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Using floodplain rules to force environmental safety compliance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Explode, rinse, repeat

Here we go again.

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

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

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

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

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

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

[…]

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

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

Let’s talk about that history, shall we?

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

[…]

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

[…]

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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