Tell TCEQ grading polluters on a curve doesn’t improve our air, our water or our health. And, oh yes, thanks for extending the comment period.

Comment Period Extended to March  23rd

The Texas Commission for Environmental Quality is the second largest environmental agency in the world—with a budget to match. Help hold TCEQ accountable for taxpayer’s interests and stop them from implementing rules that favor polluting businesses.

TCEQ’s Mission Statement and Agency Philosophy includes a commitment to “ensure meaningful public participation in the decision-making process.”  Frankly, that did not translate into practice last week.  At the public hearing on Tuesday, March 6th, Public Citizen testified about our experience attempting to gain access to an agency analysis of the proposed changes to Chapter 60 (Compliance History) rule on a previous report that is accessible on TCEQ’s website as an ASCII file which can be imported into an excel spreadsheet.

Public Citizen staff spent the week trying to obtain the data used to complete that analysis, in hopes of determining the impacts of the new proposed calculations compared to the old rules and to see which specific entities and customers would be classified as high, satisfactory and unsatisfactory performers.  Phone calls to the Compliance Enforcement Department and an email to Chairman Shaw on Monday yielded a return call from a secretary on Tuesday morning.  The message she delivered was that TCEQ staff were going to meet and decide if they would give us the requested data.  By late Tuesday afternoon, TCEQ staff said that they would release it to the public on Wednesday morning. The data was finally made available Wednesday at about 5:00 pm (only 3 business days before the public hearing) and instead of the database file that we were expecting, the report was released as a PDF file.  After trying unsuccessfully to convert the data in the PDF file back to spreadsheet format late Wednesday, Public Citizen staff began repeatedly to request the data in a more “accessible format” from the TCEQ Compliance Enforcement Department the following Thursday.

By the end of the day on Thursday, it had been made clear that TCEQ was not going to voluntarily had over the data in a usable format absent a formal open records request.  They admitted that comparing old and new scores without the data in spreadsheet format was highly impractical as the PDF has 9,305 pages with over 30 records listed on each page, but said that their goal and ours were different.  Our goal is to examine how many and which companies are going to have their compliance history ratings miraculously change from poor to satisfactory, and thus be spared additional oversight and enforcement measures intended to enhance compliance.

It would appear that our repeated requests for either data in a better format or an extension of the comment period to allow time to convert the data has resulted in an extension of the comment period.  In addition, the Austin American Statesman did an open records request also asking for the data in a format that could be used in a database or spreadsheet.  We received word of the extension at 3:58 pm today (1 hour and 2 minutes before the previous comment period deadline) So, thank you TCEQ and for all you folks out there that want to submit comments, you have an additional 11 days to do so.

We have provided sample comments for you to use in submitting your own.  We have also provided information on where and how to submit your comments below.

Comments of _Your name here_ on 2011-032-060-CE: HB 2694 (4.01 and Article 4): Compliance History Draft Rules.

Polluter-friendly amendments, proposed in the Texas Commission for Environmental Quality’s new regulatory rules, serve to increase the degree of noncompliance a company is permitted with no consequence. More noncompliance means more unauthorized toxins in the air, water, and ground in communities across Texas.

We are unsatisfied with the compliance history proposals because:

  • The TCEQ has jurisdiction over 250,000 entities all around the state. Holding one public hearing at 10 a.m. in Austin does not give citizens enough of an opportunity to give feedback. I would like to have a meeting hosted at the TCEQ office in my region so that I can participate in this process.
  • Increased compliance history leniency will cut the percentage of companies considered unsatisfactory from 5% to a mere 3% without reducing an ounce of pollution.  Compliance standards should be raised the longer a regulation has been in place, not made less effective by changing the unsatisfactory rating cutoff from 45 to 55 noncompliance points.
  • The executive director will be able to pardon polluters at his discretion—instead of adhering to a standard protocol. Why have formal classifications if the director can reclassify an entity or decide that a repeat violator charge should not apply? This is a nontransparent, unstipulated and unacceptable loophole.
  • Polluters will improve their compliance history score by signing up for supplemental environmental programs, regardless of effectiveness. Mere participation in a voluntary pollution reduction points does not warrant a 5% reward. The formula should call for measured returns for measured results.
  • The TCEQ has not presented information that calculates how the new formula will affect entities. Given the denseness of the proposal’s language, I would like to have a way to interpret the new compliance history ratings.
  • The proposed language for repeat violations would make it very difficult for any facility with many “complexity points” to ever be considered a repeat violator. Because so many points are given for different kinds of permits, authorizations and even hazardous waste units, getting to “25” complexity points will be easy for any large industrial facility or major entity, meaning that the only way they would be penalized for being a repeat violator would be to have four or more violations over the last five years.

I urge you to utilize TCEQ’s rulemaking process to implement changes that will benefit the health, communities, and resources of Texas citizens and not the pocketbook interests of businesses.

Comments due by 5pm on March 12, 2012.

Texas Register Team – MC 205
General Law Division Office of Legal Services
P.O. Box 13087
Austin, TX 78711-3087

Tips on Commenting Effectively

You will be providing comments for the rulemaking – 2011-032-060-CE: HB 2694 (4.01 and Article 4): Compliance History

  • Identify who you are and why the regulation affects you;
  • Explain why you agree or disagree with the proposed rulemaking;
  • Be direct in your comment; and
  • Offer alternatives, compromise solutions, and specific language for your suggested changes.