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The Grandfathered Loophole For 27 years, some industrial facilities have been allowed to pollute more than others because of a legal loophole called grandfathering. Since the Texas Clean Air Act was passed, industrial facilities in existence or under construction before September 1, 1971 have never been required to obtain a state permit to operate (1). These facilities are referred to as "grandfathered" and are responsible for nearly 23% of industrial air pollution in Harris County (2). (One industrial plant may have multiple facilities.) Although grandfathered facilities must comply with applicable state rules and regulations governing air emissions, special exemptions exist for older facilities. Those built before 1971 or under construction before September of that year did not have to obtain preconstruction permits when built. In general, they are also exempt from other requirements such as public notice, review of their impact on public health, and use of best available air pollution control technology (BACT). Therefore, they are legally permitted to emit more air pollution than newer facilities equipped with modern pollution controls and subjected to stricter regulations.
When the Texas Clean Air Act was passed, it was assumed that grandfathered facilities would be replaced with modern facilities over time and that exempting them would not significantly affect air quality. However, data from 1997 indicates that nearly 50,000 tons of grandfathered emissions were released from facilities in Harris County (2). Table 1 (below) shows the industrial plants in Harris County with the highest grandfathered nitrogen oxide emissions. (Nitrogen oxides are an ingredient of ozone smog.) The percentage of facilities at each plant that falls under the grandfather loophole is also indicated.
The Texas Natural Resource Conservation Commission (TNRCC) formed the Clean Air Responsibility Enterprise (CARE) Advisory Committee in 1997 to develop a voluntary program for reducing emissions from grandfathered facilities. However, TNRCC is waiting for the voluntary program to be approved by the state legislature before it is implemented. In a study of a pilot of this program in December 1998, the Environmental Defense Fund (EDF) found that of 36 companies, only 3 had actually reduced their emissions amounting to 3,602 tons, less than one-half of 1% of annual grandfathered pollution in the state (3). Critics of the CARE program say it is unlikely to amount to any significant reductions the way it is planned and feel it either needs to be strengthened or made mandatory in order to be effective.
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