THE FAILURE OF TEXAS AIR POLLUTION CONTROL: A CITIZEN’S PERSPECTIVE
by Jim Blackburn
The Texas Air Control Board (TACB) was the first Texas agency to have control over all sources of air pollution in Texas. The TACB was created in 1965 due to the spectre of control by the federal government, as evidenced by the passage of the Clean Air Act of 1963. Although the proposal to create the TACB faced substantial industry opposition, industry eventually agreed. As stated in a comment in the Texas Law Review:
"Most of these [industry] interests realized that since pollution control was inevitable and that they would have more power over pollution regulations at the state level than at the federal level, it would be more advantageous to write their own bill than to defeat the [bill creating the TACB]." (G. Todd Norvell and Alexander W. Bell, Comment, Air Pollution Control in Texas, 47 Texas Law Review 1086, 1092 (1969)
That was a monumental decision. Since that time, industrial interests have been dominant in air pollution control matters in Texas.
In 2004, while certain aspects of air pollution in Texas have improved, the overall situation is still very bleak for those living near industrial sources of air pollution. Children and adults suffering from asthma must endure episodes of ozone air pollution. They are exposed daily to releases of hydrogen sulfide and sulfur dioxide from refineries and a wide variety of toxics from chemical plants, refineries and storage and shipment facilities. Ports, a major source of fine particle air pollution, are not regulated by the State. Welcome to Texas.
I. THE U.S. EPA AS THE ENEMY OF THE STATE OF TEXAS
The 1970s saw the emergence of a new federal agency – the U.S. Environmental Protection Agency. Formed by President Nixon's reorganization, the EPA became the point agency for federal pollution control. The first fight between the EPA and the State of Texas came when EPA sought to clean up the extensive pollution in Galveston Bay under the Federal Water Pollution Control Act. In that fight, the Texas Water Quality Board – the state agency with power over water pollution - led the fight against the federal mandate side-by-side with industry. The EPA won that battle because of the structure of the federal legislation and the clarity of the problem.
On the other hand, the federal Clean Air Act Amendment of 1970 (CAAA) had a much looser structure. Rather than a federal permitting process for existing and new facilities such as found in the Clean Water Act, the Clean Air Act’s structure was focused around ambient air standards set under Section 109 of the Act and a State Plan to implement this ambient standard called a SIP (state implementation plan) under Section 110. The CAAA basically required that if an area was in violation of the national standard, then the state had to study the problem, identify sources and amounts of pollutants from those sources and develop a plan to reduce pollution and attain the standard. Areas violating the standard were called non-attainment areas and certain sanctions were required if the standard was not met by 1975, a deadline initially extended to 1977.
From the outset, the pollutant of concern in most of Texas was ozone. Unlike other pollutants, ozone is not emitted directly. Ozone is formed by the reaction of volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the presence of sunlight. To reduce ozone, either VOCs or NOx or both must be regulated. In order to develop strategies to control ozone, both conceptual and mathematical models were developed by the agencies to guide the regulatory process. Ultimately, EPA and Texas, Texas industry and certain Texas institutions disagreed as to the models for certain areas and the impact of certain control strategies on ozone levels.
Texas submitted its initial clean-up plan to EPA, and EPA disapproved that plan and implemented its own plan for Texas through regulation. In turn, the TACB, Texas industry, several counties and even Rice University sued the EPA in the 5th Circuit Court of Appeals. Both agreed that a 75% reduction in VOCs was necessary, but they disagreed on details. Ultimately, the 5th Circuit, in the case of Texas v. EPA, 499 F. 2d 1897 (5th Cir. 1974), ruled that the U.S. EPA was arbitrary and capricious and violated federal law in rejecting certain elements of the state plan and in requiring certain controls.
By stepping up against the federal government, the TACB was certainly proving itself to be a worthwhile ally of Texas industry. EPA never recovered the initiative on air pollution control in Texas over the next year or two and in 1977, the Clean Air Act was amended, extending the time for attainment of the national standard to 1987. With a three-year extension, that attainment date became 1990. And in 1990, the federal Congress again amended the Clean Air Act to extend the deadline for compliance with the national standards. Today, we are operating under the Clean Air Act Amendments of 1990.
After the Clean Air Act Amendment of 1977, the Houston Chamber of Commerce, with primary funding from industry and support from the TACB, undertook a study called the Houston Area Oxidant Study or HAOS to show that ozone did not pose a health threat to humans. HAOS sought to remove ozone as a national ambient air quality standard. Ultimately, this effort was abandoned, but its impact is still felt in Texas air pollution circles where many believe that ozone does not represent a health hazard despite substantial sound science to the contrary. In fact, my co-presenter on this panel, Commissioner Marquez, generated quite a bit of publicity as a result of his testimony before Congress when he referred to the relatively benign nature of ozone. (1995, Nor. 9, Serial No. 104-55, 104th Congress, Testimony to Subcommittee on Oversight and Investigations and the Subcommittee on Health and Environment of the Committee on Commerce, H.S. House of Representatives). Today, we can still hear claims that ozone is not a health hazard in boardrooms across Houston despite significant evidence to the contrary.
II. IMPLEMENTING THE CLEAN AIR ACT OF 1990
The Clean Air Act of 1990 was an updated version of the Clean Air Act of 1977 that portended to be much more serious about meeting air quality goals. A comprehensive permitting program was created under Title V and an extensive air toxics program was added under Title III. From an ozone perspective, Title I strengthened and altered the thrust of ozone regulation. The EPA was coming once again to regulate Texas industry. It was clearly time for the TACB to again rush forward to help Texas industry avoid extensive new pollution controls. And of course, they did.
A. NOx CONTROL
The initial difference between the Clean Air Act of 1990 and its predecessors was the emphasis on the role of NOx control regarding ozone. Past efforts in Texas had concentrated on VOCs rather than NOx, so this focus represented a unique, new problem. The first step for the TACB (which soon merged into the Texas Natural Resources Conservation Commission or TNRCC) was to question whether in fact NOx was implicated in Houston and Dallas ozone formation. Texas requested in 1994 that EPA defer NOx controls for the Houston and Dallas non-attainment areas, and amazingly enough, EPA issued a waiver on NOx control in Texas ozone non-attainment areas in 1995. Later, in 1998, Texas filed a modeling analysis with EPA that indicated that significant NOx reductions would be required if Houston and Dallas were to meet the ozone standard by the 2007 deadline set by the 1990 Clean Air Act Amendments. Clearly, the NOx waiver was ill-advised. In this circuitous manner Texas lost four years of NOx regulation, a benefit to industry but not to the citizens of Texas breathing ozone.
In November 1999, the State of Texas submitted documentation that it labeled a SIP revision to the EPA. Under the CAAA of 1990, a SIP revision documenting compliance with the ozone standard was due in 1994, yet this was the first submission made by the Texas agency. In December, 1999, EPA disapproved this November 1999 SIP submission and set December, 2000, as the date by which rules must be adopted that show attainment of the standard. If those rules were not forthcoming, then serious sanctions under the CAAA would occur in the Houston region, including a cut-off of transportation (e.g. road-building) funds in Houston. Nothing catches the attention of Texas politicians more than the threat of loosing road money, so the State moved forward to address the deficiency in a "kinda sorta" manner.
In December, 2000, the TNRCC filed the SIP that arguably was required to have been filed in 1994. In addition to continued VOC controls this 2000 plan identified that industry would have to reduce NOx emissions by 90%. At least in part, this 90% NOx reduction was adopted because the EPA had conditionally disapproved the November 1999 submission and had taken a strong position that the 90% reduction was required.
In turn, Texas industry, through a group called the BCCA Appeals Group formed by the executive committee of the Houston Partnership (e.g., Chamber of Commerce), sued the TNRCC in 2001 for being arbitrary and capricious in adopting the rule requiring a 90% reduction in NOx from industry. Among other things, the TNRCC staff stated that the EPA requirement for 90% reduction lacked technical justification and was not sound science. A staffer stated in an e-mail that “it is not good public policy to move forward with stringent, untried controls if there is substantial uncertainty with the model results”. (Plaintiffs exhibit 8, BCCA Appeal Group v. TNRCC, Cause No. GN100210, Travis County District Court, 2001). This suit was settled by the TNRCC after several days of testimony before Judge Margaret Cooper.
Essentially, the TNRCC agreed with industry that the 90% control of NOx was arbitrary and capricious, a particularly interesting admission given that EPA required the TNRCC to adopt such controls. In three decades of litigation over environmental matters, I have never encountered a state agency admitting that it was arbitrary and capricious and settling a suit leading to a rule being set aside, yet that is exactly what happened in the BCCA Appeals Group litigation. Subsequently, the TNRCC changed names, becoming the Texas Commission on Environmental Quality (TCEQ); in 2001, the TCEQ adopted the 80% control of NOx that industry supported.
B. REACTIVE VOCs AND THE HOUSTON SHIP CHANNEL
In the midst of the fight over NOx control and the adequacy of the computer modeling for predicting and controlling ozone a startling find was made by a reconnaissance airplane that was monitoring pollutants over the Houston Ship Channel. In 2000, the TXAQS study determined that significantly more reactive hydrocarbons were in the atmosphere over the Houston Ship Channel than had been included in the emissions estimates used for computer modeling used to develop regulatory strategies. At the time of writing this paper, it appears that four of these VOCs – termed the HR VOCs (ethylene, propylene, butadiene and butanes) - have been underestimated and/or underreported by a factor of 5.6 times and the other, less highly reactive hydrocarbons have been underestimated by as much a 4.8 times.
Of course, this finding set off a new round of concern about the adequacy of the computer modeling for determining the best course of action for ozone attainment in Houston. However, to me, the most important issue is – how could the emissions of these key hydrocarbons be under-reported so dramatically? How could we be off by a factor of four or six? It is not as if the production of ethylene, propylene and butadiene were unknown to the Houston area. The Houston-Galveston non-attainment area produces 11% of the world's ethylene, 17% of the world's propylene and 11% of the world's supply of butadiene. It should not come as a surprise that substantial emissions of these chemicals was occurring yet it seemed to be a surprise.
Back in the early 1970s, the focus on the Houston Ship Channel was reactive hydrocarbons, which are VOCs. For almost forty years, control of these VOCs has been the centerpiece of the TACB, the TNRCC and the TCEQ. How is it that the full extent of the emissions of these pollutants had escaped the attention of the Texas air pollution control agency?
It is clear that, the emissions from industry in the Houston-Galveston non-attainment area have been under-reported, not only in emissions estimates under Title I of the Clean Air Act, but also potentially under the release reporting requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Toxic Release Inventory (TRI) requirements of the Superfund Amendment and Reauthorization Act (SARA) as well as the Title V emission inventory and submission under the Clean Air Act of 1990. These are serious legal requirements that carry civil and criminal penalties, yet no serious inquiry into this under-reporting has occurred to my knowledge.
Did industry not know what they were releasing? Did the TCEQ not care? And where is EPA in this matter? Tune in for the next installment of the continuing soap opera of ozone control in Texas.
C. CURRENT STATUS OF OZONE CONTROL IN HOUSTON
Ozone control is dependant upon accurate computer modeling. After the discovery of the VOC under-reporting, more accurate emissions inventories needed to be compiled and new modeling undertaken. Under the SIP that was submitted in December, 2000, certain controls were to be implemented immediately and additional controls would be specified in a mid-course correction that was to occur in 2004. In fact, according to the approved SIP, TCEQ was to adopt final rules associated with the mid-course correction, as well as to make further NOx reductions by May, 2004.
To date, TCEQ has not adopted these rules. Rules were proposed by the TCEQ on June 23, 2004, but they have not been passed. The deadline set under the Clean Air Act and the SIP has – once again – come and gone without the agency implementing meaningful regulations. At this time, no final rules have been passed. In fact, the computer modeling that has been done to date does not include the less reactive VOCs that we know to exist on the Ship Channel. Instead, the modeling only includes the highly reactive VOCs. Undoubtedly, if asked to testify in court, a computer modeler could clearly state that the modeling lacked a sound science basis because known contributors to ozone formation were omitted from the modeling.
I believe that unless citizens force the TCEQ to comply, they will not. And I do not believe EPA will be willing to stand up for us. Enough is enough. Attachment A to this paper is a Notice of Intent to Sue that has been filed alleging that the TCEQ has violated the ozone attainment requirements of the Clean Air Act by failing to implement the requirements of an approved SIP by failing to adopt final mid-course correction rules in May 2004 that assures attainment of the ozone standard.
III. NEW PERMITS AND NON-ATTAINMENT
One of the key aspects of a non-attainment area is the requirement that new sources of air pollution not add to existing problem. This is generally addressed by the new source permitting rules for non-attainment areas, generally by requiring adoption of the lowest achievable emission rate (LAER) and a required offset of the new emissions according to ratios set in Title I of the 1990 Clean Air Act.
However, what about the situation where the new source is located outside of a non-attainment area but will affect ozone formation within the non-attainment area? Such a situation arose in a recent case involving a power plant in Ellis County south of Dallas called Tractebel II. In this situation, testimony in a contested case hearing indicated that over 400 tons per year of NOx would be emitted south of the DFW non-attainment area and that this NOx would cause the formation of approximately 1 ppb of ozone in the Dallas-Fort Worth (DFW) non-attainment area. Additional testimony indicated that this source was not included in the compliance modeling for the DFW area that was submitted to the EPA as part of the DFW SIP. Finally, the TCEQ staff testified that the DFW area would barely, if at all, come into compliance with the ozone standard taking into account the sources that were identified and modeled.
From the testimony, it was clear that this major source of NOx pollution would increase ozone concentrations in the DFW area and that this source could cause the DFW area to continue to violate the standard. In order to get a permit, the applicant must demonstrate compliance with all rules 30 TAC § 116.111(a)(2)(i). 30 TAC §116.161 states that the Commission “. . .may not issue a permit . . . if ambient air impacts from the proposed source would cause or contribute to a violation of any NAAQS (national standard)). 30 TAC §101.21 states “that national primary and secondary air quality standards . . . will be enforced throughout all parts of Texas.” Arguably, this was a clear case where a permit should be denied because it caused or contributed to the violation of a national ambient air quality standard. However, the TCEQ did not see it that way.
In the Matter of the Application of Ennis Tractebel II for Air Quality Permit Nos 46665 and PSD-TX-1003, the TCEQ granted permission for the construction of the Tractebel II power plant notwithstanding the fact that this new source would add 1 ppb to the DFW ozone level that may not be attained. The basis for this ruling appears grounded in equity, namely, it would not be fair to make the applicant conduct an ozone impact analysis of the NOx emissions because the guidance documents from the TCEQ focus only on VOCs and not on NOx. In this case, the VOC emissions were less than 100 tons per year and considered to be de minimus relative to the formation of ozone. The guidance does not mention NOx.
In fact, the guidance document was written before NOx control became a factor in ozone control and did not incorporate the change in attainment policy associated with NOx control. In essence, because the TCEQ had not updated its guidance as to how to seek and obtain a permit, an equitable argument was made and accepted that it would be unfair to the applicant for NOx to be considered in determining whether or not to issue a permit. There is no discussion of the impact on people regarding violation of the ozone standard. In fact, there is no concern at all over the violation of the ozone standard. Equity in Texas seems to exist on behalf of the industry seeking a permit and no one else.
Gentry and Genevieve Holmes v. TCEQ has been filed in Travis County District Court, Cause No. GN301206. This court will determine whether or not the equitable consideration under Texas permitting procedure goes to the applicant rather than the public that continues to be exposed to air that violates the national ambient standard for ozone. On the other hand, only in Texas would such a case have to go to court.
IV. FINE PARTICLE MATTER AND BAYPORT
Ozone is not the only pollutant that is causing problems for residents in the Houston region. There is a relatively new concern about a pollutant called fine particle matter or PM2.5. This type of pollutant is very small particulate matter than can be inhaled deep into the lungs. The U.S. EPA set a national standard for PM2.5 that was recently upheld by the U.S. Supreme Court in the case of Whitman v. American Trucking Ass'n, 531 U.S. 457 (2001).
Recently, the Port of Houston Authority proposed to construct a new container port facility on Galveston Bay at Bayport. 5000 people live within one mile of Bayport and were concerned about the fine particle air pollution that will be produced by the diesel sources at this facility. Among the diesel sources at this port will be the container ships themselves, over 5,000 eighteen-wheel trucks in and out each day, four trains per day and innumerable container-moving cranes and stackers.
Although this facility will produce significant amounts of air pollution, no air pollution permit is required from the State of Texas for a port facility. This is because the sources of diesel pollution are considered to be mobile sources rather than stationary sources and are therefore not subject to Texas clean air permitting. Similarly, no air pollution permit is required under federal law, again distinguishing between stationery and mobile source pollution. The only permit required for this facility was from the U.S. Army Corps of Engineers (Corps) under § 10 of the River and Harbor Act and § 404 of the Clean Water Act. Therefore, air pollution was addressed for this facility in the Environmental Impact Statement (EIS) prepared by the Corps of Engineers pursuant to the National Environmental Policy Act.
The findings of this EIS with regard to fine particle air pollution were significant and serious. It was determined that the air pollution from this facility will likely cause a violation of the fine particle air pollution standard in the year 2010. Any agency may voice objections to the Corps permit in comments on the EIS and EPA may object to a project on environmental grounds under 42 U.S.C. § 7609(a) of the Clean Air Act. However, no agency – not the TCEQ, the EPA or the Corps – objected to the issuance of this permit on air pollution grounds.
Fine particle matter may be the most dangerous pollutant for which the EPA has set a National Ambient Air Quality Standard. Exposure to fine particle matter above certain levels can lead to illness and death. The State of California has gone so far as to adopt air quality standards that are more stringent than those developed by EPA because of the seriousness of this issue. However, here in Texas, no agency will object to a federal permit that identifies a likely violation of the federal air quality standard for PM2.5.
The big question here is – where is EPA? Why did EPA allow a port project to go forward if it would lead to a violation of the national standard? Not only are our state institutions lacking, but it seems that the EPA that supposedly protects Texas citizens is also missing in action. We citizens of Texas need help and we are not getting it.
V. CITIZEN ACTION
The story of air pollution control in Texas is a sad one for the people who live in ozone non-attainment areas and adjacent to industrialized areas. Neither the EPA nor the TCEQ offer promised relief from excessive cancer risk, from ozone exposure, or from fine particle matter. If you have asthma or serious cardio-pulmonary disease, you are not being protected. If we want action, then we are going to have to generate it ourselves.
Citizen action is possible under federal law and under state common law. Not surprisingly no right of citizen enforcement exists under the Texas air pollution control statutes. There are several ways that citizens could become active in air pollution abatement activities. The State can be sued for violation of the SIP requirements, as set out in the Notice of Intent in Appendix A. Industries can be sued for violating the federal Clean Air Act or CERCLA release requirements or SARA/ TRI reporting requirements. Every industry signed a statement when they submitted their Title V permit, swearing to amounts of pollutants that they were emitting based on the reported concentrations of ethylene, propylene and butadiene in the air above the Houston Ship Channel. Many industries on the Houston Ship Channel failed to correctly report their emissions. Similarly, many industries failed to correctly report their CERCLA releases and their Toxic Release Inventory (TRI) emissions. Maybe it is time for them to be sued by someone for these failures.
EPA has failed us, and they can also be sued under the Clean Air Act. However, it may be preferable to sue industry rather than suing a government agency that has discretion about its enforcement activities. EPA deserves to be sued, but such a suit may be difficult if not impossible to win.
Perhaps the most direct and most appealing alternative is to sue industry under state common law in state district or even county court. Concepts of negligence and nuisance apply to industrial emissions and its impacts. In many cases, industrial releases cause “shelter-in-place” warnings to be issued. These are situations where the residents of an area are required to stay in their houses and close their windows and shut off the air conditioner. Residents are asked to isolate themselves from the ambient air. If children are at school, the residents are not supposed to go and get them. Instead, the children are to be protected at their school. Of course, parental stress increases dramatically in such events.
Shelter-in-place interferes with a person’s use and enjoyment of their property. It is an intrusion into one's rights as a property owner. In some cases, exposure to air pollution from such events causes exacerbation of existing health problems such as asthma or bronchitis. If the release caused the onset of symptoms, a cause of action may exist under negligence or nuisance even if the pollution was not the primary cause of the disease.
The point here is that the citizens are not without some tools. The biggest problem is that attorneys are expensive, and it is often difficult to find attorneys who are willing to take these type of cases on contingency, mainly due to past failures. However, these failures often have been because the attorneys bringing the case were looking for too big of awards and were not selective in the manner in which they applied the facts to the legal theory. A careful lawsuit can be successful.
Additionally, it is time that industry and the community began to see the faces of the victims of air pollution. Litigation puts a face on victims. So does publicity about the victims and the parts of a community where air pollution is a major problem. Today, community image is an important element in attracting new business to a community. Bad air pollution problems are not part of that good image that attracts today’s selective industry that is not tied to ports or channels or industrial agglomerations. In today's economic development climate, bad air is bad for business. It's about time the State of Texas figured this, out along with our industries. We are only hurting ourselves health-wise and business-wise by not addressing air pollution.
VI. CONCLUSION
The State of Texas is not protecting public health. The EPA apparently has given up on Texas, leaving our citizens without the freedom from air pollution promised in the Clean Air Act Amendments 1970, 1977 and 1990. Unfortunately, we in Texas are left to protect ourselves, and we should use whatever devices we have at our disposal.
In closing, I would like for you to meet several children from Port Arthur who live adjacent to two refineries and two chemical plants.
Meet Kenneth. Kenneth is 12 months old and diagnosed with upper respiratory problems. Kenneth uses a nebulizer and requires breathing treatments three times a day.
Meet Destiny. Destiny is five years old and has been diagnosed with asthma for the last three years. She also suffers from bronchitis. Destiny also uses a nebulizer, requires breathing treatments and missed four weeks of school last year due to health problems.
Meet Ty’lesha. Ty’lesha is four years old and has been diagnosed with asthma and bronchitis for the last two years. Ty’lesha uses a nebulizer and requires breathing treatments four times a day. Ty’lesha also missed four weeks of school last year.
Meet Laneisha. Laneisha is five years old and suffers from bronchitis, pneumonia and upper respiratory problems. She is also on a nebulizer and requires daily breathing treatments.
These children will soon be going to court to seek damages for their ailments. Maybe some type of justice regarding air pollution and its negative health effects will be afforded them at some point in their lives.
