Yesterday, I explained some of the downfalls of the permitting process within the Texas Commission on Environmental Quality (TCEQ), as illustrated by an operator that has been allowed to get away with constant pollution and skirting of the rules. While permitting is important, just as important is ensuring that operators adhere to their permits.
The TCEQ enforcement team ensures that operators adhere to the requirements stated in their permit, such as the size of a site, how chemicals and waste are managed, and how pollution is supposed to be controlled.
When it comes to air pollution limits, one enforcement tool is the annual emissions inventory through which the TCEQ is supposed to confirm that sites are not exceeding their permits. Unfortunately, this data is self-reported by operators, so its reliability is questionable. Outside of these inventories the TCEQ relies on teams of investigators in each region who are responsible for ensuring that sites do not exceed their permits. Investigations happen infrequently. These investigators are the representatives of the TCEQ who visit sites and communicate with operators when a complaint is filed by a concerned citizen. Investigations can be prompted by actions outside of complaints, such as during a spot check by investigators or in response to an emission report filed by the operator, however the frequency of these investigations is difficult to gauge.
The investigation process is relatively opaque. For investigations prompted by a complaint, the investigation is assigned a priority that determines how many calendar days the TCEQ allows itself to investigate. In theory, pressing complaints are assigned a high priority and are investigated quickly. Unfortunately, how the TCEQ determines the priority of complaints is not clear to the public. Further, TCEQ often provides — rather than a concrete response deadline — a designation of “some other time frame” for addressing complaints.TCEQ assigned “some other time frame” to Earthworks four initial complaints in regards to Pickpocket 21.
In practice this meant the site was not investigated until four months after the original complaint. In our experience filing complaints with TCEQ, such long delays are not uncommon. In one particularly noteworthy example, Earthworks discovered, via documents obtained through an open records request, a complaint at ETC- Waha Plant where the TCEQ took so many months to investigate that they arrived at an empty site and discovered that the operator had extracted what it wanted and had since shut the site down.
When sites finally are investigated, the investigations can be insufficient. Through a public information request Earthworks was able to access numerous investigation reports. TCEQ personnel rarely arrive at the sites of complaints soon enough to document violations. Several reports had errors in which air investigations were referred to as water investigations. In the investigation report for Pickpocket 21 the investigator repeatedly made claims related to equipment other than what was recorded in the Earthworks complaint. The TCEQ relies heavily on Air Site Questionnaires, which allow operators to self-report information to explain what the complainant may have witnessed. The investigators use these Air Site questionnaires combined with their site visits to determine whether a violation occurred. For investigations prompted by things other than complaints the site investigation itself is the same as well as all of the subsequent steps.
In theory, the thoroughness of the investigator’s site visit could be unimportant because violations can be issued based on evidence (photos and video) presented in a complaint by residents and other members of the public. In practice, this is rarely the case. Earthworks regularly submits complaints that include Optical Gas Imaging footage recorded by a certified Optical Gas Imaging Thermographer, only for the TCEQ to fail to consider this as evidence of a potential permit violation. If footage recorded by a professional OGI thermographer is not considered admissible evidence, it is virtually impossible for a concerned citizen to have their observations considered. Thus, timely site investigations are crucial.
In the cases where the investigators do find evidence of a violation at the site what happens next varies. In a case like Pickpocket 21 the TCEQ may give the operators a period of time to resolve the issue, including applying for permits long after activities have begun at a site. Unfortunately, the follow up to ensure that the violations are resolved may also be delayed, if it occurs at all. At Pickpocket 21, Earthworks visited the site several weeks after the deadline to resolve their emissions, and found that emissions had not improved.
Alternatively, the investigators may recommend a penalty (a monetary fine) but that does not automatically result in an Enforcement Action. Enforcement Actions determine whether or not the penalty the investigator thinks the operator earned should be levied against the operator. The operator is given an opportunity to defend its actions. One of the most common defenses used by operators is what is referred to as the affirmative defense. This affirmative defense is a unique aspect of Texas’ agreement with the EPA to enforce the Clean Air Act. In Texas operators cannot be fined for emissions that occur during the start-up, shut down, maintenance, and malfunction of equipment so long as the operator has done everything possible to minimize emissions. When an operator claims that the documented excess emissions are the result of those allowed activities (e.g., start up or maintenance) , the TCEQ is supposed to either verify or deny their claim. Unfortunately, such a claim is difficult to disprove as that information is largely the purview of the operator, so this affirmative defense has proliferated virtually unchecked. Environment Texas determined that this defense is claimed in 97% of Enforcement Actions. This defense combined with a seeming lack of will to issue fines has resulted in a dismally low ratio of violations to penalties. According to Environment Texas less than 3% of violations resulted in penalties.
Perhaps the most unsettling aspect of the enforcement practices of the TCEQ is the Audit Act. This law passed by the state legislature allows operators to conduct an audit of their own facility and then self-report any violations they discover along with a plan to resolve the violation within six months. In return for self-reporting the operator is granted immunity from any penalties that might otherwise be associated with the violation (excluding criminal activity) as well as the protection of privilege for the information contained in the audit. The violation can not even be referenced in any subsequent enforcement actions to demonstrate a pattern of neglect. Even permitting violations are protected by the Audit Act, so if a site conducts an audit and “discovers” that they are operating without a proper permit they would be granted immunity. According to TCEQ data presented at a meeting with operators, the Audit Act allowed operators to avoid penalties for more than 1,800 violations in 2020.
Fixing the systematic problems at the TCEQ will require two changes to the status quo in Texas: the political will and dedication of resources to hold a polluting industry accountable for its actions and impacts.