By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
Not only does TCEQ allow plants to self-report information used to assess violations, insiders also say that companies frequently kick out state inspectors who ask troublesome questions. And TCEQ appears to do nothing about it.
In fact, TCEQ receives most of its funding from permitting and licensing fees from the very industry it is charged with overseeing, which critics call an obvious conflict of interest. A practice of lax enforcement, ineffective penalty policies and questionable permitting practices (see "A Quiet Hell: Game Time") at TCEQ has been the status quo in Texas for years.
As it turns out, even the supposedly friendly flares, those great bursts of flame most Houstonians grew up seeing along the horizon and were told safely burn off all the toxic crap before it enters the air, may not be so effective.
In fact, they may not be that effective at all — just like the TCEQ.
The refineries and chemical plants along the Houston Ship Channel are difficult to see from the street. Most of them are tucked away behind guarded fences, forming their own intensely private community along the water. The only way to get a good look is by boat.
Cruising down the channel is like entering another world, one made of scaffolding and smokestacks as tall as city buildings. The machinery is larger than the imagination. One complex stands next to another, and the spaghetti-network of tubes and pipes look like something out of a sci-fi novel, the combination of a drab Dickensian prison and a shiny new-age factory.
Each one of these plants is required to report every emission event to TCEQ. Some report a lot, some report very few. An emission event can be an equipment breakdown or malfunction, unscheduled maintenance, unplanned startup or shutdowns, and any other airburst that is not routine. The reports contain, among other things, a list of the chemicals emitted, how much was released and the emission limit for each chemical. All of the information reported comes directly from the facilities themselves. Industry critics claim that almost all emission events are preventable.
The Houston Press examined the emission reports for 20 local facilities, a mix of refineries and chemical plants, from February 1, 2003, through October 7, 2009. The Press tabulated how many pounds of each chemical were emitted and the number of times each pollutant exceeded the stated limit.
In slightly more than six and a half years, the 20 plants pumped out 4,864,730 pounds of sulfur dioxide, 452,080 pounds of carcinogens and a total of 20,716,547 pounds of pollutants during emission events (see "Pollutants by Pounds").
It is a violation under the federal Clean Air Act each time a pollutant is emitted beyond its permitted limit. Individually counting each chemical that is released during a single emission event is called "speciation." The EPA uses this method; so does the Texas Attorney General's Office. The only environmental enforcement agency that does not is TCEQ. Instead, TCEQ treats each event, no matter how many pollutants exceeded their limit, as a single violation. One event, however, could include the unauthorized release of hundreds of chemicals and thus hundreds of violations under federal law.
The difference is significant in the amount of fines that can be assessed and the subsequent ability that the penalties have to deter polluters. Under state law, there is a $10,000 per day maximum penalty. So if ten chemicals exceed their limit in one day, under TCEQ's system it would be a $10,000 fine. Under federal law, it could be as much as $100,000.
The Press discovered that individual chemicals at the 20 facilities exceeded the limit 12,701 times during the six and a half years.
TCEQ documents obtained through an open records request for the 20 plants show that the agency found 469 violations over the past six and a half years, 240 of which listed excess pollution during an emission event as the reason. Those 240 violations represent less than 2 percent of the number of times that individual pollutants exceeded their limit during emission events.
Many people, including former TCEQ Commissioner Larry Soward, see this as one of the ways TCEQ gives industry a big break.
In May 2008, TCEQ commissioners Soward, Bryan Shaw and Buddy Garcia discussed speciation during a recorded work session obtained by the Press. It was clear that Soward was the only one for it. Garcia sat on the fence, ultimately saying he wasn't ready to make a decision. Shaw, however, seemed dead opposed to the idea.
"My position and a lot of the staff's position," says Soward, whose six-year term expired in August, "was that we would love to be able to use speciation. But when staff tried to do it in 2008, they were basically rebuffed by a majority of the commissioners. That wasn't something that they felt like they could do or should do. The agency always errs conservatively, and I think it should err on the side of the environment and public health as opposed to erring on the side of whether industry thinks it's something it can afford and wants to do."
Much of Shaw's concern centered around the $10,000 per day maximum fine. He claimed he did not think TCEQ could legally impose the larger fines under speciation without violating the $10,000 limit. Shaw maintained his stance despite the fact that the Texas attorney general ruled that the agency can do it.