You have a big coal plant in Texas and you want to make sure the state says you're following the Clean Air Act, so you don't get in trouble. How can you ensure that Texas regulators will give you the clearance you need? By telling them what to do. Correspondence between the coal industry and the Texas Commission on Environmental Quality shows what appears to be a very comfortable relationship between the two groups. The industry set the agenda for its meetings with the TCEQ, according to emails, and appears to have told the state how to write its own permits.
Now a group of environmental organizations have filed a petition with the Environmental Protection Agency, alleging that Texas regulators and the industry have conspired to illegally exempt 19 coal plants from emission standards under the Clean Air Act. The petition was filed by the Environmental Integrity Project on behalf of numerous groups, including the local Downwinders at Risk. It says that Texas issued permits allowing coal plants to spew up to 30 times more particulate matter per hour than federal standards currently allow. (Particulate matter is a concoction of dust, soot and chemical droplets.) The Environmental Integrity Project obtained correspondence between the industry and regulators through public records requests.
In a March 2010 email, Craig Eckburg, a manager at a company called NRG Texas Power, discusses an upcoming meeting with the TCEQ. "Below is a proposed agenda," Eckburg writes to the regulators. The first item he lists is "MSS Permitting Issues" — or maintenance of start-up and shut-down. The maintenance period is a time when coal plants have long been allowed to spew soot without consequence in many states, environmental groups say, under environmental loopholes that the Environmental Protection Agency is trying to close.
In Texas, NRG and other companies were ultimately able to get permits allowing higher emissions during the MSS period, without a public hearing. Eckburg, the NRG manager, apparently considered having one. "Public notice and comment/contested case hearing requirements applicability," says an item on another agenda he proposed for an upcoming meeting with the state. But for whatever reason, the TCEQ and industry decided that the public and the EPA didn't need to be included in the process, after all. Reached by telephone, Eckburg referred questions to his company's spokesman. "We wanted to know what the requirements were" for public meetings, says spokesman David Knox, "so we could make sure we were in accordance with the law."
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Those permits should have triggered a public hearing, because the permits allow the coal plants to exceed the federally mandated emissions levels, the environmentalists argue in their petition. At least one legal expert who has worked on Clean Air Act issues agrees. "What Texas has done requires the approval of EPA, or else they [coal plants] may be subject to enforcement action by the EPA," Craig Oren, a law professor at Rutgers University-Camden, told Inside Climate News.
Another key document that the environmental groups obtained was provided by the coal industry to the state and called "PLANNED MSS PERMIT CONDITIONS FOR ELECTRIC GENERATING FACILITIES AND RELATED FACILITIES." The document appears to be a permitting template containing the same language that ultimately appears in the permits the TCEQ issued the companies. In other words, Texas regulators were allowing the industry to write their own permits.
“These exemptions for coal-fired power plants are evidence of the state’s chronic disregard of federal Clean Air Act standards,” Eric Schaeffer, executive director of the Environmental Integrity Project, the lead petitioner, says in a press release.
The TCEQ is responding to the petition with a written statement to the media, arguing that the coal plants didn't actually exceed federal pollution limits even if their permits allowed them to do so. As a result, the state argues, it's OK that the public wasn't included in the process. The TCEQ's statement also defends using permitting language provided by the industry. "The permit language found in power plant permits is the result of negotiated efforts that transpired between TCEQ and industry over the course of a year," says the TCEQ statement. "It is necessary for TCEQ to work with regulated entities to ensure that that they can comply with the conditions or requirements of a permit."