Purging a Dirty Past

The state's own regulators want to ignore its records on polluters

Texas and Houston certainly aren't known for their clean environmental record, but now some environmentalists and legislators fear that state regulators are offering up just that -- a clean slate -- for polluters. And they don't think it's fair.

Concerns center on recently proposed regulations by the state's environmental agency, the Texas Natural Resource Conservation Commission. The commission, which monitors such pollution-prone industries as landfills and petrochemical plants, submitted new enforcement rules that would effectively erase past notices of violations by companies. The proposed rules are up for public comment, with a possible vote by the TNRCC's three commissioners on December 19.

Those plans already have been labeled "pure, unadulterated bunk" by Jim Blackburn, a Houston environmental attorney. He believes they will leave the public "unprotected" against polluters.

Bosse thinks the TNRCC's proposed rules favor polluters.
Bosse thinks the TNRCC's proposed rules favor polluters.
Blackburn: Count the violations.
Deron Neblett
Blackburn: Count the violations.

"It doesn't make sense to say you're going to have a compliance history if you wipe out the history," says state Representative Fred Bosse, a Democrat from District 128 in east Harris County. Bosse authored the 1999 House bill to revise the commission's enforcement process and chairs the Sunset Advisory Commission that reviews the TNRCC's performance.

The bill's intent seemed basic: information on past violations of an industry would enable regulators to categorize companies based on their history of compliance. The agency could then concentrate its limited forces on those with the worst record of polluting and effectively reward good companies by allowing more self-enforcement measures.

However, if the proposed rules are adopted by the TNRCC, all notices of past violations and new ones prior to February (when the second phase of the new rules goes into effect) would be completely disregarded by the regulatory agency.

Bosse says the House already beat the Senate's attempt to remove the record on notices of violations (NOVs). But now Bosse says the TNRCC itself is attempting a similar move. In a letter to Jeff Saitis, the TNRCC's executive director, Bosse wrote, "NOVs were included in determination of compliance history because we found that they are reasonably reliable. We even included the safeguard of allowing removal of NOVs determined to be without merit. I know of no policy that should excuse violators from the consequences of their past violations."

Mark Vickery, deputy director of the TNRCC's office of compliance and enforcement, claims that the proposed rules will cover quite a bit of a company's history. NOVs, says Vickery, are often "not of a serious nature" and are usually resolved after a letter and an inspection.

A company might be issued an NOV if the levels of lead or metal in its discharged water are too high, says Vickery, offering up one of the many ways a company could be put on notice (according to Bosse, around 50,000 NOVs have been issued over the past ten years). If the NOV is not corrected, the TNRCC issues a stronger administrative order, which can be used to assess penalties such as fines. Vickery stresses that if the violation is serious enough, the agency bypasses an NOV and immediately issues an administrative order. The agency also can call in the Environmental Protection Agency and the state attorney general's office.

Vickery says many industry officials complain that including past NOVs is unfair, and contend that they would have challenged some NOVs if they had known those would be included later in a compliance history.

Attorney Blackburn disputes that argument, saying it's not uncommon for the TNRCC to have to be contacted "ten or 20 times" before it will dispatch someone to check a supposed violation. "It's very difficult to actually verify violations," Blackburn says. "To disregard those that have been found is irresponsible."

Vickery maintains that another reason to exclude NOVs is the considerable "manual effort" needed to compile those violations from the past five years, the time frame specified in Bosse's bill. Vickery says the TNRCC will build an electronic database of future NOVs that would make access easier.

Environmentalists are fighting other TNRCC proposals that would bar consideration of the compliance history of a corporate parent or related facility in assessing a company's pollution track record. Under the proposals, a company apparently could also ditch its dirty past by simply altering its name -- doing a change of ownership on paper.

The TNRCC is only contemplating the proposals for new rules, Vickery emphasizes, and will take into consideration the opinions being submitted by Bosse, other legislators and environmental groups.

But Blackburn thinks the TNRCC is listening to big money more than anything else. "If a company has a violation issued by the state, that's not a simple matter or a small matter."

"As far as I'm concerned, it's a horrible deal," says Blackburn. "It's caving in to industry."

 
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