State emissions oversight questioned
AUSTIN — The state’s environmental watchdog disputes the findings, but a new report says the agency let industries foul Texas air for five years, with penalties so low that it may have paid to pollute.
The Texas Commission on Environmental Quality levied penalties on less than 3 percent of illegal air pollution releases during industrial malfunctions — events that emitted more than 500 million pounds of pollutants, including benzene, which can cause cancer below the odor threshold — between 2011 and 2016, according to “Breakdowns in Enforcement.”
“We had the general idea that TCEQ did not have a very strong enforcement record,” said Luke Metzger, director of Environment Texas and co-author of the report. “A lot of this has been anecdotal. Now we know.”
Because the report, based on analysis of state records by the Environmental Integrity Project and Environment Texas, covers a five-year period, Metzger said it doesn’t simply reflect occasional lapses.
The TCEQ criticized the analysis, saying in a statement that the conclusions are “misleading” and based on “an incomplete understanding” of its air quality program.
“The success of the program is not measured in number of enforcement orders, but rather by the state of air quality in Texas,” according to the TCEQ statement. “While Texas continues to grow in terms of population and economic activity, there are many air quality successes which the EIP report does not mention.
“EIP’s data is outdated and doesn’t account for ongoing investigation and enforcement activities. Data is dynamic and changes daily.”
TCEQ’s statement gave two examples of “misleading information within the EIP report.”
In one instance the agency completed investigation in April and issued a Notice of Enforcement.
In the second, the agency completed investigation in March and referred the matter for enforcement on June 12.
No financial penalty has yet been imposed in either case.
Regarding the first example, the report’s authors said in an email that “we would like to see a penalty, especially in light of the evidence that the state only penalizes 3 percent of illegal ‘upset’ air pollution cases like this statewide.”
Of the second, the authors said, “Will the state actually issue a meaningful financial penalty for this violation? That’s what we need to know.”
Emissions during malfunctions and maintenance at stationary sources — something that has long provided what the report called a “loophole” — made news in April, when a federal judge in Houston imposed a $20 million civil penalty against ExxonMobil for emitting million pounds of air pollutants in Baytown over eight years.
The Sierra Club and Environment Texas, not TCEQ, sued in that case.
According to the Houston Chronicle, the judge “accepted … plaintiffs’ argument that Exxon collected more than $14 million in so-called economic benefits by delaying actions that would have curbed the emissions …”
Houston was not the only pollution site: Places as widely separated as Tyler and Abilene regions saw significant malfunction and maintenance events during the period examined.
Neil Carman is a former TCEQ inspector who’s the Sierra Club Lone Star Chapter’s clean air program director, according to the report.
“The report is accurate in showing why the TCEQ’s enforcement program is a serious failure in achieving penalties at only 3 percent of the violating sources,” Carman said in an email. “Upset emissions may be even higher than reported by polluters since the Texas industrial plants lack real-time, 24/7, accurate air monitoring systems from emergency elevated flares in particular, where most of these upset emissions are coming from.
“Flares are not required to accurately track emissions and rely on a system of bogus estimates that likely miss the true emissions totals.”
Texas imposed penalties in only 588 out of 24,839 malfunction and maintenance events reported by companies from 2011 through 2016, according to the report.
Overall, the assessed penalties equaled three cents per pound.
Loren Raun, chief environmental science officer for the Houston Health Department, said the analysis and methodology “seems reasonable” and reports “what the record shows.”
Raun also teaches health-risk assessment from environmental exposure and environmental statistics at Rice University.
Except for a handful of pollutants, most are supposed to be controlled at their source, she said.
“We rely on enforcement to control hazardous air pollutants,” Raun said. “They’re not controlled in any other particular way.
“The TCEQ has a ton of work for their staff. If they’re not doing their job, we need to help them.”
John Austin covers the Texas Statehouse for CNHI’s newspapers and websites. Reach him at jaustin@cnhi.com.