Texas Stands Out on Polluter List

A refinery along the Texas Coast. Photo by Teresa Vierira.

NPR reporters, working with the Center for Public Integrity, reviewed never-before published lists compiled by the U.S. Environmental Protection Agency to track polluters.  Roughly one in 10 factories on the most recent list is in Texas.  Some of those facilities have been on the watch list for years.

Kelly Haragan runs the Environmental Law Clinic at the University of Texas Austin. She is a great source, but interviews with her are likely to be interrupted. You see, Haragan gets a notification on her phone every time factories emit more pollution than normal.

“This is a tank battery fire,” she said, thumbing through her message. “This one says there’s no danger to the public, which is what most of them say. And sometimes they will tell people to shelter in place, and they will tell people to put wet towels around their doors and on their windows.”

Haragan gets those notifications all the time, which leads her and other critics to the same conclusion: the Texas Commission on Environmental Quality, the State agency responsible for regulating pollution, is not doing its job.

A Very Sweet Deal

Matthew Tejada runs Air Alliance Houston, a clean air advocacy group. He sums up Texas relationship with polluters by saying Texas has offered “a very sweet deal to polluters for a very long time.”

Bryan Shaw, Chair of the TCEQ , has defended Agency policy, arguing that a strong economy is necesary for environmental enforcement. Photo by Mose Buchele for KUT News.

Tejada says there are many ways that this “sweet deal” is offered. He points to a cap on fees that polluters pay to the state. The fee is only charged on the first ten thousand tons of pollution. After that, a company is not charged for any additional tonnage.

He calls it a system “which basically means that the biggest polluters in the state are paying the same fee for their pollution as the medical waste incinerator at the local county hospital.”

Then there are the penalties when a polluter violates an environmental regulation. Up until recently, fines to polluters were capped at 10,000 dollars a day by the TCEQ, even for a massive pollution event. Critics say a lot of companies do the math and decide it’s cheaper to keep polluting than to clean up their acts.

“There will be penalties that are fairly low,” said UT Kelly Haragan. “And then there will be little of what we call injunctive relief. Or action to actually fix the problem.”

A Byzantine Structure of Policies and Precedents

When it comes to enforcing environmental laws, even former TCEQ commissioners describe a byzantine collection of precedents and policies that make consistent enforcement difficult.

“It creates too much, sometimes, subjectivity, and a lot of inconsistency,”  Larry Soward, a former TCEQ commissioner, told State Impact Texas. “And it is frustrating for everyone involved.”

Soward is an unlikely critic. He was appointed by Governor Rick Perry, but he became critical of what he saw as the business-friendly atmosphere at the TCEQ.

“I mean Governor Perry has appointed all three commissioners, and they were appointed as I was appointed,” he said. “To support his philosophies and policies where appropriate.”

During the last Texas legislative session, Soward worked to push the pollution penalty cap from $10,000 up to $25,000 dollars a day. But by his estimation, that’s still too small to make a difference in some cases.  He also joined activists to press for TCEQ enforcement to be codified in rules. Those changes will be implemented in the coming year. Soward says the TCEQ has been resistant to new rules –  preferring more flexibility in enforcement.

“I know many instances in which there would be enforcement actions, pending six eight, ten years” he said. “And it’s to a violators advantage.”

The View from TCEQ

At TCEQ Headquarters there’s a different way of looking at things. Protecting natural resources “consistent with sustainable economic development” is written into the Commission’s Mission statement. It’s an approach Richard Hyde, Deputy Director for Compliance and Enforcement, defends.

“We’ve seen it over and over again in this state,” said Hyde. “How we can work with companies?Have them comply and allow them to do the business they intend to do.”

Hyde points to more than 11 million dollars in penalties levied by the Agency in 2010 as proof that the TCEQ takes enforcement seriously.

“The TCEQ believes that enforcement is not a goal”, according to a recent statement from the Agency-  but just one “tool in a toolbox” that includes industry incentives and voluntary compliance.

Defenders of the Agency add that a strong economy is the first step towards robust environmental enforcement.

But, from her office at UT’s Environmental Law Clinic, Kelly Haragan say it’s an approach that will keep her phone ringing.

“We’re plenty busy — there’s lots of work. We have more clients than we can accept every semester,” she said.

The Commission’s enforcement report for 2011 will be made public in December. TCEQ’s Hyde says it will probably look a lot like last year’s.