Companies in Texas Evade Clean Air Act Requirements

Nomad

Well-known member
Aug 26, 2023
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Companies in Texas have found loopholes in federal environmental laws, they are now evading laws using these loopholes. Numerous companies are breaking down their big facilities into smaller ones. Since smaller facilities have less strict pollution standards, these companies are evading strict rules of the Clean Air Act meant for big facilities.

This is a widespread problem in Texas, especially in industries like oil, gas, and petrochemicals. Companies use different tricks like downplaying pollution levels or changing permit conditions later on. The Texas Commission on Environmental Quality (TCEQ) and the Environmental Protection Agency (EPA) are also contributing to this problem by not effectively overseeing and regulating these practices.

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Location
Houston, Texas, United States
It's really surprising to me that the Clean Air Act permitting regulations don't require that minor sources be standalone facilities/operations. For comparison, applicants for Clean Water Act Section 404 permits can only qualify for the Nationwide Permit (NWP) Program (a form of expedited permit, like Clean Air Act minor source permits) if their project is a single and complete project, i.e., "total project [is] proposed or accomplished by one owner/developer." EPA included this requirement in the NWPs because many NWPs have thresholds for expedited permitting (e.g., 0.5 acres of impacts) and EPA wanted to prevent project proponents from simply splitting projects up and covering them under multiple NWPs. Under Section 404, projects that exceed the NWP thresholds can't be authorized by a NWP and must instead be evaluated under the much more rigorous Standard Individual Permit process. So, as with Clean Air Act permitting, there's incentive for project proponents to do everything they can to meet the thresholds and ensure their activities can be authorized under the more expedited permitting pathway.

It's hard to understand why EPA hasn't remedied Clean Air Act regulations to prevent polluters from exploiting the legal distinction between major and minor sources, as we've seen happen in Texas. Clean Water Act permitting prevents projects identified as misrepresenting the larger "single and complete" project from obtaining NWP coverage...why don't Clean Air Act regulations have the same provisions? I'm surprised that EPA long ago anticipated this same potential loophole for Clean Water Act permitting but has yet to take action to prevent the Clean Air Act from being similarly undermined. What's the point of having an environmental regulation if you're going to allow polluters to circumvent it so easily?

Maybe @Air_Tech_Solutions, who I know does air permitting work in Texas, can provide some perspective here?
 
It is concerning to see companies in Texas exploiting loopholes in environmental laws to evade regulations meant to protect the environment. This unethical practice of breaking down facilities into smaller ones to bypass stricter pollution standards is a widespread issue in industries such as oil, gas, and petrochemicals. The lack of effective oversight by the Texas Commission on Environmental Quality and the Environmental Protection Agency further exacerbates this problem. Immediate action needs to be taken to prevent further harm to the environment.
 
It's really surprising to me that the Clean Air Act permitting regulations don't require that minor sources be standalone facilities/operations. For comparison, applicants for Clean Water Act Section 404 permits can only qualify for the Nationwide Permit (NWP) Program (a form of expedited permit, like Clean Air Act minor source permits) if their project is a single and complete project, i.e., "total project [is] proposed or accomplished by one owner/developer." EPA included this requirement in the NWPs because many NWPs have thresholds for expedited permitting (e.g., 0.5 acres of impacts) and EPA wanted to prevent project proponents from simply splitting projects up and covering them under multiple NWPs. Under Section 404, projects that exceed the NWP thresholds can't be authorized by a NWP and must instead be evaluated under the much more rigorous Standard Individual Permit process. So, as with Clean Air Act permitting, there's incentive for project proponents to do everything they can to meet the thresholds and ensure their activities can be authorized under the more expedited permitting pathway.

It's hard to understand why EPA hasn't remedied Clean Air Act regulations to prevent polluters from exploiting the legal distinction between major and minor sources, as we've seen happen in Texas. Clean Water Act permitting prevents projects identified as misrepresenting the larger "single and complete" project from obtaining NWP coverage...why don't Clean Air Act regulations have the same provisions? I'm surprised that EPA long ago anticipated this same potential loophole for Clean Water Act permitting but has yet to take action to prevent the Clean Air Act from being similarly undermined. What's the point of having an environmental regulation if you're going to allow polluters to circumvent it so easily?

Maybe @Air_Tech_Solutions, who I know does air permitting work in Texas, can provide some perspective here?
I don't have an answer to the "why", but I can confirm that this is accurate. In Texas, a permit is associated with a facility, or more specifically a geographically delineated location with an address. So if you owned the land next door (separate parcel, separate address) and decided to construct and operate there as well, you could very well have 2 facilities with 2 minor permits. Even though they are adjacent, they would not be treated as one large combined major source facility.

It should be easy to implement a rule regarding adjacent facilities, but I think what would be more difficult would be addressing the ones that are non-adjacent. What I see far more often is companies that have several facilities spread throughout a city/ region as opposed to all being together in one complex. The problem that this poses is they all still contribute to the same air space, yet they're treated as several individual minor source facilities.
 
It should be easy to implement a rule regarding adjacent facilities, but I think what would be more difficult would be addressing the ones that are non-adjacent. What I see far more often is companies that have several facilities spread throughout a city/ region as opposed to all being together in one complex. The problem that this poses is they all still contribute to the same air space, yet they're treated as several individual minor source facilities.

Thanks, @Air_Tech_Solutions, for weighing in on this! I guess what has me scratching my head is why a purely parcel/address-based approach is taken rather than a more effects-based approach. A more holistic, effects-based approach would seem to make a lot more sense in the context of regulating air pollution. If a company is proposing multiple facilities throughout the city, I would think that the facilities' common airshed should be considered the "location" that the facilities are collectively affecting. However, I do also understand that even when a company owns/operates multiple facilities in the same city, that those facilities probably weren't planned/constructed all at the same time. The company probably wasn't aware of (or had any certainty of) the extent to which they'd later need to construct additional facilities that would affect the same airshed.

But regardless of whether splitting facilities apart into multiple minor source permits is done intentionally or happens as an unintended consequence of planning uncertainties, I would think that each minor source permit would at least take cumulative effects into account. Cumulative effects are defined under NEPA as "the impact on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." If a proposed facility's cumulative effects are considered, then the company should factor in existing facilities and their emissions, as well as "reasonably foreseeable" facilities/emissions, when completing their effects analysis. The overall analysis may still not be as rigorous as what you'd see for a major source permit, but at least it would evaluate the proposed facility holistically and in the context of all facilities/emissions occupying the common airshed.
 
The Clean Air Act should include an additional point to make it clear that companies making smaller companies to get around these rules, should be penalized for it. It's time that these companies get penalized more often for breaking the rules or trying to circumvent them in other ways. This is why we have clean air acts, they're supposed to be used to stop these companies from continually breaking rules.
 
This isn't safe for the environment as they are now evading the laws that should be protecting the environment.

Making loopholes to break down the facilities into smaller ones isn't the way to go about it as it is going to start causing damage to the environment.

Action from the Texas government needs to be taken place as this is not right and it is going against the laws of the Clean Air Act.
 
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