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State Requires Cleanup Plans for Half of 1% of Illegal Emissions During Accidents, Shutdowns, and Other Industrial “Upsets”  

Austin – Industries in Texas reported 21,769 incidents that released 409,575 tons of illegal air pollution during malfunctions, startups, and shutdowns from September 1, 2016, to August 31, 2022. But in only one half of one percent of these incidents did the state use its legal authority to require the companies to analyze the cause of the problem and take concrete action to avoid these pollution releases in the future, according to a new report by the Environmental Integrity Project (EIP). 

Broadly called industrial “upsets” or unexpected “emissions events,” pollution discharges triggered by accidents, shutdowns, startups, and maintenance pose a threat to public health because they release sulfur dioxide, benzene, soot, and other dangerous air pollutants. These unexpected emissions events are not authorized by permits issued by the Texas Commission on Environmental Quality (TCEQ).   

But TCEQ routinely declines to use its existing legal authority to crack down on this illegal air pollution, according to EIP’s study, titled “The Polluter’s Playbook: How Loopholes and Lax Enforcement Harm Air Quality in Texas.” 

“To protect our air quality and public health, Texas must start penalizing repeat offenders and requiring them to analyze and upgrade their plants so they stop releasing so much dangerous air pollution,” said Gabriel Clark-Leach, Senior Attorney for the Environmental Integrity Project and author of the report.  “We need to put an end to the loopholes and lax enforcement in Texas that are harming our air quality and public health.” 

Inyang Uwak, Research and Policy Director for Air Alliance Houston, said: “This report shows the stark reality of living in the shadow of industry in the Houston area, as the majority of the excess emission events in Texas are from facilities in East Harris County and along the Houston Ship Channel, where communities of color and lower-income reside. These emissions are disproportionately exposing them to the health risks associated with air pollution. TCEQ, the environmental agency for the state of Texas, must stand up for its mission of protecting public health by ensuring the just and timely enforcement of environmental regulations, especially when these laws are violated. Their continued laxity is unacceptable.” 

“TCEQ is all bark and no bite,” said Luke Metzger, Executive Director of Environment Texas. “The numbers speak for themselves. Big polluters routinely, and sometimes egregiously, violate clean air laws, but they’re rarely held accountable. This is not the fault of the hardworking staff of the TCEQ – the fish rots from the head. The TCEQ and the Legislature need to put a stop to this lawlessness and stop the polluters from poisoning our air and water.” 

The impact of the lax enforcement and industry-friendly loopholes documented in the EIP report is that, year after year, people living in Texas are exposed to tens of millions of pounds of illegal air pollution during thousands of unexpected emissions events. One 2019 study by the Environmental Integrity Project and Environment Texas estimated that unexpected emissions events in Texas are responsible for about 42 deaths per year in people 65 years and older and cause $250 million annually in monetized damages.   

Among the solutions recommended by the EIP report is that Texas abolish a loophole called the “affirmative defense,” which allows polluters to avoid penalties in almost every case based on flimsy claims that the pollution releases were beyond the company’s control and are promptly reported to TCEQ.   

The state should also penalize more repeat violators as “chronic” polluters, according to the EIP study, and designate more unexpected emissions events as “excessive,” requiring companies to perform analyses of the causes of the pollution releases and submit plans to prevent future upsets. 

The Environmental Integrity Project (EIP) studied Texas records for fiscal years 2017 through 2022.  The state TCEQ designated only 119 out of 21,769 unexpected emissions events (.5 percent) over this six-year period as “excessive,” meaning that the state required the companies to perform a root-cause analysis to discover the root cause of the malfunction or release and to submit plans for preventing future air pollution releases.  

However, state records show that far more of these unexpected emissions events should have qualified as “excessive,” triggering the requirement for pollution-control plans. For example, 1,634 unexpected emissions events lasted longer than a week — more than 11 times the number deemed “excessive” by the state. By any reasonable measure, illegal pollution releases lasting more than a week are “excessive,” according to EIP’s report. 

TCEQ has also failed to designate a single company as a “chronic” offender since 2017, even though 29 facilities have reported at least 100 emission events since then and 20 have reported at least 120. By law, the “chronic” offender label allows the state to impose heavier penalties and make it more difficult for companies to receive authorization for expansion projects. But TCEQ has not used that authority against chronic offenders in at least six years, instead allowing companies to benefit from loopholes and lax enforcement that puts the public health and safety at risk. 

Although Texas designates only a small percentage of unexpected emissions events as excessive, a large portion of the incidents meeting that definition are in Harris County and along the Houston Ship Channel. 

According to state records, five industrial plants — all in Harris County — were responsible for 45 (or almost half) of the “excessive” emissions events designated by the TCEQ from FY 2017-2022.  The state’s failure to use its authority to crack down on these facilities by designating them as “chronic” repeat offenders is even more inexplicable, given that they are all located in a densely-populated area where ozone levels already fail to comply with federal health-based standards. 

TOP 5 PLANTS WITH MOST EXCESSIVE EMISSION EVENTS FY 2017-2022 

Source: TCEQ public records requests and TCEQ STEERS database 

Statewide, many of the facilities with the most total unexpected emission events – but not “excessive” emissions events, as defined by the state — are in West Texas.   

Seventeen of the top 20 worst repeat offenders for total unexpected emissions events were in the oil and gas rich Permian Basin region. Of the 4,393 emissions events reported by these 20 facilities, only four—or less than one tenth of one percent—were designated as “excessive” by the TCEQ and therefore required the company to conduct a root-case analysis and create a cleanup plan.  

This failure happened even though the law is clear that illegal pollution releases during emissions events at facilities with a large number of previous events should be designated “excessive.” 

WORST 20 REPEAT OFFENDERS FOR UNEXPECTED EMISSIONS EVENTS, FY 2017-2022 

Source: Texas Commission on Environmental Quality and TCEQ STEERS database 

“While even well-maintained plants malfunction from time to time, frequent breakdowns and air pollution upsets signal problems that really need to be corrected,” said Clark-Leach. “Too often, Texas fails to provide repeat offenders with a real incentive to do better. As a result, the same facilities report dangerous amounts of illegal air pollution during emissions events repeatedly, year after year. This needs to end.”  

For a copy of the report, click here. 

The Environmental Integrity Project is a 21-year-old nonprofit, nonpartisan organization, based in Washington, D.C. and Austin, Texas, that is dedicated to enforcing environmental laws and strengthening policy to protect public health and the environment. 

Media contacts:

Tom Pelton, Environmental Integrity Project (443) 510-2574 or tpelton@environmentalintegrity.org Luke Metzger, Environment Texas (512) 479-0388 or luke@environmenttexas.org