For years, the Texas Commission on Environmental Quality failed to penalize 97 percent of the illegal releases of air pollution in the state.

When will "tough-on-crime" Texas enforce clean air laws?

March 17th, 2022

For years, the Texas Commission on Environmental Quality failed to penalize 97 percent of the illegal releases of air pollution in the state.

Jana Pellusch will never forget her last days at work. For decades, she performed maintenance at the Shell chemical plant in Deer Park. The week she was set to retire, in March 2019, only a few exits to the west toward downtown Houston on Highway 225, the Intercontinental Terminals Company plant went up in flames.

On the morning of March 17, a leak of gasoline feedstock from a storage tank ignited what would turn into a four-day inferno. “I looked outside,” Pellush recalls, “and I could see a cloud of black smoke.”

Underneath it, as it spread, Pellush was called into work the next few days, even as the fires smoldered, releasing thousands of pounds of harmful pollutants like cancer-causing benzene and throat-irritating soot. “I went into work Monday, Tuesday, and we were at work most of Wednesday,” she says. It wasn’t until Thursday morning that local officials barricaded all the roads leading to that heavily industrial landscape jammed between the highway and the Ship Channel.

The ITC fire created a toxic plume so large it was visible from space. The foam used to put out the blaze broke a retaining wall at the plant and caused cancer-causing forever chemicals called PFAS to leach into the bayous. And it all could have been prevented. The U.S. Chemical Safety Board, still investigating the disaster three years later, found early on that ITC’s tank farm lacked an alarm system to alert workers and an emergency remote shutoff valve. Had they been in place, other protections — including more frequent inspections and stronger permits — would have helped, too.

One of six major chemical disasters in the Gulf Coast region that year, the ITC fire forced TCEQ Executive Director Toby Baker to admit, “We’ve been lagging around the idea of accountability.” State Rep. Dade Phelan, from Beaumont, near the TPC Group plant that also exploded near the end of 2019, said the legislature “must act to ensure the safety of workers and the citizens that live in the surrounding communities.”

It didn’t act. As Speaker of the House, Phelan put the one bill written in response to the disasters as the very last item on the very last night of the session. “I’ve always wanted these refineries and chemical plants to be run as safely and cleanly as possible,” Pellusch says. “Over the years, I’ve come to the conclusion that there’s no way to make them safe. It’s like pulling teeth to get companies to spend money on that.”

But the state could do more to prevent disasters like ITC and protect workers and communities from the harms. The one agency that could do it — the Texas Commission on Environmental Quality — hasn’t, and it hasn’t been empowered by the legislature to change. Month after month, corporations like ITC, TPC Group and Exxon Mobil report pollution that goes beyond what they are permitted to release, but TCEQ has never been able to take enforcement action severe enough to make them stop. The maximum fine the agency can levy is just $25,000 a day. For years, it was only $10,000. In Texas, it’s almost always been cheaper to pollute and pay up later than fix faulty equipment or install pollution controls. Sure enough, Environment Texas found that pollution was released illegally somewhere in Texas every single day in 2019. The state could be leaving as much $2.3 billion in fines on the table, inexplicably letting polluters off the hook.

This is the second in a series of stories set across Texas about the ways TCEQ can change to work for our communities. Read the first: Does Texas know what's in the air in Port Arthur?

For Bryan Parras, a Sierra Club organizer who grew up on Houston’s heavily industrial east side, watching bad actors get away with the same violations over and over again is ironic in a notoriously tough-on-crime state like Texas, where people often receive severe punishments for petty offenses. “We know that [companies] have done something wrong, we give them a slap on the wrist, and what happens? They do it again,” he says. “If you can believe that an individual will do something again if they’re not penalized for breaking the law, then you have to think that companies do the same — they’re run by people with a profit motive.”

Over the past few years, during Gov. Greg Abbott’s tenure, state legislators have passed laws capping the penalties local entities can collect, limiting their ability to hire private law firms to litigate complex cases and mandating that the state gets a chance to pick and choose cases first — often settling cases for pennies on the dollar. Harris County, for example, settled the ITC case for just $900,000, though the disaster was estimated to have caused $1 billion in economic damages alone because the Ship Channel had to be closed.

Elected in 2020, Harris County Attorney Christian Menefee thinks the penalties could have been higher if the case had taken place before these restrictive laws were set. “I think there’s been a coordinated effort from state leaders over the past decade to undermine local governments, which are becoming increasingly diverse,” he says.

Perhaps the most damaging bill is one that restricts local agency’s ability to hire outside law firms to litigate complex cases with the potential for million dollar settlements. Menefee calls it the “Mother May I” bill: His office has to seek permission from the attorney general to hire a firm, and the attorney general can deny that request for any reason it wants.

All together, these laws have shielded corporate polluters across Texas from major penalties that could be won by local governments. And if TCEQ won’t aggressively go after them, the agency has also shown an unwillingness to get tougher and prevent the pollution from happening. When Menefee takes on a pollution case, he often has to find creative ways past these minefields: slowing down the permitting process for concrete batch plants wanting to operate next to residential neighborhoods, or requesting contested case hearings for people who’ve been poisoned by a creosote dump site for decades. These aren’t just delay tactics. “We navigate that like a ball going down a maze,” he explains. “Every time a door shuts, we try to turn right, turn left and advance. It’s close quarters. It’s difficult to navigate, but we’re doing what we can.”

Clearly, polluters haven’t been dissuaded. Juan Flores has lived in Galena Park for four decades. He often hears the joke that the toxic air “smells like money” — but “we’re paying with our health,” he says.

What Flores, a program manager with Air Alliance Houston, wants to see is some basic accountability. During the last legislative session, Flores traveled to Austin with his son and others to testify in support of the bill Speaker Phelan would eventually leave for dead. Now, as TCEQ undergoes a kind of performance evaluation known as a sunset review, required of all state-funded agencies every 12 years, Flores is still pushing. Last month, he, Parras and other environmental justice advocates organized a toxic tour for staff working with the commissioners who will submit a report to the state legislature next session about changes TCEQ could make to be more effective. At stops near the Ship Channel, in Galena Park, Pleasantville and Fifth Ward, where environmental contamination has poisoned generations, they heard from residents who want TCEQ to work for their communities. They’re tired of spending time calling and filing complaints.

Parras is trying to give the sunset review the benefit of the doubt, he says, but it’s hard not to be skeptical. Transforming the agency into one equipped to work for communities would require a reversal of nearly a decades’ worth of policies that have shrunk their budget and given them fewer resources to go after polluters, while the industry expands. “I think what has changed,” he says, though, “is that we’ve had a series of major disasters.” From the spills and emissions at plants with power outages during Hurricane Harvey and Winter Storm Uri, to the chemical fires and explosions in Harris and Jefferson counties, on top of the daily pollution burdens some communities already face, Texans are tired of going it alone. “I hope that the commissioners are honest about what they learned from us,” he says. “It’s hard to ignore that we have serious flaws in our environmental regulatory body.”

Ahmed is a freelance environmental reporter based in Dallas, Texas. Her work focusing on environmental justice has been published in the Texas Observer, Texas Monthly, Southerly and other outlets. You can find her on Twitter @amalahmed214.


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