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It wasn’t instantly clear what chemical compounds erupted into the air from the Channelview hearth. Essentially the most anybody knew was that the massive plume of black smoke billowing throughout the late afternoon sky — seen for miles simply east of Houston — had triggered evacuations and a shelter-in-place for the close by group of Lakeside Park Estates.
Solely later, after the hearth had burned for greater than two hours, did residents be taught what had occurred. In early April 2021, an accident at Ok-Solv, a chemical distribution and maritime companies firm, began a chemical hearth that despatched greater than 165,000 kilos of 43 totally different pollution into the ambiance, together with a number of identified to be hazardous to human well being. The corporate then didn’t notify the Texas Fee on Environmental High quality inside 24 hours after the emissions occasion — a requirement beneath state legislation.
County consultants estimated a most penalty of $1.175 million for the corporate for these two violations. To the alarm of Harris County officers, residents and environmental advocates, nevertheless, the TCEQ settled for $11,413 — lower than 1% of that.
“You could imagine our surprise when the state of Texas settles for just that,” Harris County Legal professional Christian Menefee mentioned. “I can’t tell anyone what we wouldn’t have settled for as the county, but, you know, my lawyers are pretty damn good and they’re pretty aggressive, and I’m more than confident that $11,000 would not have been sufficient.”
The Ok-Solv settlement was not the primary time Menefee and his environmental group discovered themselves at cross functions with the state. For the previous seven years, the TCEQ and Texas Legal professional Common Ken Paxton’s workplace have intervened in additional than a 3rd of civil penalty circumstances towards Houston’s petrochemical trade beneath a 2017 state legislation that enables the state to take county circumstances. Residents, advocates and the county say this coverage is only one of many restrictions geared toward shrinking native energy, lowering settlement penalties and taking penalties from the county and communities affected.
Since Home Invoice 2533 handed, the state can take environmental civil penalty circumstances inside 90 days of the emissions occasion, barring native governments, people, or nonprofits from submitting go well with as an alternative. Meaning any native entity should notify the chief director of the TCEQ and the legal professional basic earlier than suing. The TCEQ and legal professional basic’s workplace will then determine whether or not to take it on — with no say from native officers.
The invoice’s creator, state Rep. Charlie Geren, R-Fort Value, who didn’t reply to repeated requests for remark, mentioned in the course of the preliminary listening to for the invoice in 2017 that native actions “are contrary to statewide enforcement policy and interpretations” and that native governments are “motivated by the desire to not remedy the environmental problem, but to generate attorney fee awards to the share of penalty recoveries.”
Because the invoice handed, critics have identified that a number of of the circumstances taken by the state have led to settlements of lower than 10% of the utmost penalty, which Menefee sees as a strategy to profit trade and weaken native enforcement.
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“Even under my predecessor, this office has always been very active in pursuing these cases,” Menefee mentioned. “But now, if a company is on the hook for millions of dollars and you settle with them for just a few thousand dollars, what incentive does the company have to scour their process and make sure they’re going to be most protective to the surrounding communities?”
Stripping away native management
In 2015, to the frustration of some state leaders, Harris County and Fort Bend County sued Volkswagen for putting in expertise designed to bypass emissions monitoring in a multi-billion-dollar nationwide scandal.
The counties sued two weeks earlier than the state of Texas and in the end refused to drop their circumstances on the request of Paxton.
The ensuing battle between the state and counties, together with different high-penalty county lawsuits towards Intercontinental Firm and Arkema after Hurricane Harvey, led Geren and different officers to push for the legislative change. The invoice, Geren asserted in a listening to, would stop one other Volkswagen battle and maintain enforcement coverage constant throughout Texas.
“It went from some initial restrictions to where the attorney general’s office was basically in control of everything and sort of squeezed the county out,” mentioned William Rock Owens, a retired legal professional with Harris County. “It made it absolutely impossible to do anything without the absolute approval of the attorney general’s office.”
In 2011, the Legislature handed a invoice requiring state businesses to obtain approval from the legal professional basic’s workplace earlier than hiring outdoors counsel to help in circumstances.
Then, in 2015, the Legislature handed a invoice that restricted the quantity of penalty cash from environmental circumstances {that a} county may accumulate. The invoice, additionally authored by Rep. Geren, lower the county off at $4.3 million, with the remaining stability going to the state basic fund.
Owens, who retired from the county in 2019 after almost 40 years, mentioned the rising restrictions contributed to his leaving when he did. He discovered it irritating and exhausting to see the county slowly lose company.
“Outside counsel could help us be more effective in cases,” mentioned Owens. “But every time we found a way to do something that could ratchet down on industry or something, the state would make it harder for us.”
That has been significantly true because the 2017 invoice. The county should ship a discover to the state laying out its case and what number of violations it might pursue. The state then has 90 days to evaluation the documentation and determine whether or not to take the case or permit native authorities to proceed. The county can’t advance the case till that dedication is made.
Ought to the state determine to take the case, it is going to file by TCEQ administrative courtroom or district courtroom with the legal professional basic’s workplace.
Requested in regards to the standards for choosing circumstances to take, the TCEQ responded, “The agency reviews each request by local governments to file suit on a case-by-case basis in consultation with its attorney at the Office of the Attorney General.”
Nevertheless, the TCEQ mentioned the company doesn’t maintain observe of the variety of circumstances taken from any native authorities, together with Harris County
The legal professional basic’s workplace didn’t reply to requests for remark.
Points with penalties
Within the case of the Ok-Solv hearth, the TCEQ thought of all 43 pollution as a single violation fairly than 43 totally different violations — every price a most of $25,000 a day. With one violation on sooner or later, lasting lower than 3 hours, the company landed on a penalty of slightly greater than $11,000.
The TCEQ doesn’t speciate or separate every pollutant as a distinct violation, mentioned Sarah Utley, an assistant Harris County legal professional specializing in environmental circumstances. That lowers the full potential penalty considerably on the outset.
“This is one of the biggest differences between the TCEQ and us and district court,” Utley mentioned. “District court (in Travis County) and county will seek a different penalty for each pollutant discharged. The TCEQ doesn’t do that. Their penalty numbers are always pretty low.”
In one 2018 case, the TCEQ settled with the chemical manufacturing firm Kuraray for greater than $8,000 out of a most potential penalty of $150,000.
In one other 2021 emissions case, the TCEQ penalized VSL Environmental Options, a waste administration and marine companies firm, $11,250 from a potential most of $300,000.
Whereas emissions circumstances that go to district courtroom are separated, the full penalties will also be far decrease than the utmost. An 2019 explosion and hearth on the Exxon Baytown complicated resulted in 770 violations from 14 totally different pollution over 5 days.
District courtroom settled for simply $755,000 — simply 4% of the $19.25 million potential most penalty.
“People need to understand that these cases are not small, these are large cases,” Utley mentioned. “The state isn’t going after the little ones. It’s not like you have a little facility that has a little emissions event; these are big cheeses.”
Even with low penalty settlements, one other concern for critics of the invoice is the cash collected by the state will then go to the state basic income fairly than the county basic fund or any people who need to file authorized motion.
Meaning the penalty collected from the native petrochemical trade in Houston may find yourself miles away in Austin fairly than within the fingers of the native authorities or native communities, mentioned Cyrus Reed, conservation director for the Sierra Membership’s Texas Lone Star Chapter.
Whereas the penalties the county receives go to the Harris County basic fund, Menefee mentioned that the cash needs to be despatched to environmental safety, resembling Harris County Air pollution Management and the County Legal professional’s Workplace.
Menefee additionally factors to the growth of his workplace as proof of the native authorities’s prioritization of environmental issues. Since he took workplace in 2019, the environmental group has jumped from six attorneys and three paralegals to 13 attorneys and 4 paralegals.
Reed spoke towards the invoice on the listening to in 2017 and now, in 2024, his opinion hasn’t modified. He factors to the 20 lobbyists and trade teams who supported the invoice initially as proof of the difficulty. The checklist contains teams just like the Texas Chemical Council, Texas Oil and Fuel Affiliation, Texas Affiliation of Enterprise and the Texas Affiliation of Producers. None responded to requests for remark.
“Given the significant political support that large industry has in Texas, it could mean a less aggressive civil suit or less penalties and less favorable outcome for communities,” Reed mentioned.
Citizen complaints
Whereas it’s authorized for personal residents and nonprofits to sue polluting firms in state courtroom, the most effective outcomes usually come from the Clear Air Act Citizen Swimsuit Provision. This rule, handed by President Richard Nixon in 1970, permits any individual to file a lawsuit in federal courtroom for an emissions occasion.
Nevertheless, the TCEQ and legal professional basic’s workplace can intervene there, as effectively. If the state recordsdata the same go well with, alleging the identical environmental emissions points, the person’s declare cannot proceed. The state has 60 days to take the case — once more stripping the group of native motion and potential penalty cash.
“It’s extremely difficult to file a lawsuit at state court against a polluter in Texas, it’s expensive and complicated. HB 2533 really is about the county,” mentioned Neil Carman, clear air director for the Sierra Membership and retired TCEQ regulator. “(Nonprofits) and citizens will go through federal court, but even then, the TCEQ will do the same thing.”
In July 2019, the TCEQ took a case from Sierra Membership that alleged 600 violations of Valero Oil Refinery in Port Arthur and the discharge of just about 1.8 million kilos of unauthorized air pollution.
“The Texas AG and TCEQ filed in Travis County in mid-July to stop our mid-July citizen suit,” Carman mentioned. “Their lawsuit was a word-for-word, cookie-cutter version of our 60-day notice filed with Valero.”
In different circumstances, nevertheless, the group citizen complaints resulted in tens of millions of {dollars} in penalties donated to public well being and environmental tasks in the neighborhood. In 2009, nonprofits Sierra Membership and Atmosphere Texas efficiently sued Shell Oil Firm for “upset” occasions, resembling tools breakdowns and malfunctions in on the firm’s Deer Park oil refinery and chemical plant.
The ensuing $5.8 million penalty funded environmental and well being tasks in Harris County, together with changing faculty buses with ones with cleaner engines and a photo voltaic vitality demonstration undertaking by the Houston Superior Analysis Heart.
“In both cases (HB 2533 and Federal), the state is cutting off the community,” Carman mentioned. “It’s just a matter of how they are doing it.”
Disclosure: Houston Superior Analysis Heart, the Texas Affiliation of Enterprise and Valero and have been monetary supporters of The Texas Tribune, a nonprofit, nonpartisan information group that’s funded partly by donations from members, foundations and company sponsors. Monetary supporters play no position within the Tribune’s journalism. Discover a full checklist of them right here.
