Congressman Michael C. Burgess, M.D. (Texas-26), a member of the House Energy and Commerce Committee, joined the Texas Republican Congressional delegation in sending a letter to the U.S. Environmental Protection Agency Administrator Lisa Jackson on the EPA's threat of a takeover of the state's air quality permitting process.

"We do not believe EPA should be setting a precedent to supersede a successful state program that has reduced emissions and improved the air quality. Given Texas’ strong record of success, particularly compared to other states with large populations and metropolitan areas, and in view of the regulatory uncertainty and adverse economic and job impacts resulting from EPA recent and threatened permitting actions, we urge EPA to reconsider the permitting action taken on May 25, 2010, and to refrain from any further actions to take over other operating permits in Texas," the lawmakers wrote.

NOTE: Full letter is below.

June 17, 2010

The Honorable Lisa Jackson
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460

Dear Administrator Jackson:

As you know, the State of Texas has been extremely successful in improving air quality over the past decade, and has been a national leader in reducing emissions and known pollutants. Since 2000, the State has achieved a 22 percent reduction in ozone and a 46 percent decrease in nitrogen oxide (NOx) emissions, compared to an 8 percent reduction in national ozone levels and a 27 percent reduction in national NOx levels between 2000 and 2008. Currently there are no Texas counties in nonattainment for fine particulate matter (PM 2.5) which is one of the pollutants with the greatest impact on human health. Carbon dioxide (CO2) emissions from fossil fuel usage have also fallen by more than almost any other state, and Texas is ranked among the highest in the nation for clean energy jobs and clean energy venture capital investments. Texas has achieved major pollution and emissions reductions while at the same time promoting economic prosperity and job creation despite population growth of nearly 3.5 million over the past decade.

While most would regard the Texas air quality successes as commendable and a model for other states, the Environmental Protection Agency (EPA) has recently threatened to take over the State’s delegated Clean Air Act Title V operating permit program. Although air quality permitting under the federal Clean Air Act is delegated to the Texas Commission on Environmental Quality (TCEQ), EPA took the unprecedented step on May 25, 2010, of circumventing TCEQ and notifying a refinery in Texas, which has an operating permit issued by TCEQ, that to continue operations the refinery must obtain a new operating permit directly from your agency. EPA Region 6 has directed the facility to submit a new operating permit application and additional detailed information directly to the EPA not later than September 15, 2010, or be subject to potential EPA or Department of Justice enforcement actions or penalties. According to press reports, EPA’s new regional administrator for EPA Region 6 has threatened to federalize operating permits for other major Texas facilities as well.

We are not aware of similar actions by EPA to take over a delegated Title V permitting program from any other state. EPA’s actions appear to relate primarily to the agency’s objections to TCEQ’s longstanding “flexible permitting program” adopted in 1994. That program facilitates emissions reductions at plants and other facility sites by setting overall emissions caps and allowing companies to meet their business needs while demonstrating their compliance with the overall caps and with both state and federal law. This approach gives companies operational flexibility to reduce emissions cost-effectively and efficiently without triggering excessive, unwarranted permitting activities, and regulatory burdens. The program is particularly well suited to Texas where there are many complex facilities, including refineries, chemical, and petrochemical facilities, which may have hundreds or thousands of individual pieces of equipment or individual emissions sources on site, and where additional permitting and regulatory burdens would achieve no net environmental benefit.

We believe the Texas flexible permitting program is consistent with the provisions of the Clean Air Act and has played a critical role in the significant and continuing success of the Texas air quality program. Mandating individual permitting and pollution technology controls for each piece of equipment or unit that is a source of emissions at a large site would be extraordinarily complicated, expensive, and inefficient, and undermine environmental protection by discouraging appropriate upgrades and operational improvements at those facilities. Such additional regulatory permitting burdens would also result in costs that will be passed on to consumers in the form of higher prices for fuel, electricity, and other goods and services.

As a practical matter, your agency’s actions on May 25, 2010, and EPA threats to take over operating permits at Texas facilities, are putting on hold major new projects (including pollution control projects), stalling the creation of thousands of associated new jobs, and creating substantial regulatory uncertainty for many facilities across the state that directly employ tens of thousands of workers. These facilities are critical not only to the State’s economy, but also to the nation because Texas supplies more than one-fifth of the nation’s crude oil, refines more than a quarter of the nation’s fuel supply, provides more than a quarter of the nation’s natural gas (more than any state), and manufactures approximately 60 percent of the chemicals used in the United States.

We understand TCEQ, which in the past has had a cooperative working relationship with EPA, has been participating in ongoing discussions with your agency to address EPA concerns with the flexible permitting and other aspects of the State’s air quality program. We are informed TCEQ has provided EPA with detailed and extensive written responses, as well as additional rule proposals, to attempt to resolve specific issues your agency has raised and that TCEQ continues to try to address EPA’s evolving issues and concerns.

We do not believe EPA should be setting a precedent to supersede a successful state program that has reduced emissions and improved the air quality. Given Texas’ strong record of success, particularly compared to other states with large populations and metropolitan areas, and in view of the regulatory uncertainty and adverse economic and job impacts resulting from EPA recent and threatened permitting actions, we urge EPA to reconsider the permitting action taken on May 25, 2010, and to refrain from any further actions to take over other operating permits in Texas. We further request your assurances that EPA will continue to work collaboratively with TCEQ to resolve EPA’s outstanding issues with the Texas air permitting program. Thank you for your attention to this matter and we look forward to your response.

Sincerely,

John Cornyn, United States Senator
Kay Bailey Hutchison, United States Senator
Joe Barton, United States Representative
Randy Neugebauer, United States Representative
Ralph Hall, United States Representative
Lamar Smith, United States Representative
Louie Gohmert, United States Representative
Sam Johnson, United States Representative
Ted Poe, United States Representative
Jeb Hensarling, United States Representative
John Culberson, United States Representative
Kevin Brady, United States Representative
Michael McCaul, United States Representative
Mike Conaway, United States Representative
Kay Granger, United States Representative
Mac Thornberry, United States Representative
Ron Paul, United States Representative
Pete Olson, United States Representative
Kenny Marchant, United States Representative
Michael Burgess, United States Representative
John Carter, United States Representative
Pete Sessions, United States Representative