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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.

State sues over Deer Park fire

Too big to ignore.

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

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

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

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

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

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

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

We’re about to find out how much we’ll pay to fix Houston’s sewer system

Be prepared.

Houston would ramp up spending on its sewer system by $2 billion over 15 years under a proposed deal with state and federal regulators that is expected to produce higher water bills as soon as next year.

The Environmental Protection Agency has long been concerned that Houston’s cracked, clogged or flooded sewer pipes spill waste into yards and streets hundreds of times each year, contaminating local streams in violation of the Clean Water Act. Eighty percent of area waterways fall short of water quality standards for fecal bacteria.

Rather than sue the city over these long-running problems, the EPA initiated negotiations six years ago, hoping to produce a “consent decree” specifying projects and procedures Houston would use to reduce spills by upgrading pipes, improving maintenance and educating the public on how to avoid clogging the city’s more than 6,000 miles of sewers.

Mayor Sylvester Turner’s staff now are briefing City Council members on the terms of the proposal, which could reach a council vote in April. The mayor said in a brief interview Friday he wanted to speak with all council members before discussing details of the deal publicly, but four people who received the briefings confirmed the deal’s length and projected cost. EPA officials declined to comment.

How much residents’ water bills would rise remains hazy. The city will soon begin a rate study, as it does every five years, that will incorporate the consent decree and other factors and suggest new rates to take effect in July 2020. Turner said rates would stay well within EPA guidelines designed to avoid burdening poor residents, though a 2016 Houston Chronicle analysis showed significant rate hikes would still comply with that framework.

Councilman Greg Travis said he was told the decree would add 4 percent to rates each year of the agreement, resulting in a more than 70 percent increase by the end of the 15-year term. It’s unclear whether that figure included assumptions about inflation and population growth, which drive automatic rate increases each spring. Some other cities under comparable decrees, including San Antonio, will double their rates during their agreements.

Still, the mayor stressed that the projected overall cost of the deal is “substantially less” than the $5 billion to $7 billion the EPA was demanding in the Obama administration’s final year. City officials made an anti-regulation argument to the Trump administration — “You cannot run our city from D.C., and you can’t impose on us costs that the people themselves have to bear” — and it succeeded, Turner told the West Houston Association at a luncheon last week.

“We’ll finally move forward with something that’s in the best interest of the city of Houston, something that will not cost us nearly as much, and something I believe will be the best deal that any city has received anywhere in the country,” Turner told the crowd.

See here and here for the background. This is what happens when maintenance is deferred for too long, though as noted in my earlier link, both Mayors White and Parker took steps to address the problem. Just please keep in mind that this is a problem of very long standing, and it’s one that affects us all, though it most definitely affects some more than others. And if you hear anyone complain about the forthcoming hike in water rates, please feel free to ask them what level of fecal bacteria in their water is acceptable to them, and how much they would pay to mitigate that.

Now how much would you pay to fix Houston’s sewer system?

We may be about to find out.

Federal and state authorities sued the city of Houston over its long-running struggle to limit sewage spills on Friday, marking the beginning of the end of a years-long negotiation that could force the city to invest billions to upgrade its sprawling treatment system.

Houston’s “failure to properly operate and maintain” its 6,700 miles of sewer pipes, nearly 400 lift stations and 40 treatment plants caused thousands of “unpermitted and illegal discharges of pollutants” due to broken or blocked pipes dating back to 2005, the suit states. The city also recorded numerous incidents when its sewer plants released water with higher than allowable concentrations of waste into area waterways, the filing states.

The lawsuit by the Department of Justice on behalf of the Environmental Protection Agency and the Texas Commission on Environmental Quality wants a judge to force Houston to comply with the Clean Water Act and Texas Water Code — typical orders include upgrading pipes, ramping up maintenance and educating the public on how to avoid clogging city pipes — and to assess civil penalties that could reach $53,000 per day, depending on when each violation occurred.

[…]

The filing was spurred by the intervention of a local nonprofit, Bayou City Waterkeeper, which announced in July that it planned to sue the city over the same violations and which filed its own lawsuit on Friday mirroring the EPA’s claims. It states that the city has reported more than 9,300 sewer spills in the last five years alone.

“The city’s unauthorized discharges have had a detrimental effect on, and pose an ongoing threat to, water quality and public health in the Houston area and have caused significant damage to the waters that Waterkeeper’s members use and enjoy,” the nonprofit’s filing states.

Waterkeeper’s July announcement was required by the Clean Water Act, which mandates that citizens or citizen groups planning to sue under the law give 60 days’ notice, in part to allow the EPA or its state counterparts to take their own actions.

See here for the background. This has been going on for a long time, and the city has been in negotiation for a resolution to this. How much it will all cost remains the big question. The one thing I can say for certain is that no one is going to like it. As a reminder, consider this:

Upon taking office in 2004, former mayor Bill White locked utility revenues into a dedicated fund, raised water rates 10 percent, tied future rates to inflation, and refinanced the debt. That was not enough to prevent the debt mountain from risking a utility credit downgrade by 2010, when former mayor Annise Parker took office, so she passed a 28 percent rate hike.

Remember how much some people bitched and moaned about that rate hike? Get ready to experience it all again.

Distributing the VW settlement money

Good for some, less good for others.

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

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

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

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

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

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

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

Hempstead landfill officially dead

Hooray!

Waller County leaders and residents on Monday cheered a Georgia company’s decision to abandon plans for a 250-acre acre landfill near Hempstead, saying they look forward to moving beyond an environmental fight that has dominated public debate for seven years.

Green Group Holdings LLC said in a news release Monday that it was dropping its remaining court appeals and withdrawing any pending requests for approval, citing public opposition and the prospect of a court battle that could go on and on.

“When I looked at the length of time that it would take to go through the permitting process if we were even successful in court and just the level of opposition and divisiveness this has caused in the local community, I just came to the conclusion that we should dismiss the appeals that are pending in the court system and withdraw any other efforts on our part to continue to permit and operate a landfill on this property,” said David Green, the company’s CEO, in a phone interview.

The move ends a bitter fight over the landfill proposal — one that led to a court verdict that past county commissioners failed to show transparency, the ouster of commissioners who backed the project, a well-funded movement to oppose the plan and numerous court rulings blocking the plan.

[…]

Green said the company would still pursue other potential locations for the landfill. He said he believes a solid waste disposal site is needed in Texas because of its expanding population and natural disasters such as Hurricane Harvey.

“I hope and really do feel like this facility could’ve been designed and operated safely, but this has been such a fatiguing and expensive journey for all of the participants,” Green said. “It’s time to put this behind us, so we at Green Group can focus on our other projects that we have.”

Here’s the Green Group press release. It was the recent ruling by a Travis County District Court judge that upheld the denial of a new application by the TCEQ to build the landfill that led to their retreat. They may pursue other opportunities elsewhere in the state, but at least now local communities have a playbook for how to fight back. The rest of us can commit to generating less waste if we want to give communities like Hempstead a hand going forward. No one should be faced with the prospect of having a landfill in their backyard.

TCEQ rejection of Hempstead landfill application upheld

Sweet.

StopHwy6Landfill

A yearslong battle over the construction of a landfill in Hempstead has come to an end for now after a judge ruled in Austin on Friday that Texas Commission on Environmental Quality’s decision to return the landfill’s application should be affirmed, according to court records.

Texas Commission on Environmental Quality had already rejected Pintail Landfill’s second application to build, but the company wanted that decision overturned. The trial took place on Thursday in Travis County’s 250th Civil District Court, where Judge Karin Crump the next day issued her ruling.

“It’s another court victory. It’s been a very long fight,” said Waller County Judge Trey Duhon. “From the beginning we were very clear, that this was absolutely one of the worst spots that you can possibly locate a landfill.”

The landfill, which would be built north of Hempstead off Texas 6 in Waller County, has been opposed for years by community members because they felt it would negatively affect their water supply and economic future. A local group, Citizens Against the Landfill in Hempstead, has actively worked against the construction of the landfill, raising more than $2 million for the cause through community garage sales and other fundraisers.

See here for the most recent update. You would think this would be over by now, but the judge’s ruling can be appealed, so it ain’t over yet unless Green Group throws in the towel. One hopes this time the message will sink in. Congrats to CALH for the latest victory.

More MUD muddles

Who needs collateral?

When Houston businessman David Lucyk decided to develop land in northeast Harris County, he lined up a bank loan to pay for water pipes, sewers, roads and a stormwater detention pond.

He offered the bank three items as collateral: land his company owned, an ownership stake in a business, and the promise of money in the future – millions of dollars in payments from a municipal utility district, or MUD, that he helped create to finance his project.

If everything had gone as planned, Harris County Municipal Utility District 402 would have sold tax-exempt bonds to reimburse Lucyk’s company for its infrastructure costs, and Lucyk would have used the money to repay the bank.

MUDs are highly popular among Texas developers, who hold enormous sway over how they’re created and benefit greatly from their ability to issue tax-exempt bonds and levy property taxes to cover infrastructure costs, as Lucyk was counting on. Those infrastructure costs are ultimately passed on to property owners within the MUD’s boundaries, whose property taxes go to repay the bonds.

Taxpayers’ advocates have questioned the transparency of some MUDs and see them as an increasingly problematic way to pay for infrastructure as local government debt increases, given their sweeping power to sell bonds and raise taxes. What happened with Lucyk and MUD 402 became a case in point when things didn’t work out as planned.

Lucyk’s firm defaulted on the bank loan and filed for bankruptcy. But because part of the collateral he offered the bank was proceeds from the MUD’s forthcoming bond sales, future taxpayers were on the hook for his company’s debts.

Hugh Coleman, a Denton County commissioner and critic of special purpose districts, said the state needs to better protect taxpayers by stopping developers from using future MUD bond proceeds as collateral for bank loans. When things go wrong, banks can sell that collateral.

“It’s like buying credit card debt, except you get to buy it for a developer-run governmental entity and the property owners are on the hook to pay the full amount of the debt,” he said.

It’s one thing for a developer to reach an agreement requiring the MUD to reimburse its infrastructure costs with bond proceeds. But by using that deal as collateral to get a bank loan, Coleman said, it often means a developer enters the project under-collateralized. A chunk of the financial risk of development is transferred from the developer to the taxpayers, he added.

[…]

It’s unclear how often future MUD payments to developers are used as collateral and then bought and sold after a bank loan default.

The Texas Commission on Environmental Quality, which along with the legislature creates MUDs at the request of developers, does not track how often those developers go bankrupt.

“TCEQ is not aware of any effects a developer’s bankruptcy has on bonds issued by a district,” said agency spokesman Brian McGovern.

I dunno, that sounds like a nice piece of data to have. I’ll say again, MUDs may have their merits, but I seriously doubt this is the system we’d willingly choose to have if we were designing everything over from scratch. For all the chest-thumping we are subject to by Republican legislators about being zealous watchdogs of taxpayer money, not to mention the fervor to meddle in local affairs, you’d think someone would file a bill to provide more oversight of MUDs. I guess the pander potential is insufficient for that.

Hempstead landfill application denied again

Good.

StopHwy6Landfill

A state commission has denied a new application to build a landfill in Waller County, saying ordinances adopted by the county and the city of Hempstead now prohibit a garbage dump in the area.

A highly charged debate over proposals to build a landfill rising as high as 151 feet above ground has been going on for about five years.

The Georgia-based Green Group Holdings, LLC, has pursued the project, while a local advocacy group, Citizens Against the Landfill in Hempstead, and current local elected officials oppose it.

The Texas Commission on Environmental Quality last year rejected an original application filed by Green Group, citing an alleged failure of the company to account for how high the water level might get in the area of the proposed Pintail Landfill. The commission returned an appeal of that rejection in the spring, saying it came too late.

The company, meanwhile, went ahead and bought the 723-acre property in June and filed a new application. It reiterated its commitment to meeting required standards and stated a belief that it should be grandfathered in under old laws — before the local ordinances had been adopted to prohibit a landfill at the site, which is north of the city of Hempstead off Texas 6.

But, in a letter dated Thursday, Earl Lott, waste permits director for TCEQ, wrote that the ordinances prevented the agency from granting the new application. For any questions, Lott directed the company to contact its staff attorney.

“We are evaluating all options in light of the recent decision,” said David Green, president of Green Group, in a written statement.

See here for the most recent update, and here for a somewhat hard to read copy of the TCEQ letter. The next step, if there is one, would be legal action to challenge the ordinance. We’ll see what if anything Green Group does.

Still asking for Zika help

From the inbox:

Mayor Sylvester Turner

Mayor Sylvester Turner

Following reports of the first local mosquito-borne Zika infections in the U.S., Mayor Sylvester Turner is once again calling on the state of Texas and federal government to provide financial assistance to help fight it.

“There are already 14 confirmed cases of Zika virus being transmitted locally in Florida,” said Mayor Turner. “I believe it is just a matter of time before Texas is in a similar situation. Cities are the front line of defense in this battle, and we could use some financial assistance from the state and federal governments. It makes no sense to wait until there is an outbreak here.”

Since February, the City of Houston Solid Waste Department has been conducting weekend sweeps of illegal dump sites that can serve as mosquito breeding grounds. To date, 3,433 tons of debris and 29,130 tires have been hauled away at an annual cost of $3.6 million. With some additional state or federal funding, the City could purchase new equipment to increase collection frequency beyond the weekends, develop and distribute educational materials informing residents of proper and free disposal options and establish three additional heavy trash drop-off locations.

Last week, the Houston Health Department was awarded $1.5 million by the Centers for Disease Control to use for surveillance, testing and prevention. The City is already in discussion with Harris County on the best way to maximize the use of these dollars.

Houston has documented 12 travel-associated cases of Zika virus infection since the start of the outbreak in Latin America earlier this year. Harris County has confirmed another 12 cases – 11 are travel related and one is an infant with microcephaly born to a mother who contracted the virus while traveling outside the United State. There are a total of 80 confirmed Zika cases in Texas. At this time, there is no evidence the virus has infected mosquito populations in the state.

In addition to the neighborhood trash sweeps, the City has public service announcements at the airports, on public transit, in city water bills and on local TV. The health department is going door-to-door to distribute insect repellent in underserved neighborhoods, and the City’s regional public health laboratory is supporting local hospitals and clinics with Zika infection testing.

Residents are encouraged to follow the three Ds of mosquito defense: drain, dress, DEET! Drain standing water on your property and keep hedges trimmed. Wear long pants and long sleeves, keep windows and screens repaired and use air conditioning. When outside, spray exposed skin with mosquito repellant containing DEET, reapply as necessary and use netting to protect babies in strollers or car seats.

This is not the first time Mayor Turner has asked for this help. I doubt the Republican-controlled Congress is any more interested in taking action now than it was then, but it can’t hurt to ask. Better to keep expectations low, though.

Want to know how close you live to a polluter?

There’s an app for that.

More than two million Texans live within a half-mile of an oil and gas facility, putting them at risk of exposure to toxic fumes, according to a new app released Wednesday by national environmental groups. The online tool — which includes a searchable map — places about a fifth of the state’s area, and more than 900 Texas schools and 75 medical facilities, in the half-mile range.

The app, created by Earthworks, Clean Air Task Force and FracTracker Alliance, is searchable by address and overlays the locations of oil and gas facilities and vulnerable populations with cancer and respiratory health risk information. An analysis published with the map also estimates that by 2017, 82 counties in Texas with a population of 4.1 million or more will face an elevated cancer risk.

“This [app] is so important in Texas is because of the political situation,” said Earthworks’ communications director, Alan Septoff. “The state has vowed never to regulate greenhouse gas emissions and there’s no chance the state of Texas is going to act.”

[…]

In June, about a month after the Obama administration announced plans to regulate methane leaks from new oil and gas facilities, the Texas Railroad Commission urged the state’s attorney general to sue the Environmental Protection Agency over the rules. Texas Railroad Commissioner David Porter has previously said the methane regulations “kill the jobs Texans rely on to support their families” and are “unnecessary” and “over-burdensome.”

Septoff said his group hopes both that the tool will be a resource to help folks living close to oil and gas activity understand the health risks they may be facing, as well as a push for the Obama administration to adopt methane regulations for facilities already in operation.

Here’s what the map for Texas looks like. There’s a ton of information on the webpage, with videos to help you use and understand the data. However you feel about regulations, you’re better off having full information available to you. Check it out.

Hempstead landfill application resubmitted

Here we go again.

StopHwy6Landfill

A Georgia-based company on Wednesday announced it had initiated a new application to build a controversial landfill in Waller County, bringing renewed attention to a project that a citizens group and several county commissioners have actively opposed.

Earlier this year, Commissioner John Amsler had described the landfill as “dead” though at the time the proponent, Green Group Holdings LLC, was exploring ways to still bring the project to reality.

On Tuesday, the firm filed the first two parts of an application for construction of the Pintail Landfill with the Texas Commission on Environmental Quality, agency spokeswoman Andrea Morrow confirmed.

The portions submitted deal with whether the land can be used for waste disposal. They will be reviewed to decide whether the application can go forward, Morrow wrote in an email.

[…]

Green Group’s new application follows the rejection last fall by TCEQ of a previous proposal, which found the company had not adequately accounted for how high the water might rise in the area. TCEQ this spring also denied an appeal of that rejection, saying the appeal came too late.

In a news release, Green Group said the company was “confident” its new application would meet “all applicable design and location standards.” The new proposed landfill will be on a smaller portion of the of the original site.

News of the filing concerned Citizens Against the Landfill in Hempstead, which has actively opposed the proposal, believing that it would negatively impact the area’s water supply and economic vitality.

After first opposing the plans five years ago, the grass-roots group has kept a close eye on the project. Members of the group last month predicted the fight would continue when the company finalized the purchase of a 723-acre parcel where it plans to build the landfill.

“CALH remains strongly opposed to Pintail Landfill,” treasurer Mike McCall said Wednesday on behalf of the group. “We have got a lot of work to do to fairly evaluate that application. … Until that happens we are not going to have any further comment.”

See here and here for the background. On the one hand, there’s no reason to think that Green Group can’t fix the problems that caused their initial application to be rejected. On the other hand, the county government in Waller is unanimously opposed to this project, which wasn’t the case back when it first came to light some years ago. I never have faith in the TCEQ to be on the side of the people, but I do believe that Green Group has a much higher hill to climb this time around. We’ll see how it goes.

Hempstead landfill fight still not over

As with all things, it ain’t over till it’s over.

StopHwy6Landfill

Green Group Holdings recently purchased the 723-acre parcel where the company had planned to build the landfill before the Texas Commission on Environmental Quality turned down the project.

The move means the Georgia-based Green Group hasn’t given up on the project, known as the Pintail landfill. David Green, vice president of the company, said it would continue to explore how to move forward.

“The Pintail property has been under option to purchase for a number of years,” Green said in a statement last week. “After much consideration, we have decided to exercise the option and purchase the property.”

Citizens Against the Landfill, a grass-roots group in Hempstead, said the company’s purchase of the land indicated that the 5-year-old fight over the project would continue. The group contends that the landfill would harm the area’s water supply and economic future.

“As much as we hate to admit it, at this point we are convinced that the battle is not over,” the group said in a statement that called for a new round of fundraising.

See here and here for the background. Green Group would have to submit a new application for the permit, so any new attempt to make this happen would begin more or less from the beginning, and would face opposition that has already organized and extracted a settlement from county government stemming from the initial attempt. It would be difficult for them, in other words, but not impossible. Those who do not want to see this landfill get built will need to stay on guard.

Mayor Turner asks for Zika help

From the inbox.

Mayor Sylvester Turner

Mayor Sylvester Turner

With members of the local legislative delegation at his side and an illegal tire dump as the backdrop, Mayor Sylvester Turner called on the state of Texas to declare the Zika virus a public health emergency and dedicate funds toward local efforts to fight it.

“Local governments are in a position to do the door-to-door, neighborhood-by-neighborhood hard work necessary to mitigate Zika,” said Mayor Turner. “There is a critical need for help in paying for this massive effort. We have programs already underway and would welcome state help in funding them. Let’s work together to eradicate this threat.”

Mayor Turner is requesting assistance from the Texas Commission on Environmental Quality’s Solid Waste Disposal Fees Account, which currently has a balance of $130 million. Under changes made by the legislature in 2007, the fund may be used for an immediate response to or remediation of an emergency that involves solid waste.

Since February, the City of Houston Solid Waste Department has been cleaning up illegal dump sites to help reduce mosquito breeding sites and combat the spread of Zika. They have already hauled 3,000 tons of debris and 19,000 tires away. The effort is expected to cost $3.6 million this year. With additional funding, the City of Houston could purchase new equipment to increase collection frequency beyond the weekends, develop and distribute educational materials informing residents of proper and free disposal options and establish three additional heavy trash drop-off locations.

Zika is spread by the Aedes aegypti mosquito, which is found in Houston and southeast Texas. Infection during pregnancy causes microcephaly and other brain malformations in some babies. Infections in adults have been linked to Guillain–Barré syndrome.

The city has launched a multi-pronged approach to fighting the Zika virus. In addition to the neighborhood trash sweeps, there are also educational announcements at the airports, on public transit, in city water bills and on local TV. The health department is going door-to-door to distribute insect repellent in underserved neighborhoods, and the City’s regional public health laboratory is supporting local hospitals and clinics with Zika infection testing.

Now that mosquito season is here, residents need to be vigilant about protecting themselves from being bitten. Follow the three Ds of mosquito defense: drain, dress, DEET! Drain standing water on your property and keep hedges trimmed. Dress in long pants and long sleeves, keep windows and screens repaired and use air conditioning. When outside, spray exposed skin with mosquito repellent containing DEET, reapply as necessary and use netting to protect babies in strollers or car seats.

Seems like a reasonable request to me. The state made its own request for assistance to the feds, so fair’s fair. We’ll see how they respond. The Chron and the Press have more.

Houston’s anti-pollution ordinance killed by Supreme Court

Alas.

Bill White

Bill White

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8–1 ruling Friday, the justices made it clear that they disagreed – saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

See here and here for the origin story, and here and here for the most recent updates. The Chron story adds more.

City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.

“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

The ordinance was based on the premise that these facilities are outside Houston’s boundaries, but their emissions directly affect the city and its residents, not to mention Houston’s non-compliance with EPA regulations. The Supreme Court wrote that allowing such ordinances might lead to uneven enforcement around the state. I can see the logic of that, but as is so often the case with the TCEQ, if they bothered to enforce the law in the first place, the city wouldn’t have passed that ordinance. It’s the same impetus that drove Denton to ban fracking, and as was the case there, it’s the same impulse to squash inconvenient expressions of local control that led to this result. How long can you hold your breath, Houston? The Press and the Observer have more.

Find those leaks

I don’t care how.

A pair of state and federal government inspectors spent two weeks traveling around northern Colorado’s oil and gas fields in early 2012, filming with an infrared camera.

Air pollution was rising in the region, and attention was turning to the rapid increase in drilling activity. The inspectors focused on Houston-based Noble Energy, one of the state’s largest drillers with about 7,000 wells in the suburbs and countryside north of Denver.

With the naked eye, there was nothing to see at the nearly hundred sites they visited. But when observed through the infrared camera, again and again they saw plumes of gas radiating from the top of storage tanks near the wells.

“The infrared camera does not quantify emissions, but you can say that’s a small leak versus a big leak. And these were big leaks,” said one of the inspectors, Cindy Beeler, an energy adviser at the U.S. Environmental Protection Agency’s offices in Colorado. “When we showed our findings to Noble, they were surprised.”

As the Obama administration accelerates its campaign to blunt the effects of climate change, federal regulators are turning to infrared technology to seek out emissions leaks in the country’s oil and gas fields. With state agencies, including the Texas Commission on Environmental Quality, and environmental groups embracing the technology, drillers are increasingly finding themselves staring down the lenses of infrared cameras.

Beyond government inspections, many companies are worried they soon will be required to do their own infrared scans and make what they fear will be unnecessary repairs across the country’s more than 1 million oil and gas wells. Industry lobbyists are already challenging the devices’ effectiveness.

“Part of our concern is that it really locks us in to this technology at a point in time the understanding of these fugitive emissions is really in its childhood,” said Lee Fuller, executive vice president of the Independent Petroleum Association of America. “The presumptive starting point for the EPA is requiring infrared.”

[…]

For decades, companies and government inspectors relied on hand-held sensors to tell them if gas was leaking. But without a means to see the emissions, one was left to guess where to hold the sensor on a drilling site that can run the size of a football field – “like trying to pin the tail on the donkey,” Beeler jokes.

Then in 2011, the EPA decided to try infrared technology, which uses variations in temperature and other environmental measures to form images – capturing everything from a mouse on the ground to escaping gas.

At the time, the primary mission was reducing the release of volatile organic compounds, a key contributor to smog, which has long been linked to asthma and lung disease in humans. But federal attention is now turning to methane, which makes up about 10 percent of U.S. greenhouse gas emissions and has an impact on global warming 25 times that of carbon dioxide.

The oil and gas industry is pressuring the EPA to look away from infrared at other cheaper technologies, like methane sensors, that would automatically detect leaks as they occur but are still in development. In a memo to EPA in December, the IPAA raised several issues about the infrared devices, including concerns about whether smaller companies could handle the cost – $100,000 each – and whether they were reliable.

“The results of the camera, the ‘pictures,’ are difficult to interpret and subject to misinterpretation, e.g., what appears to be a leak could simply be a heat plume,” the memo stated.

EPA officials countered that infrared is one of a variety of tools for gathering evidence in emissions cases that often was supported by data from the companies themselves.

“Infrared allows us to see hydrocarbons,” said Apple Chapman, associate director of EPA’s air enforcement division. “It’s a faster screening tool and a faster investigative tool.”

I don’t care what technology gets used, as long as something gets used that can reliably detect these leaks. I doubt I have to explain why some kind of voluntary compliance program is worthless. If the industry has a viable alternative to infrared that they don’t mind being required to use, then fine. If not, then infrared it is. Whatever gets the job done.

Texas files another lawsuit against the EPA

Haven’t we seen this movie before?

In the state’s first lawsuit against the U.S. Environmental Protection Agency in 2016, Texas is suing the agency for rejecting parts of a seven-year-old state proposal to reduce haze in wilderness areas.

The EPA rejected portions of the plan in January, citing concerns that it did not adequately address requirements of the agency’s Regional Haze Rule, which regulates the air in natural areas in Texas and Oklahoma.

“Texas already has a plan that meets the standards of the Clean Air Act, however, once again, the Obama Administration is misinterpreting and misusing federal agencies to force through a radical agenda based more on the beliefs of his environmentalist base than on common sense,” said Attorney General Ken Paxton in a statement.

The petition for review – the state’s 24th legal action against the EPA since Obama took office in 2009 – was filed in the U.S. Fifth Circuit Court of Appeals on Monday.

The Regional Haze Rule was proposed by the EPA to clean up the air at wilderness areas and national parks. Regulations for Texas include the Guadalupe Mountains National Park east of El Paso and Big Bend National Park on the Texas and Mexico border.

Do the particulars of this case even matter? It’s the same song, 24th verse. Even “Amazing Grace” isn’t that long. It is what it is, and the good news is that past history suggests that the state will lose. Again. The Scoop Blog has more.

Waller County landfill plan appears to be dead

Maybe.

StopHwy6Landfill

A Waller County commissioner on Wednesday declared victory in a years-long battle against an outside company’s proposal to develop a landfill there.

“I am proud to say the landfill is dead,” Commissioner John Amsler said as the regular commissioners court meeting got underway.

However, a company representative said Wednesday that Green Group Holdings, LLC, is continuing to explore ways to move forward with the project.

[…]

County and city ordinances regarding landfills now prevent one from being built at that site, meaning a new application would be rejected, County Judge Trey Duhon said by phone Wednesday.

Green Group Holdings, LLC, had been looking to grandfather in an application due to a transfer facility permit they had already gotten for the location, but the county’s attorney learned recently that the state agency did not agree that would be the case, Duhon said.

“That effectively kills the landfill,” Duhon said, though he noted the company already has invested significantly in the project.

Or maybe not.

And yet, in a written statement on Friday, the chief executive officer of Green Group Holdings, LLC, said they were continuing to pursue the project that several commissioners such as Amsler promised during their election campaigns they would fight.

“We are assessing other avenues to move the project forward,” CEO Ernest Kaufmann wrote in a statement.

[…]

In his statement, Kaufmann wrote that Green Group believes TCEQ “has misinterpreted” the rules regarding how a permit application can be grandfathered. And he disagreed with Amsler’s conclusion: the agency’s recent interpretation of the impact that the transfer station registration would have on a resubmitted application “does not mean the project is ‘dead,’ ” he wrote.

A representative of an advocacy group called Citizens Against the Landfill in Hempstead, which has long fought the project, expressed they weren’t celebrating just yet.

The group has spent $1.8 million to fight the project, “a travesty in and of itself,” says Mike McCall, the group’s treasurer.

And while McCall said the group agreed with TCEQ’s decision that a new application should not be grandfathered in under old law, he said he won’t be convinced the group is done until they take away their equipment at the site. Until then, said McCall, who lives north of the proposed landfill site, the group would remain vigilant.

“I’m a CPA by profession, and I like to dot my I’s and cross my T’s,” he said. “I’m not satisfied that Pintail is through yet.”

As the first story notes, Green Group has not appealed the TCEQ rejection of their application for a permit; the application they had submitted was ruled “deficient” because it had not accurately accounted for the landfill’s potential effect on groundwater. That initial application is presumably their best chance to get this landfill done, since local laws have since been changed to ban them. There’s still the possibility of other legal action, and I’m not aware of a deadline for appealing the TCEQ ruling, so it’s still too early to say this is over. We’ll see what card Green Group plays next.

Environmentalists petition EPA to strip Texas of some authorities

This unfortunately is not likely to go anywhere, but I relish the idea anyway.

Alleging that Texas has dramatically eroded its safeguards against air and water pollution, two environmental groups are asking the federal government to step in.

The Environmental Defense Fund and the Caddo Lake Institute are petitioning the Environmental Protection Agency to strip Texas of some of its authority under the federal Clean Air Act and Clean Water Act.

The nonprofits asked the agency to “review and withdraw its delegations of permitting authority to the Texas Commission on Environmental Quality” — the TCEQ — arguing that Texas lawmakers, by gradually cutting funding and passing more industry-friendly laws, have effectively rendered the agency toothless.

The commission panned the petition. “Texas law has and continues to meet federal requirements – to suggest otherwise is misleading to the public,” spokesman Terry Clawson said in an email. “We expect EPA to reject this frivolous petition.”

And the EPA on Tuesday said it was “not aware of significant deficiencies in TCEQ-delegated environmental programs at this time.”

“We will carefully review and consider claims raised by the environmental groups and respond accordingly,” Melissa Harrison, a spokeswoman for the EPA, said in an email.

[…]

As it has in other states over the past four decades, the EPA has given Texas the authority to permit and enforce a variety of air, waste, water and mining programs after lengthy and complex negotiations.

The federal agency rarely — if ever — has completely revoked a state’s permitting authority. But there have been close calls.

In 2013, for instance, Arkansas lost some of its Clean Water Act authority after its legislature passed a bill changing requirements for discharging minerals into streams. Lawmakers fixed the legislation after several permits were routed to the EPA.

Experts can’t recall an example where the agency took away Texas’ authority, but the state has faced similar issues.

About five years ago, the state refused to follow regulations involving greenhouse gas permits, delaying dozens of energy projects and prompting a major outcry from the industry. The Legislature relented in 2013 and directed TCEQ to begin issuing the permits.

You can see a copy of the petition here, and a copy of the EDF’s press release here. The move was in response to the many awful, anti-environmental bills that passed during the last legislative session; you can read the Trib story for an accounting of that. The EPA doesn’t sound particularly enthusiastic about picking this fight, and given how often they’ve had to defend themselves against lawsuits filed by Texas, I can’t blame them for being leery. I still hope they’ll at least put enough thought into this to deliver a scare to everyone who deserves it.

Yet another lawsuit by Texas against the EPA

So what else is new?

In another lawsuit against the federal Environmental Protection Agency, the state of Texas is taking aim at tightened standards on ground-level ozone — President Obama’s effort to cut down on smog that chokes the nation’s skies.

An ozone standard finalized in October shrank the previous 75 parts per billion limits on ozone to 70 parts per billion, putting pressure on some regions in Texas that struggled to meet the previous standards. The rules aim to crack down on pollution coming from factories, power plants and vehicle tailpipes.

Ozone forms when emissions from cars and industrial plants mix with other airborne compounds in sunlight, and it can worsen asthma, lung disease and heart conditions.

Though the new regulation is more lenient than what environmentalists called for, Texas leaders quickly joined with industry in blasting the regulation, arguing that it will cost billions of dollars to invest in cleaner technology that will yield fewer health benefits.

See here for some background, and here for a copy of the lawsuit. We all know the drill here. There will be much sound and fury, and in the end the state will most likely lose. It’ll take awhile and cost a lot of money, and we’ll all try to pretend that this is normal. Wake me when it’s over in a couple of years.

TCEQ rejects application for Hempstead landfill

Back to the drawing board.

StopHwy6Landfill

The Texas Commission on Environmental Quality this week returned a company’s application to construct a landfill in Waller County, calling the application “deficient.” It was the latest blow to plans for the highly controversial project about 50 miles northwest of downtown Houston.

Green Group Holdings, LLC, a Georgia-based company that develops and operates waste management facilities, did not adequately account for how high the water level might get in the proposed area, a discovery that was made after years of vetting the application, according to a letter Monday from TCEQ to the company.

Actively opposed by a local citizens group, the Pintail landfill project was designed for a site north of Hempstead off Texas 6. The landfill’s maximum height would have been about 151 feet above the ground, with a volume of 35.7 million cubic yards available for disposal, according to the TCEQ application overview online.

Agency staff spent more than 1,300 hours over four years working with the company on the permit application, pointing out more than 400 points to be addressed, wrote Earl Lott, the agency’s waste permits division director, in the letter.

“Despite this significant effort, the application is still deficient,” Lott continued. “Elevated seasonal high water levels have been discovered at the proposed landfill site, substantially affecting the basis under which the draft permit was prepared.”

[…]

“For the integrity of the municipal solid waste landfill program, this is not where we want to be at this point in the process,” Lott wrote. “The application has already undergone extensive technical review, a draft permit has been prepared and the matter has been referred to the State Office of Administrative Hearings. It is at this point that momentous site information is discovered which significantly alters the approach to the design of the facility.”

Green Group Holdings can now walk away from the project, draft a new application or appeal the decision. An appeal must be filed within 23 days of the decision. The company has not yet decided what it will do next, according to a written statement.

“We are surprised by the action and are in the process of evaluating our next steps,” the statement said.

Citizens Against the Landfill counts the application’s return as a victory, but doesn’t believe the fight is finished,

“It’s a victory but it’s not over,” Huntsinger said. “When they leave town and say, ‘We’re not coming back to Hempstead with this site, that’s when it’s over.”

See here, here, and here for the background, and here for a copy of the TCEQ’s letter to Green Group. I have a hard time imagining that they will give up the fight, but their choices aren’t very good at this point. Congrats to CALH for all their hard work, whatever comes next.

Houston pleads its case to the Supreme Court

We’ll see how they did.

Bill White

Bill White

“The point of all this is to protect the public and the environment, to have clean air, and the TCEQ, for the Texas Clean Air Act, envisions that it be vigorously enforced,” [Houston attorney Robert] Higgason said. “This is what the statute makes reference to — cities being allowed to enact and enforce their own ordinances to achieve the goal of the Texas Clean Air Act.”

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil, the Dow Chemical Company and ConocoPhillips, has sued to strike down the ordinances, arguing Houston is exceeding its authority under state law.

“The Legislature has already addressed what cities can do to address this problem…and they’ve turned what should be an administrative and civil regime, that should be consistently applied, into a local criminal statute,” BCAA attorney Evan Young argued. “To convert it from something very different from what the Legislature intended degrades and erodes the meaning of the act.”

[…]

Higgason repeatedly argued that it was incumbent upon cities like Houston to enforce the clean air act where the state agency is unable to do so. “If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” Higgason said.

Justice Eva Guzman, a former Harris County district and appellate judge, challenged his stance, asking if local actions might compromise the TCEQ’s right to use discretion in enforcement. She said the TCEQ’s sluggish ability to respond to air pollution violators was not necessarily Houston’s concern.

“When cities exercise their own discretion, that discretion could or could not be consistent with what the TCEQ would have done under their regime,” Guzman said. “It seems to me like that defeats your argument.”

Young emphasized that Houston was indeed allowed to enforce the state’s regulations — so long as it used the state’s preferred method of civil enforcement actions in civil courts.

In contrast, the Houston ordinances allow polluters to be charged in criminal courts, with convictions leading to a range of penalties including fines up to $2,000 per violation for repeat offenders.

“If we’re going to have a statewide, uniform comprehensive regulatory regime that actually gives predictability, it is essential that the TCEQ be involved in that decision-making,” Young said. “If a city wants to enforce the regulations in court, it can do that — by bringing a civil suit.”

See here for the background. The Press, which takes a closer look at the plaintiffs in this action, notes that the stakes are higher than they might appear.

What’s intriguing about this case is that the outcome might ultimately do more than just decide whether Houston has the right to regulate its own air quality. The case gives the Texas Supreme Court the chance to wade into a seldom-explored area of law looking at whether cities have the right to enact local regulations without clashing with state law, according to Law360. Should the high court decide in favor of Houston’s ordinance, that, for instance, could potentially give the city of Denton some legal legs to bring back its anti-fracking ordinance. (Hester, however, contends the chances of that happening are still slim.)

But a ruling against Houston would limit the city’s ability to enact environmental regulations and that would mean the TCEQ would be the agency deciding how to penalize companies that pollute in Houston. “It’s really a question of who gets to make the call on what type of enforcement should take place,” [Tracy Hester, an environmental law professor at University of Houston] says. “If the ordinance is upheld and the city feels like an enforcement action doesn’t address their concerns, then they will be able to have their own enforcement actions.”

So there’s that. Doesn’t make me feel any more optimistic about the likely outcome, that’s for sure. Hope for the best, of course, but I’m not expecting it.

More good news for Hempstead landfill opponents

This could be the end of the line for the proposed landfill.

StopHwy6Landfill

Opponents of a proposed landfill in Waller County won another victory in a years-long legal fight to prevent the project. The executive director of the Texas Commission on Environmental Quality issued a decision supporting the Citizens Against the Landfill in Hempstead’s request for summary judgment on the permit application.

“This is the best news we have received thus far in this case, which has been going on three to four years now,” county judge Trey Duhon wrote in an e-mail. “It is clear that the current application does not meet state requirements for a landfill, as the landfill opponents have been saying all along.”

[…]

“We’re pleased to see that decision by the executive director which acknowledges the position we’ve taken all along,” said Bill Huntsinger, president of the Citizens Against the Landfill in Hempstead, representing opposition in the small town roughly an hour northwest of Houston.

Following the decision from the executive director, it falls to the administrative law judges of the State Office of Administrative Hearings to make a determination about the permit. The Texas Commission on Environmental Quality would then rule on the findings.

“We are hopeful that the judge will do the right thing and dismiss the application,” said Duhon.

[…]

In his decision, the executive director of the state’s environmental commission, Richard Hyde, wrote, “the current application does not meet TCEQ rule requirements by the Applicant’s own admission.”

See here, here, and here for the background. The final step in the process is the actual Contested Case Hearing, which is set for November 2. At that hearing, the case – which may take two weeks – will be heard by two Administrative Law Judges with the State Office of Administrative Hearings (SOAH). At the end of the hearing, these SOAH Judges will issue a “Recommendation for Decision” to the Commissioners of the TCEQ, and then finally the TCEQ will make its decision. (There’s currently a vacancy on the TCEQ, awaiting an appointment from the Governor, so I suppose this could affect the timeline.) One presumes the decision by the Executive Director of the TCEQ bodes well for the landfill opponents, but there’s still that hearing to go through. Stay tuned.

Houston’s environmental protection ordinances go to the Supreme Court

Where, sadly, they’ll likely get killed.

Bill White

Bill White

State environmental regulators don’t adequately enforce air pollution laws, the city of Houston believes, and on Wednesday it will ask the state’s highest civil court to let it keep trying to do the job itself.

The state Supreme Court will hear arguments in a case challenging a pair of ordinances the city enacted in 2007 and 2008 requiring industrial polluters within Houston to register with the city, and subjecting the polluting companies to fines if they operate without registering.

BCCA Appeal Group, a coalition of industrial facility owners including ExxonMobil and the Dow Chemical Company, sued the city seven years ago, claiming the ordinances improperly preempt state law. The First District Court of Appeals has already weighed in on Houston’s side, finding in 2013 that the Legislature had not foreclosed such local regulations with anything resembling “unmistakable clarity.”

In its appeal to the Supreme Court, BCCA argues that the city is allowed to enforce air regulations only if it uses the weaker enforcement tools laid out by the state.

But Houston, and a host of environmental groups filing amicus briefs in the city’s support, say it is perfectly within its rights to enforce state laws using alternative regulatory strategies, including levying fines where the state won’t.

“The city’s looking for accountability, and this is a streamlined way of trying to do that,” said Rock Owens, who co-authored an amicus brief submitted by the Harris County Attorney’s Office. “There should be something that happens if you don’t follow the law, and the [Texas Commission on Environmental Quality] isn’t in a position where they can provide enforcement. They don’t have the resources, or, frankly, the will.”

Owens said he believes the Houston ordinances simply put some muscle behind the regulations the commission laid out. “It’s just a matter of layering — a matter of making the law effective,” Owens said.

[…]

Given how political tides recently have turned against local efforts to police industries, Adrian Shelley, executive director of Air Alliance Houston, said he isn’t optimistic about the city’s chances in front of the state’s highest civil court.

Shelley cited House Bill 40, signed by Abbott in May, which preempts local control over most oil and gas activity, as one reason for his concern.

“I think it needs to be said that there’s a larger trend here — a problematic trend — and that’s bad for public health in Texas,” Shelley said. “We’re likely to lose this case.”

See here and here for some background on this, which was an initiative of then-Mayor Bill White. I’m sure I have more entries on this, but my older archives aren’t quite as organized. I wish I was more optimistic about this, but I think Shelley nails it. As the story notes, Greg Abbott supports the BCCA, because of course he does. Local control only matters to Abbott when the locals are doing things he approves of. We should know in a few months how the Court rules, and I guess you can add this – “what, if anything, should the city do to improve air quality if the Supreme Court invalidates the city’s air quality ordinances of 2007 and 2008?” – to the list of questions that we ought to be asking the Mayoral herd. See this op-ed by Adrian Shelley and Jen Powis for more.

Hempstead landfill clarification

I recently blogged about an update to the Hempstead landfill story, in which Green Group Holdings asked to amend its original filings regarding groundwater levels. I received an email on Monday from a Green Group representative, who sent me the following additional information:

  • On August 12, 2015, the Administrative Law Judges presiding over the hearing on the landfill permit application for the Pintail Landfill in Waller County granted a continuance of the hearing process to allow Pintail to evaluate new information regarding groundwater levels at the proposed site following recent extreme rainfall amounts.
  • TCEQ rules contemplate the incorporation of new groundwater data into the engineering design for a landfill.
  • Because of our commitment to environmental stewardship and engineering excellence, we believe that further evaluation of this new information is the responsible course of action and we requested a delay in the hearing process to allow for it.
  • This is consistent with Pintail’s approach to meet or exceed applicable requirements. For instance, the surface water detention ponds at the Pintail Landfill will have significantly more capacity than required. The surface water management system at a municipal solid waste landfill is required by rule to be designed and constructed to manage the rainfall from one 25-year storm event. However, the Pintail facility’s ponds are designed to manage stormwater from two back-to-back 100-year rainfall events.
  • For the Pintail site, groundwater levels in the 15 piezometers were measured over an 18-month period, from July 2011 until December 2012, including two 3-month periods during which rainfall in the area of the Pintail site was more than 150% of normal (see attachment for additional information).
  • The higher groundwater levels recently measured at the site followed a 3-month period in which rainfall amounts were well over 200% of normal.

Emphasis in the original. The attachment in question can be seen here. In the original Chron story that I blogged about, the folks fighting the landfill asked for a summary judgment denying the permit and dismissing the case after this happened; I haven’t seen any new stories relating to this, so I don’t know what the status of that is. In any event, I wanted to be as accurate as I can about this, so here you go. Thanks to Green Group for the feedback.

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 StopHwy6Landfill@gmail.com 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.