November 23, 2009

HOUSE OF REPRESENTATIVES

AUSTIN

Mr. Stanley M. Spruiell

Air Permits Section (6PD-R)

Environmental Protection Agency

1445 Ross Avenue

Suite 1200

Dallas, Texas 75202-2733

Re: Comments Supporting EPA's Proposed Disapprovals Docket ID No:

(1)EPA- R06-0AR -2005-TX-0032,(2) EPA-R06-0AR-2005-TX-0025,and (3)

EPA-R06·0AR-2006-0133

Dear Mr. Spruiell:

We, members ofthe Texas legislature, support the EPA's proposed disapproval of

the air permitting program submittals from the Texas Commission on Environmental

Quality regarding: (1) Flexible Permits, (2) Qualified Facilities. and (3) Major and Minor

New Source Review.

While we support the inherent flexibility in the federal Clean Air Act allowing states

to decide how best to reduce air pollution to safe levels, we recognize that this flexibility

must be exercised within the context of a functioning. transparent, process that protects

the public's right-to-know and ability to participate in air permitting decisions that can

affect their health and welfare. We believe that the current Texas procedures for issuing

air permits fail to meet these standards for reasons including those identified below.

We are particularly concerned with the Texas program's lack of transparency, which

thwarts public participation and makes enforcement of legallimits very difficult. Air

quality affects the health and safety of our constituents and we look forward to working

with you and the Texas Commission on Environmental Quality to ensure that Texas has an

air-permitting program that meets federal standards, values transparency and public input,

and protects the health and safety of all Texans.

1. Flexible Permit Program

We agree with EPA's determination that the Texas Flexible Permit program should

be disapproved. The federal Clean Air Act does allow for flexibility and streamlining in air

permitting. The Texas Flexible Permit program, however, goes too far in sacrificing

transparency. monitoring and enforceability in the name offlexibility. Further, it allows
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major sources of air pollution to avoid compliance with importa nt regulatory limits. In

particular, we are conce rned with :

• The lack equ mon itoring and reporting requirements, ind uding the

routine use of emission estimates based on calculations rather th an actual

monitori ng..

• Inadequate public participation. The Flexible Permit rules rail to provide

adequat e public notice or participation fur draft permits and changes to

existing permits, which keeps the surrounding communities uninformed

about any changes in the pollu tion levels they are breathing.

• The failure to require compliance with, or monitoring or reporting pursuant to,

federal individuol unit pallutionlimits.

While we do befteve that the TCEQcan provide some flexibility In permitting. such

as pre-approving modifications, we do not believe that the flexible permit approach in the

current Texas rules is viable. We, therefore, support disa pproval ofthe rules.

2. Qualified Filcllities

While the Qualified Facilities program was a legislative creation, we recognize th at

th e sta tu tory language and associ ated regulation s are inconsistent with current federal

Oean Air Act requirements regarding mod ifications and public participation- In pa rticular,

we a re concern ed with :

• Inadequate TCEQoversight. The rules authorize many changes at facilities

without any pre-approval by TCEQ or procedures for den ial fur ca use. These

off·permit thanges are difficult to track and enforce and may threaten

ambient air qua lity.

• The lack of underswndoble and traceable permits.Texa s industry, regulators,

and the public should be able to obta in a permit, read it, and know what

quantity of wha t polluta nts the facili ty is authorized to emit. The off-permit

changes au thorized through the Qualified Facilities rules prevent such

transparency.

• Inadequate public participation. The Qualifi ed Faclhties rules allow industrial

plants to make changes that can affect neighboring reside nts with abs olu tely

no public notice or opportunity for participation.

We. therefore,support final disapproval of the Qualifi ed Facilities rules.

3. Major and Minor New Source Review

Lastly, the EPAshould finalize disappro val of re visions to the Major and Minor New

Source Review SIP beca use they are substantively different and less st ringent than the

federal New Source Review rules. Of particular concern is Texas' definition and applica tion

of Best Available Control Technology (BACT). Texas is applying a de finition of BACT. and

using a BACT dete rmination process, that is significantly less stringent than required by

fede ral law. As a re sult, Texas industrial facilities emi t mo re poUution than similar facilities
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in other states. However, use of federal BACT alone will not be sufficient for the State to

achieve and maintain attainment of the NAAQS and protect the health of the communities

downwind of these new sources. We recommend that the EPA also adopt the procedures

necessary to ensure that TCEQ has nplicit authority and direction to analyze individual

and cumulative effects of emissions from proposed significant point so urces on regional

ozone levels when considering a permit appliation. Analysis of ozone effects should

include photochemical modeling of impacts to downwiod areas under typical high caone

conditions. Beca use the Texas New Source Review revision rules rail in numerous ways to

meet federal requirements and to protect public health, we support their disapprovaL

Condusio n

We are pleased that EPA is taking st eps to ensure that the Texas air permitting

PI"O(:E'SScomplies with federal law and is protective of public health. We believe that a

strong,. effective, transparent air program is important for all Texans and will ultimately

redlice permitting umeunes. cost and liligation.

Sincerely.

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Elliott Naishtat Garnet Coleman Lon Burnam

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Daril Olivo Eddie Rod riguez Donna Howard

Villindil Bolton Ellen Cohen