From: Andy Soos, ENN
Published September 27, 2010 01:43 PM

Texan Flexible Air Permits

The U.S. Environmental Protection Agency (EPA) has recently announced its voluntary Audit Program to help companies with Flexible Permits obtain air quality permits that meet state and federal requirements and the protections of the Clean Air Act (CAA). The Texas's Flexible Permits program was never approved by EPA into the state implementation plan (SIP). This has been an issue of controversy since the early 1990's between EPA and the state of Texas.


The crux of the environmental problem are Texas' flexible permits, which set a general limit on how much air pollutants an entire facility can release. The federal Clean Air Act requires state-issued permits to set limits on each of the dozens of individual production units inside a plant. Texas never received required federal approval for the flexible permits but had been issuing them since 1994.

The EPA says Texas' system masks pollution and makes it impossible to regulate emissions or protect public health. In June, the EPA officially disapproved the permits, leaving more than 120 facilities, including some of the nation's largest refineries, in a state of operating limbo.

The problem is in how to regulate and not so much what pollution is reduced as a result. The end result will be a large amount of money for study and legal expense and not air emission controls/

The newly proposed EPA Audit Program will offer a covenant from civil enforcement by the federal government, for instances where companies with Flexible Permits operated outside of federal requirements provided that companies agree to and complete the proposed audit program. In addition, companies who enter the audit program will no longer be subject to EPA's use of Title V tools for permits issued that do not contain all of the regulatory references under the Clean Air Act.

The Audit Program is available for 90 days after publication in the Federal Register (which will be shortly). Participants who sign up in the first 45 days can take advantage of a reduced penalty incentive for potential violations.

Under the program, a third-party auditor will conduct an independent review of operations, modifications, and permitting activities that occurred since the issuance of the flexible permit, so that the federally-applicable requirements can be identified for a new permit. These independent findings would be directly transmitted to the company and EPA and used to establish new limits in state-issued permits. EPA anticipates the audit process to take about one year to complete.

The Audit Program requires participants to obtain federally-approved state permits from Texas. A company would enter into a Consent Agreement and Final Order with EPA based on the findings of the third-party audit. This audit program would resolve any New Source Review non-compliance issues that occurred while operating with the Flexible Permit provided that the companies complete the audit program.

The Audit Program encourages companies to sponsor local community projects that will bring environmental and public health benefits to the people impacted by their daily operations. In other words a recommended community outreach or participation in any air emission decisions or actions.

The federal audit program is one of two paths available today for companies to transition their flexible permits to a permit that meets federal and state requirements. EPA is also inviting companies to contact the EPA Region 6 Compliance Assurance and Enforcement Division if they are interested in more direct negotiations with EPA that would result in federally-enforceable permits and resolution of non-compliance and Title V uncertainty.

The final Audit Program will be published in the Federal Register within 10 days of September 20th's announcement. The Audit Program is available for 90 days after publication in the Federal Register.

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