Industrial developers describe facilities as “minor” polluters to avoid federal permitting requirements, and environmental lawyers say the Texas Commission on Environmental Quality lets it happen.
When the Intercontinental Terminals Company sought a permit to expand its tank farm and terminal on the Houston Ship Channel in 2014, a reviewer with Texas’ environmental regulator expressed a long list of concerns.
ITC, the reviewer for the Texas Commission on Environmental Quality wrote, appeared to be evading core provisions of federal environmental law by dividing its “major” facility among nominally separate “minor” permits, which have less stringent pollution standards requirements and require far less review.
In Greater Houston, federal authorities had set a threshold at 25 tons per year of volatile organic compound emissions. Any company wanting to release more was required to undergo a tedious, expensive application process, established in the Clean Air Act, as a so-called “major source.”
ITC had already obtained permits for its first group of chemical tanks in 2012 for 24.9 tons per year of volatile organic compound emissions in 2014. Now it was asking to permit a second group for another 24.9 tons per year. Because both groups fell conveniently just under the EPA’s threshold, neither was subject to a federal program called New Source Review, or NSR.
“We have concerns about NSR circumvention,” wrote the permit reviewer, Jesse Lovegren, in a July 2014 email to other agency staff.
Nevertheless, ITC got its permit the next year. And in 2017 it got another for an even larger expansion, bringing its authorized emissions of volatile organic compounds up to 147 tons per year—almost six times Houston’s current major source threshold.
Yet the facility never underwent the process required by federal law for major sources, which is aimed at preventing current air pollution hazards in places like Greater Houston from getting worse.
It wasn’t an isolated error, according to attorneys and regulatory experts in Texas and beyond, but an example of a systemic problem with emissions permitting in the Lone Star State, seat of the nation’s largest oil, gas and petrochemical sectors. By exploiting the legal distinction between major and minor pollution sources, lawyers have argued repeatedly in court papers, companies can dodge pillars of the country’s landmark environmental laws.
“This is sort of a foundational problem with Texas permitting and it’s leading to a lot of harm,” said Gabriel Clark-Leach, a former staff attorney for the Environmental Integrity Project, a nonprofit law firm based in Austin. “It’s so important for sources to be considered minor because it makes the whole permitting process less expensive and it makes operation of the plant less expensive.”
Inside Climate News compiled 10 recent cases involving allegations the TCEQ characterized major pollution sources as minor. An investigation by ICN and the Texas Tribune, based on hundreds of pages of government and court records and dozens of interviews, revealed numerous ways in which large companies sidestep major source permitting:
They may, like ITC, characterize different parts of their facilities as independent minor sources; they may dramatically underestimate the amount of pollution they say they will emit; they may classify their emissions in unregulated categories; or they may use retroactive amendments to change the conditions of original permits after facilities are built.
