The U.S. Environmental Protection Agency announced final disapproval of the flexible permit program that the Texas Commission on Environmental Quality (or TCEQ) submitted for inclusion in its clean-air implementation plan. The EPA determined that the program does not meet several national Clean Air Act requirements that help to assure the protection of health and the environment.

The EPA is disapproving the permit program after determining that it allows companies to avoid certain federal clean air requirements by lumping emissions from multiple units under a single “cap” rather than setting specific emission limits for individual pollution sources at their plants.

The Clean Air Act ensures that businesses across the country operate efficiently and cleanly to safeguard public health from harmful levels of air pollution. Under the act, all states must develop State Implementation Plans for meeting federal requirements to protect public health. Those plans must include an air-permitting program to set pollution levels for industrial facilities. In 1992, the EPA approved Texas’ State Implementation Plan, but since 1994 the state has submitted more than 30 regulatory changes to the air pollution permitting as part of the plan. That action represents a final EPA decision to disallow one of the most important changes made by Texas for failing to meet the protective measures of the Clean Air Act.

In September 2009, the EPA proposed to disapprove the state’s flexible permits program and invited public comment. The EPA has carefully reviewed comments and decided to finalize its proposed disapproval of the program.

To insure no disruptions for facilities, the EPA has reached out to industry, the environmental community and the TCEQ to discuss how to convert flexible permits into more detailed permits that comply with the Clean Air Act.

One tool proposed by EPA is encouraging flexible permit holders to participate in a voluntary compliance audit program. The program will expedite efforts to identify emission limits, operating requirements and monitoring, reporting and record-keeping data.