Part 11: A Shift in Policy

In September of 1996, the TNRCC announced that voluntary compliance, rather than mandatory enforcement options, would be the preferred enforcement strategy to bring violating facilities into compliance.

To build public confidence in this new policy, TNRCC chairman Barry McBee issued a press release in late September proclaiming that the agency had posted "record enforcement numbers" for Fiscal year 1996 (9.1.95/8.31.96) He proudly exclaimed that FY 1996 "has been the most impressive year in the history of environmental protection in Texas.", and that they had doubled the fines levied in FY 1995 and FY 1994.

A Texas Center for Policy Studies (TCPS) analysis of these claims found they were unable to stand scrutiny, misleading, and exaggerated at best. Using TNRCC enforcement records, they showed that while more administrative penalties were imposed in FY 96 in two TNRCC programs (air quality and petroleum storage tanks), enforcement in the water quality, industrial/hazardous waste, municipal solid waste and agricultural programs has decreased markedly since 1994.

The TCPS study also found that the TNRCC was allowing polluters to avoid paying fines by conducting Supplemental Environmental Programs (SEP's). These programs were originally designed to give a benefit to the community in which the alleged violation occurred. To be considered as eligible, a project must "reduce the amounts of pollutants reaching the environment, enhance the quality of the environment, or contribute to the public awareness of environmental matters."(1)  If a program was deemed appropriate, it would be eligible for up to a 50 % reduction in administrative penalties.

The TNRCC describes these SEP's as "an innovative tool which turns money from fines into projects which benefit the community affected by the environmental violations". But careful scrutiny of the SEP's conducted in 1996 reveal that the agency was allowing polluters to use these programs as a way to renovate the polluters' own facilities. (2)

Of the major SEP's approved by the TNRCC in FY 1996, approximately 80% of the total value of all projects is accounted for by just two cases: Diamond Shamrock and Asarco.

Both of these cases involved serious violations of environmental laws, and in both cases the supplemental programs benefits the violators at their facilities. In both cases, the benefit to the community affected by the violation is, at best, extremely tenuous.

The majority of the program for Diamond Shamrock involves replacement of below ground piping with above ground piping. The SEP for Asarco primarily involves the removal of an unused Zinc Furnace at the Asarco site in El Paso. (3)

Effective enforcement of laws and regulations is essential to protect the public health and the environment. If the regulated community does not believe that the enforcement response to violations will be quick, effective and appropriate, incentives to comply with the law are greatly reduced.

Just Say No To Cleaner Air

In March of 1997, the TNRCC publicly opposed the new federal rules for ozone and fine particles. The nature of their opposition clearly communicates that the primary agency concern was to weaken the standard for pollution levels rather than adopt a level that would be protective of public health.

"It should not be too much to ask of government, especially given the potential effects on families, business and industry and the staggering costs of regulations, to adopt standards that are both clear and based on sound science." Said Barry McBee TNRCC chairman (4)

According to the TNRCC statewide ozone data from 1993-1995, seven areas (Austin, San Antonio, El Paso, Victoria, Corpus Christi , Longview-Marshall, and Tyler) could comply with a 0.09 ppm eight hour standard, but three other areas could not: (Houston-Galveston-Brazoria, Dallas- Ft. Worth, or Beaumont-Port Arthur) The Agency estimated that EPA's proposed ozone standard of 0.08 would raise the number of non-attainment areas to nine, more than any other state.

"If EPA implements a new standard, the TNRCC recommends that the new ozone standard be 0.09 ppm or higher, averaged over eight hoursŠ The 0.09 ppm level would protect the public health and avoid the creation of new non-attainment areas within Texas. The commission also recommends that the EPA pursue research and not propose a standard for fine particulates until more is known about their effect on human health." (5)

Floyd Bowen, the chairman of a consortium of industry groups such as Exxon and General Motors, who were working on the proposed standards revealed the close relationship between the agency and the regulated community. He advocated maintaining the current standards because of the high cost and potential economic impact on millions of people.

In the Spring 1997 edition of TNRCC publication Natural Outlook he said: "The costs of air pollution controls designed to achieve the proposed standards would dwarf the marginal ozone benefits, while whatever benefits might come from the new particulate standards are too uncertain to compare with the huge costs"

Weighing costs and benefits of different policy options is a responsible procedure, but in this case, it was an obvious attempt to delay implementation. Economic studies had already shown that the financial impact of the new standards would be $8 billion compared to prolonging the lives of 20,000 Americans and saving $51 billion to $112 billion in health costs, and reduced productivity from lost worker days.

Arithmetic, Texas Style

This same TNRCC Outlook article explained the scientific basis for the agency argument against the new standards. In a series of charts, the agency attempted to make the case that current standards were working quite well, even given a rising Texas population and rising gross domestic product.

Under the headline: "Progress Under Current Ozone Standard". The agency publication on page 8 reads:

A statewide decline in the number of ozone exceedance days each year since 1988 demonstrates that EPA's current ozone standards is working in Texas communitiesŠ

On the surface, this appears to be accurate, but an analysis conducted by the Environmental Defense Fund's Texas Office (EDF) tells a much different story.

In a letter to the TNRCC in May 1997, Jim Marston pointed out that the article was factually wrong. "There has not been a decline in the number of ozone exceedance days each year since 1988. Between 1988 and 1996 the number of exceedance days increased in 1990, 1994, and 1995 relative to the previous year." said Marston. (6)

EDF also singled out the chart on page 9 as particularly misleading because it omitted the odd numbered years including 1995 when there were 68 exceedance days across the state. His conclusion was that this was intentional.

"When this chart is viewed in the context of the entire article one can only conclude that this manipulation of facts was intentional because the other charts showing Texas GDP and population growth included all the years between 1990 and 1996." (7)

Cut The Budget- Again

Shortly after Gov. Bush was first elected, he cut the vehicle inspection and maintenance program to reduce automobile emissions for the most polluted areas of the state, Dallas-Fort Worth, Houston-Galveston, and Beaumont-Port Arthur.

In July of 1997, the TNRCC was ordered to pay a settlement of $140 million for breaking the contract with Tejas Testing, the company that had agreed to administer the vehicle emission program. To comply with the court ordered settlement, Governor Bush and the Legislature chose to cut the TNRCC budget an additional $125 million- an 18% decrease. This forced another round of work reductions that included reduced enforcement, fewer field inspections, decreased planning and monitoring of current cleanup strategies.

For Good Measure- A Little Regulatory Rollback

TNRCC also was initiating a program to undo any state regulations that had no parallel federal regulation or requirement. In the fall of 1997 the agency acted to remove the rules in its Air Toxics Regulation III, concerning hydrogen fluoride standards. One of the most deadly chemicals used in manufacturing today, Hydrogen Fluoride is released from burning fossil fuels, such as coal and lignite, as well as from refineries and computer chip manufacturing. This regulation was intended to provide stringent protection for human health, welfare, animal life, and vegetation.

The program of rolling back regulations continued at least through June of 1998, when the Agency proposed and adopted repeal of Texas beryllium standards.

This standard was adopted over two decades ago to protect public health and the environment from exposure to this toxic heavy metal that is a known carcinogen and has been linked to respiratory diseases similar to emphysema.

Dance With Who Brung You

In the next section, PEER will look at the financial connections between Governor Bush, and the industry that funds his political campaigns.

Sources:

1. 382.088 Texas Health and Safety Code
2. TNRCC Enforcement: Records or Rhetoric? Texas Center for Policy Studies December 1996
3. TNRCC Enforcement: Records or Rhetoric? Texas Center for Policy Studies December 1996
4. TNRCC publication Natural Outlook Spring 1997
5. TNRCC publication Natural Outlook Spring 1997
6. Letter to TNRCC from Jim Marston, EDF, May 30, 1997
7. Letter to TNRCC from Jim Marston, EDF, May 30, 1997

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