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pollution

On the source of Houston’s greenhouse gas emissions

This story is a lot more complex and nuanced than the headline would lead you to believe.

It may come as no surprise to anyone who has spent time on Houston’s roads at rush hour that just over half of all the city’s reported greenhouse gas emissions come directly from traffic. This is the greatest share among the largest U.S. cities that volunteered emissions information to the Carbon Disclosure Project (CDP).

The data was collected by survey in partnership with CDP and ICLEI – Local Governments for Sustainability, and contains self-reported amounts of methane, nitrous oxide and carbon dioxide as well as other notable greenhouse gasses and carcinogens. The data is broken out by 51 categories submitted by more than 1,100 cities, states and municipalities around the world.

Data like this is considered primarily a preparedness tool according to Katie Walsh, head of cities, states, regions and public authorities for CDP’s North America division. By compiling and submitting this data and by answering questions about climate change mitigation policies, Walsh says cities get a chance to assess where they stand and where they need to go to effectively reduce greenhouse gas emissions.

In a city reporting vehicle-oriented emissions as high as Houston’s, local governments and nonprofits can use that data to design initiatives that target specific  needs. One example, Evolve Houston, which grew out of the city’s climate action plan, is working to reduce carbon emissions from personal vehicles by pushing electric vehicle adoption and infrastructure.

The 2022 CDP submission marks the 11th year Houston has reported data to the CDP.

Stationary emitters like homes and businesses, as well as power plants, typically make up the lion’s share of emissions in cities, according to CDP city-level data. But despite a large oil and gas industry and booming housing developments, this is not true for Houston – traffic is king.

Although traffic is undoubtedly a top greenhouse gas emitter across the nation, its spot at No. 1 in Houston may have more to do with how well it’s tracked and how poorly other sources are monitored. For example, emissions from the Port of Houston – one of the largest ports in the US, mover of 55 million tons of annual cargo and representative of 20.6 percent of Texas’ total gross domestic product – are not accounted for in the city’s reporting. The city hopes to include emissions from “waterborne navigation” in future reports.

Looking at a city’s share of emissions by “sub-sectors,” which are the smallest buckets that emissions can be categorized by in the CDP data, reveals unique inventories for each city. These inventories can help city officials identify the most problematic sources of pollution as well as where they have deficiencies in emissions reporting.

There’s more, so read the rest. The main thing I took away from it is that categorizing the data can be helpful in telling cities where to prioritize efforts, but there’s a lot of subjectiveness in it, which limits the usefulness of those categories. Cities only have control over so much of the emissions in their vicinity as well. Having good data is helpful, but getting good data is easier said than done, and there’s a lot of room for improvement now. But it’s better than nothing.

EPA asked to investigate TCEQ’s water permitting process

Need to keep an eye on this.

The Environmental Protection Agency says an informal investigation is underway after more than two dozen environmental advocacy groups submitted a petition against the Texas Commission on Environmental Quality. The petition alleges that state regulators are not doing enough to protect water quality in Texas, as is federally required.

The environmental groups are asking the federal agency to step in and repair Texas’ “broken system” of issuing permits to control water pollution, saying the state has made it too easy for industries to contaminate its water.

“We really feel that the TCEQ regulations, frankly, are not sufficient to ensure clean water,” said Annalisa Peace, executive director of Greater Edwards Aquifer Alliance, an environmental protection nonprofit based in San Antonio.

Historically, the TCEQ has been criticized for being a “reluctant” regulator and for being industry friendly. Many environmental groups have been pushing for permitting transparency, opportunities for more community input, and accountability of the state agency.

The Greater Edwards Aquifer Alliance, Environmental Integrity Project, Sierra Club, Clean Water Action, Public Citizen and 16 other groups filed the petition in 2021, stating that Texas has a major water pollution problem with state rivers, lakes and estuaries “so polluted they are considered impaired under the federal Clean Water Act.”

The Clean Water Act is a 1972 law designed to reduce pollution in America’s waterways. According to the petition, the state’s water permitting process does not recognize people who use waterways for recreational purposes, such as fishing or kayaking, to petition for a contested court hearing — only those who own land nearby.

The petition also states that industries are not required to document “the economic or social necessity of projects.” Environment advocates believe companies should provide documentation that shows there are no other options to their projects that could avoid pollution of the waters in order to obtain permits.

“They are the ones who are wanting to pollute the environment,” Eric Allmon, an attorney representing the petitioners, said about the industry. “The applicant should bear the burden of demonstrating compliance.”

Allmon said the EPA’s informal investigation is a preliminary step that determines whether there is any merit to the allegations from environmental advocates before the agency formally reviews the TCEQ’s track record on enforcing water quality standards.

[…]

If the EPA concludes that TCEQ is not enforcing the Clean Water Act, then the federal agency can proceed with a formal investigation and could revoke TCEQ’s authority to regulate water quality. The TCEQ would have 90 days to fix the problems or lose its authority.

I confess that I look at this with at least as much trepidation as any other emotion. Sure, this could end up with the TCEQ actually doing more to protect Texas’ waters. It could also end up with Ken Paxton filing a lawsuit against the EPA that ultimately results in SCOTUS doing serious damage to the Clean Water Act and/or the EPA itself. I have no trouble believing that the TCEQ has at best been half-assing this job, and I don’t want to tell these groups to be ruled by fear. But in the current climate, with the courts being what they are and a state government that has no interest in serving the public, we have to take this kind of thing into consideration. I hope I’m being way too pessimistic.

ERCOT makes it through, with an assist from the feds

In case you were wondering.

A day after ERCOT asked the U.S. Department of Energy for an emergency order allowing its generators to bypass emissions standards to stave off potential outages, Texas’ electric grid met demand with ease on Saturday.

The grid operator’s worst-case-scenario did not come to pass, and with weather continuing to warm over the weekend, it seems unlikely the system will experience issues.

Temperatures rose to 39 degrees in Houston on Saturday, nearly 10 degrees higher than Friday. Demand reached a high of about 65,753 megawatts at 7:50 a.m., and at the same time, about 74,252 megawatts of power were available. One megawatt is enough to power about 200 homes during severe temperature events.

By 4 p.m. ERCOT officials said there was 27,876 more megawatts committed by generators than the forecasted demand.

The forecasted demand was much more accurate Saturday than it was Thursday night and Friday, when ERCOT’s demand forecast was at times more than 10,000 megawatts — or 2 million homes’ worth of power — less than what actual demand came onto the grid. Friday morning, demand reached 74,000 megawatts, a new winter record.

That unexpected and record-seasonal-high demand, along with a series of generation failures, led ERCOT officials to ask the U.S. Department of Energy on Friday to issue an emergency order that would allow natural-gas and coal-powered generators to bypass federal emissions standards in order to generate as much power as possible.

ERCOT CEO Pablo Vegas wrote to the agency that there were about 11,000 megawatts of outages among thermal generators that use coal and natural gas as fuel, 4,000 megawatts among wind generators and 1,700 megawatts of solar units that were “outaged or derated” due to the freezing weather. One megawatt is

“Most of these units are expected to return to service over the next 24 hours. However, if these units do not return to service, or if ERCOT experiences additional generating unit outages, it is possible that ERCOT may need to curtail some amount of firm load this evening, tomorrow morning, or possibly tomorrow evening or Sunday morning, in order to maintain the security of the ERCOT system,” Vegas wrote.

In plainer language, that meant if those units stay offline, and if other units trip offline, ERCOT might have ordered local utility providers to rotate power outages Friday evening, Saturday morning, Saturday evening or Sunday morning.

[…]

In a statement, ERCOT officials said the request for emergency powers was taken as a precautionary measure and “would allow generators to promptly respond if conditions warranted.”

“ERCOT has sufficient generation to meet demand. Every available on-demand generation resource is contributing electricity to the grid during this extreme cold weather event,” ERCOT officials wrote.

However, thanks to warming weather and seemingly stable generation, those emergency measures will likely be avoided this weekend.

The issue was not of insufficient power being generated or power suppliers being knocked offline because of the cold, but that the electricity retailers underestimated the demand for power, and would have had to buy more at much higher prices. Reporter Shelby Webb explained that in this Twitter thread from December 23. It’s great that we made it through without widespread power outages, and it’s even better that we made it through without having to pollute more to do it, but this was not a success of the current setup. It was luck. Anyone who points at this freeze and claims a victory for “fixing the grid” is at best misinformed.

Grassroots pollution monitoring

Great story about a problem that deserves mush more attention from the state.

One by one, the residents filtered into the small community center and found seats in the rows of plastic chairs. Some were teenagers wearing yellow-and-black Galena Park High School letter jackets. Others were parents and grandparents juggling children. Many wore white headphones to hear the Spanish translator standing nearby. Everyone looked worried.

They had gathered on that chilly November night to learn what two new, high-tech monitors had found in the air in Galena Park and Jacinto City, neighboring towns in eastern Harris County, the epicenter of North America’s petrochemical industry. They were prepared for grim news.

“Everyone here knows pollution is a big problem,” said Maricela Serna, a former Galena Park commissioner who has one of the monitors on the roof of her tax preparation office. “But we want to know just how bad things really are. We deserve to know. And those in power, especially at the state level, need to know.”

Serna, 66, has lived in Galena Park since 1988 and the stench of chemicals is part of her everyday life. The odor inside her home was so bad one day that a visitor from outside the community thought there was a gas leak and called the fire department. Still, Serna held out hope that the news that night might be positive — that maybe, just maybe, the pollution wasn’t as bad as the odors let on.

But the data from the monitors confirmed her worst fears.

Nitrogen oxides, which the U.S. Environmental Protection Agency has linked to asthma in children and lower birth weight in newborns, were consistently above the agency’s one-hour limit. Ozone, which can aggravate lung diseases including asthma and emphysema, was well above the EPA’s eight-hour limit. Particulate matter, which increases the risk for strokes and heart disease by settling deep into lungs and seeping into bloodstreams, hovered above the EPA’s annual limit.

The readings from Serna’s office, located a block from a thoroughfare lined with petrochemical plants, were especially high. Monthly levels of nitrogen oxides, for example, averaged 170 parts per billion from June through August — nearly double what the EPA says is safe for just one hour.

The data was presented by Juan Flores, a lifelong Galena Park resident and clean-air advocate. He oversees community air monitoring programs for Air Alliance Houston, the nonprofit he works for, and Environmental Community Advocates of Galena Park, a smaller group he helped create and where he is vice president. Over the past few years, the two groups have built a network of air monitors that gives residents basic information about the dangers they are living with.

Regulators and scientists are often skeptical of community-gathered data, because it’s usually less sophisticated than the data state and federal agencies collect. But the community data is still important, because it can be used to rally residents and prod elected officials to acknowledge a neighborhood’s plight. It can also complement the ongoing work of researchers by providing hyperlocal information about wind patterns and chemical readings of volatile organic compounds, or VOCs, a diverse group of chemicals that includes some carcinogens.

“This lower-level monitoring … warrants further investigation, but it supports what we’re seeing at the city level,” said Loren Hopkins, the chief environmental science officer for the Houston Health Department. “There’s a huge educational component, too. Instead of just using traditional advocacy, they’re actually using science to support their claims.”

It’s great and necessary work being done by these residents, but they shouldn’t have to. This is what the TCEQ is for, except that it’s been neutered and corrupted to the point of uselessness. And unfortunately, that’s not going to change any time soon. In the meantime, folks like these will have to keep telling and documenting their story, so at least we can know what’s happening to them. Go read the rest.

We don’t love trash

Especially not in the bayous.

Courtesy of Buffalo Bayou Partnership

On a recent Saturday morning, around 20 volunteers gathered to clean up trash along the Houston Ship Channel. Armed with pickers and trash bags, they started tackling a small “trash beach” across the channel from a refinery. The sand was barely visible below the piles of discarded items covering the beach: tires, a child’s Croc, tennis balls, a plastic toy kitchen.

“We’re just surrounded by plastic bottles,” said Amy Dinn, an environmental lawyer and one of the volunteers. Beneath the larger items, pieces of styrofoam coated the ground, giving it the appearance of snow from a distance.

“We’ve seen way worse,” Dinn said.

The amount of trash that ends up in Houston’s waterways is substantial. In 2021 alone, Buffalo Bayou Partnership (BBP), one of the main organizations that cleans up trash in and along the bayous, removed nearly 2,000 cubic yards of trash – enough to fill more than 160 commercial dump trucks.

Besides being ugly to look at, trash can worsen water quality and harm plants and wildlife. It can also harbor bacteria, spread disease, and create blockages that worsen flooding.

[…]

[Buffalo Bayou Partnership field manager Robby] Robinson said one solution he’d like to see statewide is a bottle deposit where consumers receive money for returning plastic containers.

“If you give them value, you don’t find them on your shores anymore, they end up back into the system getting recycled,” he said.

Studies have shown places with bottle deposits have less litter and higher recycling rates, including reports by Australian researchers and the nonprofit Keep America Beautiful.

Oregon was the first state to implement such a system, and its program is considered to be the most successful. In 2019, the state reached a 90% return rate, meaning 90% of all items covered by its deposit program were returned for recycling.

Bottle bills have been introduced several times in Texas, but have never passed. A report prepared by an independent consultant for the Texas Commission on Environmental Quality in 2021, recommends further investigating a bottle bill for the state.

Beyond legislative action, Robinson said it’s also important to make people aware of the problem, which is where volunteer groups come in.

“Most people never get to see how horrific this problem is,” Robinson said.

You can click over to see more pictures if you want to get an idea of that. I like the idea of a bottle deposit, especially given its track record, but that’s still one small piece of the puzzle. We as a society need to do a better job of, you know, not littering. The solutions for that are a lot more complicated.

Still rough times for oysters

Continuing from earlier in the year.

Tuesday marks the start of Texas’ commercial and recreational oyster season, but the bulk of the state’s oyster reefs are already closed for harvesting. This follows last year’s season during which the majority of reefs were closed by mid-December, leading to a clash between industry stakeholders and state wildlife officials over how to manage the resource.

The Texas Parks and Wildlife Department (TPWD) closes reefs if samples come back with too many small oysters or too few oysters overall. The idea is to give oysters time to recover and repopulate.

This year, 20 of the state’s 29 oyster harvesting areas are closed for the start of the season on November 1.

“What we as an agency have tried to do at the start of this season, with some of these thresholds, is to find a balance between understanding the economic hardship that this causes, but also doing what’s best to conserve the oyster population for the future,” said Christopher Steffen, a natural resource specialist with TPWD.

Oysters grow about one inch a year, and have to reach three inches before they can be legally harvested. Steffen said though there weren’t enough oysters above market size in their samples to open the reefs, the samples showed oysters have been recovering.

“We’re pretty fortunate in the sense that we do have quite a bit of undersized oysters, which is good for the future,” Steffen said. “We are seeing a lot of spat, which are the small oysters that settle on the substrate. And then some of the spat leftover from last year that’s grown into that two to three-inch size range.”

Oysters are extremely sensitive to changes in water quality, and Steffan said the drought in much of the state could put further pressure on them in the coming months.

In the past decade, Texas oysters have endured multiple hurricanes, drought, and heavy rainfall.

“It just takes time for those populations to rebound,” said Steffen, adding that they serve important ecological functions, such as preventing shoreline erosion and filtering water.

See here for some background. There are actually a few more harvesting areas open now than there were at the beginning of 2021, though that’s probably not much of a comfort to the fishers. Hope for better conditions, and remind the incoming Legislature that climate change is a problem we’re going to deal with one way or another whether they want to or not, I guess. The Chron and the Observer have more.

Texas will get a lot from the Inflation Reduction Act

Thanks, Biden!

Texas’s clean energy sector is expected to be one of the largest beneficiaries of the climate and health care legislation President Joe Biden has signed into law, according to estimates released by the White House Wednesday.

Over the next eight years, Texas is expected to see $66.5 billion in investment through the legislation, expanding wind and solar energy, advanced batteries and other sources of clean electricity — more than CaliforniaNew York or Florida.

Named the Inflation Reduction Act, the bill provides almost $370 billion in federal funding for the clean energy sector, with government officials hoping to spur far larger investment from the private sector.

Environmental Protection Agency Administrator Michael Regan described the legislation in a press conference Wednesday as, “the linchpin to putting us on path to reach net zero (greenhouse gas emissions) no later than 2050.”

“It invests in American workers, the back bone of this country, by spurring supply chains for clean energy,” he said.

Texas has long led the nation in clean energy, with three times as many wind turbines as the next closest state. And while California still has the most solar energy capacity, Texas is beginning to catch up, with more installations last year than any other state, according to the Solar Energy Industry Association.

Here’s a quote of interest from Bloomberg: “Of the top 10 congressional districts in the country for operating and planned wind, solar and battery capacity, four are in Texas, more than in any other state and including the No. 1 district, Texas’ 19th.” So of course every Republican voted against it. Which won’t stop them from claiming credit for the good things that will happen. It’s the circle of life.

Fortunately, at least some of the goodness should go places that can honestly claim credit.

U.S. Rep. Sheila Jackson Lee wants environmental justice funds in the Inflation Reduction Act to flow into northeast Houston as freely as the concrete batch facilities that have come to plague the predominantly Black area.

Legislation passed Friday includes $60 billion for environmental justice programs that can help communities such as Trinity and Houston Gardens fight polluters and reduce emissions, the congresswoman said during a Sunday event at Trinity Gardens Church of Christ attended by around 25 community advocates and concerned residents.

Issues such as the illegal dumping of industrial trash, cancer clusters stemming from creosote used by rail companies and air and water contamination from a growing number of industrial sites make the city’s northeast corner “a fitting example” of communities the legislation aims to help, Jackson Lee said.

The bill also earmarks $3 billion for community centers that can “address disproportionate environmental and public health harms related to pollution.” Northeast Houston should have one such center, she said, describing the area as the new “concrete batch Mecca.”

The bill offers a hand to advocates in communities across Texas, where restraints on polluters are lax. Earlier this month, the U.S. Environmental Protection Agency said it was investigating state environmental regulators accused of violating residents’ civil rights when Texas updated its standard permit for concrete batch plants.

The plants have become infamous in the community for billowing dust clouds and concrete-laced water seeping into neighboring properties. There are three schools within a half-mile of the plants, said Keith Downey, super neighborhood president representing Kashmere Gardens.

Jackson Lee told advocates the new federal funds can offer relief for a community fighting these fights largely by themselves.

That would be great. Rooting for this to happen.

EPA to investigate TCEQ over concrete plant permits

Well, this ought to be interesting.

The Texas Commission on Environmental Quality is the subject of an investigation by the Environmental Protection Agency following complaints that the state agency violated civil rights laws in its permitting of concrete batch plants.

The Harris County Attorney and Lone Star Legal Aid, a nonprofit law group, alleged that the state environmental agency discriminated against racial and ethnic minorities and those with limited English proficiency through a revised permitting process to build new concrete batch plants.

Their complaints, filed with the EPA earlier this year, said TCEQ failed to provide information in Spanish and insufficiently protected communities of color who live in areas where concrete facilities are predominantly located.

The concrete plants are subject to permits that aim to limit pollution in the form of particulate matter and crystalline silica — which have been linked to respiratory diseases and cancer — but independent testing of concrete facilities by the complaint’s authors indicate that pollution levels exceed health-based limits.

Last year, TCEQ approved an amendment that included exemptions for emission limitations for concrete batch plants, in response to an application to construct a plant by a Fort Worth concrete company. Area residents had fought the company’s application, which was rejected on the grounds that it didn’t adequately study the impacts of pollutants. TCEQ later passed the amendment and approved the company’s application after what it called a “clerical error.”

The EPA’s civil rights compliance arm announced the investigation last Wednesday. The investigation will focus on whether the adoption of the amendment — and the permitting process — is discriminatory, and whether the state agency failed to seek meaningful public comment.

The Chron adds some more details.

County Attorney Christian Menefee and Lone Star lawyers alleged in separate complaints to the EPA earlier this year that the state agency discriminated against Black and Latino residents when they didn’t adequately ensure communities would be protected and didn’t appropriately seek input from people who aren’t fluent in English.

Local, state and federal leaders celebrated the EPA’s decision to look at the discrimination claims Tuesday. They saw it as a chance to win long-sought relief for people who have suffered from batch plants. Facility operators say the plants are safe and need to be close to construction sites. People near them, concerned for their health, plead for them to go far away.

“Time and again, the TCEQ has approved permits for additional plants in these very same neighborhoods, and failed to ensure that the pollution that comes out of these plants does not harm human health and the environment,” Menefee said. “We’re here today because the TCEQ failed to address these issues when it had the chance.”

[…]

Applications are frequently submitted to start up concrete batch plants in the Houston area. They elicit strong backlash from residents who often already know what it’s like to live by one. Residents in Aldine recently packed a room to tell TCEQ not to approve another new plant — only to find out that the deadline had already passed to ask the state agency to escalate the dispute to the next level.

EPA stepping in signaled a shift in that fight for residents who have little more than emotional appeals on their side, and what help they can get from frustrated government representatives.

“This is important to us,” said Huey German-Wilson, president of the Trinity and Houston Gardens Super Neighborhood, “and now we have someone to hear us loud and clear, for the small Black and brown voices in communities that have not been heard.”

Politicians at the news conference slammed the state environmental agency for valuing the needs of industry over the health of people. They said that it took President Joe Biden — a fellow Democrat — winning the White House for federal regulators to put pressure on this issue in the conservative Lone Star State. Recent bills proposed in the state legislature largely floundered.

Neighborhoods with batch plants lack deed restrictions and zoning to protect them, U.S. Rep. Sheila Jackson Lee said. And facilities are often in communities of color — not wealthy, white River Oaks — making what has been happening clear environmental racism, state Sen. Borris Miles said.

Menefee’s office asked the EPA to stop any new standard concrete batch plant permits from being issued until the investigation is finished, he said. A public meeting has been scheduled later this month for residents to weigh in on a plant that’s been proposed in Simonton, a small city west of Houston in rural Fort Bend County.

This isn’t a lawsuit, it’s an investigation. I have no context to guess how long it may take, though I’d expect that if the state doesn’t like what the EPA says we’ll get a lawsuit afterwards. Until then, we wait. Here’s a Twitter thread from Chron reporter Emily Foxhall with more quotes.

TxDOT sued over its enviromental impact assessments

Very interesting.

After college, Michael Moritz got a job in Houston analyzing fatal car crashes. Moritz, a 27-year-old native of San Antonio, stood on Interstate Highway 45, one of the most dangerous stretches of highway in the country, and documented how cars collided. One day in the fall of 2019, he learned that the Texas Department of Transportation intended to expand I-45, supposedly to fix congestion and make the highway safer.

“More lanes just doesn’t equal safety,” he said.

And then he learned about all the other negative impacts of the $7 billion expansion project, which would remake Houston’s downtown and demolish more than 1,000 homes, nearly 350 businesses, five churches and two schools.

He got involved with a grassroots group called Stop TxDOT I-45 and started spending nights and weekends fighting the expansion. Gradually, he met people fighting freeway expansions across the state, including in the capital city of Austin, and joined a regular Zoom call to discuss strategy. He signed up for automated emails from TxDOT to find out when new projects were proposed and approved.

In 2021, just a few days before Christmas, he got two emails from TxDOT. The agency had issued a “finding of no significant impact” — or FONSI, pronounced like Fonzie, the “Happy Days” character — for two segments of a $6 billion project to rebuild and expand Interstate Highway 35, which passes through the heart of Austin. “Really?” he thought. “No impact?”

Moritz was alarmed by the idea that adding lanes to an interstate running through one of the fastest-growing cities in the country was considered to have no environmental impact. The expansion of the north and south segments of I-35 would consume 30 acres of land, affect more than a dozen streams and creeks, and add millions of metric tons of carbon to the atmosphere over the coming decades.

Moritz called up a few activists he knew in Austin. Together, they wondered: How often was TxDOT declaring that its projects had no impact on the human or natural environment? Moritz decided to find out. He searched TxDOT’s online archives for every environmental review published since 2015, as far back as TxDOT’s records extend.

Moritz quickly noticed that many projects that were physically connected had been spliced into segments, as I-35 was in Austin. Loop 88 in Lubbock, notably, had been evaluated in four segments stretching across 36 miles. Collectively, those segments would consume 2,000 acres of land, displace nearly 100 residences and 63 businesses, and cost almost $2 billion. Yet all four segments received findings of no significant impact, three on the same day.

Overall, Moritz discovered that between 2015 and 2022, 130 TxDOT projects were found to have no significant impact after an initial review, while only six received full environmental analyses detailing their impacts. Cumulatively, those 130 projects will consume nearly 12,000 acres of land, add more than 3,000 new lane miles to the state highway system, and displace 477 homes and 376 businesses. The total projected cost of those projects was nearly $24 billion, almost half of what TxDOT spent on transportation projects during that time and twice as much as the amount spent on projects that received full environmental reviews.

“It can’t be argued with a straight face that these big, multihundred-million-dollar projects don’t have significant impact,” says Dennis Grzezinski, an environmental lawyer in Wisconsin who has worked on National Environmental Policy Act cases for three decades and who was not involved in Moritz’s study. He called Moritz’s analysis “a giant red flag” that TxDOT was approving projects in violation of NEPA.

“If TxDOT is producing environmental assessments that result in FONSIs over and over and over again, on large-scale interstates and major highway expansion projects, there is clearly something major that’s wrong and not in line with NEPA requirements,” he says.

Now, a group of activists is suing TxDOT, saying that the agency split the I-35 project into segments in order to obscure its full impacts and “circumvent” the requirements of NEPA. The case, filed in U.S. district court, raises larger questions about the federal government’s decision to give TxDOT the authority to approve its own environmental reviews.

“I think the words ‘no significant impact’ have meaning,” Grzezinski says.

Under NEPA, a 1970 law, any state agency receiving federal funding for a project must document how the project impacts the human and natural environment. That documentation is categorized in one of three ways, depending on the project’s perceived impact. Actions that “significantly affect the environment” require a comprehensive environmental impact statement, which quantifies those impacts, includes specific ways the agency would mitigate them and asks for significant public feedback. (The final environmental impact statement for the Houston highway expansion exceeded 8,000 pages.)

On the other end of the spectrum, relatively minor projects — like repaving an existing road or repairing an interchange — can receive what’s called a categorical exclusion, essentially an exemption from NEPA. Everything in between is considered through an environmental assessment, a relatively concise document, typically a few hundred pages. An environmental assessment leads to either a full environmental review or a finding of no significant impact, which allows the agency to proceed with land acquisition and construction.

But because NEPA covers a broad array of government actions, the law doesn’t define what makes an environmental or social impact “significant” — whether it’s acres of land taken or people displaced — and thus what triggers a full environmental review.

There’s a lot more, so go read the rest; the story was originally published by Grist. I’ve blogged a couple of times about the proposed I-35 expansion, the design for which makes I-45 look almost sedate. It would not be surprising to me if TxDOT had been playing fast and loose with the impact assessments under NEPA – they are allowed some discretion in coming to their assessments, and it would be a lot easier on them and everyone involved with the subsequent construction if they gave certain projects the “no significant impact”. It’s more than a little hard to believe that could be the case with I-35, and if the end result is a full and rigorous examination of TxDOT’s operations, that’s fine with me. This is a federal lawsuit so expect it to take years to come to some kind of resolution, but I’ll try to keep an eye on it.

Who gets to judge Volkswagen?

Fascinating little legal cul-de-sac here.

German car manufacturers Volkswagen and Audi — facing a lawsuit from Texas that could cost the companies millions stemming from the emissions cheating scheme uncovered in 2015 — argue that Gov. Greg Abbott could unfairly tilt the scales in the state’s favor by appointing two temporary justices to help decide the case.

Texas Supreme Court Chief Justice Nathan Hecht on June 24 asked Abbott to temporarily commission two justices to the state’s high court in order to decide a case related to an emissions-cheating lawsuit against Volkswagen and Audi. Volkswagen in 2015 admitted to deceiving regulators by designing software that circumvented U.S. emissions tests.

With tens of thousands of vehicles impacted in Texas, several millions of dollars could be at stake in the Texas case, according to the state’s civil penalties code. The issue before the state’s high court centers on whether Texas has jurisdiction over the foreign parent companies, Germany-based Volkswagen and Audi.

Justices Jimmy Blacklock and Evan Young recused themselves from the case, Hecht wrote in the letter, leaving the court with seven remaining members to rule on the case. The Texas constitution requires at least five justices to agree, one way or the other, in order to issue a supreme court decision, suggesting the remaining justices were split.

But because the state is a party in Attorney General Ken Paxton’s cases against the companies, Volkswagen and Audi’s lawyers have argued that allowing the Texas governor to appoint justices to a case for which the state stands to win a substantial amount of money would give “the impression that the State has had undue influence.”

“Although the Governor and the Attorney General are different officers, they both represent the same entity: the state of Texas,” wrote Jeffrey Wall, an attorney for Volkswagen in a letter to the court that was also sent to Abbott.

Hecht declined to comment on the letter, but a spokesperson for the Supreme Court of Texas said that there have been at least 13 other instances since 1995 in which the governor was asked to appoint temporary justices.

But neither the Supreme Court of Texas nor attorneys for the companies could identify another case in Texas history when the governor has been asked to commission temporary justices to a case for which the state is a party.

Abbott’s office did not respond to a request for comment.

Volkswagen and Audi’s lawyers say appointing the justices at this point would give the appearance of bias to the court.

“Attorney General Paxton brought these actions on behalf of the state in an effort to recover massive penalties from respondents,” wrote Wall. “Simply put the state may not pick two judges who will help to decide whether it wins or loses before this court.”

If the governor doesn’t commission two more justices, the cases could return to the Texas Court of Appeals, where Volkswagen and Audi had successfully argued that Texas did not have jurisdiction over the foreign companies. The court had found that Volkswagen and Audi’s recall-tampering activities were not “purposefully directed” at Texas, but directed at the U.S. as a whole.

See here for my previous blogging on this. The last entry I have is from 2018, in which settlement money from a different lawsuit was being distributed. There will only be money at stake here if SCOTx disagrees with the appeals court, and I can see why VW and Audi might be skeptical about letting Greg Abbott pick the two replacement justices. One suggestion for how to resolve this is for both sides to agree on a couple of names. I’m thinking maybe put all of the current appellate court justices’ names into a hat and randomly draw two of them. This shouldn’t be that hard to solve. But it’s always cool to see something that hasn’t come up before.

Rough times for oysters

It’s bad for oyster fishers, too. But if there just aren’t enough oysters to support harvesting them, well…

Currently, 25 of the state’s 27 harvesting areas are already closed. The season normally runs from Nov. 1 through April 30, but many of the areas have been closed since mid-December – a move the state says is necessary for future sustainability.

But those in the oyster business worry about the sustainability of their industry and livelihoods — and it’s set up a clash between state officials and oyster harvesters over how the resource should be managed.

[…]

The Gulf Coast region produces 45% of the nation’s $250 million oyster industry, according to NOAA fisheries. In Texas, the industry contributes an estimated $50 million to the state economy.

The Texas Parks & Wildlife Department decides when to close areas for harvesting using a traffic-light system that went into effect in 2015. If samples taken by state biologists come back with too many small oysters or too few oysters in general the agency closes the area.

[…]

Texas oysters have been having a rough decade, enduring hurricanes, flood events, and drought, says Jennifer Pollack with the Harte Research Institute.

“Oyster reefs really just aren’t able to recover from the things that we see happening to them,” Pollack says.

Across the Gulf Coast region, an estimated 50-85% of the original oyster reefs have disappeared, according to a report by the Nature Conservancy. They’ve been hit with hurricanes, flood events, droughts and the BP oil spill.

In Galveston, Hurricane Ike in 2008 was particularly devastating, destroying more than 6,000 acres of oyster habitat there, according to TPWD.

We have all these disturbances that knock the reefs back, we have harvesting that continues, that probably keeps them at maybe a lower abundance level of oysters in the bay,” Pollack says. “They just can never climb back out so they’re a little bit less resilient next time something happens.”

A lot of these conditions – droughts, heavier rainfall – are only expected to be exacerbated by climate change.

Beyond the temporary closures, Texas Parks & Wildlife is also studying the permanent closure of three bays.

Oyster harvesters argue with the methodology that the TPWD uses to determine when bays should be closed, but it feels like we’re just rearranging the deck chairs. If oyster populations are declining like that, we need to take action now to ensure they don’t go away permanently. That’s rough on the people who make their living fishing them, but I don’t know what a better alternative is.

Our still-smoggy skies

We’re being called on the carpet for them.

The Environmental Protection Agency on Wednesday sought to list the Houston and Dallas metro areas as “severe” violators of 2008 federal ozone pollution standards, kicking off a process that will likely impose stricter pollution controls in both regions to reduce local smog.

Ground-level ozone pollution, known as smog, harms human health by constricting lung muscles, making it harder to breathe and exacerbating lung diseases such as asthma. More than 79 million Americans live in areas that do not meet national air quality health standards for smog, according to the EPA.

“Smog pollution is a serious threat to public health,” said EPA Administrator Michael Regan in a Wednesday statement on the proposed rule. “With these proposed determinations, we are fulfilling our duty under the Clean Air Act.”

Ozone pollution results from car and truck emissions, industrial emissions from facilities such as refineries and electric generation plants, as well as from natural sources (trees, for example, emit organic compounds that react with other emissions to form ozone).

The 2008 rule requires metro regions to stay below 75 parts per billion of ozone in the air; the EPA looks at the fourth worst ozone pollution days between 2018 and 2020 to determine the limit was violated. The Dallas-Fort Worth area, a 10-county region, exceeded the threshold at 76 parts per billion, while the eight-county Houston region exceeded it at 79 parts per billion.

Three other metro regions — Denver, Chicago and New York — also failed to meet the standard and would be listed as “severe” violators under the EPA’s proposal.

“It is a big deal,” said Victor Flatt, an environmental law professor at the University of Houston who has studied the Clean Air Act. “Once you change those designations, it requires the state to do more in that locality to reduce pollution.”

In addition, the EPA is seeking to designate the San Antonio region as a “moderate” violator of the more recent 2015 ozone standard of 70 parts per billion, with a measurement of 72 parts per billion.

The new designations in the Dallas and Houston regions would trigger more aggressive pollution control requirements on businesses by requiring the Texas Commission on Environmental Quality to revise its plans to control smog in those regions. The changes could include stricter air pollution permits and requiring businesses to install better pollution control technology, as well as requiring a greater reduction in pollution before an area can approve new additional pollution sources.

A TCEQ spokesperson declined to comment on the EPA’s proposal on Wednesday.

Flatt said he wouldn’t be surprised if Texas sues the EPA to protest the new designations, although winning would be difficult since the EPA’s authority to enforce the ozone requirements is well settled, he said.

“But the attorney general of the state of Texas is running for reelection,” Flatt said. “He plays to a base by opposing EPA or the Biden administration.”

I think there’s a 100% chance that the state files suit over this, and given the debasement of the federal judiciary in recent years I’d be surprised if Kan Paxton can’t find a judge that will give him what he wants. After that, who knows what might happen. In the meantime, maybe we can hope for a bit of voluntary compliance, and maybe we can put some local pressure on the larger offenders. Don’t take anything for granted about this. The San Antonio Report has more.

“The Dead Sea of West Texas”

Not a vacation spot.

Photo from Sergio Chapa on Twitter

About twenty-five miles north of Fort Stockton sits what looks, at first blush, like an oasis amid the West Texas desert. When I recently visited what might be Texas’s newest sizable body of water, its color was a pleasant sea green. A flock of ducks circled in the sky above and landed on the choppy surface.

Yet Lake Boehmer covers more than sixty acres of scrubland with a noxious brew. You wouldn’t want to sate your thirst with its water, which is three times saltier than the ocean, with a sulfate level twenty-five times greater than legally allowed for drinking. Lake Boehmer belches hydrogen sulfide gas, which at low concentrations generates a rotten egg smell and at higher concentrations kills the occasional waterfowl and causes headaches and nausea in humans.

A muddy jetty pokes a couple of dozen feet out into the shallow lake. At its end is a partially submerged cement box around a wellhead. Spouting there is a toxic fountain, a mushroom head of water gushing at two hundred gallons a minute. It first appeared around 2003, though it’s unclear why the water started flowing then, and the lake has been growing ever since. Thanks to bureaucratic buck passing, it shows no sign of stopping.

Lake Boehmer flows from one of several abandoned wells near the tiny community of Imperial. Each of these wells appears to have been drilled in the forties or fifties, when wildcatters were plumbing the area in search of oil. Most of their wells came up dry for petroleum, but produced water of decent quality. Rather than plugging the wells, the oil companies deeded them over to landowners. For a time, they were used to irrigate farms, but most appear to have fallen into disuse in the decades since.

No one is sure who owns the Lake Boehmer well property. Forty different absentee owners have some shares of the various parcels onto which the lake flows, but the Pecos County Appraisal District doesn’t know for sure who owns what. Locals dubbed the body of water Lake Boehmer after a former landowner, Bernard Boehmer. That’s not an official name, but the term has made its way onto Google Maps. The Texas Department of Licensing and Regulation tried in 2005 to track down Bernard Boehmer, but sent a certified letter to an address in “O’Fallow, Missouri.” They likely meant O’Fallon, a St. Louis suburb. There’s no record of whether any other letter was sent, or if it reached him.

[…]

Yet no one has stepped up to plug the well or most of the other abandoned wells in its vicinity. Landowners like Schuyler Wight, a 58-year-old cattle rancher who owns the Santa Rosa ranch across the highway from Lake Boehmer, have been left to go it alone. “The oil company just dumped its liability,” he told me. These wells were drilled 2,600 feet down, much deeper than the typical 200-foot water well. Plugging a well like that is both expensive and tricky.

Wight should know. Earlier this month, he paused an attempt to plug one of these deep wells on his ranch. He spent more than $100,000 and poured at least a thousand sacks of cement into the well, which simply swallowed the cement and kept flowing a couple hundred gallons a minute. Then he ran out of money. “The wells are corroded. They are in very bad shape. There’s collapsed casing, collapsed wellbore, there’s cavities. There’s all kinds of problems,” he said.

Lake Boehmer has been allowed to exist and grow for nearly two decades. The cost of plugging it now is likely far greater than what it would have been in 2003. Makes you wonder what similar problems lie ahead—and who will take responsibility for them—in an aging oil field like the Permian Basin. Neglect is an option, but not a good one.

In addition to the Trib story linked above, a quick Google search found other stories about this ecological hellhole from 2015, 2016, and 2018, plus an interview with this story’s author that followed its publication. (I drafted this in December, so there may be something more recent since then.) The Railroad Commission says it has no jurisdiction, the Texas Water Development Board doesn’t have Lake Bohmer in its database, and for sure no one is ever going to be able to hold those absentee owners or those surely long-gone wildcatter accountable. Hope it doesn’t cause too much more damage in the future, I guess.

Rolling coal

From last week.

A teen who struck six cyclists while allegedly blanketing them in black smoke along a Waller County road faces six felony counts of aggravated assault with a deadly weapon.

“One for each of the people he almost killed with his reckless and violent behavior behind the wheel,” said Rachael Maney, national director for Bike Law Network, which is representing the riders, in a statement.

Waller County District Attorney Elton Mathis presented the case to a grand jury last week, with the recommended charges.

“Earlier today the juvenile voluntarily surrendered himself, and was detained by representatives from the juvenile justice department where he will be held in custody until further orders of the juvenile court,” Mathis said in a statement.

Because the driver was 16, the charges are filed in juvenile court, but could be elevated to adult court. Charging someone under the age of 17 as an adult requires a process that must be certified by a County Court at Law judge. Mathis did not respond when asked whether prosecutors were seeking to elevate the case to adult criminal court.

Rick DeToto, a Houston lawyer hired by the teen’s parents, said because of the “confidentiality laws surrounding juvenile cases, we have no further comment at this time.”

“My client and his family continue to pray for the quick recovery of the injured bikers,” DeToto said.

The six cyclists on a training ride were struck Sept. 25 as they rode with dozens of others along U.S. 290 Business about two miles west of downtown Waller. Four of the injured were taken to area hospitals, two with significant injuries.

“We are happy to report that our clients continue to make advancements, no matter how small, on the long road of physical recovery ahead,” Maney said.

[…]

Maney, speaking for the other lawyers representing the riders, credited local officials for — albeit weeks later — treating the case seriously.

“I believe that … Mathis and special prosecutor Warren Diepraam have done their jobs to deliver what is a real step towards justice given what’s possible and what’s not within the Texas criminal justice system,” Maney wrote. “A system that does not favor people on bikes and generally provides far too much room for police and other prosecutors to endorse the marginalization of cyclists and other vulnerable road users through their historic inaction.”

Many cyclists, including those outside the area as the case drew national attention, heavily criticized local officials for not arresting or charging the teen at the scene and suggested the small-town politics of Waller led to a lax response.

“When law enforcement lets drivers get away with threatening and attacking people on bikes, they send a message that drivers own the road, and that anyone else is merely an obstruction,” said BikeHouston Executive Director Joe Cutrufo.

I don’t have a strong opinion on what an appropriate punishment for a 16-year-old should be in this instance. I’m just of the opinion that he cannot be allowed to get away with it, which it looked like he might at first. This malicious stunt could have easily had a death count with it, and he needs to feel some consequences for that, both for his own good and to serve as a warning to other idiots like him.

I’m willing to wait and see what happens with the criminal justice part of this, since it is at least on track. But there are other issues to consider as well.

Rolling coal is nothing new in truck-loving Texas. Videos of elaborately tricked-out pickups blasting diesel smoke are all over social media. But the recent incidents have raised questions about the practice of tampering with diesel engines.

Just a week or so after the Waller crash, an unidentified driver was seen on a now-deleted viral video rolling coal into a packed Whataburger in Cypress off of U.S. 290 after a high school football game. The person who took the video, Jayson Manzanares of Bridgeland High School, said he often sees drivers in his area rolling coal, but usually at a stoplight and not directed at people.

Local truck aficionados and environmental advocates agree coal rollers are an inexperienced, rogue minority of drivers who give diesel a bad name. But many who don’t roll coal do tamper with their diesel vehicles’ exhaust systems, often disabling the emissions control system or installing aftermarket defeat devices that help cheat emissions tests, as Volkswagen did in its scandal. The practice adds huge amounts of pollutants to the air, according to the Environmental Protection Agency.

Modifying diesel exhaust systems is illegal, but drivers rarely are sanctioned for doing so, or for using diesel smoke to harass or harm pedestrians, bicyclists or other drivers. Until that happens, the practice is unlikely to stop, officials and safety and environmental advocates say.

I mean, this should be a total no-brainer. Put some real penalties into the crime of “rolling coal”, with actual enforcement, and do the same for tampering with diesel exhaust systems. I know we won’t get that with our current Legislature, but put it on the wish list for the future.

Harris County approves its budget

Good priorities.

Judge Lina Hidalgo

Harris County Commissioners Court on Tuesday unanimously approved a $3.3 billion general fund budget that includes new investments in pollution control, public health and attorneys for indigent criminal defendants.

The $64 million in new spending represents a 2 percent increase over the current budget.

Precinct 2 Commissioner Adrian Garcia praised the spending plan, which he said is based on a new model that seeks to fund needs rather than departments, as a more sensible approach to meeting the needs of residents.

“With a metrics-based budget … this is another new day in county government,” Garcia said.

County Judge Lina Hidalgo said the new budget process is more transparent and said the county has made key improvements after events in the past two years, including the 2019 series of chemical fires and ongoing COVID-19 pandemic.

“This budget isn’t perfect, but we’re light years ahead of where we were in terms of ensuring we’re using every dollar wisely to help tear down barriers no individual can take on alone,” Hidalgo said in a statement.

[…]

By streamlining services and spending less on debt service, the new budget includes $132 million in new investments. Those line items include increases for the fire marshal and Pollution Control Services, totaling $1.3 million, to improve the county’s response to chemical incidents, and $5 million to launch a non-law enforcement 911 system to handle incidents including mental health crises.

The budget also includes $18 million for several justice and safety initiatives, including the hiring of visiting judges to help clear a backlog in criminal cases, expanding the Public Defender’s Office and studying racial and ethnic disparities in policing, non-punitive responses to social problems and strategies to prevent violence.

Berry proposed holding back $19 million in reserve to potentially allocate when Commissioners Court does its mid-year budget review in September, and members agreed.

An additional round of federal stimulus aid for local governments would help in the future, Berry’s budget summary states, though the county is not counting on another influx of cash.

Most of the money that the county had to spend on COVID-related expenses has been reimbursed via the CARES act. We’re probably in good enough shape that we don’t need much more from the current COVID relief bill, but I’ll be happy for us to get something anyway. There’s plenty more we can invest in if the funds are there for it.

Since the subject has come up and will no doubt continue to come up, we can discuss how Judge Hidalgo goes about her business and what it might mean for 2022 all we want. What I know is that she’s done excellent work, the county is in solid shape, and we’ve got good priorities. I’ll play that hand in a re-election campaign any day of the week.

A parting gift of pollution

Gee, thanks.

Texas may soon get authority over the disposal of ash from coal-fired power plants, a change that could insulate coal companies from tougher rules expected under a Biden administration.

A proposal introduced by the U.S. Environmental Protection Agency this month would allow Texas to regulate coal ash instead of the federal agency. The move comes just after the EPA this year weakened the Obama-era rule on coal ash pollution amid other rollbacks and rule-making maneuvers cementing the Trump administration’s environmental agenda.

Coal ash is a byproduct of burning coal for power generation. The ash is typically dumped into detention ponds or pits and can leach toxic chemicals, such as arsenic, lead and mercury, into groundwater. All of the coal power plants in Texas have coal ash disposal sites that are leaking contaminants, according to data analyzed by the Environmental Integrity project in 2019.

President-elect Joe Biden’s reported pick to head the EPA, Michael Regan, currently leads North Carolina’s environmental agency and has a record of cracking down on coal ash pollution: In North Carolina, he fought to obtain a huge settlement over an 80 million ton coal ash cleanup by Duke Energy — the largest coal ash contamination cleanup in U.S. history.

But if Texas gets authority to implement the coal ash rules before Biden’s new EPA chief has a chance to strengthen the standards, the program could act as a temporary shield for the industry because the state would need to work through a lengthy process to modify already-issued registrations to coal companies.

“It’s always better for industry if the state has control instead of EPA,” said Abel Russ, a senior attorney for the Environmental Integrity Project who helped draft the organization’s comments on Texas’ coal ash program. “States are typically more favorably inclined to what industry wants. That’s true not just in Texas, but across the country.”

Oklahoma and Georgia are the only two states that currently have approval to operate the EPA’s coal ash program. Texas’ program won’t be effective until at least February, when the public comment period ends.

The Texas Mining and Reclamation Association, an industry group that represents coal and other mining industries in the state, supports the proposal, arguing that state-level environmental regulation is more effective.

“This system is designed to give decision-making authority to a level of government that is closer to the people and recognizes that states are in a better position to address specific problems as they arise,” said Michael Nasi, an Austin lawyer, on behalf of the industry group.

[…]

The EPA must review state programs within three years after any change in federal regulations, and the agency has the authority to withdraw approval if the state program is not as protective as federal requirements. The EPA will retain its authority to inspect coal ash facilities. That’s why Nasi, the Texas Mining and Reclamation Association lawyer, said the industry group’s stance is that coal ash standards in Texas will be as protective as federal rules.

The EPA proposed the Texas program for partial approval this month. Because sections of the federal program were being challenged in court by both industry and environmental groups — including a rule allowing unlined coal ash pits to operate, a proposal overruled in court — Texas did not apply to assume all of the EPA’s oversight authority. That means facilities in Texas would have to comply with some federal and some state requirements if the state’s application is approved.

It’s not clear to me what the full implications of this are, if Texas manages to get approval before any further rule changes are made, and it’s not clear to me if any changes can be made before that approval is given. The Congressional Review Act may come into play here as well. My preference would be for Texas to be under much tougher standards, even though as we know from the Obama experience that’s basically a full employment program for lawyers. On the plus side, coal is on the decline in Texas, so whatever kind of fight this turns into will be over a smaller piece of the action. It would still be nice if Texas is subject to the same kind of standards that the rest of the country is.

Nothing but gray skies ahead

You want a small sign that things are returning to “normal”, here you go.

Houston’s air pollution is returning to normal levels, following a period of cleaner skies during the stay-at-home orders put in place to slow the spread the coronavirus.

As Gov. Greg Abbott moves to reopen Texas’ economy, vehicles are back on the roads and with them come emissions from the burning of gasoline and diesel.

Ozone levels have now surpassed legal limits five times since April 20 after staying unusually low for more than a month. Nitrogen oxide emissions — a key contributor to smog — are back near where they were before the coronavirus shutdowns began, said Daniel Cohan, an environmental engineering professor at Rice University.

“It looks like most of the reduction in nitrogen dioxide over Houston has now faded,” he said. “There appears to be a partial bounce back in travel.”

Hope you enjoyed the breathable air while it lasted.

County files lawsuit over Watson Grinding explosion

As well they should.

Harris County and state officials entered the fray Thursday, bringing civil charges against Watson Grinding and Manufacturing in the explosion that left two dead and damaged 450 structures last week in west Houston.

The county has asked a judge to impose an immediate halt on all activity at the company until the site and surrounding area are deemed safe from fires and explosions. Officials also want a detailed inventory of materials on the premises as well as all air, water and soil samples and studies. The Texas Commission on Environmental Quality is also a party to the suit, as required by law.

[…]

The county lawsuit says Watson violated environmental, regulatory, nuisance and common law following the explosion involving “ultra-hazardous chemicals” Friday at its Gessner facility. It says the company violated the Clean Air Act by exposing the public to unauthorized emissions, imperiling public health, general welfare, physical property, basic air resources and visibility. The county also states Watson created a public nuisance and violated Texas code by failing to report dangerous emissions and through unauthorized outdoor burning and air pollution.

Watson discharged air pollutants into the atmosphere including propylene and byproducts of combustion when a 2,000 gallon tank exploded, the lawsuit says.

“Flying glass and debris injured many residents while they slept,” court documents say. “As a result of the blast, many nearby residents cannot occupy their damaged homes while others now live in damaged structures.”

As of Thursday, the emission event had not been reported to the TCEQ or to Harris County Pollution Control, according to the county.

“Watson’s use of propylene was an ultra-hazardous activity and the company failed to exercise its duty of care to protect the public,” County Attorney Vince Ryan said in a draft of a news release, “particularly when the facility is located in a neighborhood.”

The lawsuit says Watson officials were negligent in failing to maintain equipment and properly store chemicals. Its failure to properly train, supervise and monitor employees endangered lives and damaged property, according to a draft copy.

“Due to the high degree of risk involved it Watson’s conduct, Watson’s actual and subjective constructive awareness of this risk, the fact that Watson had been made aware of the probability and extent of the potential harm that could result from engaging in such conduct on numerous occasions by numerous governmental regulatory authorities, Watson continued to operate in a reckless manner demonstrating a conscious indifference to welfare and safety of others, including employees and residents of Harris County,” the suit says.

The county will seek exemplary damages for gross negligence, according to documents.

See here for the background. Other lawsuits are being filed as well; the more, the merrier, I say. Part of this, as the County Attorney notes, is to ensure that all evidence is preserved. I’m sure we’ll find out that there were even more problems at this place than firsts reported. Harris County has invested more resources in environmental protection, and there may need to be more beyond that. For now, let’s do all we can to figure this one out, and hold the responsible parties accountable for their actions.

Who sues first?

It matters whether Harris County or the state of Texas is first to the courthouse against an industrial polluter.

As chemical plant explosions and fires have disrupted lives and raised air-quality concerns in the Houston area this year, the state and its most populous county have been jockeying to take the lead in penalizing polluters.

The state’s more active role has aroused suspicions among some local officials and environmentalists, who believe state leaders with a record of pro-business actions may be trying to take control to soften the blow of any court rulings against major corporations.

“It’s obvious there’s been an attempt to limit Harris County legal office from pursuing these cases,” said Neil Carman, a former air inspector with the Texas Commission on Environmental Quality who now works with the Sierra Club’s Lone Star chapter.

The legal maneuvering reflects growing public concern about environmental disasters in the Houston area and the ongoing tug of war between the Republican-led state government and officials in major metro areas over the setting of policy.

Who sues first dictates not only where the case will be heard, but also where the money will go if there are civil penalties. If Harris County leads with the state being a party to its lawsuit, the money is split between both parties. But if the state sues without the local government’s involvement, it goes back to the state’s general revenue

County officials say they have to sue to have a role in the process and to make sure companies are held accountable for the damage they cause. State lawmakers say that such suits are redundant and that there needs to be a statewide approach; the Legislature has passed bills restricting local governments in such cases.

“It’s not efficient, and it’s not a good way to function,” said Rock Owens, special assistant Harris County attorney for environmental matters. “If you have an emergency that requires immediate attention, that’s a reason to move quickly. But I just have to move quickly to make sure Harris County keeps a seat at the table, and that’s an unnecessary use of resources.”

In the end, he added, “everybody loses.”

See here and here for some background. There’s no question that the state is doing this to block Harris County from taking stronger action against the big offenders. The track record could not be more clear. Harris County has done pretty well regardless, and if you listened to my interviews with the County Attorney candidates you should feel confident that that will continue, at least until such time as the Lege clips the county’s wings further. We all know what we need to do to keep that from happening.

The state of the county 2019

Harris County Judge Lina Hidalgo has a lot of accomplishments to tout.

Judge Lina Hidalgo

Harris County in the past year has made significant progress on flood control, criminal justice and improving public health, County Judge Lina Hidalgo said in her first State of the County address Friday.

The county executive also announced her administration would make significant investments in early childhood development in the coming year.

Hidalgo said the Houston area continues to enjoy a bustling economy and low unemployment, but said business and government leaders must not be complacent.

“To a veteran coming home ill-prepared for the 21st century job market, a low unemployment rate doesn’t mean much,” Hidalgo said at the annual luncheon, held this year at the Hilton Americas-Houston Hotel downtown. “To a family who struggles, a great medical center can’t help them if they don’t have health insurance.”

[…]

She lauded a historic settlement to reform the county’s bail system for misdemeanor defendants, which a federal judge had declared unconstitutional. Hidalgo thanked Commissioner Rodney Ellis, who has long been an advocate on criminal justice issues.

She noted that in response to a series of chemical fires in east Harris County, Commissioners Court significantly increased the size of the pollution control and fire marshal’s offices, as well as purchased new air monitors.

“We’ve established the most robust environmental policy that Harris County has seen in at least 30 years,” Hidalgo said.

Hidalgo thanked the county’s flood control district and engineering department for speeding up work on the $2.5 billion flood infrastructure program and fast-tracking drainage projects in 105 subdivisions.

She also said her office has made county government more transparent by holding a series of town halls, developing a 311 call system and making a greater effort to include the public at more open, albeit lengthy, Commissioners Court meetings. Hidalgo said to date, four times as many residents have participated than last year.

You can see a copy of Judge Hidalgo’s prepared remarks here. I like the way she addressed the “concerns” some people had about her age, noting that the legendary Judge Roy Hofheinz was three years younger than she was when he was first elected. I think she has a lot to be proud of, and there’s clearly a lot more she has in mind to do. I’m looking forward to it. The Texas Signal has more.

Commissioners Court gets more aggressive on environmental enforcement

Good.

Commissioners Court on Tuesday voted to hire 61 employees across three departments in a bid to significantly boost Harris County’s ability to respond to environmental emergencies after finding numerous shortcomings in its efforts to manage three chemical fires near the Houston Ship Channel this spring.

The $11.6 million investment will go toward purchasing new equipment and add employees to the fire marshal’s office, pollution control and public health departments. It is the most aggressive effort yet by the new Democrat-controlled court, which took office in January, to grow the emergency response infrastructure in the county, home to the heart of the nation’s petrochemical industry.

A Houston Chronicle investigation found that the staffing levels of the three departments have for decades failed to keep pace with the growth of commercial activity along the Houston Ship Channel. Previous Commissioners Courts had not acted with the same sense of urgency after chemical incidents; the county never replaced the Pollution Control employees laid off during the Great Recession. Instead, court members prided themselves on finishing fiscal years with a large fund balance.

“All these resources we’re bringing to the table, after a careful analysis … will help us be in a much better position in the future,” said Commissioner Adrian Garcia, whose Precinct 2 included the sites of each of the chemical fires in March and April.

Harris County Judge Lina Hidalgo hailed the budget increases as the most significant investment in environmental protection the county has made in 30 years. Hidalgo said she was pleased the new monitors, for example, will allow the county to test air quality on a regular basis, in addition to during emergencies.

A report on the blaze at Intercontinental Terminals Co. released on July 29 concluded the county needed more equipment and manpower to monitor pollution and keep the public informed about safety risks. The 133-page “gap analysis” made a total of 49 recommendations.

Two days later, a fire at an Exxon plant in Baytown injured 37 workers.

[…]

Court members unanimously approved the budget increases for Pollution Control and the fire marshal’s office. Precinct 3 Commissioner Steve Radack was the lone opponent to increasing the size of the health department.

See here and here for the background. I’m glad most of the votes were unanimous – I mean, I don’t even know what the counter arguments are for this – but it’s still the leadership of the new Court that made this possible. Going forward let’s be more proactive so there will (one hopes) be less to have to react to.

Injunction ordered in Skull Creek lawsuit

Hope this helps.

Three months after the waters of Skull Creek first turned black, a Travis County state district judge issued a temporary injunction Tuesday against Inland Environmental and Remediation and David Polston, its president, requiring the company to stop accepting waste and halt any further polluting of the creek.

The injunction prevents Polston from storing or processing any waste at the company’s site near Altair, just south of Columbus, in a manner that “causes, suffers, or allows discharge into or adjacent to waters” in the state. The agreement – reached between the Texas attorney general’s office, the Lower Colorado River Authority and Polston’s lawyers – also requires the defendants to “abate and contain all spills and discharges at the site” and start removing and properly disposing of waste.

Inland processes oil and gas drilling waste and turns it manufactured products like road base, according to its website. Its site is adjacent to Skull Creek, which flows for more than 10 miles before emptying into the Colorado River, which ultimately flows into Matagorda Bay, a popular fishing and boating spot on Texas’ Gulf Coast.

Under the injunction, every Monday Polston is required to submit progress reports to the Texas Commission on Environmental Quality, the LCRA and the attorney general’s office detailing the actions Inland has taken to comply with the injunction’s stipulations. They include assessing the extent of the contamination, removing road base material along the creek and creating a detailed inventory and a map of all waste at the site.

“I hope I have not left any doubt in your mind as to how serious I am taking this – the court is taking it,” Judge Dustin Howell told lawyers on Tuesday. “Certainly, having heard the day of evidence that I heard yesterday, it’s obvious that there is something that needs to be addressed here.”

See here for the background. This is just an injunction pending the outcome of the lawsuit, for which the court set a January 2020 date to proceed. Be sure to check out the Colorado County Citizen for ongoing coverage of this issue.

What’s going on in Skull Creek?

Here’s a story from a couple of weeks ago that you may have missed. I know I missed it until it was pointed out to me.

For more than two months, the waters of Skull Creek have flowed black, its surface covered in an iridescent sheen. Yellowed fish skeletons line the pebbled banks of the Colorado River tributary, and a dizzying chemical odor hangs in the air.

The odor is so strong that Julie Schmidt says she can smell it inside her house.

She and her husband bought 10 acres along the creek in December with visions of an idyllic country upbringing for their children, ages 10 and 2. Now, she isn’t sure they should play outside.

“Last summer, you could go into the creek behind the house and it was crystal clear. You could play in it, you could fish,” said Schmidt, who moved from nearby Garwood and has lived in Colorado County her entire life. “Now you don’t want to touch it. You pick up a rock, turn it upside down, and it’s completely black.”

Locals and elected officials in this small southeast Texas community near the intersection of Interstate 10 and Texas 71 say the source of the problem is obvious: an oil and gas waste recycling facility near the creek that is owned by Columbus-based Inland Environmental and Remediation. Although Inland has denied wrongdoing, the Texas attorney general sued the company Friday — 10 weeks after citizens first began complaining — alleging the company illegally discharged industrial waste into the creek and stored that waste without a permit.

On Friday, a state district court in Travis County granted a temporary restraining order against the company and its president, David Polston, saying he must “cease and prevent all discharges of waste” from the site into state waters.

The state’s lawsuit seeks monetary damages of up to $1 million.

The Texas Railroad Commission ordered the facility to stop storing oil and gas waste in 2017 as a result of a bankruptcy court reorganization. (The permit was held by Boundary Ventures, a company at the same location that lists Polston as its president and director.)

Records obtained by The Texas Tribune show that the Texas Commission on Environmental Quality dispatched inspectors to the facility Feb. 10 — the same day that Colorado County Judge Ty Prause says he made a formal complaint — and hand delivered a letter two days later demanding that Polston take immediate action to halt the discharge of waste into the creek. The letter described conditions at the facility as an “imminent threat and substantial endangerment to human health and/or the environment.”

But Prause, the county’s chief executive, said the agency left him and other officials in the dark for weeks about the origins of the pungent substance and what guidance he should give to his constituents to protect themselves.

“It’s hard to imagine that the state agencies in charge of protecting our environment and natural resources in Texas would not act quicker to tell people that live on this creek whether there’s a threat to their health or their livestock,” said Prause, who oversees emergency response for the county.

I encourage you to read the rest. Most of the coverage of this story has come from the Colorado County Citizen, with reporting by my friend and former blogging colleague Vince Leibowitz, who was the one to alert me to all this. Their first story, about the appearance of the black water and dead fish, is here, datelined February 15. The litigation referred to in the Trib story is ongoing, and I hope it will help uncover the truth about what happened, and hold the parties responsible for it to account. As Leibowitz wrote in an editorial, the “alphabet soup” of state agencies that have authority here have not been doing a good job, with the exception for the most part of the Railroad Commission. I don’t know what it’s going to take to figure out and clean up a big toxic waste spill like this, but we sure need to get on it.

Another view of pollution enforcement

The state has its role, but it’s not all on them.

Almost two months before a massive chemical fire erupted in Deer Park, sending a dark plume of smoke over much of Harris County, Precinct 2 Commissioner Adrian Garcia asked the head of the county’s Pollution Control Services Department what additional resources he needed.

County officials were nearing the end of a third day of annual budget hearings and Garcia was concerned the department lacked the manpower and equipment to properly monitor air quality in his eastern precinct, let alone the entire county.

So, he asked Director Bob Allen for a wish list.

“Nobody’s ever asked me that before,” Allen replied at the Jan. 11 hearing in the Commissioners Court chambers. He said the department could use additional air monitors — especially mobile ones — and noted Pollution Control had fewer employees than in the 1990s.

Garcia last week said he was struck by Allen’s “deer-in-the-headlights look.” He wondered why previous Commissioners Courts had not pressed Allen for more details, and why he appeared unprepared to outline an ambitious vision for Pollution Control.

In the end, the court in February approved a 28 percent budget increase for the small department, giving Allen an additional $1.2 million. The department inspects facilities and enforces state and local air, water, solid waste and storm water regulations.

The investment made little difference four weeks later when a storage tank farm at Intercontinental Terminals Co. ignited on March 17, burned for more than 60 hours and sent Harris County emergency responders scrambling to monitor pollution and keep the public informed of dangers.

The ITC fire, followed by a fatal explosion and blaze at the KMCO plant in Crosby two weeks later, tested the capabilities of several county departments and spurred the longest activation of the emergency operations center since Hurricane Harvey.

County leaders said Pollution Control, however, was uniquely unprepared for the fires. Department staff were unable to quickly test air quality and report results to the public, forcing the county to hire outside consultants and design a website from scratch. Garcia said he lost faith in Allen’s leadership.

Unlike the city of Houston and federal Environmental Protection Agency, Harris County had no mobile air monitoring vehicle especially useful in emergencies. Five of the county’s 12 ozone monitors were broken, and Pollution Control’s fast-response team consisted of four members.

“We do not have the staff to sustain a response to the scale of ITC,” said Craig Hill, field manager for Pollution Control. He estimated the conflagration — which required the assistance of Louisiana firefighters to extinguish — was the largest the department had ever encountered.

The ITC fire was the first major emergency for Harris County Judge Lina Hidalgo, who said the incident exposed significant gaps in the county’s capabilities. Hidalgo said residents shared concerns about daily air pollution, let alone from chemical fires, at a February town hall in Pasadena. She said county government in the past has taken a too-lax approach to potential disasters at industrial sites along the Houston Ship Channel.

“We’re not just going to hope that this doesn’t happen again,” she said. “We’re going to do a thorough analysis and share the results, and do that quickly.”

There’s a lot more, so go read the rest. Here’s that website that the county got set up to track air quality results, in case you’re curious. It’s amazing, and in many ways quite telling, that none of this capability had existed before. We’re pretty good on disaster preparedness when the disaster is a weather event, which we can usually see coming. The man-made kind of disaster, which let’s be honest should be at least as predictable given what we do in this county and the lax enforcement around it, we’re caught flat-footed. I for one am very glad to see that’s no longer the case.

County brings charges related to ITC fire

Bring it on.

Kim Ogg

Responding to what it called “criminal levels” of contamination, the Harris County District Attorney’s office said Monday that it has charged Intercontinental Terminals Company with five misdemeanor counts of water pollution arising from a March plant fire that sent toxic chemicals into nearby waterways and a thick plume of smoke over the Houston area for days.

“The discharge from the ITC fire into Tucker Bayou is a clear water pollution case,” said Alex Forrest, the environmental crimes division chief for the DA’s office, in a written statement. “We are looking forward to reviewing the reports of other local and federal agencies, as they complete their investigations, so that we can determine if other charges will follow.”

The charges are the most recent example of District Attorney Kim Ogg’s more aggressive approach toward chemical companies in the aftermath of environmental disasters that have outraged the public and drawn national attention.

“This is the beginning of our review, not the end,” said Dane Schiller, a spokesman for the DA’s office.

According to the DA’s Office, water pollution in Tucker Bayou was at “criminal levels” from March 17 through March 21. Prosecutors filed one count for each of the five days the company allegedly violated the law at its Deer Park plant. Each charge carries a fine of up to $100,000.

“People living in Deer Park and the other neighboring residential areas near ITC’s plant deserve protection,” Ogg said. “When public health is at risk, it’s a public safety concern.”

An attorney for ITC, which stores petrochemicals for companies including Chevron, Philips 66 and Exxon, defended its efforts.

“Although we have not seen the charges, there is no question that there was a large fire and an enormous effort to extinguish it which resulted in a discharge into Tucker Bayou,” said Michael Goldberg, an attorney for ITC, in a written statement.

[…]

Monday’s court action against ITC marks the second time Ogg has pursued criminal charges against Houston-area companies in high-profile pollution cases. After a chemical fire during Hurricane Harvey in 2017, Ogg brought a criminal case against the chemical company Arkema and two of its executives for the “reckless” release of an air contaminant.

Investigators found that the company’s emergency plan provided little direction to employees on how to handle major floods, and as a result, it couldn’t keep combustible organic peroxides cool, according to federal documents. Over the next week, nine trailers of organic peroxides erupted in flames, sending pillars of fire and thick plumes of black smoke into the air.

Prosecutors recently charged the company and a third executive with reckless assault, citing injuries sustained by two deputies who responded to the scene based on the company’s assurances. Company officials have defended their actions in both suits and accused Ogg’s office of prosecutorial overreach.

See here for more about the Arkema indictments, which as far as I know have not progressed past that stage yet. These charges came right after Kim Ogg requested more environmental prosecutors. I don’t know if the one has to do with the other, but either way I expect that division to be busy. It’s one thing to file charges, it’s another to get convictions, and still another for those convictions to withstand appeal. We’ll keep an eye on these.

Prosecuting polluters

It really shouldn’t have to come to this, but here we are.

Kim Ogg

The Harris County District Attorney’s office is calling for a tripling of the number of prosecutors dedicated to environmental crimes in the wake of a series of chemical plant fires that has raised public health concerns.

In a letter Thursday to the county judge and commissioners court, Vivian King, the chief of staff of the district attorney’s office, requested $850,000 to fund eight new positions: four prosecutors two investigators and two paralegals. The county currently has two prosecutors and one administrative assistant devoted to environmental crimes. The request is scheduled to come before the commissioners court on Tuesday.

On March 17, an Intercontinental Terminals Co. tank farm in Deer Park caught fire and burned for several days, closing the Houston Ship Channel and drawing national attention. No injuries were reported. A couple of weeks later, one person was killed and two others were critically injured when the KMCO chemical plant in Crosby caught fire. A fire also broke out at Exxon Mobil’s Baytown refinery in mid-March but was contained hours later. The investigations are ongoing.

“With Arkema and ITC and all of the alleged criminal acts intentionally polluting our waters supply with cancer agents, we don’t have the staff to investigate and work on these cases,” King said during an interview.

The DA’s environmental crimes division handles 400 to 500 cases a year, the bulk of which are related to illegal dumping and water pollution perpetrated by smaller companies or individuals — not the big corporations, King said.

[…]

Traditionally the county has not criminally prosecuted the large petrochemical industry, King said.

She stressed that the DA’s office welcomes an industry that’s a major source of employment and an important contributor to the area’s economy.

“However,” she added, “as public servants we get a lot of complaints about the very few companies that commit criminal acts by intentionally not following laws and regulations governing hazardous waste and chemical emissions and putting cancer agents in our water supply and the air we breath.”

And they currently don’t have the staff to handle it all, even less so to take on the big cases. A private attorney is working pro bono on a case involving Arkema.

Let’s be clear, it would be best if most of this work were done by the TCEQ. If they were an agency that took their mandate seriously – and, let’s be clear again, if the mandate they were given by the state were more serious – they would be in position to reduce the risk of catastrophes like these. Better enforcement up front is always the better way to go. In the absence of that, and with constraints on civil action, what other option is there for the most egregious offenders? If and when the state does its job, entities like the Harris County DA will be able to back off. This request was part of the larger ask for more prosecutors that was rejected in February. It was unanimously approved by Commissioners Court yesterday, so that’s good. I suspect there will be no shortage of work for this team.

Using floodplain rules to force environmental safety compliance

A county’s gotta do what a county’s gotta do.

Harris County officials are using flood control regulations passed after Hurricane Harvey to delay the reopening of two chemical companies where fires erupted in recent weeks, killing one worker and sending large plumes of black smoke into the Houston area.

The Harris County Attorney’s office cited the post-Harvey rules on floodplain construction and stormwater drainage in its civil lawsuits against KMCO and Intercontinental Terminals Co., where cleanup is still ongoing after the fires.

“We don’t shy away from going after the biggest, baddest companies out there,” said Harris County Attorney Vince Ryan. “It sends a message to everyone.”

The county is digging through maps and available data to determine if both companies are in a floodplain. The new regulations put chemical facilities that are in a 500-year floodplain under tighter scrutiny.

The drainage rules restrict discharges of hazardous materials into the county’s stormwater system. If a company is found to have discharged hazardous materials, it can be cited by the county. Larger releases could lead to additional legal action.

The floodplain rules apply to more than facilities with fires and toxic releases and can force companies to meet new requirements when seeking to expand or change an existing facility, said Rock Owens, managing attorney for the Harris County Attorney’s environmental section.

The story doesn’t go into detail about what compliance issues there are and how long they may take to resolve. You may be thinking “why doesn’t the county file a lawsuit against these companies to force them to fix their problems?” The answer is that this used to be how things went, but your Texas legislature has taken steps to shackle counties and their enforcement efforts.

But in 2015, the state Legislature started taking away authority from the local governments. Lawmakers approved a bill capping the amount of money a local government could receive from civil penalties sought in environmental cases.

In 2017, another bill passed forcing local authorities to ask permission from the Texas attorney general before seeking penalties. If the attorney general’s office does not file its own suit in 90 days, the local government can go forward with a civil suit.

Lawmakers are currently considering two bills that would restrict local governments even more.

House Bill 3981, filed by state Rep. Jeff Leach, R-Plano, would give the attorney general the authority to settle lawsuits started by the county, without the approval of the county.

House bill 2826, filed by state Rep. Greg Bonnen, R-Friendswood and three others, would let the attorney general prohibit the county from hiring outside attorneys on cases.

“The concern isn’t that the local governments are intentionally causing any problems with these suits, just that a more efficient state-led effort may at times be more desirable,” said Justin Till, Bonnen’s chief of staff.

More desirable for the polluters, that’s for sure. Let’s be very clear, the main reason why bills like these get passed are specifically to muzzle Harris County’s enforcement efforts. (The city of Houston’s efforts were killed by the Supreme Court.) It’s a pollution-friendly Republican Legislature taking care of bad actors, aided and abetted by the business lobby. You know what I’m going to say next: Nothing will change until we change who we elect.

Explode, rinse, repeat

Here we go again.

A massive explosion at a chemical plant in northeast Harris County on Tuesday killed one person and sent two others to the hospital in critical condition, sparking a blaze that sent yet another plume of dark smoke into the sky and forcing residents to temporarily shelter in place.

The fire, ignited by a flammable gas called isobutylene at the KMCO chemical processing plant in Crosby, marked the third time in 17 days that a smoggy cloud of smoke emanated from a Houston-area chemical facility.

It is the first chemical fatality at a Houston-area plant since 2016, when a worker died in an incident at PeroxyChem in Pasadena. In 2014, four workers died at a DuPont plant in La Porte.

Responders extinguished the KMCO fire late Tuesday afternoon, while on-scene investigators with the Harris County Fire Marshal’s Office began conducting interviews to determine where the fire started and what caused the gas to ignite.

“There’s a lot of hot metal in there,” said Rachel Moreno, a fire marshal spokeswoman. “Until it’s safe for our guys to go in, they’ll continue doing interviews of everybody that was at work.”

The response will stretch Harris County’s resources, Moreno said, as the fire marshal’s office begins its second major investigation in less than three weeks. The site of an even larger conflagration at Intercontinental Terminals Co. in Deer Park less than 15 miles away on March 17 remains too unsafe for investigators to visit.

[…]

KMCO, a subsidiary of an Austin private investment firm, produces coolant and brake fluid products for the automotive industry, as well as chemicals for the oil field industry. Its facility, which has a history of environmental and workplace safety issues, sits about 13 miles away from the ITC plant, where Harris County officials continued to detect carcinogenic benzene this week.

The KMCO plant is less than three miles from the Arkema facility where a series of explosions spewed chemicals and sickened residents after Hurricane Harvey in 2017.

Let’s talk about that history, shall we?

“As long as I’ve been doing environmental work for Harris County, I’ve been involved in case with this company, either with the previous owner or the current owner,” said Rock Owens, managing attorney for the Harris County Attorney’s environmental section. “And I’ve been doing this for close to 30 years. This company has been around forever causing trouble.”

[…]

On Christmas Eve 2010, a runaway reaction sent three employees at the plant to the hospital. Workers there couldn’t lower the pressure in a reactor and, as they tried to fix a clogged line, they accidentally mixed a caustic solution with maleic anhydride, a normally stable chemical. The result was an explosion and fire. An explosion in 2011 sent two more workers to a hospital.

[…]

Since 2009, KMCO has paid out more than $4 million in fines or criminal penalties to local and federal regulators.

In 2017, the company pleaded guilty to criminal violations of the Clean Air Act filed by the Environmental Protection Agency and was ordered to pay $3.5 million. The violations were in connection to an explosion at its Port Arthur facility and air emissions at the Crosby plant.

The Occupational Safety and Health Administration has issued dozens of violations to KMCO since 2010 and fined the company about $250,000.

The facility is currently not compliant with the federal Clean Water Act. KMCO was in violation of the act for seven of the last 12 quarters, records show. It violated the Clean Air Act three times in the last 12 quarters. EPA data shows the facility also violated the Resource Conservation and Recovery Act in February 2018. That law regulates how facilities handle hazardous and non-hazardous solid waste.

[…]

Harris County first sued KMCO in 1987. The company was ordered to pay $49,750 for violations of the Texas Water Code.

The county sued the KMCO plant in 2008 for spills and fumes that gave neighbors headaches. The lawsuit ended in 2009 with a permanent injunction requiring KMCO to pay $100,000 in civil penalties and to give investigators easy access to the facility and prompt notification of releases.

The county sued again in 2013; that case is still ongoing. Owens said the county attorney’s office is still deciding whether to add Tuesday’s incident to the existing case or bring a separate case against the company.

“While there’s been actions before, it hasn’t been sufficient,” said Luke Metzger, executive director of Environment Texas, an environmental advocacy group. “We should, in the 21st century, be able to prevent these kinds of things from happening.”

A Houston Chronicle report from 2016 found that there’s a major chemical incident every six weeks in the greater Houston area.

You’d really like to think that we could prevent this kind of thing from happening, wouldn’t you?

Sunday, this editorial board demanded that state officials hold polluters accountable — and not just after a disaster.

We didn’t expect to be repeating ourselves so soon.

But this is what happens in a state where environmental regulators are toothless tigers. Where the TCEQ trusts polluters to police themselves — in part out of necessity, since lawmakers don’t adequately fund the agency. Where violators avoid sanctions and routinely endanger Texans’ health without our knowledge. Where Gov. Greg Abbott and Attorney General Ken Paxton talk tough, maybe even file a lawsuit after an incident makes headlines, but look the other way when the smoke clears.

At this rate, the smoke will never really clear. There will be another fire. And another.

Another round of parents fearing for their children’s safety. Another community fearing the effects of chemicals and pollutants they can’t pronounce. Another black eye to Houston’s already bad reputation as a place where one shouldn’t breathe too deeply, a place where profits outweigh concern for public health.

As we’ve pointed out, Texas facilities in 2017 reported releasing more than 63 million pounds of unauthorized air pollution — including chemicals linked to cancer, heart attacks and respiratory problems, according to a report by Environment Texas. But, in the past seven years, TCEQ issued fines in less than 3 percent of such events.

“These repeated, disastrous fires and explosions can no longer be called isolated incidents,” Luke Metzger, director of Environment Texas, told the editorial board Tuesday. “The Texas petrochemical industry has a serious, chronic problem, and Texas workers and citizens are paying the price. How many people have to die, get hurt, get cancer or suffer respiratory failure before the state takes this seriously and overhauls our broken system of oversight?”

Texans, these are questions for Abbott and our other state leaders. It’s up to us to demand the answers.

The only way to get the answers you need is to vote for those who will give them to you, and against those who won’t. If the choices aren’t clear by now, I don’t know what to tell you.

Harris County sues ITC over Deer Park fire

Go get ’em.

Harris County has sued Intercontinental Terminals Co. for failing to prevent a massive chemical fire that burned for more than 60 hours last week and spewed an unknown volume of hazardous chemicals into the air and nearby waterways.

The county is seeking a temporary injunction and restraining order against the company, alleging that it violated the Texas Clean Air Act and the Texas Solid Waste Disposal Act, among other rules.

The lawsuit accuses ITC of violating the state’s water code, health and safety code and administrative code on multiple days, by “causing suffering or allowing the discharge of at least one air contaminant without a permit and in such concentration and or such duration as to be injurious to human health, welfare or property, or as to interfere with the normal use and enjoyment of property.”

[…]

First Assistant County Attorney Robert Soard said his office will hire an in-house auditor to review ITC’s actions during and after the fire.

Soard also said Harris County will demand ITC cover the cost of the government’s response, which included frequent air and water monitoring, mobile clinics sponsored by the health department and an ongoing activation of the county’s Office of Emergency Management.

You can see a copy of the lawsuit here in the updated version of the story. I hope the county collects on every last penny. These guys need to be held accountable for their failures. Yes, I know, there is a state lawsuit as well, but this is about reimbursing Harris County, in the same way that your insurance company collects from the other guy’s insurance company when the other driver is found to be at fault in your fender-bender. If ITC doesn’t like it, they can do a better job of fire prevention in the future.

Meanwhile, on a semi-related note:

Harris County Judge Lina Hidalgo has been holding continuous press conferences on the Intercontinental Terminals Co. fire in Deer Park, delivering updates in both English and Spanish.

Despite the effort to communicate with Hispanic viewers, one area commissioner publicly criticized her use of Spanish during a recent press conference.

“She is a joke,” Chambers County Precinct 2 Commissioner Mark Tice said in a comment under a live feed of a press conference Monday afternoon. “English this is not Mexico.”

Tice admitted to making the comment Tuesday afternoon during a phone interview with Chron.com. He also doubled down on the message.

You know the old bit about how every New Yorker cartoon could be captioned “Christ, what an asshole!”? Well, as of today, anything Mark Tice says can be responded to by saying “Christ, what an asshole!” as well.

UPDATE: Tice has apologized following some blowback. My assessment of him has not changed.

State sues over Deer Park fire

Too big to ignore.

Late Friday, the state of Texas sued Intercontinental Terminals — the Houston-based company whose petrochemical storage facility in the suburb of Deer Park caught fire last weekend and burned for days, sending a dramatic plume of black smoke over the nation’s fourth-largest city.

The lawsuit, filed in state district court on behalf of the Texas Commission on Environmental Quality, alleges that air pollution released during the fire is a violation of the Texas Clean Air Act.

It seeks a permanent injunction and civil penalties that “could exceed $100,000.”

“The state of Texas works hard to maintain good air quality and will hold ITC accountable for the damage it has done to our environment,” Texas Attorney General Ken Paxton said in a statement. “ITC has a history of environmental violations, and this latest incident is especially disturbing and frightening. No company can be allowed to disrupt lives and put public health and safety at risk.”

Were you able to read that statement with a straight face? Then read this.

The TCEQ, the agency responsible for protecting the state’s environment and public health, has been criticized for letting large corporate polluters off with a slap on the wrist. An analysis of its enforcement record by an environmental nonprofit found that the agency imposed penalties on violators in just 3 percent of cases. ITC appears to have benefitted from the lax enforcement. In 2016, for instance, the company released more than 1,500 pounds of benzene — a carcinogenic chemical — for over five days and failed to notify the state agency within the mandated 24-hour deadline. The fine: roughly $4,000.

I’m just saying. Maybe some day when there aren’t new fires breaking out every time an old fire gets put out, we can get to the bottom of what happened here. And then sue these assholes out of existence. More broadly, maybe we can demand that our state take enforcement of environmental regulations seriously. If they had done so before, maybe we wouldn’t be in this position now. The Chron has more.

What’s wrong with the I-45 expansion plan?

Urban planner Jeff Speck, in a recent lecture in Houston, lays out the following problems with the planned I-45 expansion:

The brief list of negatives include:

I-45 will wreck your bayou parks.
I-45 will destroy wildlife habitat.
I-45 will make flooding worse.
I-45will impede neighborhood connectivity and access.
I-45 will reduce city revenues.
I-45’s bike facilities are a cruel joke.
I-45’s caps are not likely to succeed.
I-45 is so much money.

Other than that, though, I’m sure it’s fine. Chron writer Allyn West digs a little deeper into that last point.

In 2012, Houstonians were asked to vote on a $166 million proposition to pay for 150 miles of greenways along our bayous. In 2018, Harris County residents were asked to vote on a $2.5 billion proposition to pay for hundreds of projects that would help the entire region with flood control. This year, Metro says it will ask us to vote on a $3 billion proposition to pay for 20 miles of light rail extensions, 75 miles of bus rapid transit and other “systemwide improvements.”

The Texas Department of Transportation, too, is planning to spend $7 billion (and maybe more than that) to rebuild about 24 miles of freeways. The project will reshape roads between Midtown and Beltway 8, some of the most congested stretches in Texas, by merging Interstate 45 with Interstate 69 and rerouting them together northwest around downtown. Unlike with those greenways, flood projects or transit plans, TxDOT never had to ask permission from voters.

Because TxDOT doesn’t have to do that, its massive projects often ignore the reality of people on the ground — the thousands of Houstonians whose neighborhoods will be impacted both directly and indirectly as a result of the I-45 expansion.

“There has never been the same (political) pressure for specificity for highway projects,” Kyle Shelton, the transportation historian and the director of strategic partnerships at Rice University’s Kinder Institute for Urban Research, told me. Unlike transit, for example, freeways have historically been viewed and funded as a “public good.”

It should be noted that the city, the county, and Metro were and will be asking voters to authorize borrowing the money needed for those projects. Had they been funded out of their operating budgets, no vote would have been needed. The point West is making is that this makes the politics of these projects very different. TxDOT starts out with the assumption that it can do whatever it wants, as long as it goes through the regulatory approval process. TxDOT is required to solicit public feedback, and they do incorporate that into their designs, but it’s a lot harder to drum up public opposition and basically impossible to kill whatever it is they’re working on. That’s the nature of the system. It’s worth pausing for a moment and thinking about how the system might be different if, say, TxDOT and Metro – and we may as well throw in HCTRA and the other toll road authorities around the state – had identical hurdles to clear in order to build anything. I don’t know what that might look like, but it’s fair to say it would be different.

In the meantime, the final environmental impact statement for the I-45 project is now available on the project website. You have one last chance to give your feedback to TxDOT on it, so get moving before the 17th of March. Speck’s video will be available on the Kinder Institute YouTube channel, so go watch it when you can.

The recycling recession

Not good.

ScruggsImage3_ThreeWasteBins

A joint report by the trade groups American Chemistry Council and Association of Plastic Recyclers estimated that plastic bottle recycling decreased 3.6 percent last year, dipping to 2.8 billion pounds in 2017. The decrease is partially due to containers becoming lighter weight, but also because the rate of bottle recycling hasn’t grown significantly in recent years.

In “an exceedingly difficult year for plastic bottle recycling,” the report said, about 29.3 percent of plastic bottles were recycled in 2017, down about a half percentage point from a year earlier. Over the past five years, the rate of plastic bottle recycling has remained essentially flat.

“Americans are continuing to recycle and recycling behavior continues to grow, however there is also more material continuing to go into waste stream and plastics are growing,” said Steve Russell, vice president of the plastics division of American Chemistry Council, which represents chemical and plastic makers.

The report is here. A big part of the problem is China scaling way back on the recyclable materials it accepts, which has created an oversupply problem even as the recycling rate has stagnated. There needs to be more capacity for recycling in the US to deal with this. Getting people to do recycling properly – basic things like not throwing trash in recycling bins, for example – would also help. It’s a big deal, because there’s already way too much plastic waste in the environment, and that has all kinds of bad effects. We need to figure this out.

Distributing the VW settlement money

Good for some, less good for others.

Texas cities will soon get millions of dollars to help clean up air quality, but Houston officials say the plan for distributing all that money isn’t fair.

The money is coming from a settlement in the Volkswagen (VW) emissions cheating scandal. Local governments will be able to use the money to reduce emissions from their vehicles and other equipment.

The Texas Commission on Environmental Quality (TCEQ) plans to give the biggest chunk of the money – more than $73 million – to the San Antonio area, mainly because that city is closer than others to getting in line with federal pollution rules it’s currently violating.

Under the state’s plan, the Houston area, which has worse air quality, would get about $27 million.

The City of Houston says about a quarter of the cheating VW cars that were in Texas were driving in the Houston region.

“So we deserve at least a quarter of those funds, because we’re the ones that were harmed,” said Kris Banks, a government relations assistant with Houston Mayor Sylvester Turner’s office.

See here, here, and here for some background. Mayor Turner expressed his disenchantment with the amount allocated to Houston in a press release; you can see all of the city’s documentation on the matter here. The full TCEQ plan for the VW Environmental Mitigation Trust is here, or you can save yourself some time and read the Texas Vox summary of it. The TCEQ is still accepting feedback on the draft plan through October 8, so send them an email at [email protected] if you have comments. The Rivard Report has more.

What’s a little toxic waste among friends?

No big deal, right?

On the plus side…

The criteria Texas uses to determine how much — and whether — to clean up abandoned industrial facilities, waste dumps and other polluted sites are so lax that they may allow residential homes to be built in areas that neighboring states wouldn’t even consider safe for factories or oil refineries.

That’s according to a report by the Texas Campaign for the Environment Fund set to be released on Tuesday that compares benchmarks for more than 80 different pollutants that Texas, Arkansas, Louisiana, New Mexico, Mississippi and Oklahoma use to determine whether a site is contaminated enough to warrant cleanup and how much pollution should be removed from the soil or water there before it can be re-developed.

The overarching conclusion of the report: Texas’ formulas are “substantially weaker” than those used by almost every nearby state, in part because it tolerates a greater risk of cancer. That means that some polluted Texas sites that would be eligible for cleanup in other states may not be eligible here — and if the state does decide to clean them up, it may not remove as much pollution as its neighbors.

While some neighboring states — namely Arkansas and Oklahoma — rely on federal criteria, Texas uses its own benchmarks. Overall, they are so weak that Texas allows “pollution concentrations on land designated for residential uses that Louisiana, Arkansas, Oklahoma, and Mississippi wouldn’t even restrict to industrial uses,” the report found.

For example, Texas’ cleanup rules say that the ground at residential properties should contain no more than 69 milligrams of the carcinogenic petrochemical benzene for every 1 kilogram of soil; Louisiana, meanwhile, only allows 3.1 milligrams of benzene per kilogram of soil — and that’s for sites intended for industrial use.

The report comes a year after heavy rains from Hurricane Harvey flooded many polluted sites in the Houston area, sparking concerns about contaminants leaching into homes and waterways. And statewide, rapid urban revitalization and population growth means many contaminated sites are being remediated and redeveloped for both commercial and residential use.

You can see that report here. This right here is the reason why uniform federal standards are needed for some things. I don’t know about you, but I would not want to find out some day that the house I bought in some spiffy new development in, say, 2019, turned out to be in the 21st century version of Love Canal. Maybe if we insist on keeping the feds at bay we could elect some state leaders who cared about this sort of thing? Just a suggestion.