EPA Invalidates Texas Flexible Permit Program

July 14, 2010
by BART CASSIDY
MGKF News Flash

Notwithstanding its approval, more than a decade ago, of Texas' Title V Operating Permit Program and Flexible Permit Program, EPA has now determined that the well-known Texas "Flex Permit" Program is inconsistent with requirements of the federal Clean Air Act, and therefore invalidated Texas' permitting program in this area. Numerous complex facilities, notably including refineries and chemical plants, have received from the Texas Council of Environmental Quality ("TCEQ") flex permits governing emissions from all operations at their Texas facilities, and have devised compliance strategies based upon these flex permits.

EPA has required that these facilities undergo a permit review process to replace the invalidated flex permits with Title V permits that EPA deems acceptable. In this context, EPA has developed a voluntary audit program which affected facilities may elect to utilize to devise alternative permit standards. EPA recognizes that its approach may dictate that numerous existing permitted sources would be required to install additional emission controls to satisfy EPA's expectation of required standards. Both the State of Texas and several industry trade associations have challenged EPA's action.

This EPA action does not affect permits issued by various state agencies that include plant wide applicability limits ("PALs") to the extent consistent with federal regulatory standards governing PALs.