Pollution prevention and public health: Why isn't the TCEQ doing its job?
by Vicki Wolf, January 2008

Recently The Sierra Club and Environment Texas filed a lawsuit on behalf of citizens against Shell Oil Company for repeatedly violating the Clean Air Act at its oil refinery and chemical plant in Deer Park. The release of millions of pounds of excess air pollutants over the past five years, including toxic chemicals such as benzene and 1,3-butadiene, is taking its toll on the health of people living in communities near the plant.

Karla Land, a small business owner lives in Channelview, downwind from the Shell plants. She says her family and employees can’t take anymore air pollution. “I have constant bronchitis and sinus infections, and I wake up every morning coughing my head off,” she says.

“We have laws to protect air quality for a reason,” Land says. “Shell is breaking those laws and they need to be made to stop.”

Land is correct. The Clean Air Act calls for air pollution prevention to protect public health and welfare, and the environment. The Clean Air Act requires state government to regulate and enforce this law. The Texas Commission on Environmental Quality (TCEQ) is charged with that responsibility. So why do citizens like Karla Land have to take the law into their own hands?

History shows that from the early years, the agency has been known for interfering with the protection the law offers Texas citizens rather than enforcing it.

The Texas Air Control Board TACB, was established in 1965. The board was appointed by the governor, and charged with safeguarding air resources of the state by controlling or preventing air pollution. The TACB was staffed by the Texas Department of Health. In 1973, the TACB took over staffing and other administrative functions of the agency. In 1993 the TACB was consolidated into the Texas Natural Resource Conservation Commission (TNRCC), and in 2002 became the TCEQ.

The Handbook of Texas Online reports that when administrative functions were shifted to the TACB in 1973, claims had been made that “most efforts of the board were to resist the federal Environmental Protection Agency (EPA) in its attempt to put into action federal laws on pollution. Today, two former staff members of the TACB say things have not changed that much in more than 35 years.Neil Carman, Lone Star Sierra Club air quality director, started working on civil enforcement cases for the TACB in 1980. He eventually became a whistle-blower, left the agency and today works to clean up the environment and protect public health through his work with the Sierra Club.

Jim Tarr, Stone Lions Environmental Corporation president, was TACB’s first chemical engineer in the Houston Regional Office. He worked for TACB for six years, 1972-78. Tarr started out doing permit application review and later was responsible for ascertaining industry compliance with regulations. Today, his company works all over the country in the areas of air pollution evaluation and control.

“The way in which the TCEQ fails utterly to deal with human health impact of new and existing facilities is a travesty on the people in Harris County,” Tarr says. “After 35 years, the TCEQ and the EPA are still floundering around without a plan to effectively minimize effects on people in this area.” He contends that the threshold limit values (TLV) and effects screening level (ESL) system is flawed and unethical as described in his article, “Ethics, Threshold Limit Values, and Community Air Pollution Exposure” (http://www.stonelions.com/article.htm). “It’s one thing to develop a practice that doesn’t make since ethically. It’s another to continue to do it,” Tarr adds.

Carman was naive about pollution from industry until he joined the TACB. “Up until then, I was not aware of factories and plants that pollute,” Carman says. “Driving near the plants, I could smell chemicals that I knew were not good to breathe, and yet people were living in the neighborhoods near the plants.”

When he asked what the TACB could do about people living in these neighborhoods, he was told that they would do nothing unless someone complained. “It was a case of ‘don’t ask, don’t tell,’” Carman recalls. “Hayes Elementary Magnet School was within 800 feet of the chemical plant. That was in the 1980’s and people said it had stunk for 20 years.” Carman remembers hearing many nightmare stories as he worked on cases around Texas, stories that the new media never covered. “Communities had no idea how bad it was,” he says.

Carman eventually took the bold step of becoming the whistle-blower. He exposed the Texas Air Control Board’s cover-up of serious violations at a major industrial plant in West Texas. The case became one of the largest air pollution lawsuits ever prosecuted by the Texas attorney general’s office. On Oct. 8, 1989 the story made front page news in the Austin American-Statesman Sunday paper. The headline read: “Air Board Removes Investigator after Polluter Complains.” Ninety days after the cover-up was revealed, the executive director of TACB resigned. “The Houston Chronicle said it was over the agency cover-up exposed in West Texas,” Carman recalls.

Carman left the agency in April 1992 to work with the Sierra Club. He says today TCEQ sabotages the permitting process “by allowing too much pollution in new permits because they are not looking at all impacts.” For example, when permitting a coal burning power plant, the agency is required to look at the downwind impacts of the plant. “But then the TCEQ says ‘we don’t want to do that because it would be so strict and would be very expensive to build the plants.’”

One example of the TCEQ neglecting to include significant impacts is in the permitting of the Oak Grove coal-burning plant. “Dr. David Allen conducted modeling for the Oak Grove coal plant and concluded that nitrogen oxide (NOX) emissions would cause an increase of 1-3 parts per billion (ppb) in NOX for the Dallas-Ft. Worth area and Austin. TCEQ did not model or include consideration of this increase in the permitting of that plant,” Carman recalls.

Not only does the TCEQ look the other way when an environmental problem is staring them in the face, both Carman and Tarr have examples of the agency changing permit standards to fit the company’s comfort level.

“The role of the bureaucrats of the TCEQ and the EPA is to make sure the powers that be -- the corporations -- get what they want, when they want it. And they want to make sure the public doesn’t understand,” Tarr says.

As an example, Tarr cites a change made in 2006 in the effects screening level (ESL) for silica. In the first quarter of 2006, TXU energy company filed permits for seven coal-fired power plants. Citizens opposed the plants because of environmental problems. “Seven of the seven facilities, if built and operated as applications indicated, would fail to meet TCEQ’s standard for silica,” Tarr explains. Exposure to silica can cause lung disease and other adverse health effects.

On September 1, 2006, a member of the toxicology section of the chief engineers office wrote a memo titled: “Interim Silica Health Effects Screening Level.” calling for standards for silica to be lowered and higher amounts of silica allowed in plants’ emissions. “The standard was lowered so TXU could meet the standard set by the State of Texas,” Tarr says. “It is unethical and irresponsible to assist TXU with no regard for the people of Texas who will be exposed if the plants are built.”

Carman agrees that permitting is the main goal inside the TCEQ. “The prime directive to engineers is to issue permits,” Carman says. “More than 85,000 permits have been issued since the 1970s, and only a few have been denied.”

So why does the TCEQ consistently favor industry over public health? Both Carman and Tarr say follow the money for the answer.

Here’s what The Handbook of Texas Online has to say about the agency in the early 90s:
By 1990 five of the board members were from the general public, and the agency had 422 employees, an executive director, and appropriations of $15,909,569. Additional regulatory operations programs were also added. However, there was still criticism, as the state of Texas in 1990 ranked first (worst) in the nation in carbon dioxide emissions, discharging more than the United Kingdom, Poland, Canada, and Italy. The 575 million metric tons of carbon dioxide emitted made Texas the seventh largest emitter in the world. In July 1992 Governor Ann Richards and Common Cause asked board member Mary Anne Wyatt, an appointee of former Governor William Clements, to resign because of possible conflict of interest, as her husband was a lobbyist for firms affected by board decisions. She refused.

Pressure from industry and lobbyists is common. Carman says the process that should lead to enforcement of the law gets short-circuited. “Industry puts pressure on the agency, the EPA, the legislature and the governor,” Carman says. “The public also puts some pressure on these authorities, but the public doesn’t give the money to politicians that lobbyists and industry give, and that money comes with strings attached.”

Employees stand to benefit by complying with the wishes of industry and lose ground in their careers when they fail to comply. Pay is relatively low for professionals, such as engineers. Tarr, who is a professional chemical engineer with two degrees, was making only $25,000 after working six years with the agency.

Both Tarr and Carman say the TCEQ is a revolving door between the regulatory agency and industry. “The tendency is to make a place for yourself in the business world,” Tarr says. “One of the things you can do is make friends and get promoted. The tone is to give these companies what they want.” Tarr says when employees comply with this tone, life is simple. But if they stand up and try to properly enforce laws that protect public health, life becomes more complicated. “If you make things hard for big corporations like Exxon at the TCEQ, life is going to change dramatically,” Tarr says. “Either they will get rid of you, or put you in the broom closet pushing brooms.”

It is important to become involved in following the work of the TCEQ and other state and federal agencies who are paid to protect the environment and public health, as well as the companies that are polluting the environment. “Until the regulatory agencies’ activities are revealed in a very strong light, nothing will change,” Tarr says.

Take Action:
Contact your state representatives and Governor Rick Perry and let them know you want regulatory agencies that do the job your tax dollars pay them to do.