Texas Officials Unmollified by Pollution Rule Changes

The federal Environmental Protection Agency on Thursday proposed scaling back some requirements of its cross-state rule for reducing air pollution — a rule that has incited the fury of Texas officials, including Gov. Rick Perry.

The EPA is "making certain technical adjustments to account for the updated information the agency recently received," the agency said in a statement. The EPA said the changes would "not have a major impact" on efforts to reduce pollution that crosses state lines. Slightly more than half the states, including Texas, are subject to the rule.

In Texas, the revision will mean increased allowance for pollution from both sulfur dioxide and nitrogen oxide.

"It's a significant correction," said Ilan Levin, the Austin-based associate director of the Environmental Integrity Project. He stressed that he was still looking through the revisions, but increased sulfur dioxide emissions relative to what was in the original rule amount to roughly 70,000 tons (for the years 2012 and 2014). That amount is about equivalent, he said, to a dirty coal plant. The nitrogen oxide increases were less significant, he said.

Luminant, a giant Texas power generator that had previously said that the rule would force the shutdown of two of its coal-plant units, said in a statement that it was "in the process of reviewing the proposed revisions and will provide comment to the EPA."

"It is a step forward that the agency has now proposed changes, validating that the rule issued in July 2011 has flaws in its provisions for Texas," the company said.

The rule, finalized in July despite the new technical revisions, is still due to take effect in January. The EPA's proposals now undergo a 30-day public comment period. The proposals will also make it easier for companies in different states to buy and trade pollution allowances, according to Levin.

Texas officials, who have harshly criticized the rule as more burdensome regulations sprung unexpectedly on Texas that would threaten the state's electric reliability, seem unlikely to be mollified.

The regulations "threaten job losses for hard-working Texans, undermine electric reliability for Texas families and violate federal law — and minor technical corrections cannot make these regulations lawful," Attorney General Greg Abbott said in a statement Thursday. "By making the minor changes announced today, the Obama Administration effectively concedes that its rules were flawed — but inexplicably refuses to resolve the real defects."

His lawsuit challenging the cross-state rule is pending.

The Texas Commission on Environmental Quality said in a statement that the revisions amounted to a recognition that the original rules were "fundamentally flawed," and that the state "continues to dispute the modeling that the EPA used to include Texas in the rules at the last minute."

"While we appreciate an effort to address technical issues, TCEQ is still asking for a constructive dialogue with EPA on the much greater and obvious technical issues with the rule," the statement said. "Putting a band-aid on the surface of a fundamentally broken rule does not alleviate the concerns of the state or ratepayers in the future."

U.S. Sen. John Cornyn said in a statement that the rule would still raise energy prices. "Our state continues to be denied due process in this rulemaking process, and the only fair way to move forward at this point is through a total reconsideration of the rule,” he said.

The Electric Reliability Council of Texas, the state grid operator, said that it was reviewing the proposed changes and could not yet assess how they would affect the grid.

The EPA says that the adjustments stem from new information. For example, the EPA said, the original rule "erroneously assumed that scrubbers exist" at three power plant units. (A scrubber helps prevent pollution.) The scrubber errors arose despite the information the EPA had from "public sources ... as well as from a private subscription-only power sector pollution control database." 

The EPA also said it worked off incorrect assumptions that there was "full flue gas treatment in existing scrubbers" at power plants including Luminant's Martin Lake and Monticello coal plants. Those errors arose from a misunderstanding of how plants were reporting their flue gas treatment.

Essentially, what that means is that the new rules acknowledge that Texas currently is emitting more than the EPA originally calculated — and therefore, under the proposed revisions, it will be allowed to emit more than it would have under the July revisions.

Levin said it was "really not unusual for an agency to make a technical correction" based on more accurate data. However, he added, "it is ironic and somewhat disturbing that because the state of Texas and Luminant have basically persuaded the EPA that actual emissions are higher than what EPA thought, that the state of Texas and Luminant are getting a generous break here."