Tag Archives: tceq

Sierra Club turns up the heat in February in Texas with lawsuits and rate interventions against coal plants, oil refineries

Sometimes one doesn’t realize how active Sierra Club is throughout the state — from Houston, to Waco to West Texas. One only need look at February 2013 as an example. First,  the Sierra Club and Environment Texas is taking Exxon Mobil’s Baytown refinery and chemical plant to federal court in Houston, calling on the court to intervene by ordering the Irving-based oil giant to comply with its permits and issuing stiff penalties. Under a provision of the Clean Air Act that allows citizens to go to court to enforce the law in the absence of government action, Sierra Club and Environment Texas are claiming that the  company over an eight-year period illegally released about 5,000 tons of toxic pollutants into the air from its Baytown site. Previous filed Clean Air Act lawsuits against Chevron and Shell led to negotiated agreements that have cleaned up the air, but Exxon Mobil preferred to go to court. 

Second, in Waco, Texas this week, Sierra Club’s lawyers are alleging that Luminant’s large coal plants in East Texas are illegally spewing out far more pollution than is authorized by state and federal law and their permits. Essentially, Sierra Club is taking this “enforcement” action because our own regulatory agency — the Texas Commission on Environmental Quality — and the EPA have refused to. A recent article in the New York Times makes mention of how groups like Environment Texas and Sierra Club are taking these legal steps because of the lack of transparency and enforcement activity by our regulators. 

Finally, just last week, Sierra Club filed to intervene in a rate case in West Texas, where Southwestern Public Service Company is asking the Public Utility Commission if it can raise its rates and tariffs by approximately 10%. One of the reasons they cite in raising rates in West Texas is the need to clean up their coal plant to meet environmental regulations. Sierra Club member –as our motion to intervene makes clear — “have a unique interest in avoiding imprudent expenditures on coal-burning power plants, and ensuring that lower-cost demand-side management and renewable energy resources are fully developed.” In other words, maybe efficiently retiring one or more of the coal plant units, while adding new resources would ultimately be cheaper and better for the customers of SPS. A copy of our motion can be found here

Texas Proposes Pardoning Pollution (Again!) — public hearing March 6th

They are at it again. The Texas Commission for Environmental Quality’s (TCEQ) Compliance History program has never worked and new rules proposed by the state’s environmental agency could cause thousands of previously categorized “poor” — oh sorry now they are calling it unsatisfactory not poor —– performers to be bumped up to “average” without having removed an ounce of pollution from our air and water. We need all of you folks involved in the campaign to reform TCEQ through sunset to improve these proposed rules. Come one, come all next Tuesday to Austin for public hearing — or even better yet — demand that TCEQ hold a public hearing in the communities that are impacted by repeat violations and industrial pollution — places like Corpus, El Paso, Houston and Beaumont..

Below is a press release on the issue and listen and look hear if you want to hear our webinar on the issue….

If you want more information about the rule, or to make e-comments, check out this list of rules, information about the public hearing and how to submit comments  on TCEQ’s rules page.  OR visit this Public Citizen page with loads of information.

Thanks EVeryone for helping Make Texas Better….

Texas law requires that TCEQ consider a facility’s past compliance when making decisions regarding permits, inspections or penalties for violations.  “The TCEQ has for over a decade attempted to use an incentive structure – the Compliance History program – to reward good behavior at the thousands of facilities it regulates around the state, from your local gas station to the refinery that produces that gas,” said Matthew Tejada, Executive Director of the Air Alliance of Houston.  “A facility’s Compliance History score affects every bit of its business with the TCEQ.”

Late Wednesday, TCEQ released a report of the previous year’s Compliance History database using the new calculations they are proposing in the rules.  “Our analysis of the data shows that 5% of the over 250,000 facilities regulated by TCEQ are currently classified as having a “poor” compliance history, and that would drop to 3% using the new calculations,” said Tom “Smitty” Smith, Director of the Texas office of Public Citizen. “Texas had an excellent opportunity to fix the Compliance History program during the recent Sunset Commission review of the TCEQ.  Unfortunately, most of the statutory changes to the program appear to have only further cemented its faults in place and given an even bigger free pass to some of the state’s worst performers.  As written, these new rules:

  1. Change the ranking system to make 6,000 polluters with poor records average
  2. Allow the TCEQ Executive Director to pardon polluters by  adjusting their repeat violator classification without any criteria or review
  3. Make it very difficult for any “complex site” with many “complexity points” to ever be punished for or even be considered a repeat violator
  4. Give polluters overly generous discounts for participating in environmental management and other pollution prevention programs
  5. Don’t specify what an emission of the “same environmental media” is and how it can be used in determining who is a repeat violator.”

A public hearing on these rules is scheduled at the TCEQ on Tuesday, March 6th. Texans need to let the TCEQ know that they want a system that works to protect their health and environment and not give big polluters yet another free pass.

“One, and possibly the only, major improvement was that the Compliance History scores are now separated by industry type.  Before, the TCEQ put every facility into one big hopper, meaning that your local gas station was being compared to a big refinery,” said Cyrus Reed of the Lone Star Chapter of Sierra Club.

“While that one change was a step in the right direction, it will fall far short of the reforms needed to actually deliver the intent of the Compliance History program – rewarding good actors for their good behavior and offering incentives to poor performers to clean up their acts,” continued Reed.  “The problem with the existing structure is that basically every facility comes out average.  You don’t have to be a policy genius to know that incentives don’t work if everyone stays in the middle.”

This current problem is made worse because the Texas Legislature saw fit to drastically limit the compliance information that state staff can use to generate Compliance History scores.  The law now bars the TCEQ from looking at more than one year’s worth of notices of violation, one of the most common types of compliance information.

“This is a near debilitating limitation,” said Tejada.  “However, it could still be possible for the agency to craft a program which effectively separates the good from the average from the poor performers.”

“Unfortunately, in its rulemaking, the TCEQ has introduced even more limitations which will only further serve to keep every facility average.  These changes include lowering the score by which a performer falls into the poor category, giving the TCEQ Executive Director extraordinary authority to change a facility’s classification, and handing out bonus points for ill-defined and unregulated voluntary measures that a facility can implement.”

Chris Young of the Texas Organizing Project said, “If the Compliance History program reforms go forward as currently written, nothing will change, which is a shame.  Compliance History is a good idea that has never been executed effectively.  We are missing out on two major opportunities by continuing to pretend that all facilities in this state are average.”

“First, we miss a chance to implement the type of regulation that a lot of people in our state prefer.”

“For those of us living along the fenceline of the polluters, it doesn’t improve our air, our water or our health to have TCEQ grade these industries on the curve,” said from Patricia Gonzalez, a member of the Texas organizing Project and Pasadena, TX resident, a highly polluted part of the state.

“In addition to this rule, rules for another section of the regulatory code that are coming up will makes it too easy to qualify for new regulatory flexibility and other incentives,” said Reed.  “There is no provision in the proposed rules that would not allow an entity with an unsatisfactory compliance record to participate in an innovative program and receive regulatory flexibility, and gives the executive director ability to consider any factor in providing incentives.  With a very low application fee of $250 for a Regulatory Flexibility Order and requiring only a review of an Environmental Management System that received incentives once every three years, this provision reduces even further any teeth that the compliance history score might have in reducing pollution in the state.”

Reed concludes, “Finally and most importantly, we miss a huge opportunity to try to clean up the air and water around our state in a business friendly manner.  At a time when the challenge of grappling with an increasing array of environmental and health threats to our state and population gets harder every day, we cannot afford to let such opportunities pass us by.  We urge the TCEQ to reconsider its Compliance History rules, and deliver a program to the people of the state of Texas that works.”

Don’t cut off water to Galveston Bay, TCEQ Commissioners

The drought’s devastating impact on the Galveston Bay oyster industry has made national headlines. Chances are you’ve heard the news. Extremely salty conditions in the bay due to reduced river flows are causing oyster predators and disease to thrive, harming one of the state’s leading industries. However, this is only part of the story.

Read more here.

Friday, Norman Johns, with the National Wildlife Federation, Ken Kramer, with the Lone Star Chapter of the Sierra Club, Scott Jones, with Galveston Bay Foundation, andTracy Woody, an oysterman with Jeri’s Seafood spoke out in a plea in the Houston Chronicle —  “Oystermen, seafood eaters, restaurant owners and anyone else who loves Galveston bay and relies on it for their livelihood should be warned.”

New TCEQ rules limiting environmental flows, unless revisited, will “allow water flowing into the bay to be reduced to a drought-level trickle on a regular basis.”  And they ask concerned Texans to get involved in the same rule-making process that has begun for the bays further south on the Texas coast.

Johns, Kramer, Jones, and Woody  ask —

So, where do we go from here?
First, TCEQ must revisit these rules and make them stronger.

Also, water rights holders should be encouraged to participate in voluntarily efforts to ensure sufficient water flows into Galveston Bay. Through strategies such as voluntary donation or sale of existing water rights to environmental purposes and dedication of wastewater return flows, we can make the best use of our existing water supply and protect the long-term health of the bay and our economy. We commend the city of Houston for its recent dedication of approximately half of its wastewater return flows to this purpose as a critical first step in this effort.

Secondly, TCEQ must not make the same poor decision as they did for the Trinity and San Jacinto rivers and Galveston Bay area by enacting insufficient flow rules in other Texas river and bay systems. In the coming months, the commissioners will consider regulations to protect fish and wildlife in Central Texas rivers and Matagorda, Lavaca, Mission, Copano, Aransas and San Antonio bays. We urge them to take this opportunity to protect these natural treasures by adopting strong environmental flow standards.

Please join us in delivering this message to the TCEQ – Chairman Bryan Shaw and Commissioners Carlos Rubinstein and Buddy Garcia.

Can you call or email the Commissioners today?

Chairman Bryan W. Shaw, Ph.D. 512-239-5510

Commissioner Buddy Garcia, 512-239-5515

Commissioner Carlos Rubinstein, 512-239-5505

Posted by Donna Hoffman, September 19, 2011

Wake Up and Stop Texas from Burning, Governor Perry

 Texas is in an unprecedented environmental emergency.

Eighty-one percent of the state is currently suffering exceptional drought.  It’s the worst one-year drought Texas has experienced in 116 years of state records. 

 Texas is literally on fire.  Over 3.6 million acres have burned in wildfires topping the record 1.8 million acres burned in 2010 with less than four months left.  There’ve been over 21,000 fires in Texas and wildfires in the state for 300 straight days. The Bastrop fire has been burning out of control for six days and nearly 1,400 homes have been destroyed 30 miles from the state capitol leaving Austin in clouds of toxic smoke. 

CLIMATE CHANGE Governor Perry has shown concern about the severe drought and wildfires.  Now it’s time for Perry to stop denying the root causes of climate change and take action to address those causes.

Climate change is caused by man-made greenhouse gas emissions.  Coal plants are the largest industrial source of carbon dioxide (CO2), the chief global warming gas.  Texas’ 19 coal-fired plants are the worst industrial cause of life-threatening, climate triggered perils that we are experiencing.  Texas coal-fired plants emit over 150 Million Tons of CO2 every year – over 99% of Texas coal plant air pollution — is currently unregulated.  Defended by Governor Perry, the Electric Reliability Council of Texas (ERCOT) and the Texas Public Utility Commission, the Texas coal plants are continuing to heat our atmosphere, fueling the drought conditions leading to wildfires and putting 24 million Texans in harm’s way.

Texans’ health and lives are at risk!  Governor Perry and his appointees who lead Texas state agencies must address the biggest root cause of climate change in our state – coal plant CO2 emissions.

 OZONE, TOO   Beside smoke from wildfires, 18 million Texans are breathing harmful ozone.  Ozone is caused when nitrogen oxide emissions from factories like coal plants mix with volatile organic compounds in sunlight creating ground-level smog.  According to the Texas Commission on Environmental Quality (TCEQ), Texans have suffered 56 bad air days in 2011 when the ozone levels were unsafe. 

 After cutting funds by 75% from the Texas Forest Service year, Governor Perry is now calling for help to fight wildfires from the same federal government that he attacked in law suits for trying to protect Americans air from unsafe coal plant pollution.  Perry enlisted the TCEQ, the Rail Road Commission, and the Texas PUC to fight new federal safeguards against both CO2 and ozone.

 By fighting federal safeguards against ozone, Governor Perry and state agency leaders are denying that serious problem too.  They need to wake up to the reality of our ozone problem and help, not hinder, efforts to clean up our air and cool the atmosphere.

 WHAT’S BAD FOR BUSINESS?  Perry, ERCOT – Texas’ electricity grid operator, and the PUC claims that Texas doesn’t have enough electricity sources in our state and that the better ozone standard would hurt business and cost jobs.  Yet, ERCOT’s own reports show that the grid was secure even when 5000 additional megawatts were forced off-line. 

 There are many non-polluting steps we can take to manage electricity demand more efficiently while generating lower pollution from Texas power plants.

 To Governor Perry, ERCOT, and PUC, we say: Wake up! 

 The price tag for drought and wildfire destruction is too high.  Losses to Texas’ agriculture alone were about $5.2 billion before the Labor Day weekend fires. We now face greater costs. Ignoring climate change and fighting, rather than supporting, clean energy solutions is costing Texans lives, homes, and jobs.

 FIRST RESPONDERS COMMITMENT  On the campaign trail, Governor Perry has repeatedly criticized public works programs like the New Deal, yet Texas firefighters fought to protect the beautiful cabins built by New Deal workers in Bastrop State Park this week.

 Perry, ERCOT, and the PUC need to respond like our brave fire fighters putting out the blazing wildfires across Texas.  The Governor and state leaders must recognize and extinguish the root cause of these problems – the massive burning of coal in coal-fired power plants in Texas.  There’s a safer, cleaner, cheaper way, Governor, and the stakes are too high to continue to allow the burning of dirty coal.

Neil Carman, PhD Chemist, Sierra Club Clean Air Program Director, September 9, 2011

Judge Rules Against White Stallion Coal Plant Air Permit!

Last week, Environmental Defense Fund (EDF) won a motion against White Stallion’s air permit.  Travis County State District Judge Lora Livingston agreed with EDF attorneys, and remanded the controversial air pollution permit for the proposed White Stallion coal-fired power plant near Bay City back to the Texas Commission on Environmental Quality (TCEQ) for further analysis.  Sierra Club and EDF have appealed the air pollution permit, but the judge’s ruling is a new and significant setback for the controversial power plant Judge Livingston Friday remanded the company’s air pollution permit to the TCEQ based on evidence that the company has filed multiple and conflicting plot plans to different government agencies.  

The follow is a blog by Allison Sliva, the leader of Bay City’s No Coal Coalition.

June 1, 2011 | Posted by Elena Craft in Air PollutionGHGsPM2.5TCEQTexas Permitting

Allison Sliva is board chair of the No Coal Coalition/Matagorda County.



When I heard the news that EDF’s Motion to Remand was recently granted by Travis County Court Judge Lora Livingston, I was pleased on several fronts.

First, the decision halts, even if temporarily, a process of approving building facility plans that has tried to circumvent air quality laws designed to protect public health. Building this coal plant would bring with it serious air quality impacts for people in and around Matagorda County, not to mention the greater Houston area. Projected emissions from the plant will include 10 million tons of carbon dioxide, nearly 5,000 tons of sulfur dioxide, more than 4,000 tons of nitrogen oxide, nearly 1,800 tons of particulate matter and nearly 100 pounds of mercury.

This pause in the process should make everyone involved – especially the Texas Commission on Environmental Quality – think twice about the air impacts to present and future generations.

Second, the decision exposes a White Stallion action that might otherwise have gone unnoticed. TCEQ granted White Stallion an air permit after reviewing air dispersion modeling and testimony based on a site plan that White Stallion changed six days after the permit was issued. As EDF’s Jim Marston said, White Stallion “should be upfront with regulators about their intentions.”

Third, the decision renews public confidence in our legal system. As Judge Livingston wrote in her decision letter, “Without remand, meaningful public participation in the permit approval process would be effectively eliminated.”

Myself and members of the No Coal Coalition of Matagorda County thank you EDF for your due diligence in helping to set the record straight.  Our call to action now is to help gather the evidence needed to prove that the air pollution coming from White Stallion would violate the law as well as harm human health.


Here is a timeline of the community efforts that Matagorda County residents and others have undertaken over the years to prevent a poorly planned, poorly placed and poorly designed coal-fired power plant from coming online. – Elena Craft

September 2008 – White Stallion files for an air quality permit from the Texas Commission on Environmental Quality. It proposes a 1,320 megawatt coal and petroleum coke-fired power plant to be located along the Colorado River eight miles south of Bay City in Matagorda County, in an ecologically sensitive area known as the Columbia Bottomlands. The proposed location is also 20 miles southwest of the Houston-Galveston-Brazoria region.

November 13, 2009 – In a letter from the Environmental Protection Agency to the U.S. Army Corps of Engineers, Wetlands Section Chief Sharon Fancy Parrish recommended that an Environmental Impact Statement be conducted “for the proposed project to better access the substantial change to the human environment.”

November 13, 2009 – Texas Parks & Wildlife recommends that a permit be denied in a letter to the U.S. Army Corps of Engineers. Regional Director Rebecca Hensley wrote that “TPWD believes the impacts to the environment including wetland fill, stream relocation, air pollution impacts, water quality and water quantity impacts, transmission line corridor impacts, railroad line installation impacts, and the potential long term impacts to wildlife and fisheries will be significant” and recommended that the Corps evaluate such impacts in an Environmental Impact Statement.

November 13, 2009 – In a letter to the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service Field Supervisor Stephen Parris asked White Stallion to “compensate for all impacts to upland and wetland habitat in the project area” and that although White Stallion “intends to mitigate by purchasing mitigation credits through an agreement with the National Fish and Wildlife Foundation, the Service is not aware of a final agreement to do so.” The letter also expresses concern about habitat impacts, stating that a Service biologist had observed “raptors and grassland birds (osprey, northern barrier, white-tailed kite, red-tailed hawk, American kestrel, eastern meadowlark) using the wetland and upland habitats of the project area.”

May 13, 2010 – In a resolution, the Bay City Port Authority of Matagorda County requests a full Environmental Impact Statement to be completed before Corps approval.

August 4-5, 2010 – Thirty-five medical professionals in Matagorda County express concern in a letter published in the Palacios BeaconBay City Tribune and Matagorda Advocate about the potential negative health impacts of White Stallion, including emissions that contain toxins known to cause emphysema, COPD, childhood asthma, chronic bronchitis, lung cancer and other respiratory conditions.

September 27, 2010 – Matagorda County Judge Nate McDonald states in a letter to the Texas Commission on Environmental Quality that White Stallion was “not a good environmental deal or business deal for the citizens of Matagorda County and Texas.”

September 29, 2010 – Texas Commission on Environmental Quality issues an air quality permit for White Stallion.

October 25, 2010 – White Stallion revises its wetlands permit site plan. The revised site plan is materially different from the Air Permit Site Plan, moving 73 of the 84 emissions points modeled in the air permit proceeding. The location of emissions sources is material in determining the air quality impacts associated with the proposed plant.

March 4, 2011 – Environmental Defense Funds files a Motion to Remand to allow discovery on the new site plan and for presentation of additional evidence, including new modeling.

May 24, 2011 – 261st District Court Judge Lora Livingston hears evidence in support of EDF’s Motion to Remand.

May 26, 2011 – 261st District Court Judge Lora Livingston grants EDF’s Motion to Remand in a letter stating that “Without remand, meaningful public participation in the permit approval process would be effectively eliminated.”