Report: Texas regulators levy fines on just 3 percent of air polluters


The state didn’t impose fines for 97 percent of air pollution incidents from 2011 to 2016, a new report found.

Environmental advocates say the state lets companies take advantage of a loophole for accidents and repairs.

The Texas Commission on Environmental Quality says it thoroughly investigates all air pollution reports.

Less than 40 miles from downtown Austin as the wind blows, the Luling Gas Plant has violated its permitted air pollution limits in each of the last four years, spewing an average of 13,000 pounds of unauthorized pollutants into the atmosphere per year.

The state’s environmental regulator, however, hasn’t penalized the plant’s owner, Midland-based Davis Gas Processing, for any of those violations because of a Texas rule giving leeway to companies that self-report pollution incidents attributable to maintenance or accidents.

That rule, exempting what are known as “upset” events from many sanctions, allowed the Texas Commission on Environmental Quality to forgo assessing financial penalties for 97 percent of the more than 24,000 air pollution violations that companies admitted to between 2011 and 2016, according to a new report from the Environmental Integrity Project and Environment Texas, using commission data.

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Because regulators set permitting levels based on how much pollution scientists determine people can safely breathe, the practice of regularly exceeding those levels presents a considerable public health risk, the environmental groups say.

“The Luling Gas Plant routinely emits more air pollution than it has promised the state of Texas,” said Ilan Levin, an associate director in the Environmental Integrity Project’s Texas office. “When the regulators and the scientists and experts assess the air quality in Austin, they’re not taking into account the illegal pollution that’s coming into our area from Luling.”

Although gusts blow in all directions, the prevailing wind pattern for Central Texas heads directly from Luling to Austin. Less than two years ago, heavy clouds trapped odorous emissions from a Luling refinery over South Austin, leading many to think they had gas leaks in their homes.

The Luling plant’s owners, Davis Gas Processing, didn’t respond to interview requests.

500 million pounds of pollution

Pioneered by Texas in the 1970s as the federal government was adopting clean air protections for the first time, the exemption was originally pitched as a way to ensure companies weren’t punished for violating their permits if they came clean about unavoidable accidents. Over the years, however, many companies started habitually claiming the exemption, which has since been adopted by other states.

“These events are frequent and are often just part of a company’s business plan,” Levin said.

The Texas Commission on Environmental Quality declined to comment on the environmental groups’ findings until it had time to analyze the report but said it thoroughly investigates every pollution report.

“Texas has extensive reporting requirements for these types of events, and every incident reported to the agency is reviewed,” commission spokesman Andrew Keese wrote in an email. “When sources exceed permitted limits due to unplanned (maintenance) activities or upsets, Texas reviews these events against demonstration criteria (in state law) to determine if the event was avoidable and assesses whether or not operators took measures to minimize emissions.”

Agency spokeswoman Andrea Morrow added: “Texas does not allow industries to release excess amounts of air pollution when equipment breaks down and when facilities undergo maintenance work. … TCEQ consistently pursues administrative, as well as civil enforcement, against non-compliant regulated industries.”

A vast majority of the 500 million pounds of unpermitted air pollution released in Texas from 2011 to 2016 came from oil and gas facilities in the Midland-Odessa area and refineries and chemical plants around Houston, according to the report, which analyzed state enforcement actions.

While polluters point to the state’s lack of enforcement as evidence of their good behavior, the courts don’t always agree. A Houston-based federal judge in April ordered Exxon Mobil to pay $20 million for releasing 10 million pounds of pollutants from its Baytown facility in thousands of incidents over eight years. The Texas commission had declined to sanction the company.

Exxon Mobil, which paid the commission $1.4 million for other violations at the Baytown complex during that period, said it disagreed with the court’s ruling and has spent $1 billion to reduce pollution at the facility, which dates back to 1920.

The lawsuit was filed by people who live near the facility and were represented by Environment Texas and the Sierra Club through a provision of the federal Clean Air Act that allows individuals to sue polluters when state and federal regulators don’t act.

Stricter enforcement of air pollution limits would encourage companies to invest more heavily in prevention measures and safer equipment, Levin said.

The report recommends that regulators investigate repeat violators, confirm that companies couldn’t have prevented reported accidents before declining to impose fines, and apply stronger sanctions when they do take action.

The 588 incidents in which the state commission imposed penalties on air polluters between 2011 and 2016 resulted in a total of $13.5 million in fines, which averages out to less than $30,000 per violation.

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