Follow the Law? TNRCC Just Says No.
Despite Illegal Levels of Smog, Commission Undermines Efforts to Classify
Ellis County As Clean Air Act Violator
Even while admitting
that Ellis County has more than enough smog violations to trigger automatic
penalties under current Clean Air Act rules, Texas Natural Resource
Conservation Commission Executive Director Jeff Saitas turned down citizens'
requests to follow the law and classify the county as "non-attainment" for
ozone pollution.
In a letter dated March 19th, Saitas concluded that Ellis County was
already part of the official state plan to clean-up smog that he said was
"expected to bring the entire Dallas/Ft. Worth area into attainment,
including Ellis County."Saitas also wrote that citizens should wait for a
new, more stringent EPA smog standard to be implemented before attempting to
reign-in Ellis County.
Logical you say? Sure. Except for two things.
Nobody at the TNRCC really believes that the current version of the smog
clean-up plan is going to work and the TNRCC is busy seeing to it that that
new EPA standard for smog never sees the light of day. It's a big ,smoggy,
TNRCC Catch-22: Q. When can we expect action?
A. When the new rules come. Q. When will that be? A. We're
hoping...never.
Saitas was responding to a first-ever Feb. 28th meeting in Austin between
himself and representatives of local and state public health and
environmental groups on the subject of Ellis County's continuing outlaw
status.
Besides Downwinders At Risk, the Sierra Club, Public Citizen and
Environmental Defense all participated and requested that Saitas decide by
the end of March to give Ellis County the designation it deserves or face
the prospect of a citizens' petition to the EPA. He didn't even have to wait
the full month.
Because an earlier wave of citizen activism forced the placement of
monitors in Ellis County, includ- ing one for smog-causing ozone directly
south of TXI (one of 3 Midlothian cement plants ), there can be no denying
that Ellis County is a clean air fugitive. In 1998, 1999, and 2000, the air
over northern Ellis County was so polluted that very same ozone monitor
recorded four separate violations of the Clean Air Act's smog standard. Only
three such violations are needed in three years to trigger "non-attainment"
and a mandatory clean-up plan.
Although Saitas is correct that Ellis County is included in DFW's smog
plan, he is not right about there not being "much to gain in the way of air
quality by designating Ellis County to be nonattainment."
For one thing, it would stop the migration of new polluters into Ellis
who are trying to escape tougher rules imposed on the North Texas Counties
that HAVE been declared nonattainment -Dallas, Tarrant, Collin and Denton.
Despite Saitas's comments to the contrary, there has to be a reason why
companies with smokestacks are locating within yards of the Dallas County
line in Ellis instead of in Dallas County itself. There is. It's the
difference between attainment and nonattainment.
Secondly, it seems clear that nonattainment for Ellis County would mean
higher pollution control standards for all polluters in the County.
According to Kelly Harrigan of Public Citizen, one of the few citizen-
friendly lawyers working on Clean Air Act issues in Texas, facilities would
be subject to Lowest Achievable Emissions Rates (LAER) as opposed to the
lesser Best Available Control Technology (BACT) standard.
BACT means demonstration by the permitted polluter that new emissions
will not cause or contribute to a violation of the Clean Air Act,
demonstration that the emissions will not be harmful to soil, vegetation or
visibility, and demonstration that the emissions will not adversely affect a
Class I area (eg. national parks and wilderness areas).
On the other hand, LEAR is set without considering cost to the polluter
(although the source can still show that a particular technology is
'infeasible'). It also requires a demonstration that the facility has
obtained required emissions reductions from other sources in the same area
to "offset" its new emissions and that all other facilities in the State
owned or operated by the applicant are in compliance with the Clean Air Act.
Saitas' plea for citizens to wait for the new 8 hour EPA smog standard to
catch Ellis County would be more convincing if he and his bosses weren't
trying to undermine that same standard.
For years, TNRCC wrote letters to the EPA advocating against the adoption
of the new standard that they are now in charge of implementing.
And you may remember that one of the TNRCC's three commissioners is good
ol' Ralph Marquez, former lobbyist for the Texas Chemical Council and TXI.
He's also the guy who testified before Congress that smog was a "benign
pollutant" and that the TNRCC didn't want additional monitors because they
might find more evidence of pollution. Really.
With EPA's new rules being upheld by the Supreme Court over industry
objections, Marquez and the TNRCC now appear to be trying to water it down
by way of interpretation.
At Marquez's prompting, TNRCC staff produced a resolution about the new
EPA smog rule for him to take to a national summit of state environmental
agency representatives in Wisconsin on April 24th.
Marquez's resolution was seeking support among his peers for wholesale
changes in the way the Clean Air Act would be enforced and a radical
reinterpretation of how to implement the new EPA smog standard.
Somehow, a copy of Marquez's resolution got leaked to the environmental
community the week before the summit and the reaction was swift and furious.
"Nothing less than a declaration of war on the Clean Air Act" was the way
members of the usually mild-mannered national Environmental Defense
organization put it.
Among other things, the resolution called for stripping EPA of the
authority to designate nonattainment areas for clean-up and giving it to
states, something that is clearly illegal under current law. It also had an
ominous provision about how "EPA should separate the designation process
from the need to provide notice to the public of the air quality of an area"
that looks to undermine public comment.
At the top of the resolution was Jeff Saitas' name, officially certifying
it as the Executive Director of the TNRCC.
Because of the reaction by the environmental community - including
Downwinders, which put in an Open Records Act for all documents relating to
the resolution - Marquez backed down at the last minute and withdrew the
original resolution.
Despite protestations from the TNRCC that too much was made out of it,
the Marquez resolution shows very well what the Commission's real
behind-the-scenes agenda is, as opposed to the platitudes generated for
public consumption.
What next? Citizens are collecting signatures and preparing to ask EPA
itself to follow the law in Ellis County. But with members of the Bush
Administration also attacking the new smog standards, there is some question
about how receptive the Agency will be to that effort. Stay tuned. |
