Public Citizen Suggests Changes to TCEQ Penalty Policy

To the Texas Commission on Environmental Quality: This letter is joined by organizations and individuals in Texas with an interest in improving environmental enforcement, reducing environmental pollution, and promoting the public’s health.

These groups are: Achieving Community Tasks Successfully, Air Alliance Houston, Bayou City Waterkeeper, Bayou Preservation Association, Inc., the Coalition for Environment, Equity, and Resilience, the Coalition of Community Organizations, Earthworks, Environment Texas, Houston Climate Movement, Lone Star Chapter of the Sierra Club, Preserve our Hill Country Environment, Public Citizen, Mr. Steve Selzer, Texas Campaign for the Environment, Turtle Island Restoration Network, and West Street Recovery. We appreciate the opportunity to comment on the TCEQ’s fifth revision to its penalty policy and would welcome the opportunity to discuss these comments further. Contact Adrian Shelley at ​ashelley@citizen.org​, 512-477-1155 on our behalf.

Introduction TCEQ’s proposed revisions to its penalty policy are both timely and appropriate. The current policy is more than five years old. Since the last revision, disasters, like the ITC fire in DeerPark, the TPC explosion in Port Neches, and countless damaging industrial releases duringincreasingly typical major storms, threatened communities’ health and in some cases, closeddown cities. We strongly believe these disasters could have been avoided through more vigorous enforcement of existing laws and the imposition of more serious penalties. As the TCEQ has recognized, a more effective penalty policy will help deter regulated entities from polluting and reduce harmful and costly disasters. Many disasters begin as a pattern of pollution that goes unchecked. For example, before polluting local air and water with a massive fire at its Deer Park chemical storage facility in 2019, ITC discharged cyanide into Tucker Creek, an impaired water along the Ship Channel, eight times above the levels set by its state-issued permits — once as much as 1,138% above permitted limits. According to EPA’s ECHO data, atits now-infamous Deer Park facility alone, the company violated the federal Clean Water Actstandards six of the previous 12 quarters leading up to the ITC fire.​1​ But the facility faced a formal enforcement action only once over the five years leading up to the fire, despite its repeated violations. It resulted in a $18,300 fine.1 Analysis and review by Bayou City Waterkeeper, available athttps://bayoucitywaterkeeper.org/texas-could-prevent-future-itc-fires/​.1

And as documented in a recent report by Environment Texas,​2​ on every single day in 2019, anindustrial facility in Texas violated their permits and illegally polluted our air. These everyday pollution events add up, and in 2019 the Houston region experienced at least five high-profile chemical disasters.​​ Collectively, industrial facilities in Texas released over 174 million pounds of illegal air pollution in 2019. Illegal air pollution has more than doubled since 2015, when facilities released 68 million pounds.But less than 3% of violations of air emissions standards from 2011-2016 resulted in a penalty from the state, according to a 2017 report from the Environmental Integrity Project andEnvironment Texas.​4​ Environment Texas’ more recent research has shown that TCEQ and theState of Texas only fined companies approximately 1 cent per pound of unauthorized air emissions in 2018.​5​ We strongly believe that TCEQ’s and the State’s under enforcement of environmental laws has led to a pattern of unnecessarily repetitive legal violations (and avoidable pollution) across Texas.Importantly, some communities bear a disproportionate burden of industrial pollution, in the formof dirtier air and water and increased cancer and other health risks.

Many of these same communities also have been disproportionately affected by other disasters, including floodingassociated with intense storms and COVID-19. By adopting and applying a stronger penaltypolicy, TCEQ will do more to serve these communities that have long endured unfair burdens ofpollution and underenforcement.Each pollution event represents an opportunity for TCEQ to make up for these shortfalls andfulfill its role in protecting the public’s health through enforcement—and avoid another majordisaster. As Executive Director Baker has made clear, by encouraging better maintenance andsafety, revisions to the penalty policy will help protect the public’s health. We support efforts tomore specifically center TCEQ’s penalty policy on a deterrence strategy.To achieve deterrence, TCEQ must impose more consistently rigorous penalties. While TCEQcan not change maximum penalties, TCEQ can make changes in how and when penalties areassessed below that amount. Ultimately, more must be done to protect the public’s health and put an end to widespreadnon-compliance. Only with tougher, more vigorous enforcement to protect its people will Texas encourage persistent environmental violators to invest in better infrastructure and hazardmitigation — or force them to do business somewhere else. Unlawful pollution must become theexception, not the rule in Texas. The citizens living at the fenceline of industrial facilities, theresponders to these facilities’ disasters, and the people living in Texas deserve no less.2 Environment Texas, Illegal Air Pollution in Texas 2020, available here.

The Houston Chronicle has reported that a chemical explosion, fire, or toxic release occurs every sixweeks in the greater Houston area. Mark Collette & Matt Dempsey, Chemical Breakdown, HoustonChronicle (May 7, 2016), available here.

We offer these comments to show our support for TCEQ’s efforts to more effectively protect public health and identify other opportunities for achieving that goal through revisions to the penalty policy (to read the comments please click on the embedded pdf at the top of this page).