After a 10-month process, the TCEQ finally ended the suspense regarding what emissions safeguards the oil and gas industry will have to follow in order to protect the citizens of Texas. On Wednesday, the TCEQ adopted a much, much weaker rule than the one it proposed in July (see details at the bottom of this post). The rule was dramatically scaled back to apply only to those living near the Barnett Shale near Dallas-Fort Worth and, miraculously, the process will begin anew to decide what protections will apply elsewhere.
If you are reading this, you are probably wondering what I think about the outcome. I’ll answer by telling you what I am going to tell my boss, who will surely ask how my efforts – scores of hours attending meetings, writing comments, coordinating and consulting with experts on this topic (as well as having to watch industry unrelentingly bully TCEQ staff) – translated into results.
It is a fair question given that I truly threw myself into this one. I convinced myself (and my boss) that – this time – it was going to be different. With all of the attention focused on the emissions from natural gas operations, including reports showing how the emissions from the oil and gas industry were much higher than everyone assumed, I thought this time we actually had a chance to help TCEQ do the right thing.
The most favorable answer I can give is that “it could have been worse.” Maybe, just maybe, had we not made the effort, the final rule might have been even worse. What issues went in favor of public health? The TCEQ did expand the proposed definition of “receptors” that must be protected to include hospitals, day cares, and certain businesses (although this definition is still less protective than many other agency rules). Oh, and in response to our expert modeler’s numerous examples showing that the agency’s modeling did not represent “worst-case” conditions as claimed, the TCEQ changed their description to “reasonable worst case” (while making numerous other changes that allowed far greater emissions of harmful pollutants than originally proposed). Sadly, that’s all I can say went in a positive direction.
The TCEQ’s initial proposal in July would have established a basic framework that provided greater assurances of protectiveness to the public. But industry firepower overwhelmed the TCEQ staff, which had little, if any, apparent support from their Commissioners. The final rule was gutted with so many exceptions and loopholes (see below) that it almost makes me wonder if there is sufficient environmental benefit left to justify the regulatory burden. Especially troubling was the number of sweeping changes made to the rule during a 6-week continuance, out of the public eye, during which time staff was asked to attempt to resolve industry concerns.
In the end, I have no choice but to admit that my time would have been better spent on something else. This story is yet one more example of why the legislature’s required sunset review of the TCEQ is so timely. It is time for the TCEQ to put the protection of public health and the environment first.
On this last point, State Representative Rafael Anchia (D-Dallas) who serves on the state’s Sunset Advisory Commission, ably captured the situation in an interview on KUT’s feature “Letters to the Lege” this morning:
“In hearings we’ve held, we’ve heard complaints from all over the state … and there’s definitely an issue at the TCEQ when it comes to the response to citizen complaints. There’s no doubt about it. The EPA is seriously put out with the TCEQ and there’s a real standoff going on right now between the Perry administration and the federal government on how the TCEQ regulates pollutants in Texas. And in my opinion, we need to shake the agency up and make it more responsive to the public.”
At EDF, we completely agree.
Key Examples Of How The July 2010 Oil & Gas Permit by Rule Proposal Was Weakened:
- Applies only to Barnett Shale. A new rule will have to be developed by January 2012 to apply to the rest of Texas
- Allowable hourly emissions of benzene increased by up to a factor of 20X
- Eliminated formaldehyde emissions limits and protectiveness review
- Increased VOC and other pollution limits, and removed limits for others
- Created an exception for “small operations,” specifically projects with a maximum engine horsepower (450 hp or less depending on fuel), or five defined combinations of emissions sources and components. These only have to maintain equipment in good working order and maintain a minimum 50-foot setback with no notification to TCEQ required
- Protectiveness review only required for new or modified sites within ¼- or 1/2- mile from a receptor (depending on size of facility), and excludes consideration of existing emissions at modified sites if the off-site concentrations are less than 10%-25% of an Effects Screening Level
- Removed prohibition against increasing emissions of applicable pollutants in an Air Pollutant Watch List Area (where pollution levels already exceed the TCEQ’s own acceptable risk levels)
- Replaced Executive Director’s right to deny a permit for good cause with limited additional pre-conditions for a permit