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Hempstead landfill would indeed hurt the environment

Raise your hand if this surprises you.

StopHwy6Landfill

Pintail Landfill developers backpedaled from arguments that their proposed dump site outside Hempstead would not harm the environment, agreeing for the first time this summer that their review of groundwater under the property was flawed.

Environmental testing by opponents in preparation for a November hearing found that groundwater is several feet closer to the surface than Pintail reported in its 2011 permit application. If constructed as proposed, landfill officials admitted in related state filings that the dump site would be underwater, violating regulations designed to protect against groundwater contamination that could affect drinking supplies.

Opponents celebrated the admission as vindication of their years-long battle to block the 250-acre landfill that would be visible from U.S. 290 and primarily receive trash from Houston 50 miles away.

Green Group Holdings, the Georgia-based developer behind the landfill, asked TCEQ for permission to amend its application just days after opponents submitted the revelatory geological report to the state administrative court scheduled to review the permit in a contested case hearing. An attorney for Green Group and Pintail did not return emails or phone calls requesting comment.

Instead of allowing Pintail to amend its application – and take that revised plan into the hearing – landfill opponents have asked state administrative law judges to issue a summary judgment denying the permit and dismissing the case.

“My client, along with the City of Hempstead, have collectively spent over $1 million fighting this landfill,” said Blayre Pena, attorney for the nonprofit advocacy group Citizens Against a Landfill in Hempstead. “It would be a true miscarriage of justice if Pintail is allowed to admit their application does not meet statutory and regulatory requirements and then be given the opportunity to send it back to the Texas Commission on Environmental Quality to fix it.”

The contested case hearing originally had been scheduled to start Nov. 2, but Pintail’s request has delayed that at least several weeks, assuming the judges don’t deny the permit outright.

“We are playing the waiting game,” Hempstead Mayor Michael Wolfe said. “While the TCEQ did not take a position on the city’s motion to dismiss, we are hopeful they will see the light and realize there is only one acceptable answer to this situation: Deny Pintail’s application.”

See here, here, and here for some background. I wonder what motivated this admission – the story doesn’t give any indication, and it’s not something they’d do if they didn’t have to. Whatever the case, I agree with Mayor Wolfe. Groundwater is precious enough in this state. The last thing we need is to put any of it at risk of contamination by a landfill. Let’s hope the TCEQ sees it that way as well.

Hempstead landfill update

From the inbox:

StopHwy6Landfill

After several postponements, the Contested Case Hearing on the proposed Pintail Landfill permit has been set for November 2, 2015, in Austin.

Assuming no further delays, the case will be heard by two Administrative Law Judges with the State Office of Administrative Hearings (SOAH). The trial is expected to take about two weeks. This proceeding to determine the facts is the last step before the Texas Commission on Environmental Quality (TCEQ) Commissioners make their final decision on the Pintail Landfill permit application.

The proposed landfill permit was not stopped by last December’s trial in Waller County.

The December trial was necessary to clarify whether former County officials acted legally in adopting, first, an amended version of the County’s 2011 landfill location control ordinance and, second, a Host Agreement. A jury of Waller County citizens decided that those officials did violate the Texas Open Meetings Act and the Texas Public Information Act.

The issuance of the TCEQ landfill permit remains to be decided. The application was referred to SOAH for a determination of the facts through a “trial” called a Contested Case Hearing (CCH). Such hearings include depositions, affidavits, expert testimony, and cross-examination relative to the many disputed issues in the application.

After the evidence is heard, the SOAH Judges will issue a “Recommendation for Decision” to the Commissioners of the TCEQ.

Along with Waller County, the City of Hempstead and several other Parties, Citizens Against the Landfill in Hempstead (CALH) is preparing for the CCH.

For over four years now, the landfill has been fought to a standstill and the Applicant still does not have a permit. Neither does it own the property.

Up against the big money of Green Group Holdings and their financial backers, CALH has had to budget tightly and fund every dollar with donations and fundraisers. If you are not aware, CALH has held 26 garage sales so far, each averaging about $10,000. These sales are so well stocked by wonderful donations and so popular with shoppers that we have had to rename the event ‘more than a’ Garage Sale. In addition, we have held annual dinner/auction fundraisers called ‘We Stand United’ in both 2013 and 2014, where tickets were sold out prior to the event and proceeds exceeded $100,000 each.

To date, most of the preparation work for the CCH has been done and paid for from donations, fundraisers and settlement funds from the December trial. However, it is estimated that another $300,000 will be needed by CALH to cover the remaining expenses of the upcoming CCH battle. Without lawyers to finish preparing for the case and to try it before the SOAH Judges, the fight could be lost.

This is why CALH is preparing to host ‘We Stand United 3’ on Saturday, July 25, 2015, at the Knights of Columbus Hall in Hempstead, Texas. All committees are working feverishly to make this event as successful as its predecessors. The community is coming together as always with donations, table sponsorships and ticket sales. If you would like to see a community working together in a positive, united way, we invite you to attend this event on July 25. Please see the flyer attached for details. We also invite you to visit our website and Facebook page to learn more about our organization and its activities.

Please contact us at [email protected] for further information.

See here and here for previous upadates, and here for more on the July 25 fundraiser. I have been a supporter of this effort to keep the landfill out, and I continue to wish CALH well. I had been a little concerned that the legislation passed this session to restrict contested case hearings might stack the odds against them, but I have been assured that it will not affect theirs. It’s still a concern going forward for others, but that’s a subject for the future. Regardless, I’ll be following it and will check for updates in November.

Texas sues the EPA again (and again, and again, and…)

Stop me if you’ve heard this one before.

Attorney General Ken Paxton on Wednesday filed a lawsuit over the agency’s rejection of parts of a Texas clean air program, launching the state’s second battle against EPA regulations in less than two weeks.

Texas has sued the agency 21 times since President Obama took office in 2009.

This challenge centers on how Texas handles pollution that spews from industrial plants during facility startups, shutdowns and equipment malfunctions.

Historically, regulators exempt pollution from those events from overall limits, letting plants to emit more than their federal permits allow. But environmental groups have protested this policy, claiming it has let plants discharge millions of extra pounds of dangerous air pollutants each year.

A federal appeals court in April 2014 found some of the environmental groups’ points valid, prompting the EPA in May to require Texas and 35 other states to revisit how they deal with such events.

The new state plans are due in November 2016.

But Paxton said that because the EPA had approved Texas’ plans in 2010, before the environmental challenge, the agency’s latest directive amounted to “an abrupt and unwarranted about-face.”

Whatever. I guess Paxton has to get all those lawsuits in quickly, before defending his own butt becomes his main job in life. As the story notes, Texas was one of several states to file suit over the EPA’s Clean Water Plan, and there will be another suit coming next month when the EPA’s Clean Power Plan rules get released. Too bad all this litigation isn’t an economic catalyst, we could use a little help on that front.

Abbott signs pollution enhancement bill

Still sucks to be us, Harris County.

San Jacinto River waste pits

Gov. Greg Abbott has signed legislation that could make it tougher for local governments to sue big-time polluters – an effort that largely targets Harris County prosecutors.

House Bill 1794, set to become law on Sept. 1, will set a five-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air. It’s another win for a wide range of business groups in a rough legislative session for environmental advocates.

Rep. Charlie Geren, R-Fort Worth, and Sen. Kelly Hancock, R-North Richland Hills, pushed the bill through both the House and Senate, drawing little debate.

Proponents say that curbing the civil penalties assessed on top of those state regulators issue would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.

“If someone is remediating the violations they have, I don’t believe they should be assessed these additional penalties,” Geren said in an interview last month. “I don’t believe it’s a setback for environmentalists at all because we didn’t take away any authority from the [Texas Commission on Environmental Quality].”

Environmentalists beg to differ. With other critics, they say state environmental regulators don’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.

“It is a terrible bill, and it is designed to protect polluters,” Terry O’Rourke, special counsel with the Harris County attorney’s office, told The Texas Tribune last month. “That’s all it is: It is a polluter protection bill.”

See here and here for the background. You know how I feel about this, and I can’t say it any better than Terry O’Rourke just did. So here’s a little blast from the past to bring it on home:

The more things change, y’all…

Local control still under assault

Sucks to be us, Harris County.

San Jacinto River waste pits

With Harris County in its crosshairs, the Senate on Wednesday tentatively approved legislation that could make it tougher for Texas Counties to sue big-time polluters.

If finally passed, House Bill 1794 would notch another victory for a wide range of business groups in a legislative session that’s been kind to industry at the expense of environmentalists and advocates for local control. The proposal would set a 5-year statute of limitations and cap payouts at about $2 million when counties sue companies that have fouled their water or air.

A 24-6 vote with no debate set the bill up for a final Senate vote. The legislation already sailed through the House, pushed by Rep. Charlie Geren, R-Fort Worth.

Proponents say that curbing civil penalties assessed on top of those doled out by state regulators would bolster economic certainty for companies and allow them to focus resources on cleaning up their messes.

“This bill is about enforcing a policy that encourages people to do the right thing and not punish them,” said Sen. Kelly Hancock, R-North Richland Hills, who carried the proposal in the chamber.

But critics say the Texas Commission on Environmental Quality (TCEQ) doesn’t do enough to hold polluters accountable, and that limiting local suits would encourage more pollution that jeopardizes public health.

“It is a terrible bill, and it is designed to protect polluters,” said Terry O’Rourke, special counsel with the Harris County Attorney’s office. “That’s all it is: It is a polluter protection bill.”

[…]

Under HB 1794, local governments and the state would evenly split the first $4.3 million awarded in a suit, and the state would pocket any amount above that limit.

County officials say the cap on local government collections would make it difficult, if not impossible to prosecute the most complex, egregious cases of pollution, because contingency fee lawyers would not sign on for such lower pay.

The counties, not the state typically initiate such actions, said O’Rourke, who has been prosecuting environmental cases since 1973.

“It is only by contingent fee litigation that you can prosecute global corporations that are operating in Houston – Harris County, he said. “You can’t attract people to that if you’re going to kill them with contamination.”

Anyone who thinks that this bill will be any kind of positive for counties – not just Harris, though it is the main target of this bill – is living in a fantasyland where voluntary compliance with environmental regulations would be sufficient. I’ve said it before and I’ll say it again, if the TCEQ wasn’t a giant bag of industry-coddling suck, then lawsuits like these wouldn’t be necessary. All this will do is push the cost of pollution from the polluters where it belongs to the population at large. Hope no one reading this lives close to a site that won’t get cleaned up now.

And it’s not just county governments that are taking it in the shorts.

Norman Adams isn’t the kind of guy who is sensitive to smells, or much else. He wears cowboy boots and boasts of changing lots of his children’s and grandchildren’s diapers without gagging.

But the smell that wafts on the southerly breeze from a waste treatment processor toward buildings he owns on West 11th Street is “like an open septic tank, or worse.”

“Abusive,” he called the stench in a letter to the Texas Commission on Environmental Quality opposing an application by Southwaste Disposal, to increase capacity at its liquid waste treatment facility near Houston’s booming Timbergrove neighborhood.

Adams begged regulators not to grant the expansion, instead requesting a “contested case hearing.” Such proceedings allow citizens who convince TCEQ that their health or pocketbook would be impacted by a permit to compel the company to demonstrate it can comply with environmental requirements.

But legislation awaiting Gov. Greg Abbott’s signature would make industry-friendly changes to the proceedings. It would set time lines to speed up the process, restrict who qualifies to ask for hearings and – most significantly – shift the burden of proof from companies seeking the permits to people opposing them.

The bills, which sailed through the Senate and House, have the backing of industry leaders who say contested case hearings make it harder for Texas to attract businesses by injecting uncertainty and expense into the process.

[…]

The bills tilt “the balance in favor of the polluters,” said Jim Marston, regional director with the Environmental Defense Fund’s Texas office. He also warned that Texas could jeopardize losing the Environmental Protection Agency’s authorization to administer permitting programs if signs the bills.

EPA spokesman Joe Hubbard on Tuesday said the legislation creates a “problematic” legal presumption. “We can’t speculate what action the (EPA) should take if the bills are passed and signed into state law,” he said.

See here and here for the background. I’d feel sorry for Norman Adams, but he’s a well-known Republican activist, so in a very real sense he’s getting the government he deserves. I do feel sorry for his neighbors, and for everyone else that will be put in this position. In Houston, where residential development is encroaching on former (and sometimes still active) industrial areas, that could be a lot of people. But hey, at least our ability to attract more pollution-oriented businesses will remain strong.

Waller County approves landfill lawsuit settlement

Missed this when it first came out.

StopHwy6Landfill

After two fraught years of legal battle, the lawsuit over a proposed Waller County landfill came to a quiet close Friday with a deal that ensures the civil case against the county will not be appealed but that does not prevent the landfill from being built.

The county commissioners court’s 3-2 vote Friday morning to approve the settlement comes two months after a jury found that commissioners violated transparency laws in agreeing to host the 250-acre landfill near the small city of Hempstead, about 50 miles northwest of Houston. The settlement voids the county’s 2013 ordinance and host agreement authorizing the waste site while stipulating that the county will pay $570,000 in attorneys’ fees incurred by the plaintiffs, the city of Hempstead and the group Citizens Against the Landfill in Hempstead.

However, the fate of the project remains in limbo, as the Texas Commission on Environmental Quality, not Waller County, has final say over whether the landfill gets built. The landfill company’s permit application is scheduled to be reviewed in a contested case hearing in August.

“This landfill has caused a lot of damage in this county,” County Judge Trey Duhon said before voting to approve the settlement, which he said he believes is in the county’s best interest, fees and all. “I hope this is an opportunity for this county to start to heal.”

[…]

Following the commissioners court’s discussion and approval of the settlement, retired state District Judge Terry Flenniken signed the final judgment, calling the case to a close before some 30 attendees, many of whom had been present throughout the trial.

“This is what Waller County wanted,” said Brent Ryan, an attorney for the landfill company, Pintail. He reiterated that the company is moving forward with its plans for the waste site.

Now the county is shifting attention to the contested case hearing in August over Pintail’s permit application, and to developing a comprehensive waste management plan.

“With this order,” Duhon said, “our work is just beginning.”

See here and here for the background. As the story says, this is still far from over. I can’t say I have much faith in a state agency to do the right thing on an environmental issue, but I suppose anything is possible. We’ll find out in August. The Stop Highway 6 Landfill webpage is back up and running, and their Facebook page is active, so you can keep on top of things in the meantime. An email sent from Citizens Against the Landfill in Hempstead to supporters about the settlement is beneath the fold, and a copy of the agreement itself is here.

(more…)

Yes, we can cut back on coal

It won’t be that hard, and it will come with a lot of benefits.

Texas burns more coal than any other state in part because of its large and growing population and industrial base. But the carbon-intensive fuel accounted for less than 40 percent of the state’s power use last year.

The federal proposal calls for Texas to reduce its carbon emissions 39 percent from 2005 levels by 2030. In contrast, West Virginia and Kentucky, which generate nearly all of their power from coal, would be required to make cuts of 20 and 18 percent, respectively.

Some Texas officials have questioned whether the proposed reduction is even possible without a radical shift in generation toward natural gas, wind and solar and a stronger push to use energy more efficiently. Texas’ power grid operator has said about half of the state’s coal-burning capacity might be retired under the federal plan.

But some experts say Texas wrongly views the rules as an existential threat to its energy-heavy economy. Instead, they argue, the state could achieve the federal targets without a lot of new initiatives.

The disconnect persists because “this regulation hits the status quo harder than any other, and we have powerful economic interests in this state wanting to maintain the status quo,” said Thomas McGarity, a University of Texas at Austin law professor who specializes in government regulation.

The combination has caused some operators to decide whether to retire their coal plants or retrofit them with expensive new pollution controls.

In its formal comments on the proposal, the Sierra Club said Texas could achieve the EPA’s proposed target by retiring 10 coal-burning power plants that are more than 40 years old and replacing them with natural gas-fired plants.

“We talk about how there is a war on coal, and that’s true,” said Victor Flatt, a professor of environmental law at the University of North Carolina at Chapel Hill. “But there isn’t a war on fossil fuels. This rule is favorable to natural gas. In the end, I don’t think it will have the huge economic impact that people say it will.”

But there are concerns that the EPA will require states to make emissions cuts too quickly, leading to unintended consequences.

See here and here for the background, and remember again that reducing the use of coal for power generation would also greatly reduce water usage, which would have ancillary benefits for Texas. The crux of the complaint by the TCEQ seems to be that it’s not fair to ask more of Texas than some other states, including Kentucky and West Virginia, which produce the most coal but which use much less of it since they’re so much smaller than we are. I guess “Texas exceptionalism” stops when the discussion turns to responsibilities. I don’t know about you, but I think the great state of Texas is more than up to the task of being a leader in reducing coal consumption. Too bad the TCEQ – and I presume more than a few Republican officeholders – think so little of our state’s abilities.

ERCOT acknowledges that meeting EPA clean air requirements won’t be that big a deal

From Texas Clean Air Matters:

ERCOT

Well, it didn’t take long before the Electric Reliability Council of Texas (ERCOT) released, at the request of Texas’ very political Public Utilities Commission, another report about the impacts of the Environmental Protection Agency’s (EPA’s) rules designed to protect public health.

This time ERCOT, which manages 90 percent of Texas’ electric grid, looked at the impact of seven EPA clean air safeguards on the electric grid, including the Cross State Air Pollution Rule (CSAPR), the Mercury Air Toxics Standard (MATS), the Regional Haze program (all of which go back before the Obama administration), the proposed Clean Power Plan, which would set the first-ever national limits on carbon pollution from existing power plants, and others. What was surprising to learn, though, is that after power companies in the state start complying with EPA’s other clean air protections, the proposed Clean Power Plan poses a minimal incremental impact to the power grid. We would only have to cut 200 megawatts of coal-fired generation, which equates to less than one coal-fired power plant.

For as much doom-and-gloom we heard last month in ERCOT’s report about the Clean Power Plan, they certainly seem to be singing a different tune this go-around. The new report shows that Texas can go a long way toward complying with the Clean Power Plan by meeting other clean air safeguards, for which Texas power companies have had years to prepare.

Very soon power companies in Texas will install control technologies to reduce multiple – not just one – pollutants, thereby making compliance with EPA’s subsequent regulations easier and more cost-effective. In the end, Texas will only need to take a minimal amount of additional aging coal plants offline by 2029.

Plus, other energy resources, like energy efficiency, rooftop solar, and demand response (which pays people to conserve energy when the electric grid is stressed) are gaining ground every day in Texas. They have proven to be vital resources on the power grid that help reduce electricity costs for Texas homes and businesses.

Energy efficiency, in particular, provides significant reductions in power plant emissions, including carbon dioxide, sulfur dioxide, and ozone-forming pollutants, and has a four-to-one payback on investment. This is the type of performance worth investing in.

See here for the background, and click over to read the rest. In addition to what the EDF says above, complying with the new regulations would also save a ton of water, which is a pretty big deal in and of itself. So let’s have less whining – and fewer lawsuits – and get on with the compliance. It’s a win all around.

Landfill opponents win in Hempstead lawsuit

Good news.

StopHwy6Landfill

A jury on Thursday found that Waller County commissioners met illegally in closed sessions among themselves and with developers of a controversial landfill proposal over more than two years before agreeing to host the project.

After a three-week jury trial that was the talk of this rural county, the 12-member jury sided with the city of Hempstead and a citizens group that had challenged the Commissioners Court’s February 2013 approval of the 250-acre landfill just outside the Hempstead city limits.

The verdict does not block the landfill, but it does represent an important victory for those fiercely opposed to the project, who fear it would hurt property values and pollute an aquifer that serves the Houston area.

[…]

Landfill opponents say Thursday’s victory will strengthen a separate case as they contest a draft permit issued two years ago to the developer, Pintail Landfill, by the Texas Commission on Environmental Quality.

The judge presiding over Thursday’s civil case, retired Judge Terry Flenniken, could invalidate a 2013 ordinance allowing the landfill now that a jury has found commissioners met illegally. That would reinstate a 2011 city ordinance that had prohibited the landfill, said Corey Ouslander, attorney for the city of Hempstead. Pintail maintains that the ordinance has no weight because it was adopted after they had filed their application with the state.

Flenniken is also set to rule at a Jan. 21 hearing on whether the county had authority to approve the project given that 106 acres falls within Hempstead’s extraterritorial jurisdiction, a bubble around it that could be pulled within city limits once the population increases.

A ruling in opponents’ favor on that element could allow the city to block the project through health and safety codes or other means, Ouslander said.

The developer maintains that it has the necessary permits to proceed, regardless of the verdict.

“We plan to build a state-of-the art facility that will be an asset to Hempstead and to Waller County,” said Brent Ryan, attorney for Pintail Landfill, a subsidiary of Georgia-based Green Group Holdings.

See here and here for the background. A copy of the charge of the court, which includes the questions the jury was asked to resolve and their answers, is here. This may be a short-lived victory for the plaintiffs regardless of this verdict or the rulings to come from Judge Flenniken, as the landfill developers plan to go forward anyway and claim that all they need is TCEQ approval, but it’s still a good win. We’ll see what happens from here. KUHF has more.

Here come the new ozone standards

I have three things to say about this.

Over the objections of Texas officials, the Obama administration on Wednesday proposed a long-delayed rule to slash levels of ozone – a smog-forming pollutant known to worsen asthma, lung disease and heart conditions.

The regulation is the latest example of the federal Environmental Protection Agency’s use of the Clean Air Act to crack down on the pollution wafting from factories, power plants and tailpipes.

“Bringing ozone pollution standards in line with the latest science will clean up our air, improve access to crucial air quality information and protect those most at risk,” Gina McCarthy, the EPA administrator, said in a statement. “Fulfilling the promise of the Clean Air Act has always been EPA’s responsibility.”

The agency plans to hold three public meetings and open up a 90-day commenting period before finalizing the rule by Oct. 1, 2015.

Bucking the scientific community’s consensus, Texas environmental regulators have suggested that the proposed limits on ozone — which forms when emissions from cars and coal plants mix with other airborne compounds in sunlight — may not improve public health. They have pushed back against any efforts to lower the standard, suggesting such a move would cost too much.

“I am disappointed, but not surprised, that the EPA has proposed these new, short-sighted regulations,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said in a statement. “Environmental regulations should be based on good science, common sense and the certainty that they will achieve the stated health benefits. The EPA proposals fail miserably at meeting any of those metrics.”

[…]

Depending on the severity of their ozone problems, regions would have to meet the lower standards by anywhere from 2020 to 2037.

But scrubbing more ozone from the air — through extra pollution controls, air monitors and retrofitted industrial plants — could cost trillions nationwide, industry-funded studies have estimated.

“This new ozone regulation threatens to be the most expensive ever imposed on industry in America, and could jeopardize recent progress in manufacturing,” Jay Timmons, CEO of the National Association of Manufacturers, said in a statement.

Michael Honeycutt, the TCEQ’s chief toxicologist, is among those who question whether lowering ozone levels would improve public health.

“After an in-depth review of the EPA’s analysis, as well as a thorough study of the relevant scientific literature, the TCEQ has concluded that there will be little to no public health benefit from lowering the current [ozone] standard,” Honeycutt wrote in an article for the TCEQ’s October newsletter. “Why regulate something that is not really going to have a benefit?”

For instance, Honeycutt argues that ozone levels have gone down dramatically in the past two decades, but asthma diagnoses have gone up. In Texas hospitals, Honeycutt said, asthma diagnoses actually increase in the winter when ozone levels are relatively low.

Several other scientists who reviewed his article have called it a misleading effort to equate correlation and causation.

1. I’m sorry, but the TCEQ and the industries that it coddles have no credibility on this. Neither the public interest nor objective fact are the TCEQ’s concern. It may be that the EPA is being too aggressive in combating ozone, and it may be that the likely benefit of doing so is not worth what the cost will be. I’m not qualified to evaluate that. What I do know is that no one should take the TCEQ’s word for it.

2. Whichever standard is adopted – the more-lenient 65 to 70 parts per billion standard, or the stricter 60 parts per billion standard – achieving it is not going to be easy.

For Houston, once the nation’s smog capital, the announcement heralded a harsh reality: even after decades of efforts to scrub the lung-damaging pollutant from the sky, the city’s air is not clean enough to breathe safely and might never be.

“All the easy cuts have been made, and there are very few places we can go to make meaningful cuts,” said Taylor Landin, vice president of public policy for the Greater Houston Partnership, a business association. “From our perspective, it’s only fair that they would consider cost.”

[…]

For Houston to reach the proposed mark, air-quality experts said the state might need to impose tougher emissions limits for industrial permits and do more to replace older and dirtier diesel engines for trucks and cranes at the Port of Houston.

The proposed limit poses a daunting challenge for Houston, which is violating the current standard even as its best year for air quality draws to a close. The region is on track to finish 2014 at 80 parts per billion.

“To be effective, and meet this new standard, it will take great cost and effort to reduce emissions from every individual and business in the region,” said Craig Beskid, executive director of the East Harris County Manufacturers Association.

Even environmentalists questioned whether Houston can hit the proposed target. But they said the tougher rule is worthwhile because it would reduce ozone-forming pollution blowing into the region. The EPA estimates that on the region’s smoggiest days, 40 percent of its ozone forms naturally or blows in from faraway sources.

“Would it be possible for Houston in a vacuum? I’m not sure,” said Adrian Shelley, executive director of Air Alliance Houston, an advocacy group. “But it could be possible if the issue is tackled at a larger level.”

I’ve made this point before, but it’s worth repeating that there’s already a cost for the level of pollution that we have now. It’s just that the polluters themselves don’t bear the brunt of that cost – it gets passed on to the public, in a very uneven and unequal fashion. If the EPA’s regulations force the pollution producers to bear those costs, whether they pass them along or not that will be a more equitable situation. And it should be noted that in this case, the polluters includes everyone who drives. We are highly unlikely to meet any new standard without addressing vehicular emissions. That’s going to require some significant changes, and I don’t think we’re ready for that. Ready or not, it’s coming.

Texas Attorney General Greg Abbott, the incoming Texas governor, has sued the EPA at least 19 times. His office did not immediately respond to requests for comment.

3. Alas for Greg Abbott, these changes will not be implemented in time for him to be anything more than a cheerleader for another lawsuit. That will fall to Ken Paxton, assuming he hasn’t resigned in disgrace by the time a suit is ready to go. Not mentioned in that statistic above is Abbott’s won-lost record versus the EPA. I don’t have an exact figure, but I’m pretty sure he lost more than he won. I’d expect Paxton or whoever gets appointed to replace him to continue that tradition. The EDF has more.

“Environmental tort reform”

Oh, hell no.

After failing in their attempt to limit cities and counties’ ability to take industrial polluters to court, some Houston businesses and statewide lobbyists now want to limit how much local governments can collect in penalties, a sort of environmental tort reform effort aimed squarely at a Harris County Attorney’s office they say is seeking high-dollar payouts at the expense of cleanup efforts.

At a legislative committee hearing earlier this year, the powerful Texas Association of Business and attorneys for Waste Management Inc. and a wealthy Houston family being sued by Harris County told lawmakers that the County Attorney’s office has started seeking outrageous penalties unrelated to environmental clean-up costs from entities already cooperating with remediation requirements imposed by the state or federal government. If allowed to continue, they told members of the House Committee on Judiciary and Civil Jurisprudence, the lawsuits could have a “chilling effect” on development and erode property values.

“As a practicing lawyer who advises companies as to what liabilities they may face, like becoming involved with a contaminated property, I have to advise them – based on some of the recent cases – that there is a possibility, as remote as it might be … that you could be penalized for coming on to that site and seeking redevelopment because it is not precluded by the laws as they exist now,” said John Riley, a lawyer for Houston-based Waste Management.

The mega-company and two of its affiliates are facing nearly $2 billion in fines in a lawsuit brought by the county – set to go to trial next month – involving one of the state’s biggest pollution headaches: two industrial waste pits that leached paper mill sludge containing cancer-causing dioxins into the San Jacinto River for almost half a century.

McGinnes Industrial Maintenance Corp. owned and operated the pits – now a federal Superfund site – in the 1960s, filling a 20-acre tract with waste from a now-closed paper mill near the Washburn Tunnel. The company later became part of Houston-based Waste Management.

The County Attorney’s office sued Waste Management, and International Paper Co., in 2011, asking the companies be fined as much as the law allows – $25,000 a day – all the way back to the site’s 1965 opening.

Last year, the companies supported legislation that would have diminished the power Texas cities and counties have had for decades to file such environmental enforcement lawsuits. Two bills that died in a House committee after being fought by Harris County lobbyists would have required the Texas attorney general to settle all such litigation filed by local governments and barred them from hiring outside lawyers on a contingency fee basis.

[…]

At the May hearing, Harris County officials told committee members they were “not sure what the problem is,” emphasizing that the TCEQ typically is listed as a “necessary and indispensable party” in these cases and that they must be approved by Commissioners Court.

“These cases are not filed willy-nilly,” First Assistant County Attorney Robert Soard said.

Soard and other officials who testified, including a TCEQ employee, said such lawsuits are reserved only for the most egregious cases. The county, they said, simply is attempting to recuperate clean-up, legal and other costs associated with contaminated sites and has every legal right to do so.

“Every time we file a case against a large company now we now expect to see them run to Commissioners Court and the press screaming about how unfair we are,” said Rock Owens, who heads the County Attorney’s four-lawyer environmental division. “This never used to happen and now it’s par for the course. Maybe this is an indication that we are finally hitting where it hurts, even if it’s only a little ding.”

Hey, you know what these powerful business interests and wealthy families can do to stop getting sued over these ginormous environmental messes they’re responsible for? They can clean them up in a timely fashion, and they can take all necessary steps to ensure that they don’t create any more such toxic hazards. Until then, as far as I’m concerned, they can STFU.

News flash: Greg Abbott wants to sue the EPA again

Nobody could have foreseen this!

Foretelling a new environmental battle between state and federal regulators, Attorney General Greg Abbott on Monday demanded the U.S. Environmental Protection Agency back down from a proposal to expand the definition of federal waters to include seasonal and rain-dependent waterways.

The proposal “is without adequate scientific and economic justification and, if finalized, would erode private property rights and have devastating effects on the landowners of Texas,” he wrote as part of a public comment period on the proposal, threatening to sue if it’s not withdrawn.

EPA officials say the proposal would stiffen penalties for polluting such waterways. More than 11 million Texans, including many in Central Texas, get drinking water from sources that depend, in part, on the intermittent streams.

“It’s important to protect the whole network of streams that flow into rivers and oceans,” said Ellen Gilinsky, a senior adviser for water at the federal agency. “This rule ensures clean waters for Texans to drink and recreate in, clean water for businesses, and clean water for farmers.”

Texas Commission on Environmental Quality spokesman Terry Clawson said the state agency is “concerned that EPA’s proposed rule expands its jurisdiction under the Clean Water Act without Congressional approval.” A spokeswoman for the attorney general’s office said it had consulted with the TCEQ before filing its letter Monday.

Hey, if you can’t count on the TCEQ to look out for your best interests, who can you count on? And who needs to worry about having a sufficient quantity of clean water in Texas?

David Foster, who heads the Texas office of the advocacy group Clean Water Action, said the state environmental agency has shown little appetite for regulating the waterways. He cited permits that had been issued by the agency to subdivisions seeking to discharge treated sewage into intermittent Hill Country creeks that feed the Barton Springs portion of the Edwards Aquifer.

[…]

“We need a federal backstop,” Foster said. “I shudder to think how the political leadership in this state would regulate these waterways.”

I’m pretty sure they wouldn’t, which is of course the problem. Abbott’s brief is here, for those of you with a more legalistic eye than I have. I wonder if he’s recycling arguments in this case as he has in others. If so, it’s the greenest thing he’s ever done. Clean Water Action and PDiddie have more.

From the “Those that disregard history are doomed to repeat it” department

This is the state of environment protection in Texas.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Texas’ top environmental regulator suggested Thursday that the state may ignore a proposed directive from the Obama administration in June to reduce carbon emissions from power plants.

“I’m concerned that if this is not contested, if we don’t dispute this, if we don’t win, the implications … are only the camel’s nose under the tent,” Bryan Shaw, chairman of the Texas Commission on Environmental Quality, said at an event in the Texas Capitol sponsored by the Texas Public Policy Foundation.

The last time Texas refused to follow federal environmental rules, there were unintended consequences that caused a slow-down of the permitting process that prompted the energy industry to cry foul after losing millions of dollars.

About 150 people attended the event Thursday to hear Shaw and two other panelists speak about the proposal from the Obama administration, which could require Texas to reduce its carbon emissions from power plants by close to 200 billion pounds in the next two decades.

The general consensus among both the panelists and the audience was that the state should sue the Environmental Protection Agency over the rules if they are finalized, and should refuse to follow them. Karen Lugo, director of TPPF’s Center for Tenth Amendment Action, said she is working with state lawmakers on legislation affirming that Texas should ignore the rules unless Congress acts on climate change legislation, which it has never done.

The last time Texas regulators refused to implement federal environmental rules, lawmakers ended up reversing the decision. In 2010, the Obama administration started requiring companies that wanted to build new industrial plants to get “greenhouse gas permits” before beginning construction. When the TCEQ refused, the EPA had to take over, causing delays for some companies that lasted up to two years.

The result was legislation — supported by Koch Industries and the Texas Conservative Coalition, among others — that explicitly gave the TCEQ authority to regulate greenhouse gas emissions so that companies could get their permits quicker.

Asked whether Texas could avoid the same result this time around, Shaw acknowledged that the delays did cause some “economic development costs.” But he said the costs would have been greater had Texas acquiesced to what state regulators say is federal overreach.

“I think those costs were smaller … than not making a principled stand,” Shaw said.

Remember, that’s the guy who’s in charge of the agency that is supposed to enforce environmental regulations in Texas. You will note that nowhere in the story – or really, any story involving people like Bryan Shaw and the TPPF chuckleheads – is there any concern expressed about the cost of not enforcing these regulations on people. I assure you, that is not an oversight. There’s only one cost taken into consideration, and it isn’t about you or me.

Court rules for the EPA against Texas again

Another win for the environment.

A federal appeals court on Tuesday upheld the Obama administration’s new rules that for the first time limit emissions of mercury and other harmful pollutants from coal- and oil-fired power plants.

In a split decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected a Texas-based challenge to the regulations, saying the federal government acted reasonably to protect the environment and public health from poisonous gases and cancer-causing chemicals released into the air by the burning of fossil fuels.

Developers of the White Stallion Energy Center, a proposed power plant about 90 miles southwest of Houston, challenged the federal regulations, arguing that the new limits would be too burdensome and thus prevent them from securing financing for the project. Several industry groups and 22 states, including Texas, joined the fight.

But a divided three-judge panel ruled that federal law and previous court decisions do not require the Environmental Protection Agency to consider cost when imposing new regulations on electric utilities.

[…]

At the time the EPA finalized the rules in 2012, Texas was home to seven of the top 16 mercury-emitting coal plants in the nation, an Environmental Defense Fund analysis found.

“There is no other state that is going to get as much public health benefit than Texas from the mercury rule,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in the state.

See here and here for some background. I’ve long since lost track of which lawsuit by Texas against the EPA is about what, and I don’t think I have any previous blogging on this specific case, but it doesn’t matter. It’s all of a piece, and it’s all about whether we make the polluters be responsible for their actions or we give them a free pass. The EPA counters claims that these regulations are too costly for business with evidence that the health benefits for everyone else will outweigh those costs. That will never satisfy the polluters, of course, and I presume they’ll appeal this first to the entire DC court, then to SCOTUS. It’s a nice win for now but it’s far from over. The LA Times, the DMN BizBeat blog, the Texas Green Report, and the EDF, which has a separate statement beneath the fold, have more, while Wonkblog reminds us of the disproportionate effect of industrial pollution on minority neighborhoods.

Environmental Defense Fund applauds today’s ruling by the U.S. Court of Appeals in Washington, D.C., denying legal challenges to the U.S. Environmental Protection Agency’s (EPA) life-saving Mercury and Air Toxics Standards (MATS). Today’s court decision rejects flawed legal claims by Texas Attorney General Greg Abbott, one of the opponents of EPA’s vital clean air safeguards for our communities and families.

Attorney General Abbott has sued the federal government 31 times since 2004, needlessly costing Texan taxpayer’s nearly $4 million.

The EPA emission standards at issue establish the first nationwide emission limits on the mercury, arsenic and acid gases discharged from the U.S. fleet of existing coal- and oil-fired power plants, the single largest source of these toxic airborne contaminants.

Mercury exposure can impair the brain development of infants and young children. According to the EPA, each year more than 400,000 infants are born with elevated mercury levels in their blood, but the MATS standards will eliminate 90 percent of mercury emitted from coal-fired power plants. In Texas, the rule will annually prevent up to 1,200 premature deaths, while providing between $4 billion to $9.7 billion in health benefits in 2016 and each year thereafter.

“Today’s decision comes as an unquestionable victory for Texans who care about vital clean air safeguards and protecting our most vulnerable citizens – young children and pregnant women. Rather than waste taxpayer’s money and protect the interests of big fossil fuel companies, Greg Abbott and other state leaders should champion life-saving measures that protect the health and well-being of Texans.”

The cost of fighting the inevitable

Trib headline: Anti-Regulation Politics May Have Hurt Energy Industry. Oh, the irony.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Businesses in energy-related industries in Texas say they have been unable to take full advantage of the natural gas boom that is roaring across the state because of a delay in the issuing of greenhouse gas permits — an instance in which Texas’ anti-regulation stance might have actually hurt business.

The Environmental Protection Agency began requiring the permits more than three years ago, but the Texas Commission on Environmental Quality refused to enact the rules, arguing that it was illegal to regulate greenhouse gases. That left the responsibility to the EPA, which is only slightly larger than its Texas counterpart and has a small permitting division. As a result, the backlog of applications grew quickly, as did the complaints.

Texas lawmakers directed the state’s environmental agency last year to begin following the federal regulations. But it will take months for the agency to implement its own rules to take over the permitting.

The state has long fought with the federal government over regulations, especially those from the EPA. The chairman of the Texas agency, Bryan Shaw, who is among the many state officials who question the science of climate change, has repeatedly criticized the EPA for developing rules that could cripple the Texas economy.

Electric power retailers, along with energy transport and chemical companies, have told the TCEQ that the delay has put Texas at a competitive disadvantage against other states that had agreed earlier to issue the permits. Some executives said they have considered building in other states because of the delays.

[…]

Several industry lawyers and consultants estimated that the TCEQ would issue permits several months faster than the EPA, where in some cases the delays have been as long as two years.

“If it takes six months or a year to start a facility, well, then that’s a year you’re not going to be making any money,” said Bill Jamieson, director for air quality at the environmental consulting firm SWCA. “There’s no question that equity firms and large investors look at that as risk.”

[…]

Pamela Giblin, an Austin-based lawyer who represents many oil and chemical companies, said it would have been difficult for the state to follow rules that it had challenged in court. Next month, the U.S. Supreme Court will hear Texas’ argument that the EPA’s greenhouse gas permitting program is illegal. “If they had taken up the program, there might have been some pressure then to abandon the arguments and to leave the litigation alone,” Giblin said.

If Texas wins the case, “they’re going to look really astute for having taken a firm position.”

But there is no guarantee that will happen. Supreme Court justices have declined to hear Texas’ argument that greenhouse gases should not be considered a danger to public health and welfare.

Jamieson said companies thrive on regulatory certainty, and fighting rules can be more costly than following them.

“It really comes down to politics as to why this was done the way it was done,” he said. “You can look back on a number of instances in the state of Texas where utilities have challenged some pretty significant EPA regulation, and they’ve spent a lot of money, and the end result is: they have the regulation.”

See here for more on the SCOTUS hearing of that appeal, including some links to more in depth analysis of it. And yes, the state’s long and exhaustive fight against the EPA has been nothing but politics. The industry has finally recognized that the cost of denying reality is more than they care to bear, but the state isn’t there yet. Hopefully, SCOTUS will make it clear to them one more time.

EPA and TCEQ settle lawsuits over flex permits

One less court fight for us and the feds.

The EPA and Texas on Wednesday said they have reached a deal over state permits for industrial air pollution, ending a four-year fight that to some had become a symbol of regulatory overreach by the federal government.

The agreement comes after the federal agency initially rejected Texas’ permitting system, which allows some operating flexibility to oil refiners, chemical makers and others to meet emissions limits.

Despite the EPA’s earlier reservations, the Texas Commission on Environmental Quality’s permit system appears largely unchanged – leaving environmentalists disappointed.

Ilan Levin, an Austin-based attorney for the Environmental Integrity Project, said the system has the same potential loopholes as before. “The flexible permit program has a long history of abuse, and a lot of the damage is already done,” he said.

But Bryan Shaw, the TCEQ’s chairman, said the agreement shows that the federal government “now understands why the program is legal and effective.”

The EPA invalidated the flex permit system in 2010, and later that year threatened crackdowns on plants that didn’t meet federal standard. All of the flex-permitted plants agreed to abide by federal standards in 2011, but in 2012 the Fifth Circuit Court of Appeals – yes, them again – ruled that the EPA had overstepped its authority. The EPA chose not to appeal that ruing, and this settlement is the conclusion of that litigation. The Sierra Club statement on this agreement sums it all up nicely.

“The history of TCEQ’s flexible permitting program in Texas has been almost 20 years of confusion and litigation. As TCEQ itself has acknowledged, every single former holder of flexible permits has now received new standard permits, without a single plant closure or loss of a single Texas job, contrary to the heated rhetoric we got from Chairman Shaw and Governor Perry several years ago.

“Moving forward, if TCEQ stays true to the wording of the new program and only issues flexible permits to truly minor facilities, we don’t foresee major problems.

“However, if our large refineries and chemical plants once again try to hide their emissions with unenforceable flexible permits, we’ll have another 20 years of confusion and litigation.”

Scheleen Walker
Director, Sierra Club Lone Star Chapter

The details always matter. Having the right people at the TCEQ, people who will care about those details, matters as well. TCEQ members are appointed by the Governor. Consider that yet another reason to vote for Wendy Davis this November.

That pollution isn’t our fault!

You have to admire the creativity.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

Harris County’s problem with tiny, lung-damaging particles in the air can be blamed partly on African dust and crop-clearing fires in Mexico, the state’s environmental agency has told federal regulators.

If the Environmental Protection Agency agrees with the state’s finding, then the county would avoid stringent pollution controls and sanctions for particulate matter, or soot.

The Texas Commission on Environmental Quality is making the case after Harris County last December failed to meet new federal limits for soot. The EPA tightened the limits after a federal court concluded that previous standards were too weak to protect public health.

The state agency has flagged seven days from 2010 to 2012 when high soot levels were “not reasonably preventable” because of particles from faraway places. If not for pollution from Africa and Mexico, also known to regulators as “exceptional events,” the county would have met the new limits, the agency concluded.

Maybe this is what Ted Cruz is talking about when he demands tighter control over the border. Who knew he cared about the environment?

Environmentalists sharply criticized the state’s assertion, saying the agency is “looking for an easy way out” instead of cracking down on harmful pollution.

“It’s not the way to address a serious issue,” said Elena Craft, a Texas-based toxicologist for the Environmental Defense Fund. “Whether the pollution comes from an exceptional event or not, the public health risk is the same.”

[…]

Larry Soward, a former state commissioner who is now board president of Air Alliance Houston, said he expects the EPA to approve the state’s request.

But Soward said he is concerned that progress on air quality would stall if federal regulators allow the exceptions.

“The practical effect will be that no one does anything to ensure the new (particulate matter) standard is met other than what is being done now, which is very little,” he said. “In other words, Houston will come to parade rest.”

The EPA isn’t expected to make its decision till late next year. All snark aside, whether or not this is a real thing shouldn’t distract from the real need to deal with the problems and factors that we do control. A bit of dust that blows in from elsewhere doesn’t change the fundamentals.

Texas loses another lawsuit against the EPA

Getting to be a habit.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A federal appeals court on Friday rejected a legal challenge by Texas and Wyoming to the U.S. Environmental Protection Agency’s efforts to curb greenhouse gas emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 vote, said the states and various industry groups did not have standing to sue because they could not show that they had suffered an injury or that a ruling throwing out the EPA plan would benefit them.

The decision comes after the same court upheld the EPA’s first wave of greenhouse gas regulations in 2012, and is another win for the EPA, which has a strong track record in the courts in challenges to its rules, particularly those targeting greenhouse gas emissions.

“The states and industry groups trying to block EPA from curbing carbon pollution under the Clean Air Act are on a long losing streak,” said David Doniger, climate policy director for the Natural Resources Defense Council.

Friday’s decision concerned a challenge to the EPA’s efforts to make states include carbon dioxide and other greenhouse gases when they issue permits to industrial facilities setting limits on various types of pollution they emit.

[…]

Frank O’Donnell, president of the not-for-profit group Clean Air Watch, said Friday’s ruling strengthens the hand of the EPA as it starts to implement President Barack Obama’s climate action plan. Obama in June directed the agency to write rules to curb carbon emissions from the country’s fleet of existing power plants.

But O’Donnell said Texas and other states opposed to federal environmental regulations are likely to drag their heels when forced to comply with EPA timelines.

“I predict they will be late filing their plans, due in 2016 under the scenario the president set forth, and will dare the federal government to intervene,” O’Donnell said.

You can see the ruling here, via the Environmental Defense Fund. There have been so many of these lawsuits that I have a hard time keeping track of which one is which, so I’ll just turn this over to the Sierra Club for the last word.

“The U.S. Supreme Court and other federal courts have now ruled in favor of controlling climate disrupting-pollution nine times,” said Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club. “Attorney General Greg Abbott and Commissioner Bryan Shaw preferred to spend their time and resources on lawsuits doomed to fail, regardless of the consequences for Texas’s economy, rather than cooperating with the Environmental Protection Agency and upholding the law. Carbon pollution protections are the law, even in Texas. After three years of damaging droughts, it is time for the large polluters and state agencies alike to join the environmental community in working to reduce emissions.”

“While Texas officials were wasting taxpayer dollars with fights against the federal government, Texas legislators were quietly updating state laws in early 2013 to require TCEQ to regulate greenhouse gases under the Clean Air Act,” continued Reed. “Abbott and Shaw have spent millions of taxpayer dollars on these frivolous lawsuits rather than letting regulators do their jobs.”

Be sure to tell Latino voters about this one, Greg.

“An accident waiting to happen”

I don’t even know what to say.

There were no sprinklers. No firewalls. No water deluge systems. Safety inspections were rare at the fertilizer company in West, Texas, that exploded and killed at least 14 people this week.

This is not unusual.

Small fertilizer plants nationwide fall under the purview of several government agencies, each with a specific concern and none required to coordinate with others on what they have found.

The small distributors — there are as many of 1,150 in Texas alone — are part of a regulatory system that focuses on large installations and industries, though many of the small plants contain enough agricultural chemicals to fuel a major explosion.

The plant in West had ammonium nitrate, the chemical used to build the bomb that blew up the Alfred P. Murrah federal building in Oklahoma City in 1995, killing 168 people. According to a document filed in 2012 with the Texas Department of State Health Services, the maximum amount of this “extremely hazardous substance” the plant could store in one container was 90 tons, and the most it could have on site was 270 tons. It is unknown how much was onsite at any given time, or at the time of the explosion.

It was also authorized to handle up to 54,000 pounds of anhydrous ammonia, a substance the Texas environmental agency considers flammable and potentially toxic.

“This type of facility is a minor source of air emissions,” Ramiro Garcia, the head of enforcement and compliance at the Texas Commission on Environmental Quality, told The Associated Press.

“So the inspections are complaint driven. We usually look at more of the major facilities.”

No federal agency determines how close a facility handling potentially dangerous substances can be to population centers, and in many states, including Texas, many of these decisions are left up to local zoning authorities. And in Texas, the state’s minimal approach to zoning puts plants just yards away from schools, houses and other populated areas, as was the case in West.

That plant received a special permit because it was less than 3,000 feet from a school. The damage from the blast destroyed an apartment complex, nursing home and houses in a four-block area.

In the city of Houston, sexually oriented businesses are forbidden to be within 1,500 feet of a school. Say what you want about strip clubs, they are generally not prone to exploding. From a safety perspective, it’s no contest.

It’s pretty simple. We can simply accept that this sort of thing will happen from time to time, and chalk up the death and destruction as one of the costs of our society, or we can decide that’s not acceptable, and be willing to pay some amount of money to mitigate those risks. I’m pretty sure I know which one we’re going to choose – we already have chosen it, we’re just going to reaffirm that choice – I just wanted to be clear about that fact that it is a choice. It doesn’t have to be like this, we want it to be like this.

Protecting polluters

Ridiculous.

Ship Channel circa 1973

It’s never been easy fighting powerful polluters in Texas. A bill approved by a Senate committee today would make it even harder. With a big push from the Texas Chemical Council and the Texas Association of Business, the Senate Natural Resources Committee voted 6-3 today for legislation “streamlining” (read: weakening) the process that communities and environmental groups can use to challenge permits to pollute. (Democrats Rodney Ellis and Carlos Uresti as well as Republican Robert Duncan were the ‘no’ votes.)

“We are very disappointed by the committee’s vote today,” said Environment Texas Director Luke Metzger. “The deck is already stacked against residents when a powerful polluter applies for a permit to discharge chemicals in to our air, water and land.”

Senate Bill 957 by Sen. Troy Fraser (R-Horseshoe Bay) would put limits on contested case hearings, mini-trials in which each administrative law judges hear testimony and evidence from each side. Environmental groups already complain that the process is flawed: The judges can only offer recommendations to the Texas Commission on Environmental Quality. That agency, run by corporate-friendly Rick Perry appointees, often ignores or downplays the judge’s proposals.

However, SB 957 would weaken it even further. Fraser’s proposal would shift the burden of proof from the company seeking the permit—often some of the most lucrative and powerful corporations in the world—to the protestant, often a hastily-formed grassroots group or an environmental organization. The bill would also strictly limit how long the contested case hearing could last; limit who could participate; narrow the scope of the hearing; and eliminate discovery.

Here’s SB957. It’s not the only polluter-friendly bill out there.

Some county governments have found that when it comes to suing corporations over polluted property, hiring a private law firm on a contingency fee basis is the way to go.

But against the backdrop of a multi-billion dollar dioxin case in Harris County, there’s an effort to outlaw those arrangements in pollution lawsuits. The House Committee on Environmental Regulation has scheduled a hearing today on a bill that would ban counties from using private firms, HB 3119.

The bill has the support of the Texas Conservative Coalition Research Institute that compiled a report on what it calls the “dubious practice of employing private lawyers on a contingency basis.”

“The arrangement creates a variety of perverse incentives. A county faces no risk in bringing a suit and the outside, contingency-based counsel has no incentive to settle the suit,” said Brent Connett, communications director for the group.

The group argues that instead, contingency fee deals encourage private firms to enrich themselves at the expense of adequately funding the cleanup of toxic sites.

Harris County, which was the focus of the conservative group’s report, says contingency fee arranagements are vital to its efforts to litigate pollution cases.

“We don’t have money to go out and hire lawyers. You’re talking about, at a minimum, hundreds of thousands of dollars that we would have to spend up front just to go to court. With the contingency fee, we don’t have to do that. We only pay if we win,” said Terrence O’Rourke, special assistant to the Office of the Harris County Attorney.

[…]

[Harris County] points out that the big corporations fighting the suits often use very experienced, highly-paid attorneys.

“They’re spending millions on their lawyers and Harris County can’t afford that. We’ve got contingent fee lawyers,” says O’Rourke, the county’s special assistant.

The point of taking cases on contingency is that it only pays to take cases you think can win. Otherwise, it’s a lot of hours down the drain for nothing. One could argue that it’s the attorneys for the polluters that have no real incentive to settle, since they get paid by the hour. But maybe as a compromise, we could set up a public defender system for the businesses that find themselves plagued by these suits, to represent them free of charge. Think the polluters would go for that? Yeah, me neither.

Here’s the Chron on these two bills:

“It surprises me a little bit because there is no history of us settling cases in opposition to the attorney general or against the wishes of the attorney general,” said Rock Owens, who heads the environmental division in the Harris County Attorney’s office, which historically has filed the most civil environmental lawsuits in the state.

Owens said the legislation would diminish an authority local governments have had for decades to punish environmental offenders, and also make for an uneven playing field as governments cannot afford to pay private attorneys on an hourly basis like the companies they sue.

While the county has been filing environmental cases for a long time, it only recently began recruiting outside counsel. Six cases have been relegated to private firms.

[…]

Harris County Judge Ed Emmett said the county has not taken an official position on hiring outside lawyers on a contingency fee basis, but that all counties “ought to be able to make those decisions on their own.”

Once again I note the irony of people who rant and rage about the federal government telling Texas what it can and can’t do but who are lining up to tell various local governments, often in localities far from their own home districts (Rep. Cindy Burkett, author of HB 3119, is from the suburbs of Dallas), what they can and can’t do. The good news is that SB957 likely won’t get past the Senate’s two-thirds rule, while HB3119 hasn’t yet been voted on in committee. If we’re lucky, it won’t have enough time to make it through, or it too will die from insufficient Senate support. But until they both do die, they’re menaces to be watched.

Still fighting the Waller County landfill

I’ve written before about a battle in Waller County over a proposed landfill that would be built there. While the landfill has moved closer to being approved, it’s not yet a done deal, and its opponents are still fighting against it.

“This landfill has done more to divide our county than anything I’ve ever seen. It breaks my heart,” said Waller County Judge Glenn Beckendorff.

Those opposing the proposed Pintail landfill have so far sent a near record 6,000 emails and letters to the Texas Commission on Environmental Quality, urging the agency to deny the permit.

But Green Group Holdings President Ernest Kaufmann contends the protest typifies the “not in my backyard” syndrome that happens whenever his company tries to put in a new landfill.

“Unfortunately, it’s the same argument that you hear wherever you go. It’s always about the groundwater and the smell,” he said. “But our landfills are engineered to be very safe.”

Waller County, which currently has no operating landfills within its borders, transports its waste to Harris, Fort Bend and other counties.

Kaufmann said the landfill is needed to meet needs of the community. “Growth in Waller County and the surrounding area is inevitable,” he said.

According to state records, the proposed landfill will be about 17 percent larger than the average landfill in Texas.

Pintail’s application estimates 161 vehicles a day will haul about 429,000 tons of garbage – none coming from outside the state – to its site each year. That number is expected to grow to 292 vehicles a day once the landfill is fully established, the application states.

The disposal area would be confined to 223 acres with other acreage used as a buffer or a potential industrial park.

Eventually, over decades, a mountain of waste would be dumped there. It will rise roughly 150 feet, or as tall as a 15-story building. Only about 5 percent will come from Waller County.

Boy, I can’t imagine why anyone wouldn’t want that in their backyard. Opponents of the landfill cite factors such as water contamination and discouraging other development in the county; the proposed site is off Highway 6, not far from Prairie View A&M. While these are very valid concerns, I think building giant new landfills anywhere is a bad idea. Frankly, it’s not clear to me that the demand will be there for this landfill, what with cities seeking to reduce the amount of waste they generate, and the amount they have to spend on things like landfill space. Landfills are yesterday’s solution, not tomorrow’s. As much as anything I’d be worried about being stuck with an albatross. I hope the folks who are asking the TCEQ to deny the permit have some luck getting through to them on this.

Adventures in water marketing

The headline on this story is about Texans’ increasing interest in recycling water. That sounds nice, doesn’t it? But there’s another way of describing it that maybe isn’t so appealing.

Experts say recycled wastewater will play a key role in satisfying the thirst of a rapidly growing population. While reuse now provides 2 percent of Texas’ water, state officials say that over the next half-century the drought-proof source will account for at least 10 percent of new supplies.

To reach the goal, state lawmakers may require at least 20 percent of any new funding for water-related infrastructure to go toward conservation or reuse. The requirement is part of House Bill 4, which would allow a one-time transfer of $2 billion into a new revolving, low-interest loan program for water projects.

“This is a robust and reliable source,” said Jorge Arroyo, an engineer and director of innovative water technologies at the Texas Water Development Board, the state’s water-planning agency. “Its future is very promising.”

[…]

Before drought began gripping the state in 2011, the Texas Commission on Environmental Quality typically approved fewer than 20 reuse requests from cities and water districts each year. The number jumped to 32 two years ago and 38 last year, with 25 applications already pending this year, the agency said.

Arroyo attributed the increasing interest in reclaimed water in part to the lingering drought, which covers 74 percent of the state. He also credited improving technology, which now is capable of turning sewage into water so clean it’s almost distilled.

[…]

Water managers see wetlands as a reliable, less-expensive solution to more dams, aqueducts and pipelines that deliver water over long distances. Wetlands allow them to reuse water that they already paid at least once to store and purify.

For all the interest in toilet-to-tap technology, more new potable reuse projects will take the indirect route through wetlands, rather than go straight to the faucet, Arroyo said. Meanwhile, most water reuse will continue to be for irrigation, landscaping and purposes other than human consumption.

I’m going to step out on a limb here and venture that if you were in charge of an advertising campaign for water recycling, you might prefer to steer clear of the phrase “toilet to tap technology”. I mean, you probably don’t want people thinking too much about where that water originated. I know, I know, this is ultimately the way it goes for all of our water, with or without any fancy new technology. I suspect most people would rather imagine that their water all comes from a nice reservoir or a cool mountain stream or something like that. It may not matter that much if most of the recycled water goes to things like irrigation or decoration or other non-drinking purposes. I’m just saying.

Houston loses air pollution permit lawsuit

Bummer.

Ship Channel crica 1973

The Texas Supreme Court ruled Friday that Houston may not effectively void a state air pollution permit.

The justices agreed with Southern Crushed Concrete that Houston’s 2007 law restricting the location of concrete-crushing facilities violates state statute by nullifying a permit issued by the Texas Commission on Environmental Quality.

In reversing an appeals court decision, Justice Debra Lehrmann said the state’s Health and Safety Code is clear.

The law “compels us to give effect to the Legislature’s clear intent that a city may not pass an ordinance that effectively moots a Commission decision,” Lehrmann wrote in an opinion for the nine-member court.

City Attorney Dave Feldman said he was not surprised by the ruling because “any time you have a local ordinance that regulates a specific area that is regulated by the state, preemption is an issue that you have to deal with.”

[…]

Southern Crushed Concrete’s facility meets the state’s requirement, but not the city’s. So the company sued, claiming the city did not have the authority to regulate its business.

Houston countered that the state’s permit regulates air pollution, while its ordinance dealt with land use. The Supreme Court, however, disagreed, ruling that reasoning would allow a city to effectively void any TCEQ permit it opposes.

I think there was merit in Houston’s ordinance, but I can see the reasoning behind the Supreme Court ruling. Mostly what this points out is that as usual, the state isn’t doing as much as it could to protect the environment and the health of people who live a little too close to places like the Southern Crushed Concrete facility. I also find it amusing in a way that this ruling that affirmed the state’s supremacy over cities came out around the same time that League City was declaring its supremacy over the federal government. I wonder what the Supreme Court would say about that? Anyway, this story isn’t quite finished yet, since the matter has been referred back to the TCEQ, where Houston can pursue an appeal of its initial permit to Southern Crushed Concrete. Perhaps the city can lobby for a modification to the state law that would allow local ordinances to be taken into account by the TCEQ when reviewing permit requests as well.

Who gets the water?

This will be worth watching.

A simple idea has guided appropriations of Texas water for decades: First come, first served.

Now, with drought conditions returning to almost the entire state, the principle is being put to the test by a fight over water in the Brazos River.

The Texas Commission on Environmental Quality is withholding water from some, but not all, rights holders to meet the needs of the Dow Chemical Co., which operates a massive manufacturing complex where the river empties into the Gulf of Mexico.

Farmers have sued to get their water back, saying the state agency overstepped its authority by exempting cities and power producers with rights younger than theirs from the suspension order. The agency based the decision upon “public health, safety and welfare concerns.”

No one disputes the chemical maker’s rights, which date to the 1920s. The legal question is whether TCEQ may consider factors beyond seniority when deciding who gets water first in times of shortage.

“This really will be a precedent-setting case if the courts uphold TCEQ’s position,” said Ronald Kaiser, professor of water law and policy at Texas A&M University. “It is about whether we still believe in the priority system. It is elegantly simple, but its limitation is that we don’t consider the highest economic use of water.”

[…]

In the lawsuit, the Texas Farm Bureau and two growers argue that TCEQ does not have the authority to divert from the priority system during drought.

The order leaves more than 700 farmers without surface water for irrigation, while dozens of others with junior rights, including the cities of Houston and Waco and NRG Energy, will not be restricted in their use.

“It turns the priority system on its head,” said Regan Beck, assistant general counsel for public policy at the Farm Bureau.

Mark McPherson, a Dallas-based lawyer who specializes in water rights but is not involved in the lawsuit, agreed.

“When the historic state priority system is changed so materially, it makes those who planned based on the priority system look foolish, and it makes those who benefit from the change look lucky,” McPherson said. “I don’t think that’s a proper use of agency power.”

The solution, he said, is for those who need more water to pay for it. State law allows TCEQ to transfer water rights to meet urgent public health and safety needs, but doing so requires compensation, which was not offered in this case.

“The correct answer is perhaps harsh, but nonetheless necessary: Go acquire more water rights, at the market cost, and pass those costs on to the users,” McPherson said. “And if this were allowed to happen, we’d quickly feel, and finally understand, that water supply is a critical factor in economic competition.”

I’m not a lawyer and I know precious little about water rights, but what McPherson says makes sense to me. I can’t wait to see what the court says. I imagine the Lege will be interested in this decision as well, as it may force them to rewrite some existing laws, and it may give them some extra incentive to tackle that long-term water issue.

Meanwhile, in other water dispute news, the state of Texas has filed a complaint with the Supreme Court against New Mexico over water from the Rio Grande.

In its complaint, Texas says that New Mexico has dodged a 1938 agreement to deliver Texas’ share of Rio Grande river. Instead, New Mexico is illegally allowing diversions of both surface and underground water hydrologically connected to the Rio Grande downstream of Elephant Butte reservoir in New Mexico, according to the filing.

The complaint, filed after New Mexico took its own legal actions and after years of negotiations, asks the Supreme Court to command New Mexico to deliver water apportioned to Texas.

The Rio Grande is the primary, and at some places the only, source of water for much of the agricultural land within Texas. Water from the river constitutes, on average, half the annual water supply for El Paso, according to the filing.

“So long as New Mexico refuses to acknowledge its Rio Grande Compact obligations to Texas, no amount of negotiation or mediation can address Texas’ claims,” the filing said. “And so long as the matter continues unresolved by this Court, New Mexico can simply continue to divert, pump and use water in excess of its Rio Grande Compact apportionment, to the continued detriment of Texas.”

Conservation in El Paso has been emphasized for decades, said state Rep. Joe Moody, D-El Paso. “The community has rallied behind conservation as important,” he said. “But we have rights to access to water: Water in the desert is crucial.”

New Mexico Attorney General Gary King fired back Thursday in a statement that Texas’ court filing was “tantamount to extortion.”

New Mexico farmers already can draw less water from the Elephant Butte reservoir following an agreement several years ago between the two states. King said the Texas complaint, if successful, would “deplete the water in southern New Mexico in a manner that would destroy the long-term viability of water resources.”

The Trib also covered this and another dispute between Tarrant County and Oklahoma that SCOTUS has agreed to adjudicate. I figure we’re going to see a lot more of this sort of thing in the coming years.

Recycling pollution

This is unfortunate.

The calls to the city of Houston’s 311 help line came in the early morning and the middle of the night – complaints of red smoke, yellow smoke, explosions, fire, a child having trouble breathing.

Reports like these – 189 of them over the last five years – led Houston air authorities to discover a previously unrecognized and dangerous source of air pollution: metal recyclers and car crushers, according to interviews and documents obtained by the Houston Chronicle.

The smoke comes from cutting metal with torches and from fire when vehicle gas tanks aren’t drained properly. Explosions can occur when propane tanks are fed into the maw of the crushers.

Descriptions of shattering noise, cracked walls and smoke were significant enough that the city had to “dedicate a good amount of effort responding to these complaints,” said Arturo Blanco, chief of the city’s Bureau of Pollution Control and Prevention.

Subsequent testing outside five Houston metal recycling operations found dangerous levels of hexavalent chromium. Chrome VI, as it’s also called, is a high priority for air experts.

“People were complaining about smoke, and it turns out there were carcinogenic metals,” said Loren Roan, an environmental statistician at Rice University. “And we found them only around these facilities, not in other areas we tested, not even in other industrial areas of the city.”

When inhaled, hexa­valent chromium is deposited in the lungs, can penetrate cells and cause free radicals, which damage DNA, ultimately causing lung cancer. When California gained the authority to regulate air pollution hazards in the 1980s, hexavalent chromium shared top priority, along with benzene. The state considers Chrome VI one of the most potent carcinogens known.

[…]

Houston appears to be the first to examine metal emissions from the industry, and in so doing may have flagged a national problem. The Environmental Protection Agency does not regulate the facilities, though there are now 6,000 of them in the United States, according to Joe Picard, chief economist with the Institute of Scrap Recycling Industries Inc.

You can see a map of metal recycling locations here – the east side is particularly full of them, with the stretch of 59 between I-10 and the North Loop being a hot spot. Clearly, this is something that is going to require action. I’m certain there are plenty of opportunities to do this in a way that creates less hazardous by-product, but such innovation is unlikely to come without external pressure, which is to say government regulation. If that makes metal recycling more expensive, then so be it. We’ll figure out how to adjust. Recycling is necessary, but so is not creating hazardous emissions. We have to be able to do both.

EDF report on school buses

From the Environmental Defense Fund:

Environmental Defense Fund (EDF) [Monday] released a report titled “Review of Texas’ Clean School Bus Programs: How Far Have We Come and What Is Still Left to Do?” This report evaluates each of the clean school bus programs in Texas, reviews accomplishments, and offers suggestions for improvement.

Diesel engines power most of the estimated 480,000 school buses in the United States, and the World Health Organization recently classified diesel exhaust as a known carcinogen, specifically noting a causal link between exposure to diesel exhaust and lung cancer. One of the most dangerous components of diesel exhaust is particulate matter (PM). The Environmental Protection Agency (EPA) is particularly concerned with these smallest-sized particles, because they are known to aggravate asthma, cause lung inflammation, lead to heart problems, and increase the risk of cancer and premature death.

Texas children riding to school in buses built before 2007 may be breathing air inside the cabin of the bus that contains 5-10 times higher the amount of diesel pollution than found outside the bus. These older bus engines spew nearly 40 toxic substances and smog-forming emissions. Children, who breathe in more air per pound of body weight than adults, are therefore exposed to even higher health risks because their lungs are still developing.

As of the 2010-2011 school year, the Texas Education Agency reported that nearly two-thirds of current school buses were over six years old, emitting at least 10 times as much PM as older buses, and much more in many cases because a large proportion of the fleet is even older. More than 700,000 children are impacted, meaning that nearly half of the students relying on school buses for transportation in Texas still ride dirty buses.

[…]

There are two current programs available to help retrofit or replace the remaining 17,000 dirty schools buses in Texas. Under the Texas Clean School Bus Program, The Texas Commission on Environmental Quality (TCEQ) is accepting applications for grants through November 30. This is a comprehensive program designed to reduce diesel exhaust emissions through school bus retrofits. All public school districts and charter schools in Texas are eligible to apply for this grant. Private schools are not eligible for funding. Public school districts that lease buses are also eligible.

EPA also launched a new rebate funding opportunity for school bus replacements under the Diesel Emissions Reduction Act. Applications will be accepted from Nov. 13 to Dec. 14. The first round of rebates will be offered as part of a pilot program and will focus on the replacement of older school buses in both public and private fleets. If the pilot proves successful, EPA will look at rebates for other fleet types and technologies.

The report is here, along with supplemental information. The deadline for the TCEQ grants has been extended to December 14. I had no idea any of this existed, so it’s good to know and good to see that we’re making progress. Many buses can be effectively retrofitted, but some will need to be replaced. Perhaps this will be an opening in the state for the electric school bus industry. In any event, check with your school or your local school board to see what’s being done for your kids.

CSAPR knocked down by federal court

Score one for the polluters.

Greg Abbott approves of this picture

The U.S. Court of Appeals for the District of Columbia Circuit ruled in a 2-1 decision that the Environmental Protection Agency overstepped its authority with the new regulation.

Led by Texas, 14 states and several power companies challenged the legality of the Cross-State Air Pollution Rule, which imposes caps on nitrogen oxide and sulfur dioxide from coal-fired power plants in eastern states. Texas officials fear some utilities will shutter plants to comply with the rule, threatening the state’s ability to “keep the lights on.”

The EPA has said the rule is necessary to reduce lung-damaging pollution that causes thousands of premature deaths and respiratory illnesses each year around the power plants and in downwind states.

“This is clearly a big blow for breathers in downwind states,” said Frank O’Donnell, who heads the advocacy group Clean Air Watch. “The good neighbor rule is a critical component in the EPA’s strategy to ensure healthful air quality.”

See here and here for some background. The Environmental Defense Fund has a press release and anlysis of the ruling, which you can read here. Unlike the flex permits ruling, this one is a genuine setback, though though it should be noted that the court didn’t say the EPA had no authority, just that it needed to write the rules differently. While the usual pollution-enabling gang celebrates, the former head of the EPA in Texas notes that the industries who helped fight this may come to regret it.

Al Armendariz, who was the regional administrator of the EPA when the cross-state rule was finalized and now works as a senior representative from the Sierra Club’s Beyond Coal campaign in Texas, said:

“The ruling, I think, only delays the inevitable, which is that there is going to be a transport rule that requires utilities to significantly reduce their emissions. And ironically, the judgment is critical of steps the agency took which were designed to make the rule cost-effective. And if anything, the judgment could result in EPA putting a rule forward about a year from now that requires utilities to spend more to reduce emissions than if the cross-state rule had gone into effect. So the delay is unfortunate, but ironically, I think the court’s criticism of some of the steps the [EPA] took to try to make the rule cost-effective might result in the agency moving forward with a rule that costs more to comply than the cross-state rule would have.”

Of course, that assumes an EPA that’s not been taken over by industry hacks by that time. We’re all clear on what needs to be done to prevent that, right? Texas Vox has more.

Count tells EPA to review flex permits

Score one for Texas.

The 5th U.S. Circuit Court of Appeals ruled Monday that the Environmental Protection Agency’s disapproval of Texas’ Flexible Permits program was not supported by the Clean Air Act.

Under the Flexible Permits program, which had been in place since 1994, the Texas Commission on Environmental Quality put a cap on allowed emissions from oil refineries and other industrial plants by facility. EPA officials announced in 2010 that they disapproved of the program because it might allow major polluters to exceed federal standards, record-keeping was inadequate and the methodology for calculating the emissions cap was unclear. As a result, those flexible permits were no longer accepted under the Clean Air Act. The facilities that already possessed flexible permits were subject to federal fines.

In the opinion, the court called the EPA’s disapproval of Texas’ program “untimely” and said it “unraveled approximately 140 permits” issued under the program. The court said the EPA’s reasoning was mainly based on wording, and not actual standards or procedures.

“A state’s ‘broad responsibility regarding the means’ to achieve better air quality would be hollow indeed if the state were not even responsible for its own sentence structure,” the court says in the opinion.

The opinion says the EPA must further consider the program.

Court opinion on matters pertaining to the EPA had been running against the state recently, so I’m sure they’re celebrating in the AG’s office. It’s not a huge win for the state, however:

Elena Craft at the Environmental Defense fund pointed out that the court’s decision does not rubber stamp Texas’ Flexible Permits program, but rather deems the EPA’s reasons for disapproving the program inadequate. The program still needs approval from the EPA to exist.

“The reality is that there’s no real change of the situation on the ground,” Craft said. “These [permits] are still not approved by the EPA, so they’re still susceptible to government enforcement until approved.”

The flex permits may yet be denied, but not until further review and not on the grounds cited so far. This story isn’t finished yet.

More on the landfills of Waller County

Last July I wrote about a proposed landfill in Waller County near Hempstead and the residents who are fighting against it. The Statesman has an update on the story.

In many ways, the landfill fight in this rural Texas town two hours east of Austin has a standard shape: An out-of-state corporation is accused of siting an unsightly dump near a largely poor, largely minority community. The landfill company says the accusations are unfair and that the dump will contribute jobs to a stricken area.

The twist here is one of the background players.

Glenn Shankle — the former executive director of the state environmental agency and a lobbyist for landfill companies himself, including one whose permit for a radioactive waste dump he controversially supported just before leaving said agency — is now a hired gun for the community.

Unlikely as the partnership may be, Shankle, 59, hobbled by old track injuries suffered as a runner at then-Kealing Junior High School, may be the opposition’s best hope.

In Shankle’s telling, over a breakfast of heavily buttered toast, bacon and a Dr Pepper in downtown Austin, he resisted the community group gig when first approached about it.

“I told them at the time I don’t do protest work,” he said.

He had grown leery, after a career at the Texas Commission on Environmental Quality, of the methods of environmental groups, he said, and was unsure that he could fight a landfill while also serving as a landfill lobbyist.

“Once you predominantly do industry work, it puts you in an awkward situation,” he said.

Having survived some health scares, however, he had been casting about how he ought to fulfill God’s plan, as he put it. Then, family members who had attended Prairie View A&M University, a historically black college eight miles outside of Hempstead, opposed the landfill and pressed him to intervene.

“I slept on it and prayed on it,” he said. His conclusion: Prairie View should not suffer because of a “scar” to the landscape.

[…]

Landfill company Green Group Holdings CEO Ernest Kaufmann said no more than 250 acres of the 723-acre site will be dedicated to the landfill, which will hold municipal waste from a 40-mile radius around the landfill — with an eye to serving the ever-growing Houston market. Kaufmann said its operation could last roughly 40 years.

“We’re not taking hazardous waste. We’re not taking sewage sludge,” said Kaufmann, whose company calls the project Pintail. The rest of the land might be used for ranching, recreational purposes, as an industrial park or left as open space. The company, which says it will invest millions of dollars in the project, has proposed paying fees to Waller County for each ton of waste collected and a donation of $150,000 for county fire safety equipment.

It estimates the project will create at least 20 full-time jobs at the landfill.

“This is not in a disadvantaged neighborhood,” he continued. “What you have here is some very wealthy people stirring that up. We pay a lot of attention to where we locate facilities and who we’re impacting and who we’re not impacting.”

Huntsinger and others are skeptical of the company’s pledges because, they say, Green Group could sell its permit.

Huntsinger is Bill Huntsinger, a retired Houston real estate guy who moved to Hempstead and is funding the Stop Highway 6 Landfill effort. Green Group has an array of high-priced lobbyists working for it, and rather to my surprise has hired environmental lawyer Jim Blackburn as a consultant. The main thing I get from this story is that the process hasn’t advanced much in the past year and may not advance any further this year, as consideration of the landfill application may happen in 2013. I said last time and I’ll say again, I think this is a bad idea. We shouldn’t be in the business of building more landfills, we should be in the business of waste reduction so that we don’t need more landfills. I wish I had faith that the TCEQ would give this a very critical review, but I don’t. I fear we’ll eventually be stuck with it.

Who gets to use the water?

There’s a lot more demand for an increasingly limited supply.

Lake Austin

More than miles separate the rice farms of the Texas coast and the Highland Lakes, where the outward march of Austin is marked by each new house, strip mall and marina.

They are divided by how to share the water of the Colorado River, pitting agriculture against recreation in a state that values both.

Growers have turned on a new plan that would guide allocations in the lower Colorado basin for the next few decades, grousing loudly about water cutbacks to help preserve playgrounds. Meanwhile, those who live and work around Lakes Buchanan and Travis want guarantees of boater-friendly levels at the reservoirs.

The Texas Commission on Environmental Quality will consider the plan by April. How the three-member panel rules could influence management of Lake Conroe and other popular reservoirs across the state.

The water fight reflects changes in Texas since farmers began drawing from the Colorado in 1885. The Lower Colorado River Authority built the lakes to generate power and tame floods in the 1930s, and the state’s population has surged since then, with more and more people moving into communities that barely existed, if at all, when the dams were constructed.

The state projects the population of the lower Colorado basin to double to 2.8 million people by 2060, and it is clear that there is not enough water to meet everyone’s needs.

“The issue is, Texas is a different place than when this system was set up,” said Andrew Sansom, executive director of the River Systems Institute at Texas State University. “We have to find a way to equitably allocate these shortages in a future that is nothing like the time of its origin.”

Growing population + drought + old rules = conflict. Obviously, agriculture is important, but I’m willing to bet that the revenue derived from tourism, recreation, and property taxes on lakefront real estate add up to a pretty penny, and will likely be more valuable on the whole than agriculture soon if it isn’t already. We know what we need to do – conservation, desalinization, not using treated water for irrigation, etc etc etc – and we know it will cost money and cause heartburn. We still have to do it.

You may be wondering if all that recent rain has helped these lakes recover. Sadly, not much.

Despite this already being the 11th-wettest July on record in Central Texas, officials said the unusually large amount of rain has not been enough to make a significant impact on lake levels in the area.

Bob Rose, chief meteorologist for the Lower Colorado River Authority, said Austin has received 5.82 inches of rain this month at Camp Mabry — a far cry from July 2011, when the city received 0.05 inches of rain.

[…]

LCRA spokeswoman Clara Tuma said Lake Austin received so much rain so quickly Sunday that officials were forced to open two floodgates to let out some of the water. The last time they did that was during Tropical Storm Hermine in September 2010, Tuma said.

However, because June was such a dry month and because the heaviest rains were not in the watershed, the storms did not make an appreciable impact on lake levels, she said. Lake Travis remains 28 feet below its historical July average.

Long way to go still. I’d be happy to send them some of our rain if I could, but then we might need it.

Fifth Circuit rules for EPA against Texas

It’s always a pleasure seeing our litigious Attorney General get slapped down by whatever court he’s bothering this week.

Martin Lake coal plant

In the latest turn in a saga pitting environmental regulators in Washington against those in Austin, a panel of federal judges on Friday sided with the federal Environmental Protection Agency in its effort to tamp down Texas pollution.

The state and the Business Coalition for Clean Air Appeal Group — a group that includes petroleum refiners, chemical manufacturers, electric utilities and other large industrial sources of air emissions — had argued that the EPA had acted capriciously, abused its discretion and exceeded its authority when it rejected a portion of the state’s air permitting program.

A four-judge panel of the New Orleans-based 5th Circuit said it did not.

The weird thing about this is that I can’t tell what lawsuit this is. I think it’s the one about the EPA’s rejection of the TCEQ’s flex permitting program, but it could be the one about the EPA’s authority to regulate greenhouse gases. The story doesn’t give enough detail for me to tell, and for whatever the reason it’s the only such story I can find. If it’s the former, the state and the EPA may be on the verge of a deal in which the EPA would give its approval to the TCEQ. They almost had a deal two years ago, so assume nothing is set in stone just yet. It’s also not clear what effect such a deal would have on the ongoing litigation.

In related news, the EPA also announced it would begin enforcing a stricter soot standard. In this case, the EPA was goaded into action by a lawsuit filed by states such as New York and California that were tired of waiting for the agency to implement a promised review of that provision of the Clean Air Act. This action could have an effect around here.

Harris County would be out of compliance if the EPA sets the standard at the lower end of the range or gets even tougher with the final rule, according to the Texas Commission on Environmental Quality. No other Texas county is in jeopardy of violating the limits.

[…]

Gina McCarthy, the EPA’s air quality chief, said Harris County and others should not need pollution controls beyond those current and proposed rules require.

“It is unique to put a standard out there when we are already headed in that direction,” she said of the proposed limits, which came under a court-ordered deadline.

Environmentalists, however, said the EPA’s projections for Harris County may be too rosy. The area nearly fell out of compliance because of high levels of soot along the Ship Channel in 2009.

Monitoring shows the air near along the heavily industrialized channel is getting cleaner because of new rules for idling trucks and the paving of gravel lots. The Port of Houston, meanwhile, is expecting more freight with the 2014 opening of a wider Panama Canal.

Matthew Tejada, executive director of the environmental group Air Alliance Houston, said federal regulators are making a “fairly foolish assumption” because no one has looked at how the port’s expansion will impact soot levels.

“If things stay steady, we should be fine,” Tejada suggested. “But we are trying to grow a port, and nobody is asking themselves, ‘Are we building ourselves into non-attainment?’ ”

According to a recent conversation between the Chron’s editorial board and County Judge Ed Emmett, port expansion is on the menu, at least theoretically. So this is something to keep an eye on.

Can ban lawsuit moves back to Comal County

From last week:

Travis County District Judge Scott Jenkins removed two state agencies from a lawsuit filed against New Braunfels by a coalition of businesses over the law banning disposable containers on the rivers — popular tubing routes.

Jenkins dismissed the Texas Commission on Environmental Quality and the Texas General Land Office from the suit. This kept the ban in place and transferred the case back to a district court in Comal County. The case was originally moved to Travis County because a state agency was named as a defendant.

“It’s a win for the city because the city wants the case heard in Comal County where it resides and its own citizens decide,” said Frank Onion, assistant New Braunfels city attorney. “It’s important to remember the ‘can ban’ ordinance was supported and reaffirmed by the voters in November.”

The lawsuit had been moved to Travis County in February, and as noted was easily upheld by the voters last November. We’re now officially in the high season for tubing, so one way or another we ought to get some idea of this law’s effects, both on the businesses and the amount of trash in the rivers. Check back in a few months and we’ll see how it went.

Can ban lawsuit moves to Travis County

Some new plaintiffs, too.

A group of river-related businesses has sued the City of New Braunfels, Texas Land Commissioner Jerry Patterson and Mark Vickery , executive director of the Texas Commission on Environmental Quality, over a ban on disposable containers on rivers within New Braunfels city limits that went into effect this year.

The suit, filed [last] Monday in a Travis County District Court, seeks a permanent injunction against the ordinance, claiming it is unconstitutional and effectively bans alcohol on the river. An attempted alcohol prohibition on the rivers was tossed out in 2000, in part because of a Texas Alcoholic Beverage Commission letter saying the city didn’t have the authority to ban alcohol.

[…]

Patterson is among the parties in this latest suit because he is the effective trustee of state-owned public waterways, the suit said. It said Vickery is named because the so-called can ban “unlawfully seeks to regulate and control municipal solid waste management activities that are within TCEQ’s jurisdiction.”

The story says that a “nonsuit” was filed by plaintiffs on Wednesday, which I presume means that the earlier litigation is no longer active. I welcome feedback on that from the lawyers out there.

Matagorda smog

I feel like there are some pieces missing in this discussion.

Matagorda County, 1920s map from the General Land Office

The Environmental Protection Agency is seeking to add Matagorda County to the list of Texas’ smog violators because Gulf breezes that blow through the area send air pollution toward the sprawling metropolis.

Local leaders are pushing back, saying the dubious distinction would lead to stricter regulation of industry at a time when unemployment is at 11 percent in the county.

“We have two plants, and they are minute by Houston’s standards,” Matagorda County Judge Nate McDonald said. “We are not the problem, so do not throw us under the bus because we are in a two-county proximity.”

McDonald is asking other public officials in the region for support in his fight against the EPA. Houston Mayor Annise Parker, for one, said through a spokeswoman that the federal agency has not made a scientific case to add Matagorda County to the smog list.

The move signifies the first change in geography in the federal efforts to clean Houston’s air. The list long has included Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties.

[…]

The Texas Commission on Environmental Quality says EPA data overstates Matagorda’s emissions. Also, federal regulators cannot directly link the pollution to bad air in Houston using models of wind paths, the state agency contends.

“There is nothing we have seen that shows these emissions are contributing to ozone in Houston,” said David Brymer, the TCEQ’s air quality director. “It is just a possibility.”

Carl Young, a scientist for the EPA’s Region 6, which includes Texas, said there is “no bright line” that ties Matagorda’s emissions to Houston’s dirty air, but the “weight of evidence” suggests a connection.

The TCEQ is sufficiently Perry-ized that I don’t trust it in these matters. However, it doesn’t sound like the EPA has (if you’ll pardon the expression) a smoking gun to point to. I doubt Mayor Parker would question the evidence if it were conclusive. So, I don’t know what to make of all this right now. There is an elephant in the room that the story doesn’t being up, though, and that’s the proposed White Stallion Coal Plant in Bay City, which was approved by the TCEQ but is still on hold and recently was unable to get a contract for water. There’s no question that it would have a negative effect on Houston’s air quality. I don’t know what if anything one may have to do with the other, but I’m a little surprised it wasn’t brought up in the story. Whatever the merits of including Matagorda County on the EPA smog list now, they’re surely greater if White Stallion gets built.