Agency Of Destruction

Texas' environmental commission serves its customers well. Too bad they're not the public.

Note: To download Zak Covar’s emails click here.

To judge by size alone, Texas‘ environmental agency should be the mortal terror of polluters. The Texas Commission on Environmental Quality (TCEQ) boasts a $600 million budget, some 3,000 employees, a sprawling Austin headquarters, and 16 regional offices. In 2008, the agency conducted more than 100,000 investigations, issued more than 14,000 violation notices, and levied $16.9 million in penalties. By the numbers, Texas’ environmental agency is the second-largest in the world, after the federal Environmental Protection Agency.

Though it’s not a household name, the commission has profound influence—over the air we breathe, the water we drink, and the health of Texas’ diverse ecosystems, not to mention the state’s economy. The agency regulates dry cleaners, hazardous waste dumps, the vast coastal petrochemical complexes and uranium mines. It oversees Texas’ enforcement of federal laws such as the Clean Water Act and the Clean Air Act.

But both its critics and friends will agree on this: TCEQ is no EPA. While the federal agency is a favorite punching bag of right-wing Texas politicians like Gov. Rick Perry, you don’t hear warnings ringing out about the evils of the TCEQ. That’s because, in decision after decision, the Texas agency that’s supposed to protect the public and the environment has sided with polluters.

Perry, who appoints the three TCEQ commissioners, and the TCEQ bosses say they’ve strived to balance economic growth with protecting the environment. It doesn’t feel that way to the agency’s fierce and numerous critics.

“The problem with some of my colleagues’ balancing is they always balance it toward economic development and don’t let the environment have an equal consideration,” says Larry Soward, a former TCEQ commissioner who now works with environmental groups on strategies to improve the agency.

Interview with Audio: In his six years as a TCEQ commissioner, from 2003 to 2009, Larry Soward got a rare insider’s view of how the agency functions—and how it doesn’t. Learn why the EPA is taking away the agency’s power »

Texas has always been a state where environmental concerns are elbowed aside by moneyed interests: the cattle baron, the oilman, the multinational petrochemical company with billions in assets. Under governors George W. Bush and Rick Perry, the TCEQ has become increasingly cozy with industry. (Until 2002, the agency was the Texas Natural Resources Conservation Commission, or TNRCC—”Trainwreck” to its critics.)

“It’s never been worse,” says Jim Schermbeck of the clean-air group Downwinders at Risk. “Perry makes Bush look like a Greenpeace smokestack-sitter.”

When Texas citizens meet their environmental agency, they’re often disappointed. The stories of environmental battles—told in these pages countless times—frequently follow a similar plot.

First, citizens band together to beat back (fill in the blank: a coal plant, industrial feedlot, uranium mine, or something else of your choosing). New to activism, they educate themselves on the rules, laws and politics. At some point, they probably contact an overwhelmed organization such as Public Citizen or the Sierra Club for help. They form a group with a snappy acronym, print literature, create a website, hold meetings and write their Congress member. After a time, they realize that the Texas Commission on Environmental Quality is holding the cards. A permit must be stopped or penalties assessed to deter misbehavior. Surely the commission, an impartial arbiter, will weigh the facts and side with the people.

More times than not, a bitter reality sets in: The TCEQ is not the people’s friend, but another obstacle. There’s a “well-founded perception that [the public] can’t get in the process or, even if they get in, it’s just a token effort, and it won’t make any difference,” Soward says.

In TCEQ’s internal lingo, “customers” are the companies the agency regulates. In serving its “customers,” TCEQ has allowed itself to be overrun by powerful interests, shown disregard for both science and the law, and cast aside public opinion.

There’s no more eye-opening illustration of the agency’s MO than West Texas’ new radioactive waste dump. In 2007, a team of geologists and engineers at TCEQ unanimously recommended that a license for the vast dump, near Andrews, be denied. Water contamination was a prime concern. Then-Executive Director Glenn Shankle ordered the TCEQ team to issue the license anyway.

There was big money at stake. The company behind the dump, Waste Control Specialists Inc., is owned by Dallas billionaire Harold Simmons, who’s contributed $620,000 to Perry’s campaigns since 2001, according to Texans for Public Justice. Simmons stands to make billions from storing “low-level” radioactive waste in West Texas.

Records show that Shankle met regularly with a team of lobbyists, lawyers and company principals at the same time his own experts warned him of the dump’s dangers. Seeing that the fix was in, three TCEQ employees quit in protest. Commissioners hardly batted an eye. In January 2009, after a brief, technical discussion, they voted 2-0 (with Soward abstaining) to issue the license. They also denied the Sierra Club and 12 individuals in Eunice, New Mexico, the town closest to the dump, a chance to contest the license before administrative judges.

Shankle stepped down as TCEQ’s executive director in June 2008. Six months later, he went to work for Waste Control Specialists as a lobbyist, collecting between $100,000 and $150,000 for his services thus far. Commissioners and top management frequently leave the agency to work for the industries they previously regulated, a revolving door that critics say has led to TCEQ’s leaning in industry’s direction.

Since 1993, former TCEQ higher-ups—including commissioners, general counsels, and a deputy director–have earned as much as $32 million lobbying for the industries they once policed. Four of the five former executive directors became lobbyists soon after leaving their positions, with companies such as Waste Management Inc. paying agency alums hundreds of thousands of dollars to lobby as only insiders can. Read more »

Many of Texas’ veteran environmentalists long ago grew cynical about any possibility of reorienting the TCEQ toward its public “customers.” Many legislators have a level of frustration toward the agency exceeded only by their animus toward the state Department of Transportation.

Hope for reforming the TCEQ has surged in the past year, however. The chief reason: Since President Barack Obama took office, a newly invigorated (and demonized) EPA has made clear that it won’t let Texas slide. In late May, in an unprecedented move, EPA forbade the Texas agency from issuing a permit to a refinery in Corpus Christi and threatened to do the same in dozens of other instances. EPA’s hardball gambit effectively ends “flexible permits,” an industry-driven program that gives major refineries and chemical plants a pass on ratcheting down emissions at individual emission points. Critics charge that “flex permits” are basically unenforceable and lead to unacceptably high pollution levels.

The federal agency is also pressuring the state to overhaul other air-permitting programs it considers inadequate. They’re cracking down on TCEQ’s frequent refusals to hold public hearings—and on its fundamental failures to control major air polluters. In response, the EPA is getting plenty of blowback from Perry and his commissioners.

Soward sees neither side budging: “I think that in the days and weeks to come, we’re going to see that that confrontation is going to come to a head.”

The state-federal showdown is kicking off as TCEQ goes before the Texas Sunset Advisory Commission, a legislative body that reviews state agencies every 12 years. Critics like Soward hope to use the sunset process to press the Texas Legislature, which meets in January, to change TCEQ’s idea of who their customers really are.

With the pressure building and hope for reform rising, it’s the ideal time to step back and examine the patterns of failure at TCEQ.

SEE NO EVIL

Since 2005, a drilling frenzy in the Barnett Shale—an extensive geological formation with trillions of cubic feet of natural gas—has overtaken much of urban and suburban Fort Worth. It’s been a bonanza for gas producers, local government coffers, and residents receiving royalty checks. But there’s a backlash, fueled by fears of groundwater contamination, pipeline explosions, and evidence that at least some of the 14,000 wells drilled so far are leaking dangerous toxins into the air.

Last September, the tiny town of DISH—frustrated by the lack of action on TCEQ’s part—announced the results of a bombshell air-quality study it spent 10 percent of the town’s annual budget to commission from outside experts. Air samples from residential areas near gas-compressor stations contained high levels of benzene, and other carcinogens and neurotoxins—much higher than TCEQ health-based standards. Evidence in hand, DISH Mayor Calvin Tillman, a conservative who’s become the bane of North Texas gas interests, called on the industry to clean up its act or get out of town.

The fallout from the DISH study prompted TCEQ to do its own testing during three days in December. On Jan. 12, Deputy Director John Sadlier presented the much-anticipated results to the Fort Worth City Council.

“Everything you hear today will be good news,” Sadlier told the packed council meeting. The commission staff, he said, had visited 126 sites in the Fort Worth area and found no evidence of benzene or other cancer-causing chemicals. “Based on this study, the air is safe,” Sadlier told the council.

Later, Mayor Mike Moncrief, who comes from a prominent oil and gas family, pronounced himself “grateful” for the results. Since that burst of good news, Fort Worth city officials, including Moncrief, have generally resisted calls to impose more stringent rules on gas drilling. “Sadlier’s comments only emboldened the council’s belief that the air quality is okay,” wrote Don Young, a drilling reform activist in Fort Worth.

If council members had squinted, they would have seen a disclaimer stamped at the bottom of each page of Sadlier’s PowerPoint presentation: “This data is for screening purposes only and may include samples that did not meet the established quality control acceptance criteria,” the disclaimer read.

As drilling activists discovered, the state’s study was rubbish. The testing was done on cold days, when benzene tends to be inactive. The inspectors took samples only if the levels measured 140 times the Metroplex average—far above state health standards. Only eight samples were collected.

Confronted with these facts, commission PR staffers stuck with the original message. “We were trying to do that really fast,” TCEQ spokesperson Terry Clawson told the Fort Worth Weekly. “If you are going to do testing and use certified labs and have it legal quality, that takes a long time.”

TCEQ used those results to “prove” that benzene wasn’t a problem. And an internal investigation prompted by an anonymous fraud complaint revealed that upper managment, including Sadlier and Executive Director Mark Vickery,le knew the study was flawed. In fact, they ordered that the eight canister samples “be analyzed using a more sensitive laboratory technique.” The results came back on Jan. 22, 10 days after Sadlier’s rosy depiction at the Fort Worth meeting. Four of the eight samples measured benzene at levels above what the state considers safe for long-term health. Still, the fraud investigation states, Sadlier was “not confident in accuracy [sic] of the results from the field” or the fresh lab findings, and ordered inspectors to return to Fort Worth for more samples.

It was a nice gesture. Too bad he didn’t tell anybody outside the agency. The report notes that at the time the investigation was concluded, on Feb. 22, “neither Fort Worth officials nor the media have been alerted.”

They still haven’t. “Where the heck are the results of the follow-up sampling they did?” asks Sharon Wilson, a drilling reform advocate who lives near Decatur. “That was never released.”

Wilma Subra, a Louisiana chemist who has conducted her own analysis of Barnett Shale emissions, says the investigation raises questions of transparency. “The public got one message, but what you’re reading me is a totally different message,” she says. “Not letting the public and media know of the exceedances is of great concern. This information is critical to the community.”

When it comes to air-testing, TCEQ frequently fails. In July 2009, an explosion and fire rocked Citgo Petroleum Corp.’s Corpus Christi refinery, severely burning one worker and sending 4,000 pounds of deadly hydrofluoric acid across Nueces Bay. Hydrofluoric acid is no joke; it’s considered one of the most dangerous substances in American refining, capable of causing severe damage to the skin, eyes, heart, lungs and bones.

The U.S. Chemical Safety Board called the Corpus accident a “significant near-miss” disaster after a six-month investigation. Communities near the refinery, long exposed to releases from nearby industrial facilities, worried that they could be exposed to a chemical cloud from the July release.

TCEQ seemed oblivious to the severity of the situation. Nearly three hours after the fire started, Region 14 head Susan Clewis was settling down for a movie. “Apparently there is a fire at Citgo,” Clewis wrote in an e-mail. “I’m walking into the Harry Potter movie.” She noted that Larry Elizondo, a Citgo spokesperson and Corpus city councilman, had “refused to give” a regional TCEQ employee information on the incident.

Seven hours after the fire started, TCEQ decided to do some air monitoring. “With the media attention this event is getting, I think it would be best to conduct air monitoring,” wrote Kelly Ruble, a Region 14 employee, in an email. “The old saying ‘negative data is better than no data.’” The air monitoring equipment TCEQ used—finally—was incapable of testing for hydrofluoric acid.

In another crisis moment this March, when a gas well owned by Devon Energy Corp. exploded in rural Wise County, injuring two workers, Vickery asked Sadlier if air monitoring was needed. Sadlier responded: “I don’t believe so—the fire is out. We spoke to EPA—they contemplated sending the START unit but ended up doing nothing (which I prefer).”

TCEQ VS. THE PEOPLE

Tom and Marion Hill’s 350-acre ranch in Leon County would be the envy of any couple looking to retire to the country. It has wildflowers in grassy fields, two spring-fed ponds stocked with bass and catfish, small creeks and towering stands of trees. The Hills have owned this land for three decades and spend most of their time in a small home near the  edge of their property. Devout Christians, the couple hosts retreats and church services for youth in a small chapel. Or at least they used to.

About three years ago, the Hills say their idyllic rural life was interrupted when their neighbor, Tom Crowson, got into the chicken-growing business for poultry giant Sanderson Farms Inc. With no notice, eight 500-foot barns went up 1,000 feet from their home.
These are not the family farms of yore. Each barn holds 27,000 chickens, broilers pumped full of antibiotics an
arsenic-laced fee
to make them grow from chicks to full-grown in 63 days. About 1 million chickens are raised next door to the Hills, at Triple C Farms, every year.

Known in the industry as concentrated animal feeding operations, growers for Sanderson Farms have built almost 400 barns in a four-county region east of Waco since 2007. That’s about 50 million chickens every year—and they produce a tremendous amount of waste and manure, somewhere in the neighborhood of half a billion pounds each year, most of which ends up spread on local fields as fertilizer.

Residents of small towns like Mexia, Jewett, and Marquez describe the influx of feeding operations as an invasion, pitting rural residents against big agribusiness, with small-time growers caught in the middle. “It kinda reminds me of the range wars we used to have,” Tom Hill says.

The Hills and their neighbors worry about the effect all that waste is having on the air, water, and land. Ann Hill keeps a scrapbook illustrating the problems—photographs of chunks of partially ground-up chickens spread on nearby fields, rust-colored water in their ponds they say is runoff from the feeding operation next door, and odor logs documenting the stench.

“You put 25,000 chickens in a 20,000-square-foot building for 63 days, and, yeah, they’re gonna stink,” says David Deffner, until recently a doctor in nearby Mexia, one of several people who have given up and moved away.

“To put it bluntly: it smells like chickenshit,” says Bob Crider, a retired high-school science teacher who lives near Mexia. The intensity varies, he says, from day to day and even minute to minute. It’s worst as the sun goes down and winds recede. Sometimes it’s a musty smell; others, when the chickens are near the end of their growing cycle, it’s horrific.

“I have what I call my stink level,” says Crider. “When it gets up around 8 or 9, it will almost make you wretch.” Some people in the area have taken to wearing dust masks while outside. Accustomed to working outdoors, many have become reacquainted with the insides of their homes. They’ve also become acquainted with TCEQ—and are less than impressed.

For one thing, Texas law makes it extremely difficult for the public to file a nuisance suit once a concentrated feeding operation has been up and running for a year. Most dry-litter poultry operations are required to develop a water quality management plan, but the documents are kept secret, making it difficult for people to know whether growers are following the rules. “How do you know someone is violating a plan you can’t see?” asks Eric Allmon, an Austin environmental attorney and concentrated feeding operation expert.

That means feeding operation neighbors must rely on state inspectors and their noses to enforce nuisance odor laws.

“They come out and go sniff, sniff, sniff,” Deffner says, “and say, I don’t smell anything.”

Part of the problem is that the wind is mercurial. Inspectors have 18 hours to respond—long enough for odor to dissipate or shift somewhere else. But the numbers speak volumes: Between 2006 and 2009, the number of feeding operation complaints filed with TCEQ Region 9’s office in Waco soared from 12 to 169. Since September, there have been 168, with five months yet to go in the fiscal year.

Only two enforcement notices have been issued in the past two years. Neither has resulted in a penalty.

That is the fundamental problem in both feeding operations and the TCEQ: There are no real consequences to business as usual.

“If you boil it all down, they [TCEQ] shuffle paper more than anything else,” says Crider, “because there’s no real penalties.”

Sometimes the public is shut out of the process altogether. In April 2009, the commissioners voted 2-1 to renew a permit for Texas Industries Inc.’s cement plant near Midlothian. The kiln, which burns hazardous waste for fuel, is the largest source of industrial pollution in the smog-choked Metroplex. Clean-air advocates had been agitating for two decades to get the plant to install additional pollution controls. Its permit renewal, which only comes around every 10 years, seemed like the perfect opportunity to push for changes.

Almost 200 citizens asked the TCEQ to grant a public hearing, seemingly an uncontroversial request. Commissioners voted 3-0 to deny a hearing. State law, they agreed, prevented them from doing so in cases where a company isn’t asking to pollute more than currently allowed. Still, then-Commissioner Soward, frequently the odd man out in controversial decisions, argued TCEQ should grant a hearing under its own authority. The other two commissioners, Bryan Shaw and Buddy Garcia, disagreed, hiding behind a parapet of legalisms.

Said Shaw: “I think we owe it to the citizens and to our requirement to try to maintain a strong economy in this state, in concert with protecting the environment, that we look at more holistically, not just what permits [are] before us, but look at the whole of the emission sources we have in an area and develop strategies that help us to attain those environmental standards and do it in a way that citizens of this state can still remain productive and employed.”

Clear as mud.

SERVE THE CUSTOMER

Occasionally a TCEQ employee will part the curtain and let the world see how polluters influence the agency. That’s what happened during an administrative hearing earlier this year over a giant proposed petroleum coke power plant in Corpus Christi.

In the past four years, a wave of coal-fired power plants has descended on Texas, with the potential to worsen urban air quality, throttle national efforts to tamp down greenhouse gasses, add to mercury contamination in rivers and lakes, and suck up limited water resources in already-strained parts of the state. Despite a national backlash against coal, TCEQ has approved seven coal plants so far, more than any other state, with six more pending. The commissioners appear to be following the lead of Gov. Perry, who declared in 2006 that critics of coal “want to return us to the era of horse and buggy—except they would probably complain about the methane gas from horse manure, too.”

One of the most contentious fights has erupted over Las Brisas, an exceptionally dirty pet-coke (a fuel similar to coal) plant that Chase Power Co. wants to build on the Corpus Christi Ship Channel. The anti-Las Brisas forces, including regional medical groups, scored a major victory in March when two administrative law judges ruled that TCEQ’s draft permit for the plant was so flawed that it should either be denied or sent back for further review. The two judges wrote in their decision that the company had modeled its air pollution in a “reckless manner,” in part by “artificially lowering” expected impacts on Corpus’ air quality. More illuminating was the revelation during the hearing that TCEQ Executive Director Vickery had ordered his engineers to stop trying to negotiate stricter pollution limits with Las Brisas and expedite the permit.

“I understand that Las Brisas talked to Mark Vickery about the importance of getting the permit out, and Mark made some commitments that we would try to get it out by [New Years’ Eve 2008],” permit engineer Randy Hamilton said in the hearing transcript.

Levin asked: “And so does Mr. Vickery usually get involved at this level in permits you’re working on?”

Hamilton answered: “It’s happened more than once.”

The transcript records laughter. Hamilton was unsatisfied with the pollution controls Las Brisas was proposing for nitrogen oxides, a key ingredient in ozone, or smog, formation. Corpus Christi is already in “near non-attainment” of federal ozone standards, and the Las Brisas plant threatens to send it over the limit.

Environmental attorney Ilan Levin says he thinks Las Brisas was jittery over the possibility of greenhouse gas legislation in the Congress at that time and wanted to get a permit in under the wire.

Experts during the hearing disagreed about whether the specific emission controls were practical, but the upshot was clear: A powerful interest wanted its permit, and TCEQ delivered.

That’s long been the pattern for Bush’s and Perry’s TCEQ. But the business-friendly environmental agency might emerge from its brushes with the EPA and the sunset review looking considerably different.

Last May, Texas environmentalists met with newly appointed EPA Administrator Lisa Jackson. They told her that little would change unless the feds forced the state to reform. Neil Carman, a clean-air expert with the Lone Star Chapter of the Sierra Club and a former state regulator, says they told Jackson that Texas was “under siege” and needed real environmental enforcement. “She got the message,” Carman says. “She said, ‘This is like the Battle of the Alamo.’”

Six months later, Jackson hired Al Armendariz, a professor of engineering at Southern Methodist University and a fierce critic of TCEQ, to lead the regional EPA office, which oversees five states, including Texas. Armendariz is a slight, bespectacled El Paso native and an unabashed environmentalist. His ascension ruffled the TCEQ commissioners. TCEQ Chairman Bryan Shaw, a poultry science professor at Texas A&M, offered a rather backhanded greeting: “While he has a long history as an environmental activist, I hope Dr. Armendariz recognizes that this position is too important to be used as a podium for environmental activism.”

They’re apparently still miffed at Armendariz.

“Dr. Al is here,” read the subject line of a March email sent by Curtis Seaton, one of commissioner Carlos Rubinstein’s assistants. “What does he need to hear from tx (aside from wine is good here)?”

Zak Covar, a Perry adviser turned TCEQ deputy executive director, responded: “A focus on science, common sense and the law would be helpful. Keep leading blindly and we see him and [EPA Administrator] lisa [Jackson] in court.”

Even in public, TCEQ heads are bristling at the criticism they’ve been taking.

“From what you read or what you hear, it would almost appear we have little or no interest in taking care of the environment, protecting Texans, minimizing impact on the environment,” TCEQ Chairman Buddy Garcia said last September. “It’s very frustrating.” Garcia said Texas should actually be viewed as a “model for the country.”

Ironically, Garcia was speaking at a conference organized—by the TCEQ and two other state agencies—to build opposition to congressional action on climate change.

Garcia and his colleagues frequently cite gains in urban air quality over the past decade or so. They usually fail to mention that the reductions are the result of federal mandates, or that local elected officials in the Metroplex and Houston have had more aggressive smog-cutting ideas repeatedly shot down by the TCEQ.

At that same anti-fed summit, Gov. Perry ripped Washington for “intrud[ing] on individual rights and freedoms.” Praising Texas’ “consistent” regulatory environment, he said: “We have shunned sweeping mandates and draconian regulation and embraced innovation and incentives to bring about positive change.”

The commissioners have followed Perry’s lead in bashing federal environmental initiatives. Stricter smog standards? Too onerous. Caps on greenhouse gasses? Destruction of the Texas economy. Sophisticated modeling for new coal-fired power plants? Too expensive.

The TCEQ? Too business-friendly, maybe, even for Texas.