TCEQ Should Revise Penalty Policy

Public Citizen recommends removing economic incentive to pollute

By Adrian Shelley

Today the Texas Commission on Environmental Quality discussed proposed revisions to its penalty policy in an agency work session. Public Citizen submitted comments. A formal rule proposal will follow with an opportunity for public comment.

At today’s work session, TCEQ Executive Director Toby Baker spoke with surprising insight about TCEQ’s role as a regulatory in a state beset with pollution and petrochemical disasters. Baker reflected on a state legislative hearing in the spring of 2019 that was called a string of major industrial accidents that included the ITC explosion that released 15 million pounds of pollution and the KMCO fire that killed two. Baker was forced to admit during the hearing that, even after the recent explosion, ITC still had a “satisfactory” compliance rating at TCEQ.

Baker also recalled the TPC fire in Port Neches that led to mandatory evacuation within 4 miles on the day before Thanksgiving in 2019. “How could a TPC have a satisfactory compliance history?” Baker asked. “That doesn’t comport with common sense.”

We agree, and we hope that TCEQ will take this opportunity to revise its penalty policy to punish bad actors like ITC and TPC. We have some specific thoughts in our comments and we will submit more ideas during the formal comment period to follow. For now we’d like to outline a few basic principles:

• Eliminate the economic incentive to pollute. As long as it is cheaper to pay a fine than to comply with the law, companies will pay the fine. The TCEQ can ensure that there is no economic incentive to pollute by adding a mandatory minimum penalty policy to increase penalties and (2) establish a rule that penalties must be larger than the economic cost of noncompliance.
• Increase the size of fines. TCEQ has proposed changing its treatment of continuing violations–those that are ongoing for days or weeks–to provide for potentially larger fines. An additional approach would be to count each individual pollutant emission that violates a permit term to be a separate violation. So, for example, if a single air pollutant event includes 10 pollutants that violate 10 permit terms, 10 penalties could be assessed for each day that violation continues. This is a theory of penalties known as “speciation” and it is possible within TCEQ’s current authority.
• Make polluters pay for disaster response. Baker lamented the cost to the taxpayers of TECQ’s response to major environmental disasters. We agree that the public should not bear these costs and suggest that they should instead be charged to the offending companies.
• Improve TCEQ’s own disaster response. Baker was concerned about an increasing expectation that TCEQ quickly respond to environmental disasters with air pollution monitoring resources. We think this expectation is created by the ever-increasing pace of information sharing in the digital age. TCEQ must adapt, and Baker had several suggestions for how to do that. Foremost among them, we agree with his proposal to place mobile air monitoring vans in Houston, Beaumont, Corpus Christi. TCEQ will need additional funding from the state legislature to do this, and we hope it will make a request for these funds in its Legislative Appropriation Request.

There is more detail on these and other points in our comments. We look forward to seeing TCEQ’s proposed rule changes and we will comment in more detail when they do.