TCEQ Sunset AQ Recs

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TCEQ Air Permitting and EnforcementImproving Texas Air Quality Through the Sunset Review Process


TCEQ Sunset Review Policy Working Group June 2010

Alliance For A Clean Texas (ACT) is an alliance of environmental, public interest, consumer rights and religious organizations dedicated to improving public health, quality of life and the environment in Texas by working for change at the regulatory and legislative levels. This paper was produced by the ACT TCEQ Sunset Review Policy Working Group and Air Alliance Houston. ACT TCEQ Sunset Review Policy Working Group Eric Allmon, Law Oces of Lowerre, Frederick, Perales & Allmon Ramon Alvarez, Ph.D., Environmental Defense Fund Erin Boeke Burke, Texas Impact Elena Craft, Ph.D., Environmental Defense Fund Karen Hadden, SEED Ilan Levin, Environmental Integrity Project Rick Lowerre, Law Oces of Lowerre, Frederick, Perales & Allmon Christina Mann, Environmental Integrity Project Cyrus Reed, Ph.D., Sierra Club, Lone Star Chapter Robin Schneider, Texas Campaign for the Environment Tom Smitty Smith, Public Citizen Larry Soward, Air Alliance Houston Matthew Tejada, Ph.D., Air Alliance HoustonFor further information on permitting, please contact

Ilan Levin Larry Soward

For further information on enforcement, please contact

Larry Soward Matthew Tejada

TCEQ AIR PERMITTING AND ENFORCEMENTImproving Texas Air Quality through the Sunset Review Process

Towards a Clean TexasOn its surface, Texas air quality is an before our state is immense and requires issue so intricate in its detail and so the swiftest of action. sensitive to our ckle Texas weather as The accumulation of these environmental to confound even the most committed challenges, however, should not be taken observer. Our state environmental agency, to indicate that our state environmental the Texas Commission on Environmental agency has been totally incapable of rising Quality (TCEQ), is tasked with not only to meet these challenges. Over the past understanding our states air but with decade the TCEQ has achieved a number regulating it to ensure that its quality of important environmental victories in does not pose a threat to human health some arenas while it has or environmental integrity. The foundation also exhibited an almost This regulation entails an of air quality trail-blazing progressiveness enormous eort that includes regulation in Texas in others. Examples of air monitoring, health these include innovative advisories, toxicological as it is in any other funding programs to sampling and air modeling state is permitting reduce NOx and Particulate research. The foundation and the eective Matter emissions from of air quality regulation in enforcement of those diesel engines in ozone Texas as it is in any other permits. non-attainment areas to state, however, is permitting use of the newest emissions and the eective enforcement monitoring and measuring technologies of those permits. for major industrial facilities. The current review of TCEQ by the Texas There are, in fact, likely very few current Sunset Advisory Commission provides challenges with which the TCEQ should the opportunity to both assess the not be able to eectively grapple given agencys overall eectiveness at regulating its nancial resources and statutory air quality and to identify potential authorities. For a mixture of reasons, improvements. This review could hardly however, our state agency at times seems have been more timely. The state of Texas incapable of meeting many challenges in is at present beset by more environmental a straightforward and ecient enough challenges than at possibly any other manner to eectively protect the health time in its history. From chronic toxic air of our citizens and the environmental pollution in residential areas to dwindling integrity of our states natural resources. water resources, a growing populations The TCEQ will continue to ght an uphill constant encroachment on critical habitat battle against such existing and future to the nearly overwhelming task of challenges until it creates an air permitting tackling global climate change the work


A l l i a n c e f o r a C l e a n Te x a s

TCEQ AIR PERMITTING AND ENFORCEMENTImproving Texas Air Quality through the Sunset Review Process

program that is reasonable and ecient and an enforcement structure that is transparent and fair.

Alliance for a Clean Texas (ACT) goal is to provide the Sunset Commission useful insight We share TCEQs goal into TCEQ throughout of clean air, clean the review process. As a water, and the safe coalition of environmental management of waste and other public interest organizations, our guiding and welcome the principle is that TCEQ current Sunset review should be as responsive to as an opportunity to and inclusive of the publics achieve this goal more needs and concerns as it is eectively and reliably. to any other stakeholder. Our guiding principle throughout the Sunset review process is to enhance TCEQs ability to serve the needs of the 24 million Texans who currently rely on the agency to protect their health and their environment. We share TCEQs goal of clean air, clean water, and the safe management of waste and welcome the current Sunset review as an opportunity to achieve this goal more eectively and more reliably. This paper takes on the issue which consumes the vast majority of TCEQs time and eorts air quality. Subsequent papers will be devoted to other areas such as water quality, governance and waste management. As part of the Sunset review process, agencies are asked to identify and discuss policy issues in a Self Evaluation Report (SER). TCEQ identied eight policy issues in its SER. Five of those eight coincide with issues presented and discussed in this paper. SER Issue 1: Should the legislature consider revising the states air permitting process?

SER Issue 2: Should the eectiveness of the current standard for evaluating compliance history in the TCEQs permitting and enforcement procedures be evaluated? SER Issue 4: Does the TCEQs current enforcement authority allow for the expanded use of incentives and innovative projects to achieve compliance, as well as sucient deterrence to protect the environment?

SER Issue 5: How should the agency use monitoring activities in its regulatory processes? SER Issue 6: Are there any additional avenues, including technological advances, that should be considered to enhance the publics participation in the TCEQs regulatory activities? Rather than answering each of these issues specically, this paper groups the identied issues and recommended solutions into the two broad programmatic areas which underlie the majority of TCEQs regulatory authority: air permitting and air enforcement. Our expertise in regulatory processes, coupled with our work with and on behalf of organizations and individuals around the state, provides a unique focus on the publics role in environmental and public health protection. We hope these recommendations are adopted as the best path forward for the agency charged with protecting so much that is precious to our state.


June 2010

TCEQ AIR PERMITTING AND ENFORCEMENTImproving Texas Air Quality through the Sunset Review Process

Issues and FindingsAir Permitting Issue 1The applicability and use of Standard Permits (SPs) is too broad, appropriate measures to promote public notice and opportunity to comment on a facilitys use of SPs are lacking.

Air Permitting Issue 2

The applicability and use of Permits by Rule (PBRs) is too broad, appropriate measures to promote public notice and opportunity to comment on a facilitys use of PBRs are lacking.

Air Permitting Issue 3

TCEQ policy not to impose additional monitoring requirements in permits unless requested or agreed to by the applicant/permittee has inhibited the ability to accurately monitor all emissions at a site, thus resulting in an inaccurate and incomplete emissions inventory.

Air Permitting Issue 4

TCEQ policy not to impose new and/or more stringent conditions in permit amendment and renewal requests unless agreed to by the applicant/permittee has allowed the continued operation of facilities without consideration of technology developments or changed circumstances.


Air Permitting Issue 5

More statutory exibility allowing the TCEQ to hold a hearing on an air permit amendment, modication or renewal for good cause is needed.

Air Permitting Issue 6 Air Permitting Issue 7

The lack of clear authority to deny an air permit for good cause is problematic.

Current statutory authority allowing a qualied facility to make physical and operational changes without obtaining a permit or other approval from the TCEQ inhibits, if not eliminates, public notice and opportunity to comment on the requested changes.

Air Permitting Issue 8

Current processes relating to permit alterations do not include appropriate measures

A l l i a n c e f o r a C l e a n Te x a s

TCEQ AIR PERMITTING AND ENFORCEMENTImproving Texas Air Quality through the Sunset Review Process

to promote public notice and opportunity to comment on all permit alterations and modications.

Air Permitting Issue 9

Flexible Permits as currently issued do not meet applicable federal permitting requirements, and are not enforceable as an EPA-approved SIP component.

Air Permitting Issue 10

Failure to analyze the cumulative impacts, or potential impacts, of new or expanded pollution emissions on the overall air quality, public health and property within an airshed does not aord the required demonstration that any new major source