Texas is fighting the U.S. Environmental Protection Agency's (EPA) disapproval of its flexible air emissions permits program, which EPA claims violates the federal Clean Air Act (CAA).

Texas Attorney General (AG) Greg Abbott filed a challenge Monday to the ruling in the U.S. Court of Appeals for the Fifth Circuit in New Orleans on behalf of the Texas Commission on Environmental Quality (TCEQ) (see Daily GPI, July 2).

The flexible permit program was established in 1994 in an effort to incentivize grandfathered operations to voluntarily enter into the state's air permitting and environmental regulation program. Facilities that were exempted because of their grandfathered status agreed to submit to state regulation because the program offered them operational flexibility.

In exchange for emissions regulations, participants were authorized to allocate emissions on a facilitywide basis rather than by source point. The end result was a program that gave facilities greater flexibility and control -- but that reduced emissions and complied with all state health standards, as well as all applicable CAA requirements, according to the AG's office.

TCEQ has been collecting data on emissions sources from gas producers in the Barnett Shale area. The data collection is in the form of an inventory of equipment that could emit nitrogen oxides and volatile organic compounds. A gas producers' representative told NGI he thought the data collection might be at the behest of the EPA, but TCEQ spokesman Terry Clawson said this was not the case (see Daily GPI, May 3).

At the time TCEQ established the program Texas had a large number of grandfathered facilities that predated the state's permitting program, which did not begin until 1971. As the EPA acknowledged, neither the EPA nor the TCEQ had statutory authority to impose controls on -- or require permits for -- these grandfathered facilities, the AG said.

Because of the program -- and the enactment of Texas laws that later imposed mandatory permitting requirements -- there are no longer any grandfathered facilities in Texas. "In contrast, multiple other states across the country are still home to facilities that are grandfathered and therefore exempt from both state and federal permitting requirements," the AG said.

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