The TCEQ’s troublesome tactics

The Texas Commission on Environmental Quality controls permit-granting in Texas, and the federal Environmental Protection Agency can do very little to monitor their actions.

On Wednesday, Feb. 24, TCEQ granted a 10-year permit to LyondellBasell Industries, the largest refinery in the Houston area, according to the Chronicle. TCEQ denied requests from the City of Houston and its residents for a public hearing to investigate the benzene emissions from the refinery before granting LyondellBasell its permit. Houston Mayor Annise Parker wants to ask TCEQ to reconsider their decision and investigate further.

This is the latest case of discrepancies among TCEQ’s methodology. Many environmental activists would argue that TCEQ does very little to monitor pollutant emissions from Houston-area refineries.

In fact, in 2008, a valve malfunction at one of LyondellBasell’s plants released 6,346 pounds of benzene (a carcinogen linked to cancer and anemia) into Channelview’s skies, according to the cover story in the Houston Press from December 2009. More benzene was emitted in a few hours than what is considered acceptable for the entire year — TCEQ simply turned their head the other way and did not press charges or fine the factory for the “accident”.

The EPA requires that refineries report any situation involving the release of more than 10 pounds of benzene, albeit TCEQ has the final say in Texas.

The Houston Press has been investigating the politics of TCEQ for about 6.5 years now, and their results do not bode well for TCEQ’s reputation.

The Houston Press found that:

• More than 20 million pounds of pollutants, 450,000 of which are known carcinogens, were emitted due to equipment breakdowns or unscheduled maintenance, startup or shutdown events
• TCEQ rarely took ­enforcement action, and when the agency did, the fines were nominal and in most cases later significantly reduced
• The plants with the most violations paid the lowest percentage of their fines
• TCEQ is so understaffed that it can take years to finalize penalties, and some critics say it avoids assessing time-consuming violations altogether
• And, as a matter of policy, TCEQ strayed from federal law by combining multiple federal permit violations into a single state violation, thereby giving industry a break by assessing fewer and less costly penalties

Texas Governor Rick Perry (R) appoints the commissioners for TCEQ, and TCEQ receives most of its funding from — you guessed it — the companies that run the refineries. This is an extreme example of a conflict of interest, according to the Press.

Additionally, the federally mandated Clean Air Act considers any level of emissions above the allowed amount a violation. It also requires that each chemical emitted be counted as a single “speciation” and therefore, a separate violation. TCEQ, however, considers each accident involving a refinery as a violation — regardless of the number of chemicals emitted. The EPA sees this as multiple violations, while TCEQ sees it as only one. This “difference of opinion” gives the industry a huge break and allows refineries to get away with so much more than they should:

The Press discovered that individual chemicals at the 20 facilities [examined] 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.

No wonder Houston has been coined “The Smog Capital of America” over and over again.

Former TCEQ Commissioner Larry Soward thinks that TCEQ should operate according to speciation but gives a glimpse into why they don’t:

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.

TCEQ also has a maximum fine allotted to the companies it oversees, and they can only fine up to $10,000 dollars a day for any amount of violations. Soward believes that TCEQ and the companies operating the refineries use this statue as a crutch:

If a company knows that their only liability is $10,000 a day they can make a business decision based on that. They’ll say, ‘We emitted and we’ll probably continue to emit because all it’s going to cost us is $10,000 a day.’ It’s simply cheaper to pay the fine than it is to upgrade or replace aging or failing equipment.

Further proving that measly fines don’t deter dirty dumping into the air, Matthew Tejada, executive director of the Galveston-Houston Association for Smog Prevention, put together the following data based off a study he helped conduct:

In 2007 at least 80 percent of companies in the Houston region that received a violation were repeat offenders and had previously been penalized for that same violation. Nearly half of the facilities had ten or more similar infractions and some had more than 50.

In fact, LyondellBasell’s Houston Refining plant (the company just granted a 10-year permit from TCEQ) was cited for 44 violations in 2007, adding up to a total fine of $467,306. TCEQ made LyondellBassell pay only 29 percent of that amount.

So what does all this mean?

A plethora of environmental and health effects have resulted from TCEQ’s ignorance. One instance that the Press addresses is an accident that occurred on March 23, 2005 at the British Petroleum refinery in Texas City. 15 workers were  killed and 150 workers were injured when petroleum overflowed from the fire stacks and caused an explosion. The US Chemical Safety Board determined that the explosion could have been prevented if TCEQ had done its job — the explosion happened because the plant sent chemicals directly into the air through a vent that TCEQ was unaware of. According to the Press:

“It’s a classic example of incompetence and indifference and the agency’s inability to do the job,” says Jim Tarr, who helped set up the Texas environmental agency’s Houston office in the 1970s and now runs a consulting company in California that was involved in one of the post-explosion lawsuits against BP.

According to court papers, state regulators never knew about or permitted the emissions source, a vent, that led to the explosion, meaning its use was illegal.

For 30 years, says Tarr, every time BP applied for a permit, the company never told TCEQ about the vent. And TCEQ never found it.

“Permit engineers at TCEQ never asked the right questions to figure out if it was present and operating and needed to be controlled,” he says. “The primary responsibility was clearly BP’s, but TCEQ had a contingent responsibility as clear as the nose on my face. And their failure to do that contributed to the death of those people.”

The citizens of Houston, especially those living near the ship channel, put their confidence in the companies operating the refineries. Companies estimate that 98-99 percent of the chemicals released through the stacks at the refineries are burned at the top of the stacks. This method of combustion is a common sight along the freeways leading to Galveston or Baytown, and the public trusts the workings of the refineries.

The problem arises, however, from the word estimate:

“In reality,” says Joshua Kratka, an attorney with the National Environmental Law Center in Boston, who has worked on several cases dealing with emission events in Texas, “it is most likely extremely rare that those flares are operating at that efficiency.”

Kratka, like many others, blames underreporting and an enforcement system that puts too much trust in companies and is easy to abuse.

In an e-mail, TCEQ says that the facilities use “widely-accepted methods” and are “thoroughly familiar with their plant and have information about the event…to calculate the emissions.”

The amount of emissions companies report is merely a mathematical calculation based off of estimates. These are not actual measurements, meaning that the numbers companies give to TCEQ are probably much lower than they are in reality.

In 2008, the City of Houston conducted a 6-month survey monitoring, by air, seven different areas near the ship channel. Six out of the seven areas showed amounts of benzene in the air that was 10 times the acceptable risk. Dr. Charles Koller, a leukemia specialist at MD Anderson, told the Press, “It’s shocking to me. It seems, frankly, criminal.”

And benzene is just one of many chemicals floating around in the air of Houston.

Jim Tarr, quoted previously, sums it up well:

Those numbers in the reports have zero value unless they can be documented and the agency doesn’t look at the documentation and doesn’t require the companies to justify their numbers in general. Whatever the company says, the agency buys.

I’ve been doing environmental work all over this country for 30 years and TCEQ is without a doubt the worst environmental regulatory agency operating in the United States of America in 2009. That’s my experience. And it’s extremely disturbing and extremely sad.

The permit approval Wednesday was a slap in the face to environmentalists and Houstonians alike, although it should have been expected given TCEQ’s history. Maybe they need to take the phrase “Environmental Quality” out of their name and replace it with something like “Perry’s Bitches” or “Environmentally Ignorant”. I’m kidding, mostly, but until precise measurements are taken and revealed to the public, TCEQ will continue to have the audacity to call its work ethically and legally sound.

Baby steps towards healthier air, however, will hopefully be taken in April. TCEQ’s permit-granting procedure is scheduled to be reviewed by the Texas Legislative via the Sunset process.

20 Houston-area plants examined by the Houston Press (c).

PDF version of the chart above.

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