How Texas polluters classify massive amenities as smaller ones to keep away from stricter environmental guidelines and public enter | San Antonio

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When the Intercontinental Terminals Firm sought a allow to broaden its tank farm and terminal on the Houston Ship Channel in 2014, a reviewer with Texas’ environmental regulator expressed a protracted record of considerations.

ITC, the reviewer for the Texas Fee on Environmental High quality wrote, gave the impression to be evading core provisions of federal environmental regulation by dividing its “main” facility amongst nominally separate “minor” permits, which have much less stringent air pollution requirements necessities and require far much less evaluate.

In Larger Houston, federal authorities had set a threshold at 25 tons per 12 months of risky natural compound emissions. Any firm eager to launch extra was required to bear a tedious, costly software course of, established within the Clear Air Act, as a so-called “main supply.”

ITC had already obtained permits for its first group of chemical tanks in 2012 for twenty-four.9 tons per 12 months of risky natural compound emissions in 2014. Now it was asking to allow a second group for one more 24.9 tons per 12 months. As a result of each teams fell slightly below the EPA’s threshold, neither have been topic to a federal program referred to as New Supply Evaluate, or NSR.

“Now we have considerations about NSR circumvention,” wrote the allow reviewer, Jesse Lovegren, in a July 2014 electronic mail to different company workers.

Nonetheless, ITC received its allow the following 12 months. And in 2017 it received one other for a fair bigger growth, bringing its licensed emissions of risky natural compounds as much as 147 tons per 12 months — virtually six instances Houston’s present main supply threshold.

But the ability by no means underwent the method required by federal regulation for main sources, which is aimed toward stopping present air air pollution hazards in locations like Larger Houston from getting worse.

It wasn’t an remoted error, based on attorneys and regulatory consultants in Texas and past, however an instance of a systemic drawback with emissions allowing within the Lone Star State, seat of the nation’s largest oil, gasoline and petrochemical sectors. By exploiting the authorized distinction between main and minor air pollution sources, attorneys have argued repeatedly in court docket papers, firms can dodge pillars of the nation’s landmark environmental legal guidelines.

“That is form of a foundational drawback with Texas allowing and it’s resulting in a whole lot of hurt,” mentioned Gabriel Clark-Leach, a former workers lawyer for the Environmental Integrity Undertaking, a nonprofit regulation agency primarily based in Austin. “It’s so necessary for sources to be thought-about minor as a result of it makes the entire allowing course of inexpensive and it makes operation of the plant inexpensive.”

Inside Local weather Information compiled 10 current circumstances involving allegations the TCEQ characterised main air pollution sources as minor. An investigation by ICN and The Texas Tribune, primarily based on a whole lot of pages of presidency and court docket data and dozens of interviews, revealed quite a few methods during which massive firms sidestep main supply allowing:

They could, like ITC, characterize completely different components of their amenities as impartial minor sources; they might dramatically underestimate the quantity of air pollution they are saying they may emit; they might classify their emissions in unregulated classes; or they might use retroactive amendments to alter the circumstances of unique permits after amenities are constructed.

Systemic abuse

Clark-Leach, 47, mentioned he noticed firms use these ways throughout every of his 13 years with the Environmental Integrity Undertaking, however authorized challenges have been not often profitable. He and different public curiosity attorneys have alleged in authorized filings that the TCEQ usually acts to facilitate the maneuvers.

Additionally they named one other, surprising company as complicit in lax allowing: the Environmental Safety Company.

Whereas regulators in lots of different states additionally neglect to cease firms from evading main permits, mentioned Ryan Maher, an lawyer who has studied the issue for 2 years on a grant from the Funder Collaborative on Oil and Fuel, what units Texas aside is the EPA’s unwillingness to intervene, particularly in software and enforcement of nonattainment limits.

“Texas is given a complete cross,” mentioned Maher, who works for the Middle for Organic Variety in Maine. “Texas oil and gasoline is getting an enormous handout relative to the remainder of the nation.”

In September, Clark-Leach filed a petition with the EPA denouncing TCEQ’s dealing with of ITC, then left the Environmental Integrity Undertaking, pissed off and discouraged. Now Clark-Leach, tall with a brief, graying beard, is writing a play whereas he contemplates his future.

“It’s been actually powerful attempting to assault the TCEQ’s abuses. That’s one of many the reason why I threw my arms up and left. I didn’t see any method ahead on this concern, which is a significant concern,” he mentioned.

The TCEQ, headed by three appointees of Gov. Greg Abbott, grants 1000’s of air pollution permits every year, together with a whole lot for main sources. The ten circumstances analyzed on this investigation represent a tiny fraction of these permits. In most of them, nonprofit watchdogs or federal regulators alleged improper use of minor supply permits to authorize main sources; in others, firms utilized authorized loopholes to keep away from extra stringent air pollution controls.

In a single case, the EPA rejected Texas’ proposed allow for a seawater desalination plant on the Port of Corpus Christi, saying the TCEQ had mischaracterized it as a minor supply; TCEQ issued the allow anyway.

In one other, a Gulf Coast gasoline liquefaction plant obtained a minor supply allow to yearly emit 6 tons of nitrogen oxides, then launched greater than 120 tons throughout its first 12 months of operation.

In one other, an 80-year-old West Dallas shingles plant confronted group outrage and EPA objections over its main supply allow renewal, so it voided its software and utilized as a minor supply, which doesn’t require public enter or federal oversight.

In one other, a gasoline booster station and emergency gasoline flaring operation in West Texas with a minor supply allow to launch 0.01 tons per 12 months of sulfur dioxide emitted greater than 250 tons per 12 months, the foremost supply threshold, in “extra” emissions, every year from 2017 to 2020.

EPA Area 6 spokesperson Jennah Durant, responding to criticism concerning the company’s failure to carry TCEQ accountable, mentioned Texas holds “authority to implement most environmental applications and laws within the state” whereas EPA retains “oversight authority.”

“EPA welcomes any particular enter or correspondence concerning the execution of those roles,” Durant mentioned.

ICN shared its findings with the TCEQ, however the company declined to touch upon any of the particular examples.

TCEQ spokesperson Richard Richter wrote in an electronic mail that the method of evaluating air pollution allow functions “consists of a extremely advanced evaluate,” together with “in-depth analyses of many components together with, however not restricted to, Finest Obtainable Management Expertise, emission fee calculations, off-property impacts evaluation, main new supply evaluate applicability, and evaluate of relevant state and federal guidelines.”

The method sometimes entails requests for extra data or design modifications from the TCEQ and a prolonged back-and-forth with the applicant, Richter mentioned. “After this detailed course of is full, TCEQ points authorizations which might be in compliance with all guidelines and laws.”

Richter mentioned particular questions from ICN “are both higher fitted to EPA or would require a Public Data Request.”

“TCEQ doesn’t have any further feedback concerning your report,” he mentioned.

‘Sham permits’

No single threshold divides main from minor sources in allowing — thresholds can range from 25 to 250 tons per 12 months primarily based on location, pollutant and sort of business.

Sources that cross their relevant threshold set off stricter requirements and a number of high-priced necessities. So it’s no secret that firms want to work via minor permits, based on regulatory consultants.

“There are robust financial incentives for corporations to need to keep away from being categorized as main,” mentioned Cary Coglianese, director of the Penn Program on Regulation on the College of Pennsylvania.

“If the state turns to look the opposite method, the allow necessities for these sources, deemed as ‘minor,’ might be a lot less expensive to fulfill.”

The EPA foresaw this drawback in its 1990 air allowing handbook, labeling such authorizations as “sham permits.”

“If a supply accepts operational limits to acquire a minor supply building allow however intends to function the supply in extra of these limitations as soon as the unit is constructed, the allow is taken into account a sham,” the handbook mentioned.

“Moreover, a allow could also be thought-about a sham allow whether it is issued for quite a lot of pollution-emitting modules that hold the supply minor, however inside a brief time frame an software is submitted for extra modules which can make the whole supply main,” it mentioned.

In most areas, functions to construct main air pollution sources set off a federal program referred to as Prevention of Vital Deterioration, or PSD, which has 4 essential necessities: air pollution management expertise, air modeling, impression evaluation and public involvement.

Stricter requirements apply in areas with poor air high quality — like Larger Houston — the place the EPA has decided “nonattainment” of federal air requirements. There, a program referred to as Nonattainment New Supply Evaluate is meant to forestall new industrial developments from exacerbating the state of affairs. It has three essential necessities: demonstration of the “lowest achievable emission fee,” buy of air pollution offsets and public participation.

“For those who can skate by with out triggering main supply thresholds you do not have to do this stuff,” mentioned Eric Schaeffer, a former EPA director and head of the Environmental Integrity Undertaking in Washington. “It can save you some huge cash and save time.”

‘Suspicious as hell’: The case of ITC

Immediately ITC, a Japanese petrochemical storage and loading firm, operates its 180-acre Pasadena Terminal and tank farm on Buffalo Bayou, lower than 10 miles from downtown Houston.

Case data accessed by way of TCEQ databases present the company knew ITC deliberate to construct a significant supply and pushed again arduous in opposition to the corporate’s makes an attempt to keep away from main supply allowing. Ultimately, and inexplicably, the TCEQ relented and permitted the Pasadena Terminal as three impartial “minor” sources, every barely beneath the foremost supply threshold.

“It’s suspicious as hell when you’ve three emissions models approaching the (tons-per-year) threshold for main supply allowing,” mentioned an air allowing guide in Texas who reviewed the case abstract and requested anonymity to protect enterprise relationships with the TCEQ and his purchasers.

The story began in 2011, when ITC sought its first air pollution allow to construct boat docks, a railyard, a truck terminal and 22 large chemical tanks on the Pasadena Terminal.

As a result of the EPA thought-about Larger Houston in “extreme nonattainment” of federal air high quality requirements, it set the area’s main supply threshold for risky natural compound emissions comparatively low, at 25 tons per 12 months. ITC utilized to authorize 24.9 tons per 12 months as a minor supply.

The TCEQ, when it issued the allow in 2012, knew ITC had greater plans in thoughts.

“ITC is authorizing the preliminary building of what they plan will probably be a big tank terminal,” wrote Kurt Form, a TCEQ engineer, in his evaluate of the allow. “Though the positioning will finally be main, this preliminary building will probably be restricted to risky natural compound emissions to lower than 25 [tons per year] in order that the positioning is minor.”

‘Group B’

Two years later, ITC requested so as to add 19 extra tanks. The challenge would additionally emit 24.9 tons per 12 months of risky natural compounds, the appliance claimed, and ought to be evaluated as an impartial, minor supply.

The applying went to Lovegren, the TCEQ allow reviewer who expressed concern over circumvention of a significant supply evaluate. It was tough to see how ITC’s two tasks might be thought-about separate, he wrote in a 9-page memo despatched in July 2014. Evaluated collectively, Lovegren wrote, they would wish to bear Nonattainment New Supply Evaluate.

Repeated comply with ups with the agency making ready ITC’s software, DiSorbo Consulting, did not fulfill Lovegren’s considerations. “Total evaluation is tilted away from ITC’s favor,” he wrote in September.

The following month, TCEQ Air Permits Director Mike Wilson joined Lovegren for a tense assembly with Shanon DiSorbo, head of DiSorbo Consulting and a former TCEQ air allow engineer, to barter a path ahead.

“You and ITC have been unequivocal in saying that your first precedence is to keep away from (Nonattainment New Supply Evaluate),” based on TCEQ speaking factors ready for the Oct.13 assembly. “It isn’t our place to information candidates via loopholes (a lot much less create new loopholes).”

“You’re destroying ITC,” DiSorbo informed Wilson, based on assembly minutes.

After that, the TCEQ mysteriously modified its tone and agreed to allow ITC’s growth as an impartial minor supply, which it dubbed “Group B.” Per the settlement, ITC diminished the scope of its preliminary allow, withdrew its newest allow software and re-submitted the challenge as an modification to the unique allow. It stays unclear how these actions glad the company’s considerations, and the TCEQ declined to reply questions.

Lovegren, in his January 2015 evaluate of the growth allow, mentioned ITC took these actions “to be able to treatment considerations about circumvention of nonattainment evaluate, however nonetheless keep away from present process nonattainment evaluate.”

‘Group C’

9 months later, ITC utilized for one more, bigger growth, together with 40 extra tanks and one other 79 tons per 12 months of risky natural compound emissions (later elevated to 97.2 tons per 12 months via a allow modification).

DiSorbo Consulting, which once more ready the appliance, referred to as it “Group C.” This time, it might be a significant supply, topic to Nonattainment New Supply Evaluate.

Nevertheless, two months prior, the TCEQ had requested EPA to take away Larger Houston’s designation as a “extreme” nonattainment area for federal ozone requirements, citing bettering air high quality. In November 2016, the EPA concurred, reclassified Larger Houston as “reasonable” for nonattainment and raised the foremost supply threshold for risky natural compounds emissions from 25 to 100 tons per 12 months.

“The Pasadena Terminal is now a minor supply … and the growth challenge doesn’t represent building of a brand new main supply,” Lovegren wrote in his evaluate of the Group C growth. “Nonattainment evaluate just isn’t required.”

TCEQ issued the allow in July 2017, bringing the Pasadena Terminal’s licensed emissions, below three separate “minor supply” permits for twenty-four.9, 24.9 and 97.2 tons of risky natural compounds, respectively, as much as 147 tons per 12 months, effectively above the brand new “main supply” degree of 100 tons per 12 months.

“There isn’t a indication that ITC has improperly prevented main NSR evaluate,” Lovegren wrote.

The following 12 months, he left the TCEQ to work for DiSorbo.

In 2022, amid worsening air high quality, the EPA redesignated Larger Houston as “extreme nonattainment,” returning the foremost supply threshold for risky natural compound emissions to 25 tons per 12 months. However ITC’s minor supply permits, primarily based on the relevant threshold on the time of software, remained in place, even with the edge again to 25 tons.

Additionally in 2022, the TCEQ authorised renewal of ITC’s sitewide working allow over objections from environmental attorneys and group members. After that, Clark-Leach, the previous workers lawyer for the Environmental Integrity Undertaking, filed his petition with the EPA.

“ITC’s plan was to parse building of its main supply right into a collection of minor tasks, none of which concerned an emission improve ample to set off NNSR preconstruction allowing necessities,” it mentioned.

The TCEQ, it mentioned, “anticipate(d) that the Terminal could be operated as a significant supply” and “additionally anticipated that ITC would try and authorize subsequent phases of the Terminal’s building in bits and items to bypass NNSR.”

An EPA spokesperson mentioned the company expects to concern its response in early 2024. ITC didn’t reply to requests for remark.

Dividing websites is a typical tactic to keep away from main supply permits, Clark-Leach mentioned. He labored the same case in opposition to Enbridge Vitality, a $180 billion Canadian oil and gasoline firm, and its Ingleside Vitality Middle on Corpus Christi Bay.

Thrice the TCEQ denied requests to separate the middle’s oil and gasoline operations into individually permitted websites: July 2021, September 2021 and January 2022.

Then the guide making ready Enbridge’s software shared a three-page memo by a downtown Houston regulation agency, copying Jeff Saitas, a former TCEQ government director and a lobbyist for oil firms, within the electronic mail.

After that, the TCEQ agreed to separate the websites. Clark-Leach challenged that willpower in official feedback in July 2023. A spokesperson for Enbridge mentioned the corporate was “following federal and state regulation by treating the Oil Terminal and LPG Terminal as separate websites.”

When neighbors communicate up: The case of GAF

Even when state regulators fail to adequately scrutinize air pollution allow functions, the Clear Air Act gives a backup: public participation. Federal regulation contains detailed necessities for group engagement in main supply permits, which might bathroom builders down in challenges to their functions that wouldn’t in any other case have arisen.

In some circumstances, public participation can win main concessions from industrial builders. For instance, the 80-year-old GAF shingles manufacturing unit in West Dallas confronted protests from neighbors, state representatives and federal regulators when it sought to resume its main supply air pollution allow in 2021.

GAF held a significant supply allow to emit as much as 129 tons per 12 months of sulfur dioxide, a gasoline identified for its stinging, choking odor. In 2020, GAF was the highest sulfur dioxide emitter in Dallas County, based on a list of self-reported emissions by Paul Quinn Faculty’s City Analysis Initiative in Dallas. It additionally ranked second for particulate matter and fourth for total emissions.

In keeping with Janie Cisneros, 41, a mom and digital product designer who grew up in West Dallas, frustration grew for many years over the relentless stench that infiltrated the houses of residents who believed the corporate’s emissions have been inflicting issues from bronchial asthma to bronchitis to throat most cancers.

When GAF sought a routine renewal of its main supply allow in 2021, the group had an opportunity to talk up. They lobbied public officers, who requested TCEQ maintain a public listening to on the group’s behalf — a part of the foremost supply evaluate course of. Cisneros, who was beginning her environmental organizing work, and different neighborhood advocates helped folks in West Dallas put together remarks and attend the net listening to.

On the listening to, in July 2021, dozens of residents tuned in and took turns for hours talking concerning the fears and frustration of life close to the manufacturing unit. Elected officers and attorneys additionally testified in opposition to the allow.

TCEQ dismissed their protests and authorised GAF’s allow renewal in June 2022, then despatched it to the EPA for evaluate — a part of main supply allow necessities.

EPA responded in August with 16 pages of objections. The company cited the neighborhoods’ “dozens of feedback involving considerations of routine nuisance circumstances” together with noxious odors, mud plumes and “waxy black substances.”

The EPA additionally mentioned GAF used outdated measurements in its emissions calculations, and famous that the permits ought to embody necessities for monitoring, file retaining and periodic testing to make sure compliance with allow limits.

Except TCEQ submitted a revised allow to handle the objections inside 90 days, wrote EPA air and radiation division director David Garcia, the appliance could be denied.

Cisneros was elated. Federal authorities had stepped in to help the battle of her traditionally marginalized group.

“We have been simply over the moon,” Cisneros mentioned. “I had a lot hope.”

However the EPA’s objections would get no response.

As an alternative of taking the outlined steps and revising its main supply allow software, GAF filed a discover for TCEQ to void its main supply allow and utilized as an alternative for a minor supply allow. To try this, it proposed to retire one among its two manufacturing strains and scale back different sulfur dioxide emissions beneath the foremost supply threshold — from round 129 tons per 12 months to roughly 80 tons.

In keeping with an organization spokesperson, “GAF grew to become conscious of public considerations concerning its emissions … within the West Dallas group” throughout public feedback in 2021.

“In response to those considerations, GAF started to formulate a plan to cut back its emissions,” the spokesperson mentioned in an announcement. “GAF didn’t apply for a minor supply allow as a result of EPA rejected the [major source] allow; quite the opposite, GAF voluntarily diminished its emissions and have become a minor supply to assist alleviate public considerations.”

Wendi Hammond, a workers lawyer for the nonprofit Authorized Assist of Northwest Texas, disagrees.

Line 1, which the corporate proposed to retire, hadn’t been used since 2017, based on the TCEQ’s evaluate of GAF’s software. So, Hammond mentioned, there wasn’t something substantial to retire in 2022.

“The minor supply evaluate software was primarily only a paper train to attempt to get out of main supply evaluate,” Hammond mentioned.

And it labored: GAF stays in operation below a minor supply allow.

“You odor that?” mentioned Cisneros, scrunching her nostril as she walked via her neighborhood’s outdated picket homes decked out in Christmas lights, carrying her signature cherry lipstick and gold hoop earrings.

She was left shaking her head at GAF’s allow maneuver, which was a irritating setback for her and others who reside close to the plant.

“I used to be confused and brought without warning,” Cisneros mentioned. “I did not know [GAF] may simply scale back emissions and get away with that. [Regulators] will not be keen to research additional.”

‘Not often any penalties’

It’s unimaginable to know the way regularly firms misclassify themselves as minor sources, mentioned Colin Cox, one other former workers lawyer for the Environmental Integrity Undertaking.

That’s as a result of Texas, which points 1000’s of air pollution permits every year, has just some impartial watchdogs who scrutinize functions — about 10 attorneys for nonprofits like EIP, Authorized Assist and EarthJustice, plus just a few non-public corporations that problem permits for paying purchasers.

If the TCEQ doesn’t object to a developer’s declare, it’s comparatively unlikely that anybody else will.

“The fee doesn’t prefer it if you double verify their homework. They depend on this course of being tremendous sophisticated to get away with what they do,” Cox mentioned.

Final 12 months, he challenged a minor supply willpower for the Ingleside Terminal, a oil export terminal owned by Flint Hills, a subsidiary of Koch Industries, on Corpus Christi Bay.

In a lawsuit filed November 2022 in state district court docket, Cox alleged Flint Hills used a retroactive “as-built” modification, meant to authorize design modifications made in the course of the building course of, to loosen limits in a earlier minor supply allow, such that it grew to become main.

First, in 2018, Flint Hills utilized to broaden its terminal, including six new tanks and 4 new vapor combustors. It requested to authorize 39.7 tons per 12 months of sulfur dioxide emissions (beneath the foremost supply threshold of 40) in two components: 37.4 tons per 12 months of routine emissions and a pair of.3 tons per 12 months for emissions from upkeep actions.

Then, in 2021, Flint Hills sought an “as-built” modification to considerably improve operations within the newly-built growth. It requested to solely barely elevate routine emission limits on its new tanks and combustors to 38.1 tons per 12 months of sulfur dioxide. However in that software, Flint Hills excluded the two.3 tons of upkeep emissions beforehand licensed for those self same models. So, the growth challenge remained a minor supply.

“Regardless of the foremost modification standing of the Modification, Flint Hills and TCEQ processed it as a minor modification and did not conduct the obligatory federal Prevention of Vital

Deterioration evaluate or present all required public participation alternatives,” Cox wrote in his criticism.

In keeping with a spokesperson for Flint Hills, upkeep emissions weren’t included within the 2021 software as a result of the proposed modification didn’t trigger them to extend.

He pointed to a 22-page authorized argument Flint Hills filed with the TCEQ, which mentioned, “No new tanks have been required for the challenge and due to this fact no new tank upkeep emissions have been required to be licensed.”

“Our precedence with respect to allowing is to comply with relevant guidelines and laws and to make use of the strategies specified by these guidelines to find out what type of allow is required,” the spokesperson mentioned.

The lawsuit continues to be pending.

Cox, who grew up in Houston and went to regulation faculty on the College of Texas, left the EIP this 12 months, moved to the woods of northern New Mexico and took a job with the Middle for Organic Variety.

“Texas is a difficult place to do environmental work,” he mentioned. “The TCEQ and its commissioners are fully captured by business. They bend over backward to interrupt the regulation and grant permits. They usually do it unashamedly as a result of there are not often any penalties.”

The explosive case of Freeport LNGAdditionally on the Gulf Coast, the case of Freeport LNG, operator of a brand new liquified pure gasoline terminal 40 miles south of Galveston, represented one more try and keep away from main supply evaluate by splitting plant operations in two, even when that meant dramatically understating emissions from the LNG facility.

“The TCEQ has repeatedly allowed building of commercial sources primarily based on clearly unrealistic representations,” learn a 2023 EIP report referred to as “The Polluter’s Playbook: How Loopholes and Lax Enforcement Hurt Air High quality in Texas.”

“Even when Freeport LNG didn’t deliberately misrepresent the quantity of air pollution its supply would emit,” the report mentioned, “the corporate was nonetheless allowed to construct, function, and practically destroy a facility it didn’t perceive.”

Freeport LNG, a challenge of New York billionaire Michael Smith, obtained a allow in 2014 to construct its large gasoline liquefaction and export terminal as a significant supply of nitrogen oxide emissions.

Later, it requested to separate its proposed liquefaction plant from its pretreatment plant as a minor supply. So when it utilized to broaden that liquefaction plant, it didn’t require tedious evaluate.

In 2018, TCEQ issued a minor supply allow for the plant, authorizing nitrogen oxide emissions of 6 tons per 12 months.

In 2019, when that plant started operations, it reported practically 119 tons of surprising nitrogen oxide emissions to the TCEQ. In 2020, it reported 103 tons. On the time, the foremost supply threshold for nitrogen oxide, a potent greenhouse gasoline and respiratory irritant, was 25 tons.

In 2022, a part of the liquefaction plant exploded when leaking gasoline caught fireplace. Federal investigators attributed the catastrophe to poor administration and human error.

After the explosion, Freeport LNG requested for “as-built” amendments that might drastically improve allow limits to account for emissions “which have turn into identified via precise operations of those amenities.” Within the functions, Freeport LNG requested to additional divide each of its tasks, reclassifying its fourth compressor models at every plant as separate, minor tasks from compressor models 1-3.

These functions are nonetheless pending. Freeport LNG declined to reply questions for this report.

‘Artificial minor’: The case of Max Midstream

Down the coast on Lavaca Bay, one other export terminal additionally faces allegations of improper classification as a minor supply primarily based on unrealistic emissions assumptions.

When Max Midstream utilized in 2020 to broaden its Seahawk oil terminal as a minor supply, environmentalist teams argued in official feedback to the TCEQ the growth was a significant supply as a result of it had “potential to emit” above relevant thresholds, though the operators promised to run it beneath these ranges.

TCEQ dismissed their claims and issued the allow after attorneys for Max Midstream invoked the company’s controversial “one-mile rule,” claiming that allow opponents lacked standing as a result of they lived greater than a mile away from the plant. So, the teams sued.

“TCEQ’s issuance of Max Midstream’s minor supply air allow was invalid, arbitrary, or unreasonable,” wrote Erin Gaines, an lawyer for the nonprofit EarthJustice, in a authorized temporary filed in July 2023 in state district court docket. “The Terminal is a significant stationary supply.”

For instance, the lawsuit mentioned, 20 vapor combustors licensed within the growth allow may probably emit as much as 405 tons per 12 months of risky natural compounds if run year-round at full blast — effectively above the foremost supply threshold of 250 tons. However the allow set emission limits for risky natural compounds from these models at 17.3 tons per 12 months.

That’s what TCEQ steerage paperwork name a “artificial minor” — “a supply that might usually be a significant supply, with the exception that the supply is held to emission charges which might be lower than main supply.”

Within the lawsuit, Gaines argued the TCEQ’s artificial minor allow failed to incorporate “virtually enforceable limits” (as outlined by the EPA) to forestall the ability from exceeding its limits, or fundamental monitoring necessities to make sure limits have been being met.

In November, the choose within the case struck down the TCEQ’s beforehand issued allow for Max Midstream and ordered the company to carry a listening to on the claims made by Gaines and others.

Gaines worries the TCEQ will bathroom the ruling down in prolonged appeals, throughout which era the allow will stay legitimate. Nonetheless, it was a uncommon type of victory in her battle in opposition to massive polluters, which is commonly fraught with frustration.

Gaines and her colleagues have filed quite a few petitions lately with the EPA alleging systemic abuses of federal environmental regulation in Texas, however they’re but to see any motion in response.

“The deck is unquestionably stacked in opposition to us and we’d like extra engagement from EPA on these points,” she mentioned. “Let’s not simply quit on implementing federal legal guidelines on this area.”

The EPA spokesperson, Durant, mentioned the company follows authorized procedures when reviewing petitions “which might take a substantial period of time.”

“​​The company understands this may be irritating for petitioners, which is why we’re shifting expeditiously to reply,” she mentioned.

EPA intervenes: Seawater desalination on the Port of Corpus Christi

In a uncommon occasion when the EPA did step in — for some time, no less than — the company objected to the issuance of a desalination allow, solely to have the TCEQ disregard its objection.

The dispute centered on a seawater desalination facility proposed by the Port of Corpus Christi to fulfill projected water demand from a booming industrial buildout.

Charles Maguire, director of the EPA water division, mentioned in a December 2021 letter to the TCEQ that the plant, which might dump thousands and thousands of gallons of extraordinarily salty brine into Corpus Christi Bay, had been “incorrectly categorized as a Minor facility.”

“The EPA has decided that the ability ought to be categorized as a Main facility,” Maguire wrote.

The issue, he defined, was the TCEQ’s classification of the ability’s effluent.

It proposed to discharge as much as 110 million gallons of brine day by day into Corpus Christi Bay, 2,200 instances above the 50,000-gallon-per-day threshold for main sources of water air pollution. Nevertheless, the TCEQ labeled that discharge “non-process wastewater” (“wastewater streams not related to a manufacturing course of,” based on federal regulation), so it didn’t depend towards the tally.

Maguire mentioned the brine in query was a “waste product ensuing from the manufacturing of potable/ingesting water” and ought to be thought-about “course of wastewater.”

“If POCC’s discharge is correctly categorized as course of wastewater … the ranking of the ability modifications from Minor to Main,” he wrote.

Regardless, the commissioners voted unanimously in September 2022 to concern the allow as proposed. In response, EPA Area 6 Administrator Earthea Nance refused to acknowledge the allow and accused the TCEQ of “a violation of (the) Clear Water Act” in a January 2023 letter.

Seven months later, the TCEQ despatched a letter responding to a lot of the EPA’s feedback, however mentioned that the difficulty of whether or not the desalination plant ought to be working below a significant or minor allow “requires additional dialogue between the businesses.”

A month after that, the EPA dropped its objections.

‘Upset’ emissions

One other tactic extremely polluting amenities make use of to keep away from main supply classification, environmental advocates argue, depends on the TCEQ’s lenient regulation of “upset emissions,” which Texas regulators outline as surprising emissions from accidents, unscheduled upkeep, or begin up and shut down actions. As a result of these occasions are thought-about distinctive and past the management of the corporate, they aren’t counted towards a supply’s classification as main or minor and will not be regulated in permits.

The Environmental Integrity Undertaking has documented how the TCEQ not often follows up when firms report upset emissions to research the reason for the issue and ensure it doesn’t occur once more. EIP argued this 12 months in its Polluter’s Playbook report that the TCEQ’s dealing with of those upset occasions permits firms to “escape penalties” for persistent unlawful air pollution.

The EIP report makes use of the instance of a Chevron facility, the McElroy Part 199 Emergency Flare in Crane County, as an instance how firms can circumvent main supply allowing necessities by counting on what they characterize because the upset emissions loophole.

The McElroy flare is barely licensed to emit lower than 0.01 ton per 12 months of sulfur dioxide, a extreme respiratory irritant, which might solely account for the emissions of the pilot mild for the flare, not the flaring of gasoline itself throughout emergencies or upkeep. Nevertheless, Chevron persistently stories emissions far in extra of this annual allow restrict, however writes them off as “upset occasions.” In 2017, 2018, 2019 and 2020, these extra emissions surpassed the edge for main supply allowing for sulfur dioxide of 250 tons a 12 months.

So long as Chevron reported these emission occasions as leaks, accidents and different sorts of non-routine operations to the TCEQ, they didn’t depend towards the ability’s allow limits. The EIP report argues the McElroy flare is an instance of TCEQ issuing permits with “unrealistic” emissions expectations.

In 2021 and 2022, the McElroy flare reported 215 and 139 kilos of sulfur dioxide upset emissions, respectively. Whereas beneath the foremost supply threshold, these emissions are nonetheless many instances greater than the ability’s allow permits.

Chevron exterior affairs advisor Deena McMullen mentioned the McElroy facility is now enrolled within the TCEQ’s “Discover It and Repair It” program, a voluntary initiative for firms to handle compliance points.

“As a part of this system, Chevron is investing in operational modifications to attenuate potential emissions,” McMullen mentioned.

One other related case is Scout Vitality Administration’s Mabee Ranch CO2 Plant in Andrews County, which has a minor supply allow with a threshold of two.49 tons per 12 months of sulfur dioxide. Primarily based on TCEQ knowledge, in 2016, 2017 and 2018 the ability reported upset emissions occasions of sulfur dioxide of greater than 250 tons, exceeding the foremost supply restrict. Emissions from 2019 to 2022 have been beneath 250 tons however nonetheless effectively above the ability’s allow.

Scout Vitality didn’t reply to a request for remark.

The case of Exxon Baytown

Of the a whole lot of circumstances he labored on, Clark-Leach, the previous EIP lawyer, mentioned essentially the most irritating concerned ExxonMobil and its sprawling Baytown Advanced, which covers greater than 5 sq. miles alongside the Houston Ship Channel.

In filings to the TCEQ and a petition to the EPA, Clark-Leach fought ExxonMobil, the most important U.S. oil firm, for nearly 10 years, arguing it improperly prevented main supply evaluate for additions to the Baytown Olefins Plant. However he seldom claimed victories.

“They’re actually good at manipulating, at utilizing the state course of,” he mentioned. “They’re simply going to pour cash into appeals till they get it, till they win or the world involves an finish.”

The olefins plant — one among three vegetation in its Baytown Advanced — manufactures roughly 10 billion kilos of petrochemical merchandise yearly.

Exxon operates the olefins vegetation below a allow referred to as a “Plantwide Applicability Restrict,” initially issued in 2005. The allow licensed it as a significant supply, however as an alternative of setting particular emissions limits for dozens of level sources, it set cumulative limits for your entire facility, together with 2,610 tons per 12 months of nitrogen oxides, 2,381 tons per 12 months of carbon monoxide and 435 tons per 12 months of risky natural compounds.

In 2016, Clark-Leach of EIP, together with the Sierra Membership and Air Alliance Houston, petitioned the EPA to object to a revision to the allow. He argued that TCEQ erred in issuing a separate minor supply air allow for a 2012 growth challenge on the olefins plant.

By setting artificially excessive limits in that 2005 allow, Clark-Leach argued, TCEQ enabled Exxon to keep away from a significant supply evaluate for its growth challenge.

The EPA declined to evaluate Exxon’s 2005 PAL allow and an appeals court docket upheld the federal company’s determination. In 2022, the TCEQ renewed the Plantwide Applicability Restrict allow for ExxonMobil.

“We misplaced that chance. We misplaced our skill to attraction,” Clark-Leach mentioned. “We relied on the EPA answering our arguments and coping with the problems.”

Most lately, Exxon utilized in 2022 to construct a brand new ethylene unit as a minor modification at its olefins plant throughout the total limits of the PAL allow, though the unit would almost definitely exceed the foremost supply threshold if it have been required to bear a significant supply evaluate.

“Right here we’re in 2023,” Clark-Leach mentioned. “Exxon’s nonetheless counting on this bogus [Plantwide Applicability Limit] allow that they received again in 2005 to authorize main [modification] after main [modification].”

Different environmental teams proceed to problem Exxon’s permits, however for Clark-Leach, his decade of usually fruitless wrestle grew to become too exhausting. Since he left the EIP, he’s been attempting to consider new methods to battle this battle, as a result of, he mentioned, the outdated methods weren’t working.

A spokesperson for ExxonMobil mentioned the corporate has adopted correct allowing processes at its Baytown Advanced. “Complying with all relevant legal guidelines and laws associated to our operations is necessary in our work,” the spokesperson mentioned.

Disclosure: Air Alliance Houston and Exxon Mobil Company have been monetary supporters of The Texas Tribune, a nonprofit, nonpartisan information group that’s funded partly by donations from members, foundations and company sponsors. Monetary supporters play no function within the Tribune’s journalism. Discover a full record of them right here.

This text initially appeared within the Texas Tribune.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and interesting Texans on state politics and coverage. Be taught extra at texastribune.org.

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