A Pollution Solution?

Leading up to next year's legislative session, Texas environmentalists have adopted an avowedly pragmatic strategy for winning tougher control of industrial air pollution through the Sunset Advisory Commission's review process: They teamed up with a consummate state government insider — a former commissioner of the Texas Commission on Environmental Quality — to craft recommendations. They’re speaking with a unified voice. And they’re pursuing what they say are limited changes to existing practices, not ideal goals.

Bowing to political realities, a coalition of environmental groups, known as Alliance for a Clean Texas, or ACT, is concentrating on attainable improvements in Texas’ air pollution program instead of seeking “to make things perfect or to have 100 percent of everything we would like,” as environmentalists often do, said Matthew Tejada, executive director of Air Alliance Houston, a coaliton member alongside the likes of the Sierra Club, Public Citizen and the Environmental Defense Fund.

The dozens of legislative recommendations prepared by ACT reflect the members’ perennial complaints that the TCEQ doesn’t wield its authority as effectively as it could through decisions on industrial air pollution permits, enforcement of permit and other legal requirements, and financial penalties imposed for violations. The ACT coalition has submitted recommendations in those areas to the Sunset commission, which will review TCEQ operations this year and propose agency changes in a bill for the 2011 Legislature to consider.

ACT’s recommendations to the Sunset panel include empowering TCEQ to deny air-pollution permits in some cases, enabling higher fines for certain permit violations, sharpening the agency’s methods for measuring a polluting facility’s compliance and requiring TCEQ to consider the cumulative impacts of air pollution from a permit-seeking facility in combination with emissions from other sources. The group further recommended limiting so-called "flexible permits" for regulated facilities, the subject of an going tussle between the TCEQ and the federal Environmental Protection Agency, which recently disapproved the practice.

The Sunset review is unfolding in the middle of a politically charged battle between federal and state officials over the adequacy of the TCEQ’s  permitting program. At the same time, the EPA is preparing a stricter national standard for smog, which is scheduled to be announced later this summer and is expected have a far-reaching impact on Texas.

Small changes, large effects

In a joint interview with The Texas Tribune, Tejada and Larry Soward, the former TCEQ commissioner who aided in the effort, said the Sunset recommendations represent a focused effort to achieve change at the TCEQ.

“This is no big request to turn things on their head” in a sweeping overhaul of the agency’s air pollution program, said Tejada, whose group, formerly called GHASP (short for Galveston Houston Association for Smog Prevention), had a lead role in drafting ACT’s 117-page report.

In many cases, the recommendations amount to “minor tweaks” or calls for more explicit definitions of TCEQ authority, which “should allow the agency to do its job much more effectively,” Tejada said. “We wanted to make as many recommendations as we could that have a realistic effect of having a positive effect and actually happening.”

Soward — a 2003 Rick Perry appointee to TCEQ who began working as consultant to Air Alliance Houston after he stepped down as commissioner last year — said many items in the ACT report have been tailored to the perceived intention of the Sunset panel’s chairman, Sen. Glenn Hegar, R-Katy, to avoid policy issues in this year’s reviews of the TCEQ and other agencies. (Agencies are subjected to Sunset scrutiny only once every 12 years.)

“That’s the beauty of our recommendations,” Soward said. “Very little of this is what I would consider policy. It’s mostly about process and statutory limitations or provisions that need to be clarified, which are ideal for Sunset.”

For example, the coalition’s proposal to revise the statistical method used for calculating a polluting facility’s level of regulatory compliance is a key case of a relatively small procedural change that would have major benefits across various parts of the TCEQ’s air pollution program, Tejada said. This measurement of a facility’s compliance history has an important function in the agency’s decisions on permits, investigations and enforcement actions, he said, but the method in place now generally awards middle-range scores to most facilities rather than distinguishing “who’s good and who’s bad,” which would be more meaningful.

Meanwhile, the environmentalists left greenhouse gas regulations — to them, a vital issue — completely out of their recommendations, purely out of political pragmatism. They regarded anything they might suggest on the issue as unattainable, he said. “We aren't touching it, because it won't happen and has the potential to torpedo the other things we want,” he said.

Sins of emission

The Sunset review of TCEQ’s operations comes amid an escalating tug-of-war between federal and state officials over some aspects of the agency’s air pollution program. Late last month, the EPA disapproved one long-controversial part of the TCEQ’s air pollution permitting program: the issuing of “flexible” permits to large industrial plants. Such permits allow plants to comply with one emissions limit for the entire facility instead of specifying limits for individual emission points within the plant. Environmentalists have long complained that this means individual violations are excused when overall emissions don’t exceed a plant’s limit.

In shooting down the flexible permit program, the EPA likewise argued that the TCEQ lets companies evade some federal emission requirements. Perry, other state officials and business representatives have inveighed against the EPA’s action as a power grab that threatens the Texas economy. Unsurprisingly, ACT’s Sunset recommendations include limiting the TCEQ’s uses of the flexible permits so federal requirements can’t be dodged.

Even though the coalition did weigh in on the EPA-TCEQ tussle, Tejada and Soward stressed that the environmental coalition’s recommendations cover much more terrain and should not be viewed only in the context of that fight. “The EPA-TCEQ controversy is very volatile,” Soward said. “If we try to tie our thoughts and recommendations for Sunset to that too much, I think we jeopardize our ability to get the Legislature to consider some of the fundamental permitting and enforcement issues we’re trying to bring forward. I think it would get lost in that political, bureaucratic, jurisdictional rhetoric and fight.”

The TCEQ legislation that the Sunset panel ultimately drafts for the 2011 session “is going to have to be cognizant of what reforms Texas has made in response to EPA requests on certain permitting programs — not just flexible permitting — and that is very much going to color the actual language that goes into that bill,” Tejada said. (The TCEQ is preparing rules to address EPA objections to its air pollution program, with adoption votes by the commission scheduled in September, October and January.)

"Not just some wild-ass blanket approval"

The ACT members’ desire to influence the outcome of the Sunset review is evident in different ways. They offer detailed options for legislative action on most specific issues. In addition, Soward said the coalition’s recommendations are not extreme.

For instance, the recommended options on denying permit applications include letting the TCEQ do so for “good cause,” such as when a facility isn’t complying with an existing permit or hasn’t even operated for five years or more.

To illustrate the issue of dormant plants, the ACT report cites the controversial ASARCO copper smelter at El Paso. It suspended operations in 1999 but won TCEQ commissioners’ approval for a permit renewal over strenuous opposition in 2008. The company decided in 2009 not to reopen the plant after all. A majority of commission members in 2008 wanted to deny the ASARCO renewal but didn’t believe they had the statutory authority to do so, Soward said.

“We’re trying to push [authority to deny or amend permits] as a flexible item for the commission, when it deems it appropriate, not just some wild-ass blanket approval,” he said.

Likewise, on the issue of fines, Soward and Tejada said the ACT recommendations represent a measured attempt to boost those penalties. The commission has historically interpreted the statutory cap of $10,000 per violation per day to mean that is the maximum allowable fine for industrial releases that last up to 24 hours, even if they involve emissions of numerous different air pollutants, Soward said.

“We think that’s too low, because of harm to the environment and public health from these short-term, intense events,” he said.

The coalition’s recommendations would allow the commission to assess a statutory maximum amount for each pollutant in such cases, which is more commensurate with the violation’s severity, he added.

When the TCEQ refers violations to the attorney general’s office for enforcement action, that agency uses just such a pollutant multiplier in calculating penalties and also can assess individual fines up to $25,000 per day.

The ACT coalition wants the Legislature to consider giving the TCEQ the same authority, Tejada said. “That’s why we didn’t say, 'Make the cap $1 million' but said, 'Let them do what the attorney general does.'”

Soward added: “All we’re saying is, give the agency the flexibility do deal with those [major air pollution] events. They’re not going to go crazy.”