A Quiet Hell: Game Time

Flexible permits offer a loophole big enough to drive an oil tanker through.

The Texas Sunset Advisory Commission, made up of 12 state legislators, is in the process of examining TCEQ from top to bottom. The commission, which evaluates all state agencies every 12 years, will make a recommendation during the next legislative session whether to renew TCEQ or abolish it and start over from scratch. One of the issues it will be examining is TCEQ's permitting program.

Ask Elena Marks about TCEQ permits, and the City of Houston environmental policy director shakes her head and cracks a derisive smile. She's been in the trenches fighting the agency over this issue for years.

Most recently, she's been leading the city's charge against the renewal of a permit for a LyondellBasell-owned refinery located eight miles from downtown, the biggest refinery in the city and one of the nation's largest emitters of benzene.

Lyondell applied for a renewal during the summer of 2008, and the City of Houston worked feverishly for two weeks putting together a request for a hearing to contest the permit and a chance to show that the allowable benzene emissions endanger public health, says Marks.

"These are huge permits," she says, "and they only come up every ten years. There ought to be an opportunity for a full examination of the impact of such a large permit on the people who live nearby and to demonstrate that there are technologies that this company can reasonably deploy that would reduce emissions. But the process virtually guarantees that you will not get such an opportunity unless the commission determines that it is in the public interest to do so."

As of yet, TCEQ has not approved the permit, nor has it granted the city a hearing.

One of the reasons, Marks believes, is that Lyondell is not seeking to increase its emission limits, and under state law, the commission may not seek public comment or grant a request for a public hearing on a renewal that does not result in an increase of allowable emissions.

State law also dictates that TCEQ cannot deny a permit renewal if the emission limits remain the same.

"You never see a renewal denied," says former commissioner Larry Soward. "And there's nothing the staff can do. That's the law. I'm hoping the issue will be debated because it really hinders the agency."

To Marks, the blatantly pro-business provision, which has been on the books for nearly 30 years, simply makes no sense.

"Ten years in the world of science and the environment is a really long time," she says. "The technologies available from 1999 to now are vastly different. And our knowledge of health effects are also much greater, yet the commission is not looking at evidence of that. They look at a renewal and say, 'Is it getting any worse?' And if it's not, it's okay."

Unlike most state agencies, TCEQ does not rely on the legislature and tax dollars for its funding. According to the agency's fiscal year 2008 budget, state appropriations make up 2.7 percent of the agency's revenue, versus 72 percent from permit and licensing fees.

"TCEQ is an agency that thinks its mission is to serve the industry," says Ilan Levin with the Washington, D.C.-based Environmental Integrity Project. "It sees its job as issuing permits."

TCEQ's permit program took a beating this fall when the EPA announced that key aspects of the state's plan do not meet requirements set forth under the federal Clean Air Act.

One of the EPA's main areas of concern is over flexible permits, which allow facilities to have a single permit limit for an entire plant. A flexible permit acts as an umbrella, and generally does not impose specific limits for individual emissions sources. As long as the entire facility stays under an overall cap, it remains in compliance. This differs from more traditional permits, which provide specific pollution limits for each individual emission point and therefore make it much easier for inspectors to detect violations. The agency began issuing them in 1995. They are used to regulate roughly 140 facilities across the state.

Critics say flex permits make it nearly impossible to determine how much pollution a specific source is emitting, and therefore equally as difficult to detect and penalize emission violations.

"I hate them," says an inspector who wished to remain anonymous. "They are one of the worst things to ever happen to the agency. They're so elusive and hard to track and you can't really enforce them."

Soward agrees.

"I've always questioned where they fit in with the scheme of federal regulation," says Soward. "They are a real dilemma for everyone. If you say that they are not consistent with federal law, however, then that means that the facilities will have to be re-permitted and face different standards and major expenditures to upgrade or change operations to reduce emissions to acceptable standards. There's not going to be a simple, cheap resolution. But industry kind of brought this upon themselves by insisting on the flexible permit concept, and now they may have to pay the piper."

TCEQ has defended its program, saying that it is effective at reducing pollution and that flex permits are designed to encourage older plants to reduce emissions even though they have been "grandfathered" and are not required to. EPA spokesman David Bary says that the agency is working with TCEQ to make sure its permitting program complies with federal law. Industry claims that these permits give it the flexibility it needs to reduce emissions and comply with regulations.

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