigate pollution cases.

“We don’t have money to go out and hire lawyers. You’re talking about, at a minimum, hundreds of thousands of dollars that we would have to spend up front just to go to court. With the contingency fee, we don’t have to do that. We only pay if we win,” said Terrence O’Rourke, special assistant to the Office of the Harris County Attorney.


[Harris County] points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.

“They’re spending millions on their lawyers and Harris County can’t afford that. We’ve got contingent fee lawyers,” says O’Rourke, the county’s special assistant.

The point of taking cases on contingency is that it only pays to take cases you think can win. Otherwise, it’s a lot of hours down the drain for nothing. One could argue that it’s the attorneys for the polluters that have no real incentive to settle, since they get paid by the hour. But maybe as a compromise, we could set up a public defender system for the businesses that find themselves plagued by these suits, to represent them free of charge. Think the polluters would go for that? Yeah, me neither.

Here’s the Chron on these two bills:

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney’s office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field as governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While the county has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been relegated to private firms.


Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.”

Once again I note the irony of people who rant and rage about the federal government telling Texas what it can and can’t do but who are lining up to tell various local governments, often in localities far from their own home districts (Rep. Cindy Burkett, author of HB 3119, is from the suburbs of Dallas), what they can and can’t do. The good news is that SB957 likely won’t get past the Senate’s two-thirds rule, while HB3119 hasn’t yet been voted on in committee. If we’re lucky, it won’t have enough time to make it through, or it too will die from insufficient Senate support. But until they both do die, they’re menaces to be watched.

Still fighting the Waller County landfill

I’ve written before about a battle in Waller County over a proposed landfill that would be built there. While the landfill has moved closer to being approved, it’s not yet a done deal, and its opponents are still fighting against it.

“This landfill has done more to divide our county than anything I’ve ever seen. It breaks my heart,” said Waller County Judge Glenn Beckendorff.

Those opposing the proposed Pintail landfill have so far sent a near record 6,000 emails and letters to the Texas Commission on Environmental Quality, urging the agency to deny the permit.

But Green Group Holdings President Ernest Kaufmann contends the protest typifies the “not in my backyard” syndrome that happens whenever his company tries to put in a new landfill.

“Unfortunately, it’s the same argument that you hear wherever you go. It’s always about the groundwater and the smell,” he said. “But our landfills are engineered to be very safe.”

Waller County, which currently has no operating landfills within its borders, transports its waste to Harris, Fort Bend and other counties.

Kaufmann said the landfill is needed to meet needs of the community. “Growth in Waller County and the surrounding area is inevitable,” he said.

According to state records, the proposed landfill will be about 17 percent larger than the average landfill in Texas.

Pintail’s application estimates 161 vehicles a day will haul about 429,000 tons of garbage – none coming from outside the state – to its site each year. That number is expected to grow to 292 vehicles a day once the landfill is fully established, the application states.

The disposal area would be confined to 223 acres with other acreage used as a buffer or a potential industrial park.

Eventually, over decades, a mountain of waste would be dumped there. It will rise roughly 150 feet, or as tall as a 15-story building. Only about 5 percent will come from Waller County.

Boy, I can’t imagine why anyone wouldn’t want that in their backyard. Opponents of the landfill cite factors such as water contamination and discouraging other development in the county; the proposed site is off Highway 6, not far from Prairie View A&M. While these are very valid concerns, I think building giant new landfills anywhere is a bad idea. Frankly, it’s not clear to me that the demand will be there for this landfill, what with cities seeking to reduce the amount of waste they generate, and the amount they have to spend on things like landfill space. Landfills are yesterday’s solution, not tomorrow’s. As much as anything I’d be worried about being stuck with an albatross. I hope the folks who are asking the TCEQ to deny the permit have some luck getting through to them on this.

Adventures in water marketing

The headline on this story is about Texans’ increasing interest in recycling water. That sounds nice, doesn’t it? But there’s another way of describing it that maybe isn’t so appealing.

Experts say recycled wastewater will play a key role in satisfying the thirst of a rapidly growing population. While reuse now provides 2 percent of Texas’ water, state officials say that over the next half-century the drought-proof source will account for at least 10 percent of new supplies.

To reach the goal, state lawmakers may require at least 20 percent of any new funding for water-related infrastructure to go toward conservation or reuse. The requirement is part of House Bill 4, which would allow a one-time transfer of $2 billion into a new revolving, low-interest loan program for water projects.

“This is a robust and reliable source,” said Jorge Arroyo, an engineer and director of innovative water technologies at the Texas Water Development Board, the state’s water-planning agency. “Its future is very promising.”


Before drought began gripping the state in 2011, the Texas Commission on Environmental Quality typically approved fewer than 20 reuse requests from cities and water districts each year. The number jumped to 32 two years ago and 38 last year, with 25 applications already pending this year, the agency said.

Arroyo attributed the increasing interest in reclaimed water in part to the lingering drought, which covers 74 percent of the state. He also credited improving technology, which now is capable of turning sewage into water so clean it’s almost distilled.


Water managers see wetlands as a reliable, less-expensive solution to more dams, aqueducts and pipelines that deliver water over long distances. Wetlands allow them to reuse water that they already paid at least once to store and purify.

For all the interest in toilet-to-tap technology, more new potable reuse projects will take the indirect route through wetlands, rather than go straight to the faucet, Arroyo said. Meanwhile, most water reuse will continue to be for irrigation, landscaping and purposes other than human consumption.

I’m going to step out on a limb here and venture that if you were in charge of an advertising campaign for water recycling, you might prefer to steer clear of the phrase “toilet to tap technology”. I mean, you probably don’t want people thinking too much about where that water originated. I know, I know, this is ultimately the way it goes for all of our water, with or without any fancy new technology. I suspect most people would rather imagine that their water all comes from a nice reservoir or a cool mountain stream or something like that. It may not matter that much if most of the recycled water goes to things like irrigation or decoration or other non-drinking purposes. I’m just saying.

Houston loses air pollution permit lawsuit


Ship Channel crica 1973

The Texas Supreme Court ruled Friday that Houston may not effectively void a state air pollution permit.

The justices agreed with Southern Crushed Concrete that Houston’s 2007 law restricting the location of concrete-crushing facilities violates state statute by nullifying a permit issued by the Texas Commission on Environmental Quality.

In reversing an appeals court decision, Justice Debra Lehrmann said the state’s Health and Safety Code is clear.

The law “compels us to give effect to the Legislature’s clear intent that a city may not pass an ordinance that effectively moots a Commission decision,” Lehrmann wrote in an opinion for the nine-member court.

City Attorney Dave Feldman said he was not surprised by the ruling because “any time you have a local ordinance that regulates a specific area that is regulated by the state, preemption is an issue that you have to deal with.”


Southern Crushed Concrete’s facility meets the state’s requirement, but not the city’s. So the company sued, claiming the city did not have the authority to regulate its business.

Houston countered that the state’s permit regulates air pollution, while its ordinance dealt with land use. The Supreme Court, however, disagreed, ruling that reasoning would allow a city to effectively void any TCEQ permit it opposes.

I think there was merit in Houston’s ordinance, but I can see the reasoning behind the Supreme Court ruling. Mostly what this points out is that as usual, the state isn’t doing as much as it could to protect the environment and the health of people who live a little too close to places like the Southern Crushed Concrete facility. I also find it amusing in a way that this ruling that affirmed the state’s supremacy over cities came out around the same time that League City was declaring its supremacy over the federal government. I wonder what the Supreme Court would say about that? Anyway, this story isn’t quite finished yet, since the matter has been referred back to the TCEQ, where Houston can pursue an appeal of its initial permit to Southern Crushed Concrete. Perhaps the city can lobby for a modification to the state law that would allow local ordinances to be taken into account by the TCEQ when reviewing permit requests as well.

Who gets the water?

This will be worth watching.

A simple idea has guided appropriations of Texas water for decades: First come, first served.

Now, with drought conditions returning to almost the entire state, the principle is being put to the test by a fight over water in the Brazos River.

The Texas Commission on Environmental Quality is withholding water from some, but not all, rights holders to meet the needs of the Dow Chemical Co., which operates a massive manufacturing complex where the river empties into the Gulf of Mexico.

Farmers have sued to get their water back, saying the state agency overstepped its authority by exempting cities and power producers with rights younger than theirs from the suspension order. The agency based the decision upon “public health, safety and welfare concerns.”

No one disputes the chemical maker’s rights, which date to the 1920s. The legal question is whether TCEQ may consider factors beyond seniority when deciding who gets water first in times of shortage.

“This really will be a precedent-setting case if the courts uphold TCEQ’s position,” said Ronald Kaiser, professor of water law and policy at Texas A&M University. “It is about whether we still believe in the priority system. It is elegantly simple, but its limitation is that we don’t consider the highest economic use of water.”


In the lawsuit, the Texas Farm Bureau and two growers argue that TCEQ does not have the authority to divert from the priority system during drought.

The order leaves more than 700 farmers without surface water for irrigation, while dozens of others with junior rights, including the cities of Houston and Waco and NRG Energy, will not be restricted in their use.

“It turns the priority system on its head,” said Regan Beck, assistant general counsel for public policy at the Farm Bureau.

Mark McPherson, a Dallas-based lawyer who specializes in water rights but is not involved in the lawsuit, agreed.

“When the historic state priority system is changed so materially, it makes those who planned based on the priority system look foolish, and it makes those who benefit from the change look lucky,” McPherson said. “I don’t think that’s a proper use of agency power.”

The solution, he said, is for those who need more water to pay for it. State law allows TCEQ to transfer water rights to meet urgent public health and safety needs, but doing so requires compensation, which was not offered in this case.

“The correct answer is perhaps harsh, but nonetheless necessary: Go acquire more water rights, at the market cost, and pass those costs on to the users,” McPherson said. “And if this were allowed to happen, we’d quickly feel, and finally understand, that water supply is a critical factor in economic competition.”

I’m not a lawyer and I know precious little about water rights, but what McPherson says makes sense to me. I can’t wait to see what the court says. I imagine the Lege will be interested in this decision as well, as it may force them to rewrite some existing laws, and it may give them some extra incentive to tackle that long-term water issue.

Meanwhile, in other water dispute news, the state of Texas has filed a complaint with the Supreme Court against New Mexico over water from the Rio Grande.

In its complaint, Texas says that New Mexico has dodged a 1938 agreement to deliver Texas’ share of Rio Grande river. Instead, New Mexico is illegally allowing diversions of both surface and underground water hydrologically connected to the Rio Grande downstream of Elephant Butte reservoir in New Mexico, according to the filing.

The complaint, filed after New Mexico took its own legal actions and after years of negotiations, asks the Supreme Court to command New Mexico to deliver water apportioned to Texas.

The Rio Grande is the primary, and at some places the only, source of water for much of the agricultural land within Texas. Water from the river constitutes, on average, half the annual water supply for El Paso, according to the filing.

“So long as New Mexico refuses to acknowledge its Rio Grande Compact obligations to Texas, no amount of negotiation or mediation can address Texas’ claims,” the filing said. “And so long as the matter continues unresolved by this Court, New Mexico can simply continue to divert, pump and use water in excess of its Rio Grande Compact apportionment, to the continued detriment of Texas.”

Conservation in El Paso has been emphasized for decades, said state Rep. Joe Moody, D-El Paso. “The community has rallied behind conservation as important,” he said. “But we have rights to access to water: Water in the desert is crucial.”

New Mexico Attorney General Gary King fired back Thursday in a statement that Texas’ court filing was “tantamount to extortion.”

New Mexico farmers already can draw less water from the Elephant Butte reservoir following an agreement several years ago between the two states. King said the Texas complaint, if successful, would “deplete the water in southern New Mexico in a manner that would destroy the long-term viability of water resources.”

The Trib also covered this and another dispute between Tarrant County and Oklahoma that SCOTUS has agreed to adjudicate. I figure we’re going to see a lot more of this sort of thing in the coming years.

Recycling pollution

This is unfortunate.

The calls to the city of Houston’s 311 help line came in the early morning and the middle of the night – complaints of red smoke, yellow smoke, explosions, fire, a child having trouble breathing.

Reports like these – 189 of them over the last five years – led Houston air authorities to discover a previously unrecognized and dangerous source of air pollution: metal recyclers and car crushers, according to interviews and documents obtained by the Houston Chronicle.

The smoke comes from cutting metal with torches and from fire when vehicle gas tanks aren’t drained properly. Explosions can occur when propane tanks are fed into the maw of the crushers.

Descriptions of shattering noise, cracked walls and smoke were significant enough that the city had to “dedicate a good amount of effort responding to these complaints,” said Arturo Blanco, chief of the city’s Bureau of Pollution Control and Prevention.

Subsequent testing outside five Houston metal recycling operations found dangerous levels of hexavalent chromium. Chrome VI, as it’s also called, is a high priority for air experts.

“People were complaining about smoke, and it turns out there were carcinogenic metals,” said Loren Roan, an environmental statistician at Rice University. “And we found them only around these facilities, not in other areas we tested, not even in other industrial areas of the city.”

When inhaled, hexa­valent chromium is deposited in the lungs, can penetrate cells and cause free radicals, which damage DNA, ultimately causing lung cancer. When California gained the authority to regulate air pollution hazards in the 1980s, hexavalent chromium shared top priority, along with benzene. The state considers Chrome VI one of the most potent carcinogens known.


Houston appears to be the first to examine metal emissions from the industry, and in so doing may have flagged a national problem. The Environmental Protection Agency does not regulate the facilities, though there are now 6,000 of them in the United States, according to Joe Picard, chief economist with the Institute of Scrap Recycling Industries Inc.

You can see a map of metal recycling locations here – the east side is particularly full of them, with the stretch of 59 between I-10 and the North Loop being a hot spot. Clearly, this is something that is going to require action. I’m certain there are plenty of opportunities to do this in a way that creates less hazardous by-product, but such innovation is unlikely to come without external pressure, which is to say government regulation. If that makes metal recycling more expensive, then so be it. We’ll figure out how to adjust. Recycling is necessary, but so is not creating hazardous emissions. We have to be able to do both.

EDF report on school buses

From the Environmental Defense Fund:

Environmental Defense Fund (EDF) [Monday] released a report titled “Review of Texas’ Clean School Bus Programs: How Far Have We Come and What Is Still Left to Do?” This report evaluates each of the clean school bus programs in Texas, reviews accomplishments, and offers suggestions for improvement.

Diesel engines power most of the estimated 480,000 school buses in the United States, and the World Health Organization recently classified diesel exhaust as a known carcinogen, specifically noting a causal link between exposure to diesel exhaust and lung cancer. One of the most dangerous components of diesel exhaust is particulate matter (PM). The Environmental Protection Agency (EPA) is particularly concerned with these smallest-sized particles, because they are known to aggravate asthma, cause lung inflammation, lead to heart problems, and increase the risk of cancer and premature death.

Texas children riding to school in buses built before 2007 may be breathing air inside the cabin of the bus that contains 5-10 times higher the amount of diesel pollution than found outside the bus. These older bus engines spew nearly 40 toxic substances and smog-forming emissions. Children, who breathe in more air per pound of body weight than adults, are therefore exposed to even higher health risks because their lungs are still developing.

As of the 2010-2011 school year, the Texas Education Agency reported that nearly two-thirds of current school buses were over six years old, emitting at least 10 times as much PM as older buses, and much more in many cases because a large proportion of the fleet is even older. More than 700,000 children are impacted, meaning that nearly half of the students relying on school buses for transportation in Texas still ride dirty buses.


There are two current programs available to help retrofit or replace the remaining 17,000 dirty schools buses in Texas. Under the Texas Clean School Bus Program, The Texas Commission on Environmental Quality (TCEQ) is accepting applications for grants through November 30. This is a comprehensive program designed to reduce diesel exhaust emissions through school bus retrofits. All public school districts and charter schools in Texas are eligible to apply for this grant. Private schools are not eligible for funding. Public school districts that lease buses are also eligible.

EPA also launched a new rebate funding opportunity for school bus replacements under the Diesel Emissions Reduction Act. Applications will be accepted from Nov. 13 to Dec. 14. The first round of rebates will be offered as part of a pilot program and will focus on the replacement of older school buses in both public and private fleets. If the pilot proves successful, EPA will look at rebates for other fleet types and technologies.

The report is here, along with supplemental information. The deadline for the TCEQ grants has been extended to December 14. I had no idea any of this existed, so it’s good to know and good to see that we’re making progress. Many buses can be effectively retrofitted, but some will need to be replaced. Perhaps this will be an opening in the state for the electric school bus industry. In any event, check with your school or your local school board to see what’s being done for your kids.

CSAPR knocked down by federal court

Score one for the polluters.

Greg Abbott approves of this picture

The U.S. Court of Appeals for the District of Columbia Circuit ruled in a 2-1 decision that the Environmental Protection Agency overstepped its authority with the new regulation.

Led by Texas, 14 states and several power companies challenged the legality of the Cross-State Air Pollution Rule, which imposes caps on nitrogen oxide and sulfur dioxide from coal-fired power plants in eastern states. Texas officials fear some utilities will shutter plants to comply with the rule, threatening the state’s ability to “keep the lights on.”

The EPA has said the rule is necessary to reduce lung-damaging pollution that causes thousands of premature deaths and respiratory illnesses each year around the power plants and in downwind states.

“This is clearly a big blow for breathers in downwind states,” said Frank O’Donnell, who heads the advocacy group Clean Air Watch. “The good neighbor rule is a critical component in the EPA’s strategy to ensure healthful air quality.”

See here and here for some background. The Environmental Defense Fund has a press release and anlysis of the ruling, which you can read here. Unlike the flex permits ruling, this one is a genuine setback, though though it should be noted that the court didn’t say the EPA had no authority, just that it needed to write the rules differently. While the usual pollution-enabling gang celebrates, the former head of the EPA in Texas notes that the industries who helped fight this may come to regret it.

Al Armendariz, who was the regional administrator of the EPA when the cross-state rule was finalized and now works as a senior representative from the Sierra Club’s Beyond Coal campaign in Texas, said:

“The ruling, I think, only delays the inevitable, which is that there is going to be a transport rule that requires utilities to significantly reduce their emissions. And ironically, the judgment is critical of steps the agency took which were designed to make the rule cost-effective. And if anything, the judgment could result in EPA putting a rule forward about a year from now that requires utilities to spend more to reduce emissions than if the cross-state rule had gone into effect. So the delay is unfortunate, but ironically, I think the court’s criticism of some of the steps the [EPA] took to try to make the rule cost-effective might result in the agency moving forward with a rule that costs more to comply than the cross-state rule would have.”

Of course, that assumes an EPA that’s not been taken over by industry hacks by that time. We’re all clear on what needs to be done to prevent that, right? Texas Vox has more.

Count tells EPA to review flex permits

Score one for Texas.

The 5th U.S. Circuit Court of Appeals ruled Monday that the Environmental Protection Agency’s disapproval of Texas’ Flexible Permits program was not supported by the Clean Air Act.

Under the Flexible Permits program, which had been in place since 1994, the Texas Commission on Environmental Quality put a cap on allowed emissions from oil refineries and other industrial plants by facility. EPA officials announced in 2010 that they disapproved of the program because it might allow major polluters to exceed federal standards, record-keeping was inadequate and the methodology for calculating the emissions cap was unclear. As a result, those flexible permits were no longer accepted under the Clean Air Act. The facilities that already possessed flexible permits were subject to federal fines.

In the opinion, the court called the EPA’s disapproval of Texas’ program “untimely” and said it “unraveled approximately 140 permits” issued under the program. The court said the EPA’s reasoning was mainly based on wording, and not actual standards or procedures.

“A state’s ‘broad responsibility regarding the means’ to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure,” the court says in the opinion.

The opinion says the EPA must further consider the program.

Court opinion on matters pertaining to the EPA had been running against the state recently, so I’m sure they’re celebrating in the AG’s office. It’s not a huge win for the state, however:

Elena Craft at the Environmental Defense fund pointed out that the court’s decision does not rubber stamp Texas’ Flexible Permits program, but rather deems the EPA’s reasons for disapproving the program inadequate. The program still needs approval from the EPA to exist.

“The reality is that there’s no real change of the situation on the ground,” Craft said. “These [permits] are still not approved by the EPA, so they’re still susceptible to government enforcement until approved.”

The flex permits may yet be denied, but not until further review and not on the grounds cited so far. This story isn’t finished yet.

More on the landfills of Waller County

Last July I wrote about a proposed landfill in Waller County near Hempstead and the residents who are fighting against it. The Statesman has an update on the story.

In many ways, the landfill fight in this rural Texas town two hours east of Austin has a standard shape: An out-of-state corporation is accused of siting an unsightly dump near a largely poor, largely minority community. The landfill company says the accusations are unfair and that the dump will contribute jobs to a stricken area.

The twist here is one of the background players.

Glenn Shankle — the former executive director of the state environmental agency and a lobbyist for landfill companies himself, including one whose permit for a radioactive waste dump he controversially supported just before leaving said agency — is now a hired gun for the community.

Unlikely as the partnership may be, Shankle, 59, hobbled by old track injuries suffered as a runner at then-Kealing Junior High School, may be the opposition’s best hope.

In Shankle’s telling, over a breakfast of heavily buttered toast, bacon and a Dr Pepper in downtown Austin, he resisted the community group gig when first approached about it.

“I told them at the time I don’t do protest work,” he said.

He had grown leery, after a career at the Texas Commission on Environmental Quality, of the methods of environmental groups, he said, and was unsure that he could fight a landfill while also serving as a landfill lobbyist.

“Once you predominantly do industry work, it puts you in an awkward situation,” he said.

Having survived some health scares, however, he had been casting about how he ought to fulfill God’s plan, as he put it. Then, family members who had attended Prairie View A&M University, a historically black college eight miles outside of Hempstead, opposed the landfill and pressed him to intervene.

“I slept on it and prayed on it,” he said. His conclusion: Prairie View should not suffer because of a “scar” to the landscape.


Landfill company Green Group Holdings CEO Ernest Kaufmann said no more than 250 acres of the 723-acre site will be dedicated to the landfill, which will hold municipal waste from a 40-mile radius around the landfill — with an eye to serving the ever-growing Houston market. Kaufmann said its operation could last roughly 40 years.

“We’re not taking hazardous waste. We’re not taking sewage sludge,” said Kaufmann, whose company calls the project Pintail. The rest of the land might be used for ranching, recreational purposes, as an industrial park or left as open space. The company, which says it will invest millions of dollars in the project, has proposed paying fees to Waller County for each ton of waste collected and a donation of $150,000 for county fire safety equipment.

It estimates the project will create at least 20 full-time jobs at the landfill.

“This is not in a disadvantaged neighborhood,” he continued. “What you have here is some very wealthy people stirring that up. We pay a lot of attention to where we locate facilities and who we’re impacting and who we’re not impacting.”

Huntsinger and others are skeptical of the company’s pledges because, they say, Green Group could sell its permit.

Huntsinger is Bill Huntsinger, a retired Houston real estate guy who moved to Hempstead and is funding the Stop Highway 6 Landfill effort. Green Group has an array of high-priced lobbyists working for it, and rather to my surprise has hired environmental lawyer Jim Blackburn as a consultant. The main thing I get from this story is that the process hasn’t advanced much in the past year and may not advance any further this year, as consideration of the landfill application may happen in 2013. I said last time and I’ll say again, I think this is a bad idea. We shouldn’t be in the business of building more landfills, we should be in the business of waste reduction so that we don’t need more landfills. I wish I had faith that the TCEQ would give this a very critical review, but I don’t. I fear we’ll eventually be stuck with it.

Who gets to use the water?

There’s a lot more demand for an increasingly limited supply.

Lake Austin

More than miles separate the rice farms of the Texas coast and the Highland Lakes, where the outward march of Austin is marked by each new house, strip mall and marina.

They are divided by how to share the water of the Colorado River, pitting agriculture against recreation in a state that values both.

Growers have turned on a new plan that would guide allocations in the lower Colorado basin for the next few decades, grousing loudly about water cutbacks to help preserve playgrounds. Meanwhile, those who live and work around Lakes Buchanan and Travis want guarantees of boater-friendly levels at the reservoirs.

The Texas Commission on Environmental Quality will consider the plan by April. How the three-member panel rules could influence management of Lake Conroe and other popular reservoirs across the state.

The water fight reflects changes in Texas since farmers began drawing from the Colorado in 1885. The Lower Colorado River Authority built the lakes to generate power and tame floods in the 1930s, and the state’s population has surged since then, with more and more people moving into communities that barely existed, if at all, when the dams were constructed.

The state projects the population of the lower Colorado basin to double to 2.8 million people by 2060, and it is clear that there is not enough water to meet everyone’s needs.

“The issue is, Texas is a different place than when this system was set up,” said Andrew Sansom, executive director of the River Systems Institute at Texas State University. “We have to find a way to equitably allocate these shortages in a future that is nothing like the time of its origin.”

Growing population + drought + old rules = conflict. Obviously, agriculture is important, but I’m willing to bet that the revenue derived from tourism, recreation, and property taxes on lakefront real estate add up to a pretty penny, and will likely be more valuable on the whole than agriculture soon if it isn’t already. We know what we need to do – conservation, desalinization, not using treated water for irrigation, etc etc etc – and we know it will cost money and cause heartburn. We still have to do it.

You may be wondering if all that recent rain has helped these lakes recover. Sadly, not much.

Despite this already being the 11th-wettest July on record in Central Texas, officials said the unusually large amount of rain has not been enough to make a significant impact on lake levels in the area.

Bob Rose, chief meteorologist for the Lower Colorado River Authority, said Austin has received 5.82 inches of rain this month at Camp Mabry — a far cry from July 2011, when the city received 0.05 inches of rain.


LCRA spokeswoman Clara Tuma said Lake Austin received so much rain so quickly Sunday that officials were forced to open two floodgates to let out some of the water. The last time they did that was during Tropical Storm Hermine in September 2010, Tuma said.

However, because June was such a dry month and because the heaviest rains were not in the watershed, the storms did not make an appreciable impact on lake levels, she said. Lake Travis remains 28 feet below its historical July average.

Long way to go still. I’d be happy to send them some of our rain if I could, but then we might need it.

Fifth Circuit rules for EPA against Texas

It’s always a pleasure seeing our litigious Attorney General get slapped down by whatever court he’s bothering this week.

Martin Lake coal plant

In the latest turn in a saga pitting environmental regulators in Washington against those in Austin, a panel of federal judges on Friday sided with the federal Environmental Protection Agency in its effort to tamp down Texas pollution.

The state and the Business Coalition for Clean Air Appeal Group — a group that includes petroleum refiners, chemical manufacturers, electric utilities and other large industrial sources of air emissions — had argued that the EPA had acted capriciously, abused its discretion and exceeded its authority when it rejected a portion of the state’s air permitting program.

A four-judge panel of the New Orleans-based 5th Circuit said it did not.

The weird thing about this is that I can’t tell what lawsuit this is. I think it’s the one about the EPA’s rejection of the TCEQ’s flex permitting program, but it could be the one about the EPA’s authority to regulate greenhouse gases. The story doesn’t give enough detail for me to tell, and for whatever the reason it’s the only such story I can find. If it’s the former, the state and the EPA may be on the verge of a deal in which the EPA would give its approval to the TCEQ. They almost had a deal two years ago, so assume nothing is set in stone just yet. It’s also not clear what effect such a deal would have on the ongoing litigation.

In related news, the EPA also announced it would begin enforcing a stricter soot standard. In this case, the EPA was goaded into action by a lawsuit filed by states such as New York and California that were tired of waiting for the agency to implement a promised review of that provision of the Clean Air Act. This action could have an effect around here.

Harris County would be out of compliance if the EPA sets the standard at the lower end of the range or gets even tougher with the final rule, according to the Texas Commission on Environmental Quality. No other Texas county is in jeopardy of violating the limits.


Gina McCarthy, the EPA’s air quality chief, said Harris County and others should not need pollution controls beyond those current and proposed rules require.

“It is unique to put a standard out there when we are already headed in that direction,” she said of the proposed limits, which came under a court-ordered deadline.

Environmentalists, however, said the EPA’s projections for Harris County may be too rosy. The area nearly fell out of compliance because of high levels of soot along the Ship Channel in 2009.

Monitoring shows the air near along the heavily industrialized channel is getting cleaner because of new rules for idling trucks and the paving of gravel lots. The Port of Houston, meanwhile, is expecting more freight with the 2014 opening of a wider Panama Canal.

Matthew Tejada, executive director of the environmental group Air Alliance Houston, said federal regulators are making a “fairly foolish assumption” because no one has looked at how the port’s expansion will impact soot levels.

“If things stay steady, we should be fine,” Tejada suggested. “But we are trying to grow a port, and nobody is asking themselves, ‘Are we building ourselves into non-attainment?’ ”

According to a recent conversation between the Chron’s editorial board and County Judge Ed Emmett, port expansion is on the menu, at least theoretically. So this is something to keep an eye on.

Can ban lawsuit moves back to Comal County

From last week:

Travis County District Judge Scott Jenkins removed two state agencies from a lawsuit filed against New Braunfels by a coalition of businesses over the law banning disposable containers on the rivers — popular tubing routes.

Jenkins dismissed the Texas Commission on Environmental Quality and the Texas General Land Office from the suit. This kept the ban in place and transferred the case back to a district court in Comal County. The case was originally moved to Travis County because a state agency was named as a defendant.

“It’s a win for the city because the city wants the case heard in Comal County where it resides and its own citizens decide,” said Frank Onion, assistant New Braunfels city attorney. “It’s important to remember the ‘can ban’ ordinance was supported and reaffirmed by the voters in November.”

The lawsuit had been moved to Travis County in February, and as noted was easily upheld by the voters last November. We’re now officially in the high season for tubing, so one way or another we ought to get some idea of this law’s effects, both on the businesses and the amount of trash in the rivers. Check back in a few months and we’ll see how it went.

Can ban lawsuit moves to Travis County

Some new plaintiffs, too.

A group of river-related businesses has sued the City of New Braunfels, Texas Land Commissioner Jerry Patterson and Mark Vickery , executive director of the Texas Commission on Environmental Quality, over a ban on disposable containers on rivers within New Braunfels city limits that went into effect this year.

The suit, filed [last] Monday in a Travis County District Court, seeks a permanent injunction against the ordinance, claiming it is unconstitutional and effectively bans alcohol on the river. An attempted alcohol prohibition on the rivers was tossed out in 2000, in part because of a Texas Alcoholic Beverage Commission letter saying the city didn’t have the authority to ban alcohol.


Patterson is among the parties in this latest suit because he is the effective trustee of state-owned public waterways, the suit said. It said Vickery is named because the so-called can ban “unlawfully seeks to regulate and control municipal solid waste management activities that are within TCEQ’s jurisdiction.”

The story says that a “nonsuit” was filed by plaintiffs on Wednesday, which I presume means that the earlier litigation is no longer active. I welcome feedback on that from the lawyers out there.

Matagorda smog

I feel like there are some pieces missing in this discussion.

Matagorda County, 1920s map from the General Land Office

The Environmental Protection Agency is seeking to add Matagorda County to the list of Texas’ smog violators because Gulf breezes that blow through the area send air pollution toward the sprawling metropolis.

Local leaders are pushing back, saying the dubious distinction would lead to stricter regulation of industry at a time when unemployment is at 11 percent in the county.

“We have two plants, and they are minute by Houston’s standards,” Matagorda County Judge Nate McDonald said. “We are not the problem, so do not throw us under the bus because we are in a two-county proximity.”

McDonald is asking other public officials in the region for support in his fight against the EPA. Houston Mayor Annise Parker, for one, said through a spokeswoman that the federal agency has not made a scientific case to add Matagorda County to the smog list.

The move signifies the first change in geography in the federal efforts to clean Houston’s air. The list long has included Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties.


The Texas Commission on Environmental Quality says EPA data overstates Matagorda’s emissions. Also, federal regulators cannot directly link the pollution to bad air in Houston using models of wind paths, the state agency contends.

“There is nothing we have seen that shows these emissions are contributing to ozone in Houston,” said David Brymer, the TCEQ’s air quality director. “It is just a possibility.”

Carl Young, a scientist for the EPA’s Region 6, which includes Texas, said there is “no bright line” that ties Matagorda’s emissions to Houston’s dirty air, but the “weight of evidence” suggests a connection.

The TCEQ is sufficiently Perry-ized that I don’t trust it in these matters. However, it doesn’t sound like the EPA has (if you’ll pardon the expression) a smoking gun to point to. I doubt Mayor Parker would question the evidence if it were conclusive. So, I don’t know what to make of all this right now. There is an elephant in the room that the story doesn’t being up, though, and that’s the proposed White Stallion Coal Plant in Bay City, which was approved by the TCEQ but is still on hold and recently was unable to get a contract for water. There’s no question that it would have a negative effect on Houston’s air quality. I don’t know what if anything one may have to do with the other, but I’m a little surprised it wasn’t brought up in the story. Whatever the merits of including Matagorda County on the EPA smog list now, they’re surely greater if White Stallion gets built.

Sierra Club sues over coal permits

Remember how four coal plants were granted permits to pollute more in December? You probably don’t, because it basically happened under cover of darkness. The Sierra Club found out about it and has filed a lawsuit to call a halt to it.

Martin Lake coal plant

The environmental group is appealing permit amendments approved Dec. 16 by the Texas Commission on Environmental Quality that allow increased emissions from the plants, in East and Central Texas, during periods of planned startup, shutdown and maintenance.

The issuance of the permits is “invalid, arbitrary and unreasonable,” according to the lawsuit filed in state District Court in Travis County.

The lawsuit comes as coal plants across the state apply for permit amendments for emissions produced during startup, shutdown and maintenance, which were not previously regulated, said Ilan Levin, an environmental attorney representing the Sierra Club.

Environment commission spokesman Terry Clawson said the agency has not received the lawsuit and will not comment on it, but he said the four permits questioned in the lawsuit were issued legally.

Coal plant operators were required to apply for the amendments to authorize increased emissions by Jan. 5, 2011 . The four plants involved in the suit, all owned by the state’s largest generator, Dallas-based Luminant Generation Co., applied for higher emission ceilings and were approved in December.

“We were surprised to find out that, really, just by trolling the agency’s website, that right before the holidays, the TCEQ had issued these permits to Luminant without any public notice or any sort of opportunity at all to file some formal comments,” Levin said.

I wish I could tell you more about this, but the Sierra Club webpage has no information on the suit, and I have been unable to get a copy of it for myself. So this is all I know for now. Texas Vox also wrote about this, but they don’t have anything more than the Statesman did.

How gassy are we?

I’m talking about greenhouse gases, of course. And the answer is, now you can find out for yourself.

Martin Lake coal plant

The greenhouse gas wars are about to heat up again in Texas. Next month, a federal court hears oral arguments in lawsuits that Texas has filed to challenge the Environmental Protection Agency, which began regulating heat-trapping emissions a year ago.

The EPA is hardly backing down. On Wednesday, the agency released an easily searchable database of big greenhouse gas polluters across the nation, prompting Texas environmentalists to immediately list the largest polluters in the state. Topping the list is the 1970s-era Martin Lake coal plant (pictured) in the East Texas city of Tatum. In 2010 it emitted nearly 19 million metric tons of carbon dioxide, about 13 percent more than the runner-up, the W.A. Parish coal plant in Thompsons, southwest of Houston. In third place is the Monticello coal plant in Northeast Texas, which narrowly avoided a shutdown when a federal appeals court issued a last-minute stay to an EPA pollution rule last month.

“This will be the first time that this data is publicly available and will inform Americans about the heat-trapping greenhouse gases emitted in their communities,” wrote Elena Craft, a health scientist with the Austin office of the Environmental Defense Fund, in a blog post. Power plant data has always been available, she said, but now industries like pulp and paper and landfills must also report it.

The photo above, courtesy of Think Progress, is of the Martin Lake plant in Tatum, TX, which has the distinction of being the nation’s top mercury emitter in 2009 (click the TP link for the chart) as well as Texas’ top greenhouse gas emitter last year (the Trib has that chart). No wonder the Sierra Club has targeted it for closure. Note that the other two plants named in that report appears on each of those lists I mentioned – Texas had four of the top five mercury polluters in the country in 2009, with Martin Lake #1, Big Brown #2, and Monticello #5. And as Patricia Kilday Hart reminds us, we have Rick Perry to thank for a lot of this.

Remember in 2006, when Perry issued an executive order fast-tracking permit requests for the construction of new coal-fired power plants? (This occurred, not surprisingly, while he was accepting hundreds of thousands of dollars in campaign contributions from power and coal interests.)

Back then, Perry predicted the new plants would be an economic boon. Well, yes, says one of his toughest critics, Environmental Defense Fund attorney James Marston.

Wyoming, Marston says, sends rail cars full of coal south to Texas power plants, and we refill them with cash and send them home. To the tune of $1.9 billion a year. This, at a time when Texas is awash in cheap natural gas, a cleaner alternative for the production of electricity.


Meanwhile, Marston said, Perry’s policies in Texas mean “we have dirtier air and we’re sending money to Wyoming. Both were avoidable if we had better leadership and better vision.”

And about the promise that coal plants would create new jobs? We were hoodwinked. According to a national study by the Ochs Center for Metropolitan Studies, proponents claimed the $2.3 billion Oak Grove project in Texas’ Robertson County would produce 2,400 construction jobs. But total construction employment for the entire county increased by only 329 during the peak construction year, the researchers found.

Similarly, in Milam County, the construction of the Sandow project was supposed to produce 1,370 jobs, but only 463 positions materialized.

The researchers concluded: “These findings strongly suggest that the economic development argument for coal plants is relatively weak, especially when compared to the job creation potential of alternative means of addressing demand for power.”

And yet Perry and his henchman Greg Abbott keep up their crusade to let these polluters have free rein. It’s clear whose interests they have in mind.

Even in the absence of enforcement, publishing these data may have a positive effect, as Brad Plumer notes.

In a conference call with reporters Wednesday, Gina McCarthy, the EPA’s assistant administrator for air and radiation, compared the new greenhouse-gas reporting law to the agency’s Toxics Release Inventory (TRI), a database that was passed by Congress back in 1986 to measure and publicize the release of more than 320 toxic chemicals from industrial facilities around the country. “[The TRI] had a tremendous impact in terms of providing opportunities for reduction, and we’re really hoping this information will do the same,” McCarthy said. And, in fact, a variety of analyses suggest she might be onto something.

One recent book, “Coming Clean: Information Disclosure and Environmental Performance” charts the impacts that the Toxics Release Inventory had on polluters. As Mark Stephan, a professor at Washington State University, Vancouver, explained to me, he and his co-authors conducted interviews with a variety of companies about their responses to the new public database. Many companies didn’t even realize they were spewing out so much pollution until forced to start keeping records. And that proved to be a big deal.

For instance, when the inventory was first disclosed in 1987, Monsanto executives realized that the company was one of the largest emitters in the country and pledged to reduce its toxic air releases 90 percent by 1992. This wasn’t in response to any new laws — Monsanto wasn’t legally required to do anything. The company was simply reacting to public information. Stephan adds that many other companies soon followed suit, in response to a fusillade of newspaper stories about toxic waste and pressure from community groups and local environmentalists.

That’s good news, but I have a feeling we’re going to need more than just bad publicity to get some real action around here. Still, forewarned is forearmed. At least we know what we’re up against.

Valero will not appeal tax break decision


Valero Energy Corp. has decided not to appeal the Texas Commission on Environmental Quality’s rejection of its request for a controversial property tax exemption.


Valero spokesman Bill Day said the company no longer would seek the exemption because it had reached agreements with appraisal districts for lower valuations on their refineries in all but one county where the company operates. Negotiations are ongoing with Moore County, Day said.

See here, here, and here for the background. One less thing to have to worry about this year, but the Lege still needs to address this going forward.

CSAPR stayed

This is what the Ship Channel looked like in 1973 (Source: National Archives and Records Administration)

There was some bad news at the end of the year.

A federal court ordered [last] Friday that the Environmental Protection Agency’s controversial cross-state air pollution rule be stayed — to the delight of Texas officials and the chagrin of environmentalists.

The rule, which sought to reduce sulfur dioxide and nitrogen oxide emissions from power plants in Texas and 26 other states, had been scheduled to take effect in January. Now it will await a ruling by the court on its legal merits.


Luminant, a Texas power-generation giant, said that it would no longer shutter two units at its Monticello coal plant in Northeast Texas. Luminant “intends to continue closely evaluating business and operational decisions given that this stay does not invalidate the rule, but delays a decision on its implementation until a final court ruling is issued,” the company’s statement said.

Environmentalists, who have been trying to shutter Monticello for years, are disappointed with the decision.

In a blog post, the clean-air group Downwinders at Risk wrote:

“If the rules get pushed back past the beginning of ozone season, it means all those dirty Luminant plants upwind of [Dallas Fort-Worth] in East and Central Texas will still be contributing a significant amount of smog pollution to the Metromess a year after our worst ozone summer in five years spotlighted state ineptitude in getting cleaner air.”

Needless to say, Rick Perry and Greg Abbott cheered this on and vowed to continue the fight to let polluters do whatever they want. The point of this rule is the very simple recognition that air pollution created in one state can and does travel to other states. Having grown up across the river from New Jersey’s manufacturing plants – you know, all that stuff Tony Soprano drives past on the Turnpike – I can personally attest to this. For that matter, we’ve seen this movie before right here in Texas, with the Midlothian cement plants and their deleterious effect on the air quality in neighboring Dallas and Tarrant Counties. You’d think it would be self-evident that those who create the problems would be held accountable for the cost they impose on others – this is the sort of concept we generally teach our children, after all – but not to Rick Perry and Greg Abbott. Perhaps someone should remind them what America looked like before the EPA came into existence. That’s where they’d like to take us again, and that’s why this is a big deal.

I emailed Jennifer Powis, who is running the Beyond Coal campaign here in Houston, for a reaction to this story. This is her reply:

It was very unfortunate and puts at risk air that millions of people breath. Texas has some of the worst air in the nation (I’ve attached a fact sheet above for you), and most of that pollution is generated by the 2,000 industrial facilities in our state. But at the same time, air pollution doesn’t stop at a state line and much of Eastern Texas is impacted by industrial emissions from Louisiana. Without a cohesive plan that forces states to be a “good neighbor,” we’ll continue to have problems with cleaning up the air we all breath.

There’s no doubt Texas has major air pollution problems and much of the blame lies with Governor Perry’s appointees over at the Texas Commission for Environmental Quality. But at the same time, this rule would have helped our state tremendously because it would have leveled the playing field for most of the Eastern states.

But don’t worry, this rule will eventually prevail. States across the nation need it in order to comply with basic clean air act provisions. Folks do a lot locally, but you also have to help out your neighbor. We’re one nation, and the clean air act recognizes that important fact.

The aformentioned fact sheet can be seen here. When you take that next deep breath of sweet chemical emissions from Louisiana, you know who to thank for it.

Fix those leaks

We lost a lot of water this year, which seems like an especially undesirable thing during a record drought.

At the peak of this year’s record drought, the city of Houston lost more than 18 billion gallons of water through a system that was leaking like a sieve, amounting to tens of millions of dollars wasted in potential revenue.

The largest losses occurred in September and October, when more than 9 billion gallons — about one-fourth of all the water produced during those two months — leaked from a system riddled by countless pipe breaks, according to recently released city records.

“Water is a valuable resource, and we’re blowing it right and left,” said Katie Molina, general manager of the Citizens’ Environmental Coalition in Houston. “We have to ask why we have so many leaks. Is it all drought-related, or did we let our infrastructure fall into such a state of disrepair that it is now coming back to haunt us?”

There’s some dispute in the story over how much this represented in lost revenue to the city, but I’m less interested in that as I am in how much it represented in lost capacity. The city is looking at tapping into new sources of water to help meet future demand driven by population growth. I’d like to know what the growth curve looks like if we lost a minimal amount of water to leakage, instead of the 18% we apparently lost over the course of the year. Granted, this was surely a worse year than usual for water main breaks, but the point is that we plan our capacity based on peak needs, and higher loss levels factor into that. How much capacity will we really need to add if we take steps to ensure we actually get all that we pump? That’s a question for which I’d like to see a more definitive answer.

County sues over dioxin

More like this, please.

Harris County has filed a lawsuit in state court to recover hundreds of millions of dollars from local waste management companies and a Pasadena paper factory responsible for storage of a human carcinogen that has leaked into the San Jacinto River.

Named as defendants in the action, which seeks penalties of up to $25,000 a day dating to 1965, are McGinnis Industrial Maintenance Co., Waste Management Inc., Waste Management of Texas and International Paper Co.

The lawsuit, announced Tuesday by County Attorney Vince Ryan, centers on riverside waste disposal pits near the Interstate 10-San Jacinto River crossing opened in 1965 to contain dioxin, a toxic byproduct of paper production.

Here’s a more detailed version of the story.

“The day of reckoning is here,” said Rock Owens, Harris County Attorney Vince Ryan’s lead lawyer on the case. “These penalties are there to punish, to send a message. … We’re asking these companies to atone for what they’ve done.”


A byproduct of bleaching paper, dioxin is a human carcinogen so potent that it is measured in trillionths of a gram. Tests of river mud near the site have found dioxin concentrations in excess of 41,000 parts per trillion. Of the fish and crab samples collected near the dump, 95 percent found to be were dangerously contaminated.

McGinnes Industrial Maintenance Corp. for nine months deposited waste from a Pasadena paper factory at the dump, which was swamped by the river as land subsided. The factory is no longer open.

The long-lived toxin, which also causes reproduction and immune system problems, is stored in body fat and increases in concentration as it moves up the food chain.

The EPA says no amount of exposure is safe.


Evelyn Merz, Houston Sierra Club conservation chairwoman, lauded the county lawsuit, saying that Ryan’s office – faced with little action taken by the state – had adopted an appropriately aggressive strategy.

She expressed concern, however, that the county might devote an inordinately large amount of its potential award to efforts to educate the public about dangers at the site. Rather, Merz suggested, such money should go toward financing attempts to stabilize and end erosion.

“It certainly hasn’t taken millions of dollars to put up signs,” she said. “It doesn’t take millions for a public ad campaign.”

I’d just like to note for the record that “Rock Owens” is a totally awesome name. You can see a copy of the suit here. As Hair Balls notes, this was designated a Superfund cleanup site three years ago, and has been considered a health hazard by state officials for years. Given how longstanding these problems are, I don’t know that it’s possible to properly redress the damage, but one hopes we’ll get something out of this. It’s long past time for the parties that have been imposing these costs on the public to be held accountable for them.

I’d like to point you to more information on this from the County Attorney’s office, but unfortunately the County Attorney webpage only has a link to the Chron story, while their underutilized Facebook page has nada. Consider this my gentle reminder to them to get with the program already.

TCEQ denies Valero tax break


Texas environmental regulators have rejected Valero Energy Corp.’s request for a tax break that cities, counties and school districts feared would lead to devastating cuts to their budgets.

The Texas Commission on Environmental Quality denied the request because the San Antonio-based oil giant could not show an environmental benefit at its six Texas refineries from the equipment at the center of its application for the tax break.

Texas law provides property tax exemptions for equipment that reduces pollution at the refinery. Valero, however, sought a tax break for hydrotreaters, which are used to produce low-sulfur fuels. In this case, the lower emissions come at the tailpipe.

If TCEQ had granted the exemption, Valero stood to gain up to $130 million a year in property tax relief from cities, counties and school districts, officials said. The company earned $1.2 billion in profits for the most recent quarter, its best quarterly results in four years.

“It’s a nice Christmas gift to many cities, counties and school districts around the state that would have had to shell out millions to a rich oil company,” said Matthew Tejada, executive director of Air Alliance Houston. “Justice and logic can still prevail in the state of Texas.”

See here and here for some background. TCEQ had denied this request once before but reviewed it again at the urging of three of its commissioners. I’m glad to see that wasn’t enough to change their minds. Valero has 20 days to file an appeal, but hopefully this will be the end of it. It would be nice if the next Legislature closed this potential loophole once and for all. Hair Balls has more, and a statement from Sens. Rodney Ellis and Wendy Davis is beneath the fold.


Giving tax breaks to those that don’t need them

You can add this to the list of things schools might have to pay for that they don’t have the money to pay for.

Three environmental commissioners appointed by Gov. Rick Perry are considering whether to grant some of the nation’s largest refineries a tax refund of more than $135 million money Texas’ cash-strapped schools and other local governments have been counting on to help pay teachers and provide other public services.

The property tax refund would mean more pain for some communities after a year in which state lawmakers slashed spending on public schools to deal with a budget shortfall. Nearly half of the refund would be taken from public schools, and those in cities where the refineries are based would be hurt most.

“We were already cut at the knees as it is, but more cuts? It’s appalling,” said Patricia Gonzales, whose 13-year-old twins attend Park View Intermediate School in Pasadena, a refinery town just south of Houston. Gonzales is president of the school’s new parent-teacher organization, formed this summer after the state budget cuts.

The Texas Commission on Environmental Quality is evaluating 16 requests for the refund, which concerns a piece of pollution control equipment. If granted, the refund total could add up to more than $135 million, according to county tax data and application documents analyzed by The Associated Press. If the commission grants the requests, at least 12 other refineries that have not sought a refund also could qualify.

The three-person commission last year expressed some support for the refund.

See here for the background. Remember that the TCEQ is populated entirely by Rick Perry cronies, so if this goes through, you know where the buck stops. A breakdown of which district would owe what is here. Note that in addition to school districts, counties would lose millions as well – Harris County could wind up taking a $50 million haircut. The refiners themselves claim the actual numbers would probably be much lower, but unless that actual number is zero, I say it’s too much.

TCEQ a no-show at EPA hearing

They’d rather sue than engage.

At the hearing in a hotel ballroom, Al Armendariz, the EPA’s regional administrator for Texas and five adjacent states, said the federal agency prefers to let the state issue the permits, as it does for other air pollutants.

“This isn’t a program that we want to implement for years,” Armendariz said. “We want the state of Texas to take ownership of it, and we are ready to work with the TCEQ. However, at this time, those discussions have not begun.”

In a statement, the TCEQ said it didn’t attend the hearing because the state agency’s position “has been clearly articulated to the EPA and well documented in several pending court cases.”

“Our attempts to reason with EPA and efforts to have constructive discussions on our position and their authority under federal law have been ignored,” the statement said. “We look forward to pursuing our position in the court system and we are confident that science and the law will prevail.”

All they care about is finding a judge to let them off the hook. Remind me again why we even have the TCEQ?

Here comes the EPA

The EPA has seized control of the permitting process in Texas for refineries, power plants, and the like.

In a letter sent this week to state regulators, an EPA official wrote that 167 facilities in Texas – many of them power plants and oil refineries – would come under the rules.

As of Jan. 2, those plants will have to seek greenhouse-gas permits if modifications increase their greenhouse-gas emissions by 75,000 tons per year. New facilities that emit more than 100,000 tons annually become subject to the permit rule in July.

Texas has sued to stop EPA regulation of greenhouse gases, and [Governor Rick] Perry has accused the EPA of interfering in Texas’ successful air-permitting program. In June, the EPA rejected a separate Texas permit program that, according to federal officials, let some companies avoid certain federal clean-air requirements.

That action required those businesses to seek revised permits from the EPA.

By assuming control for greenhouse gas permits, the EPA said businesses would avoid the uncertainty that plagued the other clean-air program.

“We are simply now going to supplement the state actions to insure that we have an emission standard that … governs greenhouse gases,” EPA Assistant Administrator Gina McCarthy said Thursday. Permits “will be legally defensible. The industries will be able to rely on them and have certainty they are enforceable under federal law.”

If you’re downwind, you can probably smell the smoke now being emitted from Perry’s ears. Hope he’s got a permit for that. Anyway, see the Chron, Greenwire and Hair Balls for more, and my archives for some background. Needless to say, this will be fun to watch.

Two environmental issues for your attention

Are you familiar with tar sands? The Sierra Club would like to acquaint you with them this Thursday, December 16, on its Houston Frontlines tour.

Elected officials and community members will gather at Hartmann Community Center on Thursday, December 16th for a tour of industrial facilities along the Houston Ship Channel and the communities they pollute. A press conference will follow the tour, but members of the press are welcome to join the tour as well.

Juan Parras, Director of t.e.j.a.s. (Texas Environmental Justice Advocacy Services) will be leading the East End tour that will focus on the health threats low-income Houstonians face from refining pollution and the dire consequences of increasing pollution from the proposed Keystone XL pipeline, which would drive a significant increase in refining of Alberta’s tar sands in the Ship Channel area. Tar sands oil contains, among other toxic metals, an average of 11 times more sulfur and nickel, six times more nitrogen, and five times more lead than conventional crude oil. Secretary of State Hillary Clinton is in charge of permitting the pipeline.

After the tour, local Officials will publicly call on Secretary Clinton and the State Department to conduct a full examination of the pipeline’s impact on Houston’s air quality in the form of a Supplemental Environmental Impact Statement before granting approval for the project.

Lunch will be provided during the Tar Sands and Keystone XL educational seminar that begins at 12 Noon. Panelists include Clean Air Director Neil Carman, Director of t.e.j.a.s. Juan Parras, and Sierra Club Dirty Fuels Director Kate Colarulli.

Keystone XL Pipeline & Houston’s Air Quality Future
Thursday, December 16
Hartmann Community Center at Hartmann Park in Manchester
9311 E. Avenue P, 77012

The goal of this is to request a Supplemental Environmental Impact Statement (SEIS) from Secretary of State Hillary Clinton, which will guarantee that an analysis of the project’s impact on public health is completed, and that there is time for the public to respond to this new information. To learn more, go to Toxic Tar Sands: Profiles From The Front Lines. To join the tour, respond to the Facebook event.

Also of local interest this week is a TCEQ draft rule that could have a bad effect on Galveston Bay. From Texas Water Matters:

In 2007, the Texas Legislature created a process to determine how much water is needed to protect rivers and bays across the state while allowing for increased water use due to population growth. The law was hailed by environmental groups and many in the water development community as a step forward on a long-contentious issue.

Unfortunately, the Texas Commission on Environmental Quality appears poised to waste this opportunity to protect our rivers and bays. TCEQ recently released a rule proposal that would allow the rivers to be reduced to a trickle and leave Galveston Bay without meaningful protection.

At risk: Galveston Bay and the Trinity and San Jacinto Rivers

In most places, TCEQ’s recommended levels would allow Trinity River flows to be reduced to levels seen only about 5% of the time in the last 50+ years. This could harm water quality and could affect the ongoing plans for restoring the Trinity in the DFW area. Low water levels could impact fish and wildlife up and down the river basins.

The shallow waters covering Galveston Bay’s 600 square miles have historically produced as much as 80% of the oysters harvested in the state. The area’s blue crab and shrimp harvests are also some of the largest in Texas. Galveston Bay is loved by recreational anglers and its shallow waters are home to Atlantic croaker, flounder, spotted seatrout, and many other species of fish. Nearly three hundred different kinds of birds have been seen in the area around Galveston Bay.

Galveston Bay’s 600 square miles is one of the most biologically diverse places in the state. Nearly three hundred different kinds of birds have been seen in the area around Galveston Bay. This natural diversity is due in large part to the freshwater flowing into Galveston Bay from the Trinity and San Jacinto rivers. If the rivers are allowed to dwindle to a trickle, Galveston Bay would be deprived of freshwater and would become increasinly salty and less hospitable to wildlife.

What You Can Do

The standards need to be strengthened in accordance with an alternate proposal submitted by the National Wildlife Federation and the Lone Star Chapter of the Sierra Club. This alternate approach is based on the work of the majority of the regional Expert Science Team, but simplified to minimize potential water supply impacts and make it easier to implement.

This alternate rule protects the rivers and bay by proposing reasonable flows of water for people and the environment.

YOU CAN HELP MAKE A DIFFERENCE. Help protect the Trinity and San Jacinto Rivers and Galveston Bay by telling TCEQ to strengthen the proposed rule by the December 20th deadline.

Comments may be submitted online here or faxed to (512) 239-4808. All comments should reference Rule Project Number 2007-049-298-OW.

There will also be a public hearing on this in Austin on the 16th at 10 AM at TCEQ headquarters, Building E, Room 201S. This is on I-35 between Braker and Yager Lanes – see here for a map and directions. For more information on this issue, see this Chron story, this Galveston Daily News editorial, and this National Wildlife Federation fact sheet. You can also easily leave your public comment online. Please do so by the 20th if you want to be heard by the TCEQ.

Bay City coal plant gets TCEQ approval


Texas’ environmental agency granted air pollution permits for a proposed coal- and petroleum coke-fired power plant in Matagorda County over the objections of local officials and residents Wednesday.

The Texas Commission on Environmental Quality voted 3-0 in support of the permits for the 1,320-megawatt White Stallion Energy Center, which would be built about 90 miles southwest of Houston.


The plant would be built less than 20 miles from the boundary of the eight-county Houston region that is in violation of federal limits for ozone. Rules on industrial pollution — in particular, new sources – are tighter inside such areas than outside, even though ozone, or smog, isn’t bound by county lines.


The decision came nearly three months after two state administrative law judges ruled that the permits should not be granted because of problems with the application, saying the developers used faulty data in their air quality analysis and failed to consider the impacts of coal dust.

The judges’ findings were not binding on the TCEQ, which has final authority on permits. The commissioners said the project’s developers had addressed the concerns.

TCEQ’s Public Interest Counsel also recommended denial of the permit, saying the agency did not require the developers to use the lowest-polluting technology for their coal plants.

That’s the TCEQ for you. Of the polluters, by the polluters, for the polluters. The interesting thing was just how deeply unpopular this project had become.

The man from Kentucky came to this coastal prairie town two years ago with a vision for a new energy future: His company would build the cleanest coal-fired power plant in Texas, generating new jobs and new money for a place in need of both.

The idea had undeniable power at first. But now, with the White Stallion Energy Center about to receive an air pollution permit from the state, many local officials and residents are having second thoughts — even in the face of 12 percent unemployment in Matagorda County.

The proposed power plant may be a chimera, critics say. It may drain precious water from the Colorado River, foul the air and harm wildlife in an area known for ranches and rice, beaches and birds.

In and around Bay City, the county’s hub, opponents are planting roadside signs showing a menacing monster billowing from smokestacks, with the rallying cry: “Stop White Stallion Coal Plant.”

“It’s a bad thing,” Michael Ledwig said as he posted one of the signs on the front gate of his property on FM 2668, about a mile from the site of the proposed plant. “It’s a lot of pollution for a small amount of jobs.”

I am in general skeptical of the concept of “clean coal”. And I believe that any time a new coal plant is being built, or even contemplated, instead of something genuinely green, it represents a missed opportunity. Coal is yesterday. We need to be thinking about tomorrow. The TCEQ’s decision will be appealed, but I can’t say I have any faith that will make a difference. Forrest Whitaker has more.

EPA-TCEQ agreement in the works

A compromise is in the works between the EPA and the TCEQ over the controversial “flex permits” that the EPA has deemed not in compliance with the Clean Air Act.

“We’re very close,” said Richard Hyde, deputy director of permitting and registration at the commission. He said the object of the meeting today is to bounce the compromise off industry and environmental groups. A deal between the commission and the U.S. Environmental Protection Agency could be formalized as soon as the end of the month.

EPA regional administrator Al Armendariz said he was optimistic about the negotiations but that there is still distance between the two agencies.

“It’s an indication that we’re making progress,” he said of today’s meeting.

At issue has been whether industrial plants that had been operating under broad, so-called flexible permits awarded years ago by the state ought to be subjected to more precise, stringent permits. The flexible permits set facility-wide emissions limits, which regulators say leave them in the dark about how many gases particular parts of the plant are belching into the air .

Firms that don’t take the voluntary route could face the wrath of the EPA, including a federal takeover of permits and tougher regulations.

According to a draft of the compromise obtained by the American-Statesman, the commission will require companies that want to “deflex” to submit within a year a permit application that spells out emissions points, such as individual boilers, and to explain the basis of their emissions requests.

The compromise also requires companies to essentially pull back the veil on their plants and explain what, if any, major modifications have been made since they won flexible permits. Such modifications will qualify them for more stringent rules. The companies also will be required to describe all air pollution control technology they have installed on plants. Each company is entrusted to do the look-back itself.

You can read the draft agreement here. This will go a long way towards turning down the heat on this issue, and will give industry some regulatory certainty, but it will not affect the ongoing lawsuit, or presumably any of the newly-filed lawsuits.

Lawmakers ask TCEQ to help plants comply with EPA

This is a good idea.

After a lobbying push by oil giants, a bipartisan group of Texas legislators have asked state environmental regulators to quickly solve a permit dispute with the U.S. Environmental Protection Agency that has left some of the nation’s largest oil refineries in operating limbo.

A letter signed by 46 legislators is the latest indication that while Gov. Rick Perry and his Republican supporters are ready and willing to wage war with Washington on everything from environmental regulation to education spending, some battles are wearing on the industries that have helped Texas weather the recession.

You can see the letter here; it has 29 Republican signers and 17 Democrats, with none of the latter coming from Harris County. Basically, they ask the TCEQ to offer all possible assistance to any plant that has a flex permit and wants to get in compliance now with the EPA rather than wait for all the litigation to conclude. Seems perfectly sensible to me. For all the chest-thumping and saber-rattling we’ve seen lately – and there’s plenty of it in the story, too – sometimes you just have to be practical.

Richard Hyde, TCEQ’s deputy director of permitting and registration, said the agency has been trying for months to find a structure that will be acceptable to the EPA, but has so far failed. In the meantime, at least three critical projects are on hold, including a major upgrade at the Motiva Enterprises LLC refinery in Port Arthur, Hyde said.

“We’re trying to work out an agreement with EPA that we can provide to those companies that will give them some certainty,” Hyde said. “This issue is totally a federal government issue.”

The EPA says it too is being approached by companies seeking federally approved permits, Al Armendariz, the EPA’s director of the region that oversees Texas, said in an e-mailed statement. “EPA encourages TCEQ to quickly provide flexible permit holders a pathway forward,” he added.

David Weinberg, executive director of the Texas League of Conservation Voters, a group that supports the EPA’s ruling on the flexible permits, said the letter and industry’s pressure indicates companies want a quick resolution.

“Valero is one of the largest flexible permit holders,” Weinberg said. “The fact that they’re rallying to get TCEQ to work tells you that what the governor is doing is not working.”

Weinberg alerted me to the story and sent me the link to the letter; the TLCV blogged about it here. Hopefully these companies will get their issues settled quickly, and others will want to follow suit as a result. We’ll see how it goes.

State sues the EPA again

Round and round we go

Texas has sued the federal Environmental Protection Agency for the second time in six weeks, escalating a feud over the state’s rules for air pollution from refiners and other large industries.

State Attorney General Greg Abbott said Monday he filed a petition with the 5th U.S. Circuit Court of Appeals, seeking to block the EPA from disapproving the state’s so-called flexible permits.

State officials argue the federal agency had no legal or technical justification for rejecting the 16-year-old permitting program, which covers 122 refiners, chemical plants and plastics makers.


[Al Armendariz, the EPA’s regional administrator based in Dallas,] said the EPA rejected flexible permitting because the rules fall short of the federal Clean Air Act’s requirements. The Texas Commission on Environmental Quality issues the permits on behalf of the EPA, but the EPA decides whether they are in compliance with the law.

Although Texas created the permitting rules in 1994, the EPA did not rule on them until after industry groups sued to force the agency to act.

That’s the irony of all this. Had industry groups not sued the EPA earlier, they might not be in this pickle now. So much for that. Given where we are now, I’m sure the faster and cheaper resolution, not to mention the one that allows for actual progress in cleaning up the air we all breathe, would be for the EPA to work with affected manufacturers to get them into compliance, which is what they’re already doing with many of them. But if you want to drag things out and make everybody spend a bunch of money on legal fees and you don’t really care about air quality, then litigating is totally the way to go. More background is here, here, here, and here