EPA has announced proposals to disapprove three sets of Texas air pollution rule changes that do not comply with the Clean Air Act. Specifically, EPA is taking issue with Texas' (1) flexible permitting process, (2) definition of qualified facilities, and (3) aspects of the New Source Review (NSR). Texas has used flexible permits to regulate about 140 power plants associated with the petrochemical industry and other heavy industries since 1994. Critics claim that the process wrongly gives facilities the flexibility to comply with the permit over the long term by combining different pollution sources despite emitting high levels of pollution over shorter periods. EPA, with the support of environmentalists and some lawmakers, is proposing to abolish the permitting system. One state official defended the process, saying it allows older refineries to reduce emissions even when their "grandfather" status exempts them. According to Houston Mayor Bill White, a major problem with TCEQ's process is that each request is approved in a vacuum without taking into account synergistic impacts.

EPA originally approved Texas' air permitting program for major sources in 1992 and these areas of the rules were promulgated since then to improve the SIP. Although these rules have been on the books for many years and EPA was supposed to approve or disapprove them within 12 months, EPA is just now looking at them. EPA will be taking public comment on its proposals for 60 days following their publication in the Federal Register. Final action will likely not be taken until close to EPA's target dates of March 31, 2010, for the qualified facilities SIP revision; June 30, 2010, for the flexible permits SIP revision; and Aug. 31, 2010, for the NSR reform SIP revision. If EPA ultimately disapproves of these rules, TCEQ would be compelled to revise its rules to address any identified deficiencies pending legal review of any final disapproval.