Bloomberg Law
July 1, 2019, 10:02 PM

Former EPA Staffers Denounce Move to Exempt Texas From Air Rules

Paul Stinson
Paul Stinson
Staff Correspondent

An EPA bid to grant Texas a sought-after exemption to a 2015 startup air emissions rule would set a dangerous precedent for other regions to seek similar exemptions and expose residents to more pollution, a group of former EPA staffers told the agency.

At issue is the agency’s publication of a draft rule in the Federal Register saying it was “considering an alternative interpretation” to EPA’s 2015 air pollution policy.

The draft rule would reinstate immunity lost in 2015 for industrial facilities that emit air pollution during malfunction, startup, and shutdown (MSS) operations—the times when air emissions typically intensify.

The Environmental Protection Network—whose members include former and retired employees of the EPA—said in public comments the proposal fails to justify the need for an alternate take to an Obama-era rule requiring states to alter their pollution plans concerning excess air emissions during MSS events at industrial facilities. The period for public comments closed June 28.

“This proposal does not provide an adequate or satisfactory explanation for why in this particular case it is warranted or appropriate or justified for Region 6 to do something different than the national policy and something different than all the other regions are doing,” said EPN member Janet McCabe, who headed the department’s air and radiation office under President Barack Obama.

Texas is one of 36 states subject to a 2015 air rule that requires removing provisions shielding power plants and other industrial facilities from being subject to civil penalties over MSS-related emissions violations.

EPA Region 6 officials could not immediately be reached for comment.

‘Affirmative Defense’ Concerns

The network further asserted the proposal to approve Texas’ alternative interpretation would have the effect of sanctioning emissions of “substantial amounts” of air pollution excused from enforcement because of an “affirmative defense” provision in the Texas plan.

“If finalized, this rule would open the door to any other EPA Region to seek a similar exception to the national policy,” the letter reads.

“The underlying thing that Texas wants to do, is they have a provision in their state rules that would allow a company if it has excess emissions due to an upset or malfunction or something like that—then it would be allowed under this rule to offer an affirmative defense,” McCabe said.

Typically, if a source violates its emissions limits, the state or the EPA issues a notice of violation and takes enforcement action, holding the company responsible for those excess emissions, she said.

“What this rule would say is: ‘Well, we have enshrined in our regulations some built-in excuses for why that’s okay,’” McCabe added.

Oil, Gas Group Welcomes Development

Todd Staples, president of the Texas Oil and Gas Association, said the proposal struck a balance between environmental concerns and economic development.

“Regulatory policies must be grounded in reality,” Staples told Bloomberg Environment in an emailed statement following the association’s June 27 public comments submitted to the federal agency.

“This policy is a fair and balanced approach that maintains high standards for protecting our environment while ensuring operations meet the needs of our growing state and nation,” Staples added.

Issuance of the draft proposal follows a March 2017 Texas petition to the federal agency to secure an exemption from these requirements. EPA agreed, and responded with a draft proposal for Texas to amend its plan to allow these excess emissions.

To contact the reporter on this story: Paul Stinson in Austin, Texas at

To contact the editors responsible for this story: Gregory Henderson at; Steven Gibb at