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Shell pollution at Deer Park Refinery

EPA echoes activists in challenging Texas’ air pollution permits, practices, commission 

11:51 PM CDT on Tuesday, June 23, 2009

By RANDY LEE LOFTIS / The Dallas Morning News 

Groups attacking Texas’ environmental policies have gained an important ally: the Obama administration.

Shucking off years of arms-length relations with Texas’ anti-pollution activists, the Environmental Protection Agency has reached out to organizations that have challenged state permits and practices.

The new federal attitude is already putting pressure on some major Texas industries and on the oft-criticized Texas Commission on Environmental Quality, which is run by Republican Gov. Rick Perry’s appointees.

In the five months since President Barack Obama took office, the EPA has sided with the TCEQ’s critics and blocked the reopening of a controversial copper smelter in El Paso; signaled new federal enforcement against big, state-regulated facilities such as refineries and chemical plants; and threatened to strip Texas of its authority to issue major air pollution permits unless the state agrees to changes.

The EPA also invited leaders of Texas and national environmental groups that are battling the state to a private meeting with Administrator Lisa Jackson on her first visit to Texas as Obama’s top environmental appointee. They told Jackson that Texas was “a state under siege” and that the EPA needed to send “reinforcements and enforcement,” said Tom “Smitty” Smith of Public Citizen, who attended the meeting.

Jackson told The Dallas Morning News in an interview that Texas’ environmental regulation has become a major concern of hers. She singled out what she described as inadequate opportunities for the public to review key permit decisions.

“Transparency is something I’m really concerned about, especially here in Texas,” Jackson said. “That’s an issue we’re going to have to address head-on.”

Perry has repeatedly defended how Texas regulates toxic emissions from factories, refineries and other big industries, saying the state is protecting jobs along with the environment.

“Governor Perry has proven that stifling government mandates are not the answer to our state’s energy and environmental challenges,” press secretary Allison Castle said. “Texas has proven it possible to balance sound environmental policies with pro-growth economic efforts that have produced the best business climate in the country.”

The TCEQ rejected the federal complaints. In a June 5 letter to the EPA’s acting regional administrator in Dallas, Executive Director Mark R. Vickery said the commission meets federal requirements.

Vickery outlined “options for bridging the perceived gaps in our permitting program.” He offered to clarify state rules “to reflect the TCEQ’s existing practice.”

Commission officials provided Vickery’s letter to The News but declined to comment on their differences with the EPA.

North Texas residents demanded change at the commission during an EPA hearing last week on new emissions limits for cement kilns.

“Unfortunately, our state environmental agency … has failed us,” Dallas resident Rita Beving told EPA officials.

State Sen. Wendy Davis, D-Fort Worth, told the EPA that the TCEQ had “exhibited a lack of public concern” by refusing to order formal hearings on major permits. The most recent North Texas case came in February, when TCEQ commissioners approved a 10-year permit renewal for TXI’s Midlothian cement plant without a formal hearing.

“They’ve played their hand for too long,” Davis said.


‘Major concerns’ 

During a meeting with state environmental officials May 26, EPA officials laid out “major concerns” with state procedures on key permits. The EPA cited limited public input, lack of public notice for some permits, inadequate emissions accounting and a failure to enforce rules that trigger tougher requirements for new or modified plants.

If the agencies do not resolve their differences, the EPA could revoke Texas’ authority to manage permits under the Clean Air Act, according to a presentation the EPA made at the meeting. The EPA later provided a copy to The News.

Like most states, Texas now has authority to handle federal air permits on the EPA’s behalf. The EPA retains approval authority over state programs and can formally object to a state-issued permit, as it threatened to do in the case of Asarco’s controversial copper smelter in El Paso.

That threat came Feb. 3, just two weeks into the new administration. The EPA said it found numerous legal and procedural problems with Asarco’s permit renewal. The EPA said it would order work stopped on the smelter and start enforcement against Asarco if the state did not rescind the permit.

Asarco immediately gave up its permit.

The next week, the TCEQ’s commissioners voted 2-1 to renew another contested permit, this one for TXI’s Midlothian cement plant. The commissioners rejected numerous requests for a formal hearing, a long, trial-like process.

The contested case hearing is a potentially powerful weapon for a plant’s opponents that does not exist in federal law – an example, Texas officials point out, of greater public input under Texas’ system.

However, the TXI case also revealed a lack of public scrutiny of state permits. The North Texas environmental group Downwinders at Risk found this month that the TCEQ had approved a modification for TXI – allowing it to burn scrap tires as fuel in its newest Midlothian kiln – with no public notice, chance for public comment or trial burn, a test of how a new fuel affects emissions.

Because burning scrap tires instead of coal, the kiln’s typical fuel, usually reduces smog-causing nitrogen oxides, the TCEQ considered the change a pollution reduction project that required no public notice. Environmentalists said they had no chance to review possible increases in other emissions, including metals.


Groups sue 

Public interest groups have sued Texas companies under the federal Clean Air Act to force pollution cuts that neither the state nor the EPA had achieved. In one such case, Environment Texas and the Sierra Club sued Shell’s massive refinery and chemical complex in Deer Park, near Houston, in early 2008.

Despite Shell’s state permits, the environmental groups found more than 1,000 occasions from 2003-06 when emissions exceeded hourly limits, which are meant to protect the public from acute, short-term harm.

On three dates, records showed, Shell emitted more toxic compounds in a single day than its permits allowed in an entire year.

Shell responded in a legal filing that many emissions came during start-ups, shutdowns and maintenance, “clearly contemplated by the state as being an expected part of refinery and chemical plant operations.” Until recently, Shell said, the TCEQ did not put permit limits on those emissions.

A settlement signed by a federal judge June 16 requires Shell to cut excess emissions by more than half within three years, improve emissions accounting, change equipment and processes, and pay $5.8 million to Houston-area environmental programs.

The federal government was not a party to the suit, but EPA officials were privy to settlement talks and later repeated many of the lawsuit’s themes – including the state’s apparent failure to clean up Shell’s emissions – in their talks with the TCEQ.

The TCEQ has cited Shell’s Deer Park complex for air violations 14 times since 2003, assessing nearly $975,000 in civil fines, records show.

The EPA told the TCEQ that the state had allowed far higher emissions than the EPA would have authorized. The EPA analyzed three plants – Shell, ExxonMobil’s Baytown complex and Magellan’s East Houston terminal – but said 1,461 Texas plants might have similar issues, suggesting possible future enforcement.

The TCEQ disputed the EPA’s assertions.

Neil Carman, clean air director for the Sierra Club’s Texas chapter, was involved in the Shell settlement talks. He said the EPA’s tough stance on Shell and similar companies represented a significant change.

“It’s a sign of the new sheriff in Washington,” Carman said.


The Environmental Protection Agency says:


•Parts of the Texas permit system do not meet minimum federal requirements.•The state offers inadequate public notice for both minor and major permits.

•State air pollution plans are incomplete and lack adequate monitoring and compliance provisions.

•The state has not addressed concerns of environmental groups or Houston Mayor Bill White, who is seeking reductions in airborne toxic chemicals.

•The state has missed opportunities to reduce pollution.

The Texas Commission on Environmental Quality says:


•The state’s permit system meets all federal rules but might need language changes to clarify compliance.•Texas permits are written to include all necessary information.

•State air pollution plans include all required information.

•The public has ample opportunities to comment on permits.

•Texas permits provide enforceable and effective limits on pollution.


SOURCES: EPA presentation at meeting with TCEQ, May 26; TCEQ response to EPA, June 5.


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