of pollution cases. A study released last December by the Austinbased Texas Center for Policy Studies found, that while the TNRCC has claimed that it is stepping up enforcement against polluters, and that it has assessed millions of dollars in fines against polluters, most of the penalties are never paid, but instead are waived in exchange for “supplemental environmental projects.” Through SEPs, companies that receive citations can spend money to correct their pollution problemsin lieu of paying fines to the TNRCC. “Instead of the fines going to the state’s general revenue fund, where they could be used for the state’s overall needs, the TNRCC claims millions of dollars of enforcement credit for plant renovations that, most likely, the violators would carry out anyway,” said the report. Under McBee, then, the agency has created the illusion of increased enforcement, levying fines that will never be collected, while giving polluters “credit” for coming into compliance with laws they’ve already broken. Moreover, as environmental enforcement devolves to state regulators, what’s to prevent Texas from doing what Virginia did when its state environmental protection agency was confronted with a huge pollution case? In Virginia, Smithfield Foods was charged with more than 5,000 violations of the Clean Water Act at its meatpacking operation in Smithfield, Virginia. In August, a federal judge upheld a $12.6 million fine the E.P.A. had levied against Smithfieldthe largest fine ever levied under the Clean Water Act. In stark contrast, the state of Virginia had sought only a $2 million fine against the company. “Doesn’t that show a need for federal regulation?” I asked McBee. He replied, “I don’t know the facts of that case.” Defenders of deregulation point to the courts as the proper venue to resolve civil questions such as pollution disputes. Yet for the last decade, the Republican Party in Texas has been the driving force behind tort reform legislation that has made it more difficult for citizens to get into court to sue for damages caused by corporate interests. During McBee’s tenure at the TNRCC, many would-be individual intervenors have had no other recourse than the courts, because McBee’s policy changes have made it impossible for them to participate in the TNRCC permitting processeven to contest the permitting of facilities that represent an immediate threat to neighbors’ health or property values. For example, several landowners in the state have filed suit against the agency, claiming that the TNRCC has denied their rights to due process under the Fifth Amendment. Farmers in Ochiltree County have a case against the TNRCC pending in Travis County District Court. They sued because they were not allowed to contest permits that the TNRCC issued to the huge hogfeeding operations locating in the county. For the past two years, Ochiltree County has been effectively under siege by a Japanese corporation, Nippon Meat Packers, which plans to be producing a million hogs a year at its Panhandle operation by the year 2000. It’s not just opponents to Panhandle hog farms who are shut out at the TNRCC. On February 19, McBee and his two fellow commissioners reviewed an agenda item brought forth by Jack Carpenter, who owns land on Lake Livingston in East Texas. Carpenter was concerned about a waste-water permit that would allow a discharge of sludge into the lake. His property is less than a mile from the proposed sludge outfall, and he wanted the TNRCC to hold a hearing to discuss the permit. He raised issues about water quality, and about the Trinity River Authority’s involvement in the project. The agency staff was convinced that Carpenter’s concerns had merit. TNRCC general counsel Geoff Connor told the commissioners that executive director Dan Pearson “recommends you grant the hearing request, given Carpenter’s proximity to both the proposed facility and discharge rate, together with his concerns v”$ .1.Wkw ;”,Vtrb $&11re. . , yti -65 777 c onou WW1a Houston Ship Chanh6 aci to s’ blast and spray-paint barges used in the refining, chemical, and petrochemical industries. Houston is a federal non-attain ment area for ozone, requiring rigorous permitting standards, and the Legislature had recently instructed the TNRCC to pay closer attention to hearing requests. During the appropriate period, I sent a request to the TNRCC for a public hearing, and requested a copy of the file on McDonough Marine. The company’s permit application had been filed properly, the TNRCC permit engineers had done a thorough review, issued a draft permit, the to d7 staffer hung up o the question, “Wht didn’t you respond to my request for a public hearing?” I never got a later discovered that the legal department had apparently been instructed to “grandfather” the McDonough Marine facility. In September, 1995, the TNRCC had notified McDonough that since its facility had been in business since 1968, the entire facility would be officially “grandfathered.” TNRCC voided its own draft permit, and pretended the new application did not exist. eton oluene, xylene, oxides, si ic resi latile organic chemicals, and par-t. ticulate matter much of which will encfk , up in the air Houstonians breathe, and in the water of the ship channel. At a bare minimum, it would seem that the granting of such a permit should require a public hearing to address the inevitable consequencesbut the McBee TNRCC chose to avoid public discussion altogether. LaNell Anderson Grandmother, Citizen, Activist Channelview 8 THE TEXAS OBSERVER DECEMBER 5, 1997
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