Ellis Asks TCEQ How Texas Can Better Protect Communities

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April 26, 2013

Dr. Bryan Shaw
Chairman
Texas Commission on Environmental Quality
P.O. Box 13087
Austin, TX 78711-3087

Dear Chairman Shaw:

All Texans are saddened by the tragedy that occurred in West as a result of the explosion at the fertilizer plant. Like you, I extend my thoughts and prayers to those who lost family members, and I pray for the recovery of those that were injured.

Federal and state officials are in the process of investigating the explosion and the fire that preceded it. While it may take time for the results of the physical cause of the fire and explosion to be determined, the incident has raised the profile of questions surrounding safety around chemical plants and chemical storage facilities around our state. As you know, I have a number of chemical plants and storage facilities in my district.

I would appreciate your responses to the following questions:
1. Many facilities that store, process, or manufacture potentially hazardous chemicals in our state file risk management plans with the U.S. Environmental Protection Agency (EPA) under provisions of the Clean Air Act. Those plans are also shared with the local emergency preparedness committees and the Texas Department of State Health Services (TDSHS). Does TCEQ obtain copies of those plans, and if so, does TCEQ review them for adequacy and provide feedback to EPA or TDSHS? If TCEQ does not review them, would you recommend that TCEQ be brought into that loop, and would action by the legislature be needed to make that happen?

2. Do the Texas Clean Air Act, Texas Water Code, or other authorities under which TCEQ operates require the Commission to consider plant safety considerations (i.e., such as proximity to residences or schools, or storage of explosive or acutely toxic materials) when it prioritizes its enforcement and inspection actions? If not, does the Commission on its own, through discretion, policy, or rulemaking, have the ability to include plant safety considerations as part of conducting its enforcement and inspection actions?

3. TCEQ’s budget has been reduced dramatically over the last five years, from a peak of $554 million in 2008 to $340 million in 2013. A large portion of TCEQ’s revenue comes from fees that are imposed to regulated industries in the state that are seeking or renewing permits. Would an increase in permitting fees allow TCEQ to increase enforcement and inspection activity, in particular for plants located near residential areas or schools?

4. TCEQ collects millions of dollars in fines every year. TCEQ also enters into enforcement agreements or settlements with regulated entities that sometimes include supplemental environmental projects. What are your thoughts on whether a portion of TCEQ’s enforcement fines used should be used to cover the expenses of creating set-backs (i.e., buffer zones) between chemical plants and residences or schools? I would also appreciate your feedback on whether supplemental environmental projects can or should be used for that same purpose.

5. Permitted facilities in Texas are required to report emission events to TCEQ when they exceed their legally allowable emission limits in their permits. These emission events are frequently the result of mechanical malfunctions, operator error, small fires, electrical problems, flaring events, aging equipment, and other factors. For some facilities in Texas, there are hundreds of these emission events that are reported to TCEQ every year. Does TCEQ use those events and their frequency to assess overall plant safety or to prioritize inspections and enforcement activity? Does TCEQ share that information with the EPA, the U.S. Chemical Safety Board, the U.S. Department of Homeland Security, or other federal agencies that have some jurisdiction over plant safety matters?

I appreciate your work to improve the environment in Texas and protect public health. I look forward to your written response.

Sincerely,

Rodney Ellis

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