Galveston-Houston Association for Smog Prevention - Syndicate GHASP feed

Cooling Off

Laurie H — Thu, 11 Jan 2007 08:58:00 -0800

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State Investigations Show Reductions in Cooling Tower Emissions

Three years ago, GHASP reviewed 12 state investigations of cooling water towers in the Houston area conducted by the Texas Commission on Environmental Quality (TCEQ) in 2002 and 2003. We found that measured emissions exceeded the permitted, grandfathered, or otherwise accepted rate by 138%.¹ In reviewing 20 investigations conducted roughly a year later, GHASP found that measured emissions were about 76% less than the accepted rate. In other words, TCEQ investigations indicate that in 2002-03 cooling towers were emitting far more than expected, but in 2004-05, they were emitting less than expected.

The improvements may be due in part to new cooling tower regulations² adopted by the TCEQ in 2003, and modified in 2004, as part of a regulatory initiative to tighten controls on all stationary sources of highly reactive volatile organic compounds (HRVOCs) in the Houston area. In the past, cooling tower monitoring was conducted as part of leak detection and repair programs, and the frequency of monitoring varied greatly.

The new regulations require that by December 31, 2005, facility operators implement continuous monitoring of volatile organic compound (VOC) concentrations in the water of cooling towers in HRVOC service. Because more cooling towers are being monitored regularly or continuously, it is possible that an increasing number of emissions estimates submitted by industry to government agencies are based on actual monitoring data rather than on a standard calculation method. Thus, it is easier for the operator to determine if the facility is actually in compliance and more difficult for it to hide violations. The tighter controls on HRVOCs also include a site-wide emissions cap of 1200 pounds of HRVOCs per hour (lbs/hr), regardless of whether the emissions come from cooling towers, flares, process vents, pressure relief valves, or any combination thereof.³

This apparent turnaround suggests that many chemical plants and refineries made the necessary improvements in anticipation of the new regulations. It also indicates that the TCEQ may be taking a stronger stand in enforcing the rules. However, the TCEQ needs to address some problems that continue to affect permitting and enforcement of cooling tower emissions. In several instances, investigators suspected that cooling towers were polluting at rates higher than allowable limits, yet operators were not issued notices of violations. This situation can be traced to permits that fail to adequately specify emission limits and to inadequate investigation efforts. In addition, the 2004-05 investigations focused on facilities not yet investigated, but the TCEQ did not follow up on the 2002-03 investigations of cooling towers with the highest volume of emissions. Therefore, we cannot determine conclusively if the worst emitters have improved. Finally, these new regulations apply only to cooling towers in HRVOC service, so facilities not in HRVOC service, which could have as great or even a greater impact on ozone formation, may suffer from the same inadequate monitoring and control of cooling tower emissions as before.

Background

Cooling towers are used in a variety of industrial applications, some of which have little or no air emissions of concern. For instance, cooling towers at power plants remove heat from water circulating through the steam condenser. The dramatic plume sometimes seen rising from a power plant cooling tower is water vapor, which should be benign. Although some industry representatives describe cooling tower emissions at chemical plants and refineries as benign, this is not true. In these applications, heat exchangers serve as the interface between the recirculating water from the cooling tower and the hot process chemical stream. Since the process stream is normally at a higher pressure than the cooling water stream, leaks of chemicals into the water can develop through metal corrosion, cracking, or seal failure. Leaked lower-molecular-weight chemicals will be stripped out of the recirculating water, and exit with evaporated water in the vapor plume.

Even a small leak of a toxic air pollutant at high pressure can have a significant impact on air quality. Yet because these cooling tower emissions were erroneously considered benign or trivial, repairs of even significant cooling tower leaks have sometimes been deferred until the next plant shutdown, which could be months away.

Prior to 2002, these leaks largely avoided regulatory scrutiny because agency investigators did not make intensive unannounced inspections of cooling towers. Since then, however, environmental investigators have inspected almost half of the approximately 280 cooling towers at 75 major chemical plants and refineries in the Houston area. The first set of investigations began in June 2002 and continued through June 2003. The second set began in April 2004 and continued through April 2005. Typically, investigations were unannounced, and included a review of company records and sampling of cooling tower water. Not every cooling tower was checked at some facilities visited by investigators, though.

From an air quality perspective, the most significant concern with cooling tower water is the concentration of VOCs that will vaporize from the water. Also, to effectively analyze the contaminants, the sample must be concentrated 50-fold. So field investigators today most often use the El Paso Method to measure cooling tower leaks. Generally, this involves air stripping a sample of cooling tower water to transfer the volatile contaminants to the air, and then measuring the concentration of those contaminants in the air.

During a field investigation, if the field measurement and material balance calculations indicate the cooling tower emission rate at the time of inspection is greater than the permit allows, the investigator collects an air sample for a complete analysis by gas chromatography (GC) in a laboratory. Violation notices, generally, are issued only if the GC analysis indicates that the VOC concentration exceeds a permit limit.

Apparent Improvements in Emissions

For this report, we compared the 2002-03 investigations (Table 1) reviewed for our earlier report to the 2004-05 investigations (Table 2). We added information from several 2002-03 investigation reports that was not available at the time of our original report. We also show measurements of VOCs in lbs/hr, rather than in pounds per year.

Website users: To see the tables, please view the attached PDF.

In the table, the “Accepted Rate” is a baseline number based on a widely-used method for calculating an accepted or expected emission rate, while the “Measured Rate” is an estimate based on measurements by the investigators. To determine the “Compliance Rate” for a given facility, we added the measured rates for the cooling towers that appear to be in compliance with permit conditions, and then compared this rate to the total measured rates for all of the cooling towers investigated at the facility.

The difference between the two sets of investigations is dramatic. However, with one exception (Chevron Phillips Chemical Co. Cedar Bayou Plant),⁴ the plants investigated in 2004-05 are different from the ones investigated in 2002-03. In 2002-03, only 6 of the 12 plants investigated (50%) were determined to be in full compliance with permit limits, and the aggregated compliance rate of all the cooling towers covered by these investigations was only 6%. In 2004-05, 17 of the 20 plants investigated (85%) were determined to be in full compliance with permit limits, and the aggregated compliance rate was 29%.

As shown in Table 3, the measured rate of VOC emissions from the cooling towers investigated in 2002 and 2003 was more than double the accepted emission rate, while in the 2004 and 2005 investigations, the measured emission rate was only 20% that of the accepted emission rate. Thus, we estimate that from 2002-03 to 2004-05 there could have been as much as a 90% reduction in VOC emissions from cooling towers at chemical plants and refineries in the Houston area. But this needs to be confirmed by follow-up investigations at those plants having high emissions in 2002 and 2003.

Issues with TCEQ Investigations

In our first report, we raised several issues with the TCEQ related to the control of leaks from cooling tower systems. Based on our review of the 2004-05 investigations, several issues remain.

First, in a number of instances, the laboratory GC detected total organic content lower than was measured in the field, and lower than the permit limit, so a violation notice was not issued. These discrepancies in analytical results are a major problem which should be addressed by the TCEQ.

For example, in July 2004, the TCEQ investigated six cooling towers at the ConocoPhillips Sweeny Refinery.⁵ Based on the field investigation, one cooling tower (CT-14) appeared to have a leak rate of 9.1 lbs/hour, well above the permit limit of 3.4 lbs/hour. However, the laboratory GC detected only 2.9 lbs/hr of pollutants. According to the TCEQ report, “it is assumed that the cooling tower water most likely contained some heavy organic which the laboratory did not analyze.” However, it is unlikely that the field sampling would have stripped out heavy organics from the water – say, those vaporizing at above 140◦ F. In short, the TCEQ is simply guessing in this case because it does not have the speciated data. Also, TCEQ’s own permitting guidance notes that “it is difficult to sample water in the field then to analyze it in the laboratory without some loss of the volatile material. Compounding the problem is the fact that the measurement of interest is the amount of material that volatizes while the water is in the cooling tower.”⁶

Furthermore, TCEQ guidance notes that field measurements are important not only to ensure compliance with emission limits, but also to discover process leaks into the cooling tower water.⁷ The report on the investigation of the Sweeny Refinery notes that refinery staff informed the TCEQ that a leak into CT-14 was detected about two weeks prior to the investigation, but that the refinery staff had not collected any samples or otherwise made any effort to “determine the extent of the leak.” In a follow-up investigation, the investigator could have tested the theory that heavy organic material was responsible for the high field measurements and determined whether refinery staff had fixed the leak. TCEQ documents note that the presence of entrained liquids in cooling water indicates a process leak, which may need to be fixed to reduce fugitive emissions as well.

Instead of assuming, without apparent foundation, that laboratory measurements indicating no violation are more valid than field measurements indicating a violation, the TCEQ should conduct follow-up monitoring to determine if there is a leak. GHASP has requested explanations for not conducting such follow-up studies, but the TCEQ has not responded. By not issuing a violation notice, the TCEQ signals that the facility is operating properly, when all the TCEQ has determined is that its evidence is inconclusive.

Second, in some cases permit limits for cooling towers are unenforceable as written. For example, Enterprise Mont Belvieu West Complex Permit 20698 authorizes cooling tower emissions without setting a limit to those emissions. In October 2002, a TCEQ investigator measured VOC concentrations in field samples some 25 times that of levels used to calculate a specific cooling tower’s contribution to the emissions inventory for the facility. However, because the cooling tower emission rates stated in the permit are “estimate[s] only and should not be considered as a maximum allowable emission rate,” the investigator concluded that the TCEQ cannot use the data he collected for enforcement purposes.⁸ Other permits establish limits based on EPA emission factors rather than actual test data. Although TCEQ technical guidance calls for test data to be obtained and used to update the permit once the cooling towers are in operation, this step is routinely neglected.

Third, too few permits impose enforceable emission limits on cooling towers. For example, in the investigation of CT-8 at the ConocoPhillips Sweeny Refinery, a leak rate of 1.15 lbs/hour (well above the permit limit of 0.52 lb/hour) was measured and verified by the laboratory GC analysis. Nevertheless, the TCEQ declined to bring an enforcement action. The permit states that faulty equipment shall be repaired at the earliest opportunity but no later than the next scheduled shutdown of the process unit in which the leak occurs. Thus, a cooling tower may leak until the next unit shutdown, and the company need only report the emissions in its annual emissions inventory. The investigation report does not indicate whether the plant had any opportunity to repair the faulty equipment. Investigators apparently did not ask whether it was technically feasible to take the faulty heat exchanger offline for repair while keeping the plant in operation. Essentially the requirement to repair “at the earliest opportunity” is treated as unenforceable due to vagueness.

Although we highlighted the issue of unenforceable permit limits in our prior report, we are not aware of any systematic effort by the TCEQ to ensure that every cooling tower has an enforceable permit limit. The lack of enforceable permit limits may be a violation of the federal Clean Air Act.

Further, as noted in our previous report, we were concerned that the TCEQ had not initiated any enforcement actions regarding leaks found at 14 cooling towers during the 2002-03 inspections. The TCEQ finds it difficult to take enforcement action even when it identifies cooling tower leaks.

In a modest improvement, one cooling tower leak found during the 2004-05 investigations is the subject of a current enforcement action. In February 2005, at the Equistar Chemicals Channelview Complex, investigators determined the emission rate from the East Plant Cooling Tower to be 5.54 lbs/hour, exceeding the permit limit of 3.23 lbs/hour.⁹ Furthermore, the plant’s cooling tower monitoring program represented a “major deviation” from the terms of its permit. According to TCEQ staff, enforcement of these violations is being pursued as part of a larger case being brought by the EPA and Texas against Equistar Chemicals for a pattern of similar violations at several plants.¹⁰

Recommendations to Improve Enforcement

Even though the apparent reduction in emissions suggests that chemical plants and refineries have reduced pollution releases from cooling towers, still more reductions are necessary. Problems with TCEQ investigation methods limit the usefulness of the investigations in underpinning effective enforcement. To improve the effectiveness of its cooling tower investigations, the TCEQ should:

Conduct follow-up monitoring of cooling towers when laboratory measurements do not confirm field investigation findings, and when emissions rates are well above permitted levels;
Investigate the reasons for major discrepancies between field measurements and laboratory GC analysis;
Establish legally enforceable limits on the extent and duration of leaks in the regulations applicable to all cooling towers, superseding the many existing flawed permits;
Conduct more thorough investigations, particularly with respect to repair and mitigation activities; and
Focus resources on plants with large cooling towers, historic problems, plants not subject to the more intensive HRVOC regulations, and plants not yet investigated.

The apparent progress in reducing cooling tower emissions demonstrates that when regulators scrutinize industry operations more closely, companies take action to reduce emissions. So we need tighter controls on non-compliant polluters, and certainly more diligent enforcement.

Footnotes

¹ “Smoke in the Water: Air Pollution Hidden in the Water Vapor From Cooling Towers.” GHASP. (October 2003, updated February 2004)
² See 30 Texas Administrative Code (TAC) §§115.760-769 (2004).
³ 30 TAC §§115.722(c) and 115.761(c) (2004).
⁴ In July 2002, the TCEQ conducted an investigation of six cooling towers at the Chevron Phillips Chemical Co. Cedar Bayou Plant in Baytown to determine whether the company was complying with the terms of a claimed permit by rule. In March 2005, the agency revisited two of the six cooling towers after a year-long emissions event, from September 1, 2003 to August 31, 2004.
⁵ TCEQ Investigation 289795, ConocoPhillips Company Sweeny Refinery, RN101619179 (Jul. 6-7, 2004).
⁶ Texas Natural Resources Conservation Commission Air Permits Division, Air Quality Permit Technical Guidance for Chemical Sources: Cooling Towers (Draft Feb. 2001), p. 10.
⁷ Ibid.
⁸ TCEQ Investigation 10823, Enterprise Products Operating LP Belvieu Environmental Fuels, RN102323268 (Oct. 17-21, 2002), p. 4.
⁹ TCEQ Investigation 270126, Equistar Chemicals Channelview Complex, RN100542281 (Apr. 8-19, 2004).
¹⁰ On December 20, 2006, the Texas Attorney General filed suit against Equistar and affiliated companies for unlawful emissions at this and three other Houston-area plants.

Danger in the Air: Ethics, Threshold Limit Values, and Community Air Pollution Exposures

GHASP — Wed, 13 Dec 2006 21:00:00 -0800

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Ethics, Threshold Limit Values, and Community Air Pollution Exposures*

Jim Tarr, P.E.

IN THIS ARTICLE:
Air Pollution and Health
Threshold Limit Values
Air Pollution Control and TLVs
Health Effects at the TNRCC
Ethical Considerations

INTRODUCTION

One of the most significant problems in the field of air pollution control involves the task of deciding what level of toxic chemical exposure is acceptable in a community setting. The task is made daunting by the need to make judgments about literally thousands of different chemical substances. Often there is a dearth of human health effects information related to a particular chemical. If information is available, it is often contradictory, sketchy, difficult to interpret, or derived by an entity with a vested interest in the economic aspects of the chemical in question.

Given the need to act, a number of regulatory agencies have chosen to rely on so-called threshold limit values (TLVs) to develop acceptable levels of community exposure to toxic chemical emissions. The purpose of this discussion is to examine the technical basis for this approach, to review the uses of TLVs in state air pollution control programs, and to consider some of the ethical considerations that are inherent in the use of TLVs in assessing community air pollution exposures. The practices of the Texas Natural Resource Conservation Commission (TNRCC) will be given particular attention.

AIR POLLUTION AND HEALTH

The year 1962 marked a watershed in the environmental movement in the United States. Henceforth, the environment, human health, and exposure to toxic chemicals were inextricably linked. Rachel Carson catalyzed that new perspective when she presented eloquent and persuasive arguments based on the premise that for the first time in history all people were subjected to contact with toxic chemicals from the moment of their conception to the time of their death.1 Historically, air pollution control at the state level derived from the legal concepts of trespass and common law nuisance. In the wake of Carson's teachings, the emphasis for controlling air pollution was sharpened. In 1967, the U.S. Congress passed legislation to provide financial assistance to states to establish comprehensive air pollution control programs. By 1970, all fifty states had adopted laws to control air pollution.2 The primary thrust of those various state laws was protection of public health from the adverse effects of exposure to air pollution, that is, toxic chemical substances. That message was articulated in language like that found in the Declaration of Policy of the Health and Safety Code of the State of California as amended by the Pure Air Act of 1968 and by laws of 1969, which in essence declared that the health, safety, welfare, and sense of well-being of ordinary people were the primary concerns in the field of air pollution control.3

THRESHOLD LIMIT VALUES

TLVs are numbers that refer to airborne concentrations of substances. Those numbers were first introduced into the lexicon in 1942 by a group called the American Conference of Governmental Industrial Hygienists (ACGIH).4 TLVs define exposure levels related to people employed in the industrial workplace. They are said to represent the maximum average concentrations of contaminants to which workers may be exposed for an 8-hour work shift, five days a week, without injury to health.

The TLV concept is seriously flawed in a number of respects. Concurrent with the first publication of a list of TLVs, the idea that a given value represented a safe concentration was specifically rejected. On the contrary, the use of TLVs was simply meant to provide guidance for the control of health hazards in the workplace. Some ten years later, the idea that a TLV was equivalent to a level of safe exposure to a chemical substance was introduced by the ACGIH with little or no scientific justification.5

Three decades passed before that particular misconception was corrected in the scientific literature. It was shown that TLVs were, in general, poorly supported by scientific evidence, but were developed with a great deal of consideration given to the cost of controlling exposure.6 TLVs were developed with inadequate medical input, lack of scientific rigor, and by advocates with important financial conflicts of interest.7 The process of selecting a particular value for a TLV for a specific chemical was done in a setting in which technological and economic feasibility was an integral consideration.8

Recently, the recognition that TLVs are not thresholds at all has come full circle. It has been shown that adverse health effects occur in people at or below the level of exposure defined by the TLV for a number of chemical substances.9 The designation TLV has even been judged to be meaningless because the very concept no longer accords with what is known about the relationship between occupational exposure and human health risk.10

Most importantly from an environmental protection perspective, the use of TLVs in a community air pollution setting is completely contrary to recommended practice. The document that lists values for workplace TLVs explicitly states that said values are not intended for use or for modification for use in assessing community air pollution exposures or for estimating the toxic potential of continuous, uninterrupted exposure to chemical substances.11

AIR POLLUTION CONTROL AND TLVs

A number of state and local air pollution control agencies use TLVs as a basis for controlling community air pollution exposures. That usage became more popular in the mid-1980s when the EPA began to delegate the responsibility of controlling toxic air emissions to various state agencies. The shift from federal to state control was begun in the wake of many years of failure on the part of the EPA to effectively regulate toxic chemical emissions under Section 112 of the federal Clean Air Act. To make matters worse, this new scheme was initiated by the EPA with a minimum of effective financial and technical support.12

In spite of obvious difficulties, for a number of air pollution control agencies the idea of using TLVs, or some modification of those numbers, apparently was an irresistible solution to a very difficult problem. By 1989, almost one-half of all states had incorporated the use of TLVs in their air pollution control efforts to limit public exposure to toxic chemical emissions. Among those states were some of the most populous in the U.S. including California, Connecticut, Florida, Michigan, New York, Ohio, Pennsylvania, and Texas.13

HEALTH EFFECTS REVIEW AT THE TNRCC

The TNRCC is the government agency in Texas charged with controlling air pollution. One of its predecessor agencies, the Texas Air Control Board (TACB), actually created the system that is used to pass judgment on community toxic chemical exposures in the state.

Initiated in the mid 1970s, the TACB approach to regulating community toxic chemical exposure was the development of the effects screening level (ESL) system. The original system was based almost entirely on fractional TLVs. Acute health effects screening levels were judged on the basis of comparing a predicted ambient air concentration to 1/100th of the TLV (30-minute average). Chronic health effects screening levels were based on a comparison of predicted concentrations with one/1000th of the TLV (annual average) for a toxic chemical of interest.14

At least two of the important premises on which the TACB's ESL system was based were deeply flawed. One of those premises was that if predicted ambient air concentrations of a toxic chemical did not exceed the ESL for that chemical, then no adverse health effects would occur. There was no valid scientific basis for that claim when it was made, and there is certainly none now. A second flawed premise was that if a permit applicant proposed to control air emissions with the "best available control technology," and if the applicant designed the proposed facility to protect workers from hazards, then residual public exposure to the toxic chemical air emissions from that facility would be acceptably low.15 This claim was made in spite of the fact that the TACB was statutorily prohibited from evaluating and regulating industrial hygiene matters in facilities. Furthermore, there was not then, and there is not now any direct connection between engineered pollution control devices and the response of nearby biological systems.

A confounding difficulty soon became apparent. The ESL system could only be employed in conjunction with those toxic chemicals for which a TLV existed. There are currently published TLVs for approximately 750 toxic substances. By 1987, the TACB had applied the ESL system to more than 1,800 different chemicals.16 This feat was made possible by the creation of numbers that, in candor, must be called pseudo-TLVs. A pseudo-TLV is a number that is not derived from human experience in the industrial workplace, but instead, is derived from a comparison of chemical structures and the toxic effects of other chemicals.17 In 1987, the TACB had apparently made health effects decisions on fully two-thirds of all chemicals they considered using pseudo-TLVs. To paraphrase their own description of the method, the derivation of pseudo-TLVs did not represent a pure science approach but it did allow the permit review process to proceed at a reasonable rate.18

Experience demonstrates that the ESL system at the TNRCC exists primarily for the convenience of the agency and to some degree for the economic purposes of the corporations that the agency is charged with regulating. The TACB has flatly stated that the system provides major advantages for the regulated community. For example, the acceptable levels of community exposure to toxic chemicals are said to be readily achievable. They also point out that the system does not prohibit modernization and industrial growth in the state. Furthermore, companies are not burdened with the need to provide extensive toxicity testing results for those dangerous chemicals they may want to emit into the environment.19 Another stated advantage for industry is that the ESL guidelines are flexible. They are also said to bring consistency to the review process.20

And in one of the more telling statements of the TACB, it was pointed out that the regulatory agency can explain the meaning of the ESLs to the public, indicating that the TLVs upon which the numbers are based represent concentrations to which industrial workers may be exposed over a lifetime without adverse effect.21 Stated another way, one goal of the ESL system is to use the presumed prestige of the omniscient regulatory agency as a means to mollify public concern about the emission of toxic chemicals into the environment.

Also, of most practical value to those who emit toxic chemicals into the atmosphere, it is clear that predicted ambient air concentrations greater than an ESL will not cause serious difficulty for a permit applicant. The TACB has declared that an exceedance of an ESL does not necessarily mean that a proposed project will not be approved.22 In fact, said finding may not represent a problem at all.23 Exceedances of ESLs are routinely considered acceptable.24 Taken as a whole, the record reflects that the agency will acquiesce to avoid prohibiting the emission of toxic chemicals into the atmosphere whether or not that action threatens the health of ordinary people.

The agency purports to conduct health effects reviews with thoroughness, fairness, and flexibility.25 Clearly, their real concerns about fairness fail to include those who breathe the toxic chemical emissions that are allowed under the auspices of a discredited system. They also categorically state that if their ESLs are not exceeded then no adverse health effects will occur.26 That all encompassing claim is made with the certain knowledge that the agency has failed to conduct the research needed to document that kind of sweeping generalization.27

Current TNRCC procedures explicitly include a premise that an ESL can be exceeded without creating an unacceptable increase of adverse human health or welfare effects.28 Those increases may be acceptable to the agency and the regulated entities, but the interests of the people who must bear the subsequent risks remain unspoken and unrepresented in any meaningful way.

ETHICAL CONSIDERATIONS

There are at least two systems of ethical thought that are of interest in the present context. One system involves a utilitarian approach to ethical reasoning based on the idea of doing the greatest good for the greatest number. Another relevant ethical system flows from the concept of deontology, or an approach based on duties and obligations.29 These systems share a number of basic principles.

Non-malfeasance
The principle of non-malfeasance requires the practitioner to refrain from doing harm. It is a familiar concept, perhaps best stated in the physician's ethical charge: "First do no harm."

In an air pollution control setting, the concept of non-malfeasance places a substantial burden on an agency charged with protecting human health. The clear implication is that such an agency would have to gather a lot of information about a toxic chemical and its possible health effects before allowing the release of that chemical into populated areas. Definitive, incontrovertible evidence concerning the toxic properties of the chemical in question would have to be readily at hand. The information would have to be exactly relevant to the subject population. Unbiased evaluations by highly trained, skillful practitioners with the authority to make unpopular decisions would be normal operating procedure. None of these is an integral part of the health effects review system at the TNRCC. The best that can be said about the system is that TNRCC usually does not know whether the toxic chemical emissions it allows will actually harm anyone. There is certainly no demonstration that those emissions will do no harm. In spite of that lack of knowledge, TNRCC routinely permits toxic chemical emissions from many sources.

Autonomy
Simply stated, the ethical principle of autonomy requires respect for persons, all persons. In this context, respect for persons must be maintained in a situation where the interests of one group are in actual or potential conflict with the interests of another group. The entities that the TNRCC regulates tend to be corporations with an overriding need to make as large a profit as possible. Controlling, or perhaps completely eliminating, the emission of a toxic chemical may well represent a cost, and make profit difficult or impossible. The regulatory agency must respect that need, but balance the profit motive against the needs of the broader community. Community needs include the need for a healthy environment. In fact, the very laws that created the TNRCC mandate the protection of human health and welfare as the concern of primary interest. Respect for the broader community must therefore command the highest priority if this ethical principle is to have meaning.

At the TNRCC, respect for the broader community is not reflected in the day-to-day workings of the health effects review system. The agency operates in such a manner as to subjugate the interests of the broader community to the interests of corporations. In fact, agency descriptions of their intent with respect to the ESL system make it clear that they intend to place themselves in the position of advocates-convincing the community that a given toxic chemical exposure is harmless in spite of the fact that the methods of review are scientifically invalid, superficial, and oftentimes applied in a manner best characterized as slipshod. This ethical standard is therefore not met by the reality of the workings of the health effects review system at the TNRCC.

Justice
The ethical principle of justice speaks to the equal administration of policy and to the equitable allocation of resources to all segments of society. In an air pollution regulatory context, the implication is that all segments of the community are approached in an evenhanded way and treated in a fair and equitable manner with regard to the resource of clean air.

The TNRCC health effects review system is unjust for a number of reasons. The burden of toxic chemical exposure falls predominately on that segment of the community that resides in close proximity to industrial facilities. In Texas, that often means the poor, the undereducated, and minorities. It is also clear that the workings of the agency are significantly tilted toward meeting the needs of the corporations responsible for emitting toxic chemicals into the environment. Since 1972, when the construction permit system was begun, the TACB and the TNRCC have issued tens of thousands of permits for new or modified industrial facilities. During the same period, those agencies denied permit applications for a very small number of proposed operations. The minimal number of permit denials that occurred generally resulted from considerations other than health effects concerns.

Fidelity
To be consistent with the ethical concept of fidelity requires faithfulness and the keeping of promises. Implicit in the duties of the TNRCC is the promise that the health and welfare of the public will be given primary consideration in all agency actions. That promise must presuppose that whatever methods are employed in the quest to protect health and welfare will be firmly grounded in valid scientific principles.

The ESL system at the TNRCC is the foundation of the agency's means to protect health and welfare. It is a system that forms the basis for hundreds of decisions each year concerning the kind and quantity of toxic chemicals to which thousands of men, women, and children will be exposed. As explained in the preceding section of this discussion, the ESL procedures are based on discredited, invalid information, false premises, and plain nonsense. As a result, the promise of fidelity is breached, and this ethical principle is not met.

Veracity
Veracity is the simplest ethical principle to articulate and to understand. To practice veracity is to tell the truth, to be candid, to be open and honest. The practice of veracity is the opposite of lying, hypocrisy, and prevarication.

The health effects review system at the TNRCC is not based on veracity. In the strictest sense, the TNRCC doesn't often lie about the health effects review system. But the agency often fails to tell the whole truth. The use of TLVs to assess the impact of toxic chemical exposures on community health is at best a questionable methodology. The use of pseudo-TLVs for the same purpose is not questionable methodology, it is plainly grasping at straws in the name of economic development. It is one thing to conduct a regulatory policy for that purpose, it is quite another to pretend that you don't. The pretense creates a condition of a falsehood. The ESL system is therefore unethical in light of the principle of veracity.

CONCLUSION

TLVs were developed for use in controlling health hazards in an industrial setting. They were not intended to be used in evaluating the potential harm of toxic chemical emissions in neighborhoods surrounding industrial facilities. There are reasons to doubt that TLVs are valid for any human health effects evaluation. In spite of those difficulties, the use of TLVs in air pollution control agencies has become widespread.

The TNRCC relies heavily upon air pollution evaluations based on TLVs. As implemented, the system works primarily for the benefit of the agency, and to some extent, for the benefit of the corporations that the agency regulates. The TNRCC can point to a "health effects review system" and make exaggerated claims about its effectiveness. The corporations can receive permits to emit toxic chemicals into the atmosphere and continue business as usual. In the meantime, the public is left to suffer the unknown consequences of a scientifically meaningless, bureaucratic endeavor.

One consequence of this unethical behavior needs to be emphasized. The potential for harm done by the actions of the TNRCC in the realm of health effects review is magnified by the fact that many of the communities that are subjected to the toxic chemical emissions thus allowed are populated by low-income, relatively uneducated people. That segment of our society often lacks the expertise to understand what is happening as a result of the decisions made by the TNRCC. They are therefore unable to protect themselves and their families.

NOTES:

* Reprinted with permission of the author from Sacrificing Science for Convenience: A Technical and Ethical Evaluation of Texas' Risk Assessment Process for Air Toxics. Downwinders at Risk Education Fund, Cedar Hill, Texas, October 1996.

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Degler SE. State Air Pollution Control Laws, Revised Edition: 1. The Bureau of National Affairs, Inc., Washington, DC, 1970.
Ibid.
Ziem GE and Castleman BI: Threshold limit values: Historical perspective and current practice. Journal of Occupational Medicine 31(11):910, 1989.
Ibid.
Castleman BI and Ziem GE: Corporate influence on threshold limit values. American Journal of Industrial Medicine 13:531, 1988.
Ziem and Castleman, 1989.
Robinson JC, Paxman DG, Rappaport SM: Implications of OSHA's reliance on TLVs in developing the Air Contaminants Standard. American Journal of Industrial Medicine 19:3, 1991.
Roach SA, Rappaport SM: But they are not thresholds: A critical analysis of the documentation of threshold limit values. American Journal of Industrial Medicine 17:727, 1990.
Goldsmith JR: Perspectives on what we formerly called threshold limit values. American Journal of Industrial Medicine 19:805, 1991.
Threshold Limit Values for Chemical Substances in the Work Environment, 2. American Conference of Governmental Industrial Hygenists, Cincinnati, Ohio, 1994.
Robinson JC, Paxman DG: The role of threshold limit values in US air pollution policy. American Journal of Industrial Medicine 21:383, 1992.
NATICH Data Base Report on State, Local, and EPA Air Toxic Activities, 3-2 through 3-5. US Environmental Protection Agency, Research Triangle Park, North Carolina, 1989.
Dydek ST, Wiersema J, Price JH: Risk assessment in health effects review of air permits in Texas. Proceedings of the Air Pollution Control Association Annual Meeting, 85-34.3. Pittsburgh, Pennsylvania 1985.
Price JH, Wiersema J, Dydek T, Henry JP: Texas procedure for assessing air toxics. Symposium on Setting Air Toxics Standards. Lone Star Chapter of the Society for Risk Analysis, Houston, Texas, 1987.
Ibid.
Dydek et al., 1985.
Price et al., 1987.
Ibid.
Price JH, Wiersema JM, Dydek ST, Rogers B: New source review in Texas for noncriteria air contaminant impacts. Proceedings of the Air Pollution Control Association Annual Meeting, 85-63.5. Pittsburgh, Pennsylvania, 1985.
Price et al., 1987.
Ibid.
Toxicology and Risk Assessment Section Staff: Effects Screening Levels (ESLs) List. Texas Natural Resource Conservation Commission, Austin, Texas, 1994. See also "Resources" section of this report for revised list.
Toxicology and Risk Assessment Section Staff: Effects Evaluation Procedure. Texas Natural Resource Conservation Commission, Austin, Texas, 1994.
Price et al., 1985.
Dydek et al., 1985.
Wiersema JM: [Personal communication.] Texas Air Control Board, Austin, Texas, 1989.
Toxicology and Risk Assessment Staff Effects Evaluation Procedure, 1994.
Soskolne CL: Rationalizing professional conduct: Ethics in disease control. Public Health Review 19:311, 1991/92.

Exceeding the Limit

Laurie H — Mon, 19 Jun 2006 21:00:00 -0700

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Industry Violations of New Rule Almost Slid Under State's Radar

Houston-area industrial facilities have regularly violated a key air pollution regulation during the first two months it has been in effect. Their failure to comply with the new rule – which sets an hourly limit on specific emissions – places the region’s strategy for reducing ozone smog at risk. Yet the state’s environmental agency has only recently begun investigating the incidents.

From April 1 to May 31, 2006, chemical plants and refineries self-reported at least four violations of the limit (see Table 1). Furthermore, an additional 14 violations of the rule may have occurred, but the self-reported data are not descriptive enough to demonstrate whether or not a violation existed.

The new pollution limit, which was established by the Texas Commission on Environmental Quality (TCEQ) in 2004, plays a major role in the state’s plan to clean Houston’s air. Its goal is to prevent rapid formation of ozone by capping emissions of certain pollutants, known as highly reactive volatile organic compounds (HRVOCs), at 1,200 pounds per hour. The rule came into effect for Harris County in April 20061.

However, the TCEQ didn’t implement adequate procedures for investigating and enforcing violations of the rule. According to TCEQ investigation staff, all air emission events are investigated to determine if they warrant enforcement for unauthorized emissions. In response to GHASP’s inquiries in June 2006, the TCEQ has added review of this rule to its emission event investigation practices.

To prevent rapid formation of ozone smog and to reduce public exposure to toxic air pollution, we are calling on the TCEQ to develop an enforcement plan for the hourly limit that includes:

Investigations of all 18 actual and potential violations; and
Revisions of its air emission event reporting database to routinely collect the data needed to identify potential violations of the limit.

We are also submitting this report to the U.S. Environmental Protection Agency for its use in evaluating the potential effectiveness of the hourly limit in controlling ozone smog. While the emissions events listed in Table 1 are evidently unauthorized exceedances of the short-term cap, in other cases further information is needed to determine if a violation of the hourly limit occurred. In 14 cases, we determined that the emissions event report had sufficient information to suggest that a violation of the hourly limit may have occurred (see Table 2).

According to TCEQ investigation staff, there are no current procedures to collect the type of information that would be needed to determine compliance in these 14 cases. Such emission events could be investigated during future compliance reviews, but due to resource limitations, not all companies are reviewed for compliance on an annual basis. Furthermore, the procedures for compliance reviews have not been revised to include a specific focus on the new emissions limit.

When the rule was enacted, the TCEQ stated that, “An exceedance of [the hourly] limit is, by rule, unauthorized emissions” (see sidebar). We found that most online reports of unauthorized emissions lack sufficient information to determine if the company may have a valid affirmative defense against enforcement action.

Self-reported incident data alone may not be sufficient to determine if a violation occurred, because:

The reports list total emissions over the complete duration of the incident, including any emissions associated with startup after a repair is completed. The report does not list the peak hourly emissions rate. For example, if 5,000 pounds of pollution are released over a 5-hour period, the peak hourly emissions rate likely exceeded 1,000 pounds per hour, but it is not certain that the 1,200 pound per hour limit was violated.
The reports list only emissions associated with the incident, and do not include other routine emissions at the facility. Since the hourly limit applies to the entire facility, a violation could be triggered even if the emissions caused by the incident are less than 1,200 pounds per hour. For example, if an incident results in 1,000 pounds of pollution in an hour, and typical emissions across the rest of the plant are 300 pounds per hour, then it is likely that a violation occurred.
The reports are typically based on calculated emissions, rather than measured emissions, and often omit evidence to demonstrate that the calculations meet TCEQ requirements. For example, TCEQ rules allow companies to assume 98 percent or 99 percent of chemicals sent to a flare are effectively destroyed, as long as flare operations comply with certain guidelines. If operations are not in compliance, then the companies may only assume 93 percent of the chemicals are destroyed. Some companies are assuming 98 percent or 99 percent destruction without stating that their flares were in compliance with the requisite guidelines (see sidebar). For example, suppose a company sends 20,000 pounds of butadiene to its flare in one hour. Using the 98 percent efficiency, the company would report 400 pounds of butadiene emissions for the hour. However, if the flare wasn’t operated in accordance with guidelines, the company would have to report a 93 percent efficiency, which would equal 1,400 pounds for that hour.

Until these issues are addressed through follow-up investigations and revisions to the self-reporting requirements, the TCEQ will not be able to effectively enforce the hourly limit.

Whiners Matter!

Laurie H — Mon, 12 Jun 2006 09:23:54 -0700

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Citizen Complaints Lead to Improved Regional Air Quality Control

The complaint process often begins with a nose. In 2004, area residents called local agencies on more than 2,000 occasions to complain about offensive odors or other indications of air pollution problems. Although less than 10% of these complaints led directly to enforcement, the data from these citizen alerts is invaluable in identifying trends and problem areas.

For more than half a century, Harris County regulators have investigated and prosecuted air pollution problems reported by citizens. Since the 1970s, City of Houston regulators have done the same, both on their own and under contract with the Texas Commission on Environmental Quality (TCEQ). These officials appreciate that citizens’ watchful eyes are essential to air quality control in the Houston area. Citizens not only experience pollution firsthand every day, but also hold the political power to insist on effective regulation by government and diligent compliance by polluting industries.

GHASP recently undertook a review of perhaps the most overlooked component of citizen oversight – complaints. Over the past year, city and county regulators intensified efforts to each strengthen their own air quality programs and to work more effectively together in identifying and addressing regional air pollution problems. GHASP applauds their efforts and looks forward to a more integrated regional approach.

Specifically, Harris County and the City of Houston can build upon each other’s strengths and make the most of valuable complaint information by:

Treating every complaint as a valuable source of information, and using complaint data to identify trends and develop a more cohesive, regional strategy for addressing air pollution;
Leveraging complementary skills and resources when responding to complaints, so that regardless of jurisdiction, the appropriate expertise and equipment are dispatched for complaint response;
Standardizing complaint procedures and terminology to the extent necessary to facilitate data sharing and coordination among the agencies, while drawing on the unique strengths of each agency’s system;
Educating citizens on effective complaints, improving call intake procedures, and informing citizens of outcomes; and
Recruiting and training a network of supplemental investigators, in the community and law enforcement agencies, who can assist with initial data collection in cases where agency staff is unable to get to a location quickly.

Complaint systems play key role in regional air quality control

The region’s complaint systems allow Houston area residents to bring odor and air quality problems to the attention of the agencies that have the authority to enforce clean air laws. The city, county and state each have an agency responsible for investigating citizen complaints on air quality problems:

the City of Houston Department of Health and Human Services Bureau of Air Quality Control (BAQC)
the Harris County Public Health and Environmental Services Environmental Public Health Division (HCPHES)
Texas Commission on Environmental Quality (TCEQ) Region 12, covering Harris County and 12 surrounding counties

We found that the overall success of all three complaint systems could be enhanced through better coordination between the agencies and better utilization of the data collected from a complaint. City and county agency staff share information and responsibilities to varying degrees, but a better coordinated strategy for responding to complaints would make both agencies more effective. Also, more resources must be dedicated to using the data collected through the complaint investigations to inform the agencies’ other investigations, permitting, monitoring and compliance activities.

Truly robust complaint systems can play a vital role in an integrated regional air quality management program. Pollution control agencies can use the systems both to identify violations of state and federal clean air laws and to gather data that is useful in other regulatory activities. By working together more systematically, the city and the county can use data collected through their citizen complaint systems to more effectively identify and address the most significant air quality problems in the region. Effective complaint systems will help agency personnel:

Identify the source of the odor or other air pollution problem;
Determine if there is a compliance issue at the source of the problem, and make timely improvements in monitoring emissions from the source facility, when appropriate;
Deliver prompt enforcement against unlawful nuisances in a manner sufficient to deter future violations;
Track complaints and enforcement actions in a company’s compliance history, and consider this documentation in permitting and penalty calculations;
Identify and target problem areas and facilities across the region; and
Build community support for legislators and regulators to take corrective action designed to improve air quality.

Historically, the state has left the bulk of air pollution complaint investigations in Harris County to city and county officials. Until August 31, 2005, the state funded two-thirds of the BAQC’s enforcement budget, while the TCEQ’s own investigators focused on policing polluters outside the city’s jurisdiction. Now the BAQC is operating without the state funds, but with more flexibility to partner with the county in addressing the area’s unique pollution control needs.

This report outlines a strategy for the city and the county to more effectively collaborate in deploying their collective resources, particularly their respective citizen complaint systems, to improve local air quality. We spoke with the staff of the TCEQ regional office in preparing this report, and we believe that the TCEQ should play an integral role in the complaint process. However, we chose to focus this report on the two local government agencies that currently have the greatest day-to-day responsibilities for complaint response. As this collaboration begins to show results, GHASP hopes the TCEQ and its state funding will join the city-county partnership and expand this systematic use of citizen complaints in improving air quality to the other counties in Region 12, and even to other at-risk regions throughout the state.

Comparison of city and county complaint systems highlights opportunities

Because of fundamental differences in their historical development, the city and the county have different, yet complementary, approaches to handling citizen complaints. The city focuses on identifying and investigating major air pollution sources and monitoring compliance with regulations. Until recently, it played only a minor role in enforcement, referring most cases to the TCEQ. The county, on the other hand, focuses on protecting property owners from air pollution nuisances, and its investigators actively collaborate with its enforcement staff. However, county investigators will inspect a major facility suspected to be the source of a nuisance and conduct detailed investigations of emission events likely to have a regional impact. The county also comments on some permit applications for major new sources or modifications. The end result is that the city has developed considerable expertise in investigating large-scale pollution problems such as those that originate at industrial facilities, while the county has established an excellent program for investigating, mediating and handling enforcement of neighborhood-scale air pollution problems.

Most citizen air pollution complaints involve a neighborhood-scale odor or dust nuisance, and only a small percentage involve a large facility that is violating a law, regulation or permit governing its polluting activity. Most large-scale violations are discovered by government officials during investigations or regulatory action, rather than as a result of citizen complaints. But though complaints involving major sources are fewer in number, they involve violations that are more likely to have a regional impact or to present an immediate health or safety concern.

If the city’s and the county’s complaint systems are more closely aligned, the two agencies can leverage their complementary skills to better identify and address both types of air pollution complaints. In the absence of contractual obligations tying the city to state priorities and standards, the city can modify its investigation and enforcement protocols to track the more effective policies and procedures of the county, which are well suited to urban issues. At the same time, the county can take advantage of the city’s more extensive experience with major sources.

A detailed comparison of the two systems highlights opportunities for improvement and integration. Operationally, each system consists of three stages: intake, investigation and enforcement. Ideally, they should also have a fourth stage: trend analysis. While the agencies track some data that can be used to analyze trends, this is an area where the most significant enhancements can be made. If they can systematically combine data collected through the complaint systems, monitoring and other activities, they can more effectively develop solutions to the region’s most serious air quality problems.

Step 1: Intake

As the principal contact between concerned citizens and the pollution control agency, call intake is where important data is initially collected. The quantity and quality of information collected during intake has a direct impact on the investigator’s ability to conduct a successful investigation. These areas may require particular attention: documenting complaints for accessibility, optimizing response to complaints, and encouraging citizens to participate.

Documenting complaints for accessibility. Intake reflects a delicate balance between standardized and flexible data collection. The city emphasizes quick and easy access to basic complaint information by as broad a staff audience as possible, while the county focuses on immediate and direct access to comprehensive complaint information by investigators.

In the past, the BAQC took calls from the public and was responsible for its own intake system. In 2005, the City of Houston added air complaints to the list of customer service requests handled by its 311 non-emergency call center. Together, the BAQC and Customer Service Requests (311) have developed a template for operators in both departments to use in questioning complainants about the specific characteristics and circumstances of the air pollution problem they are experiencing. As operators interview complainants, they enter the information onto a computerized form that includes space for narrative comments, as well as categorized fields (Figure 1). As soon as the intake operator completes the form, the data collected from the complainant is captured in the city’s 311 database, and is accessible to staff in both departments. The complaint investigation is then assigned to one of the city’s own investigators or referred to the appropriate sister agency – i.e., the HCPHES or the TCEQ.

The county does not have a 311 system or dedicated air complaint intake operators. Instead, investigators take calls directly from complainants and record the relevant data on intake forms that call mostly for narrative, rather than categorical, response to specific questions (Figure 2). Within 24 hours of the initial complaint, an administrative assistant inputs the data noted on the forms into the county’s Poll-tracking system, and then it is accessible to all staff.

Web users: To view graphics, please download attached PDF.

The advantage of the city’s approach is that it should give investigators more time in the field and more consistent documentation of complaints. Partnering with the 311 system even frees up intake operators at the BAQC to identify and address intake problems and to provide additional support for investigators. In addition, integrating air complaints with other customer service requests to the city may provide better context for the air complaints. Finally, easy access to complaint data in a standardized format should make it easier for enforcement staff to consider complaint data, without having to wait for resolution of an enforcement action. The downside of this approach is that it delays the complainant’s direct contact with the investigator, who has more knowledge and experience with air pollution issues than the operators.

The advantage of the county system is that investigators speak to complainants directly from the beginning, and are not constrained in their information collection by a rigid form. Removing a layer or two of communication may expedite identification of the pollution source. The downside to this approach is that during the intake process, the investigator may not collect and record, in the agency’s standard format, all the data relevant to trend analysis. Therefore, the information may not be easily accessible, if at all, by other agency and enforcement staff. In addition, there is the 24-hour lag time before the available information is entered into the database.

Optimizing response to complaints. Another potential downside to investigators fielding complaints directly is that experienced investigators naturally will note evidence problems with a complaint during the call. While some investigators may still take the opportunity to collect valuable data, others may discourage complainants whose cases are unlikely to lead to an enforcement action. When this happens, the agency misses an opportunity to collect and record timely evidence which could be valuable for future investigations, for deterrence, or for trend analysis.

To prevent such missed opportunities, it is important for investigation and enforcement staff to have regular, direct discussion of actual investigations and enforcement actions. Without this informal, practical exchange of experiences, enforcement staff may not always ask the right questions, even when they have extensive formal training. Meanwhile, investigators tell us that they may be reluctant to comprehensively pursue an investigation that they are not sure will result in enforcement action.

At Harris County, investigators work closely with attorneys responsible for enforcement. However, investigators on occasion may still focus on discovering immediately enforceable violations, at the expense of collecting data for future enforcement action or deterrence. While operating under the state contract, city investigators had little direct communication with TCEQ enforcement staff once they turned a complaint over for enforcement, and were often unhappy with the results.

In general, the extent of an investigation should not be determined by the perceived presence or absence of enforceable violations. Instead, investigators should determine the extent of the problem, and should collect data accordingly. The BAQC is restructuring its investigation protocols, and training its investigators, to focus on identifying and targeting problem areas and facilities, and establishing the characteristics of the pollution.

Encouraging citizens to participate. A bigger issue facing both agencies may be the perceptions and reactions of the complainants. State law prohibits discharge of “one or more air contaminants, or combination thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.” Even with a meritorious complaint of such a nuisance and diligent efforts by the investigator to encourage future complaints, strict legal standards for assessing violations, or problems gathering evidence, may prevent the agency from directly and definitively addressing the complainant’s problem. However, the agencies should still follow up with the complainant to explain what actions were taken, and why. GHASP regularly receives calls from complainants frustrated with the lack of follow up, who describe themselves as discouraged from calling the agencies in the future.

For example, in March 2004, a motorist called the county to complain that he was strongly affected by an odor while stopped at a major highway intersection near an industrial facility. The county investigator traced the odor to an operational problem at an upwind wastewater treatment facility. The facility operator agreed to try to reduce the odor, but the county informed the complainant that it could not issue a notice of violation because the odor did not constitute a nuisance. That is, the odor did not interfere with the complainant’s “normal use and enjoyment of … property,” presumably because the complainant’s vehicle constitutes personal property, not real property.

In its follow-up with the complainant, the agency did not indicate whether it investigated any potential nuisance claim by a real property owner in the vicinity. Also, the agency did not indicate whether or not it inspected the wastewater treatment facility for violations of other air pollution laws or regulations. If the county did not have jurisdiction to investigate further, it could have referred the matter to the city or state agency that had such jurisdiction. In the end, the complainant wasn’t confident that all potential steps had been taken to resolve his concern.

While this particular incident may not have warranted such a thorough investigation, given the agency’s limited resources, it does illustrate one complainant’s frustration with the follow-up process. When this is the rule, rather than the exception, citizens are discouraged from reporting problems to the agency, rather than motivated to monitor the offending facility’s actions more closely and in a manner more likely to provide usable evidence. The agency misses an opportunity to develop and encourage a knowledgeable source for compliance information.

In other cases, the agencies miss the opportunity to collect complaint information altogether. Several investigators told GHASP they believe citizens frequently call the suspected company rather than the environmental agencies if they are concerned about a plant’s activities. Anecdotal evidence supports their assessment:

According to a January 2005 Houston Chronicle article, a Valero spokesman acknowledged that the company gets many complaints when it has a release and residents smell something.
One Deer Park resident interviewed for this report commented that she is more inclined to contact the plant over her local agency because she has found the plant to be a more helpful resource.

Complainants also tell us that they are less likely to make a subsequent complaint to an agency if they feel that a response is not timely or that the investigator has not carefully listened and responded to their specific concerns. At the same time, they tell us they are willing to be more diligent in monitoring polluters and reporting problems, but only if they feel like their efforts will make a difference. These citizens can potentially help agencies by collecting evidence and by increasing public support for legislative and regulatory pollution control measures. Both the city and the county should make a consolidated effort to invite, facilitate and publicly appreciate this type of citizen involvement.

Step 2: Investigation

Both agencies rely upon a dispatched investigator to verify whether an odor or other problem identified in the complaint meets the criteria for a nuisance. Before visiting a site, city investigators call the complainant with any follow-up questions. If the complainant is experiencing nausea or other health problems, the investigator will advise the complainant to get to fresher air, if possible, or even call 911. If a serious regional problem arises, the investigator will dispatch the hazardous materials team. Since county investigators take the complaints directly, presumably these issues are addressed in the initial communication.

Previously, city investigators were trained in the state’s investigation method, which requires investigators to use a standardized evaluation of frequency, intensity, duration and offensiveness – known as FIDO – to determine whether an odor is a nuisance. County procedures incorporate all the elements of FIDO. They also provide more detailed procedures for collecting additional information, and county investigators are expected to consider all the information collected, not just the FIDO elements.

The advantage of the TCEQ protocol is that, in theory, it provides more objective parameters for determining what constitutes a nuisance, which should promote consistent enforcement of nuisance prohibitions. The advantage of the county’s operating procedure is that it recognizes the inherent subjectivity of any odor evaluation and allows investigators, who have the most direct knowledge of the problem, more flexibility in determining how to proceed. Recently the city has begun implementing a more robust protocol, which it says incorporates best practices from the state, county and other jurisdictions.

An investigation’s success depends upon a variety of factors, many of which are beyond the agencies’ control. Each investigation is influenced by investigator response time, investigation tools, weather conditions, intensity of the odor and the complainant’s allegation of a source. Investigations most often break down when an investigator arrives after the odor has dissipated. City and county investigators usually respond to a complaint with a site visit within two hours. However, air is transitory, and many variables affect an investigation. Even if the agency strives to respond to a complaint in less than an hour, the investigator still may not be able to detect the odor, locate the responsible entity or confirm a nuisance condition.

Also, identification of an odor often is inconclusive due to a lack of monitoring equipment. The most widely used tool in investigating an odor complaint is the investigator’s nose. County investigators also use a photo ionization detector (PID) to measure the total hydrocarbons in the air. For identification of specific compounds, however, the investigator must anticipate what chemicals may be present and calibrate the PID device accordingly. County investigators sometimes take air samples on site using Summa canisters if they experience a particularly strong odor. However, analysis of Summa canister samples takes time. Therefore, they are not very useful for timely resolution of the problem, though they do provide legally defensible evidence of a potential violation.

Next, the city or county investigator will attempt to trace the odor to a specific facility. If the investigator is successful at locating the responsible facility, the complaint investigation can become a catalyst for an immediate inspection. The investigator can then document any apparent violations of air, water or solid waste regulations.

Increasingly, city and county authorities are providing a more coordinated response to complaints on the edges of the city’s jurisdiction, particularly where a city resident complains of an odor suspected of arising from a source outside the city’s jurisdiction. While the county has jurisdiction over more major facilities than the city does, its investigators do not conduct routine compliance investigations at major facilities. The city, on the other hand, has considerable expertise in identifying specific units and malfunctions as the source of an air pollution problem, because of its former partnership with the TCEQ in conducting permitting and periodic compliance audits. An even more formalized joint response to these types of complaints could result in better source identification, and ultimately better pollution control.

After an investigation is complete, the agencies need to follow up with the complainant. The city informs complainants of investigation results with a phone call, followed by a letter and a copy of the investigation report. County investigators note on the complaint form the date and method used to follow-up with the complainant. Follow-up is important because the complainant is more likely to learn of the final resolution of the complaint, and thus be encouraged to call again if experiencing another problem.

Step 3: Enforcement

While the main task for investigators is to determine the nature and source of a complaint, the scope of their duties expands for complaints that warrant enforcement action. Investigators must collect evidence of a violation and information from the source before a confirmed nuisance can be forwarded to the correct department for formal enforcement. If an investigation confirms that an odor complaint is a nuisance condition, or violation of an applicable law or regulation, a Notice of Violation (NOV), which is known at the county as a Violation Notice (VN), will be issued.

In 2004, less than 10% of citizen complaints to the city or the county resulted in an enforcement action (Table 1), which compares favorably to the TCEQ’s conversion rate in areas of the state without local air quality programs. However, even when a complaint does not lead directly to enforcement action, it can be a valuable source of data for an agency’s other pollution control activities, including monitoring, permitting and planning.

Investigators often have much to add regarding the accuracy of the information collected by those responsible for the enforcement stage. Likewise, data collected during the enforcement stage can be a valuable resource for those investigating the underlying sources of air pollution.

County investigators and attorneys actively exchange information before, during and after an enforcement action. The county usually tries first to obtain voluntary compliance. However, if negotiations fail, it resolves enforcement actions through civil or criminal litigation. The Harris County Enforcement Coordinator reviews all nuisance violations and determines which to forward to its team of county or district attorneys. Enforcement staff may seek temporary and permanent injunctions, which may contain provisions requiring the violator to add pollution controls above what is required by permit. County investigators stay involved in a case by tracking it through the county’s enforcement database, Visiflow. County investigators also retain responsibility for monitoring compliance during and following any notices of violation or enforcement actions, including periodic follow-up inspections. The county maintains a database of investigator assignments and timelines for follow-up inspections of facilities cited for violations, and supervises performance of these inspections.

The city’s enforcement resources and authority are now quite similar to those of the county. No longer constrained by the TCEQ’s enforcement priorities, the city can emulate the county’s more proactive approach to enforcement. However, the city does not have access to the county’s database, and it may be some time before the city or the county has full access to the state’s database, which reflects all state enforcement actions in the region, including those arising from investigations conducted by city staff under contract with the state. Common access to the complaint, investigation and enforcement data by all regional investigation and enforcement staff should make companies’ compliance histories more complete, and thus permitting and penalty calculations more consistent and evenhanded.

Step 4: Trend analysis

Both the city and the county track recurring complaints, noncompliant companies and problem areas through their databases or periodic reports, but their systematic analysis capacity is limited.

Presently, HCPHES supervisors use the county’s Poll-tracking database system to research patterns that may provide insight on a particular case. However, this system is not fully developed as a tool for pattern recognition. In addition, the county has begun mapping complainant and facility locations through a Geographic Information System (GIS), which should facilitate the identification of problem areas.

Under the state contract, when the city staff wanted to review data, it was generally limited to TCEQ database queries developed for statewide applicability. The state’s response to special requests for data often took months. The city has requested the regional data from the state’s database through 2005, and the county is seeking access to the state’s database, but the state appears in no hurry to accommodate these requests.

The city is working to develop its own trend analysis capabilities. If and when the city receives 2002-2005 compliance and enforcement data from the state, it plans to use the data to augment its 311 database. In the meantime, the city is continuing to track complaint frequency and use information about recurring complaints (confirmed or unconfirmed) to structure its monthly surveillance program. The BAQC is working with 311 information technology staff to develop a trend analysis and mapping system. Transferring data to the city’s mapping software requires careful formatting and attention to detail, and limited resources for mapping affect the pace and scope for this effort.

Together, the city’s expertise in compliance investigations of major sources and the county’s expertise in prosecuting nuisance actions constitute the expertise necessary to resolve most complaints and to address certain issues at major pollution sources. By pooling resources to track and analyze regional trends, and standardizing investigation and enforcement procedures, the city and the county can more efficiently develop strategies for leveraging their complementary resources to identify, target and resolve air quality problems across the region.

Complaints boost an effective regional monitoring and enforcement program

Citizen complaint systems represent a small component of the region’s air quality control system, yet the response and data they provide are essential to attainment of air quality standards. From the citizen’s initial call through the analysis of regional trends, complaints provide valuable data for the identification and resolution of air pollution problems.

Any break in the process dilutes the effectiveness of the other components as well. Incomplete communication during intake results in complainant dissatisfaction and ineffective investigations. Ineffective investigation methods mean significant problems remain undetected longer. Undetected problems delay and complicate implementation of the control measures necessary to address the underlying causes of the region’s air pollution. Delayed controls impede meaningful trend analysis, forcing the agencies to focus on reacting to complaints, rather than proactively resolving air pollution problems.

In addition, each stage of the complaint process can suffer from a jurisdictional, rather than a regional, view of the complaint system. The city and county are beginning to collaborate on complaint response particularly in addressing nuisances that cross jurisdictional boundaries, but there are many more opportunities for them to leverage their complementary resources. GHASP recommends that each agency enhance its internal complaint systems with an emphasis on expanded efforts towards a cohesive regional approach to air quality control. Specifically, GHASP recommends that the city and the county:

Build a regional complaint system designed for strategic planning.

The city’s and the county’s complaint systems should be a shared resource for systematic planning. The county routinely shares information from its database with the city and state agencies, but only as requested, and not in any systematic way. While county personnel can query the Poll-tracking and Visiflow databases, these systems are not set up to detect and alert internal staff and management, much less other agencies, to regional trends or problem areas. Furthermore, there is no formalized regional process for development of strategic responses to emerging concerns. To convert citizen complaints into information that can be used more effectively in strategic planning, GHASP recommends that the city and the county focus on enhancing their internal databases;improving periodic internal reports; and coordinating interagency trend analysis through a single office.

Enhancing agency databases. Without access to the state’s database, the city needs some electronic mechanism for tracking complaint, investigation, monitoring, enforcement and compliance data on its own. Recognizing that developing such an information system is a substantial undertaking, particularly now with substantially less state funding, the situation also presents an opportunity to develop an information system that supports regional air quality improvements much more effectively than before.

For example, in developing the database format, the city can consider the county’s Poll-tracking system for complaint and investigation data, and Visiflow system for enforcement documentation and tracking. Working closely with the county to standardize data elements will make it easier to import and export data from one system to the other. Using common fields and common terms also will facilitate regional trend analysis and a common understanding between the two agencies concerning issues and problem areas.

While the county has a much more robust and accessible suite of information systems, certain system enhancements can make data analysis and exchange much easier and faster:

Recording more intake data in categorical fields, as opposed to the investigator’s narrative;
Making data exchange and analysis among the county’s systems as seamless as possible; and
Identifying complainants by tracking numbers as well as their names.

Also, system designers for both agencies should assume that eventually the state will participate in this more cohesive air quality control process. So when enhancing the city’s and county’s intake and recording processes, every effort should be made to anticipate and accommodate the state’s data requirements as well.

Improving internal reports. The enhanced databases should make each agency’s periodic internal reporting more relevant to improving air quality. Care must be taken, also, to format these reports in such a way as to make importation into a GIS seamless. Management and individual investigations, alike, could use these monthly reports to:

Compare the number of complaints and complaint investigations conducted with the number of resulting NOVs and Notices of Enforcement (NOEs);
Assess the effectiveness of the agency’s complaint system as a tool for reducing air pollution; and
Analyze trends that can inform planning and monitoring strategies.

In addition to helping the agencies allocate resources most effectively, these monthly reports can serve as a basis for explaining the outcome of citizen complaints to the public, especially to those who have submitted complaints.

Coordinating trend analysis. Equally important as internal communications, information sharing and coordinated trend analysis between the city and the county is necessary to identify regional patterns across jurisdictional boundaries. The HCPHES has jurisdiction throughout Harris County, but generally defers to the BAQC within the city limits. When addressing regional air quality problems, however, the value of the data collected does not stop at the agency’s jurisdictional boundary. The source of a city resident’s odor complaint can easily be a chemical plant just a mile down the street, but outside the city limits. Similarly, a county investigator may identify the source of a nuisance odor, but not have the same technical experience with major sources as the city investigator to collect evidence related to compliance with air pollution regulations.

Systematic analysis of complaint data trends could be used to direct regional planning, as well as each agency’s other strategic priorities, such as inspections, routine monitoring, permitting and enforcement. Interagency cooperation is essential for both agencies to maintain a connection with the goals of the complaint system, and to achieve maximum efficacy from the data that complaints provide.

Ultimately, the restructuring of the agencies’ complaint systems must lead to interagency collaboration on trend analysis. Presently, the only method for gathering together all the information about complaints from a given part of Harris County is to laboriously review a large number of files at each agency. With an integrated database and enhanced internal reports, the agencies will have the tools to develop a new trend analysis system, helping them to identify where the public perceives problems and determine where to direct monitoring and surveillance efforts. A precedent for this type of interagency collaboration, though it does not incorporate complaint data specifically, is the regional clearinghouse for ambient water monitoring data managed by the Houston-Galveston Area Council (H-GAC).

It should be possible for a single analyst with access to data from both agencies to develop and manage an air complaint clearinghouse. This will require collaboration and an interagency agreement on resource sharing. Because of operational differences between the agencies, however, this regional GIS most likely will operate independently of the agencies’ databases, requiring periodic data transmittal. So it is important that the elements of each agency’s internal database – and thus, the data collected at the intake, investigation and enforcement stages – be collected in a format that supports each map layer in the GIS (Table 2). The county is further along in implementing its GIS, so it may be in the best position to implement this recommendation quickly. The county is also a good choice for this function because it has jurisdiction over more of the region’s petrochemical facilities. Nevertheless, where this function is located is not as important as ensuring that there is adequate support for staff to conduct high-quality analysis that is of value to management at all interested environmental agencies.

For example, the city can use this GIS data to coordinate its air sampling efforts. The city has obtained funding for a mobile monitoring van and two infrared cameras. The decision to deploy the van to a specific area requires advanced planning, but the van is to be equipped with real-time monitoring tools that can be used in identifying pollutants and tracking them to their source. The interagency GIS system will allow the city to locate areas where the van’s real-time air samples will be most effective at helping to resolve recurring air pollution problems.

By coordinating their complaint systems to regularly inform regulatory strategy, the city and county will be better able to accomplish their air pollution reduction goals. The agencies should regard data collected through processing the complaints as useful information that can help them to identify problem areas and repeat offenders, with relevance that continues after individual complaints are resolved.

Optimize available resources necessary for effective investigations.

Even before its contract with the state expired, the city began a comprehensive review of its operations, including the complaint system. With more strategic use of existing resources and development of additional resources, investigators can obtain other essential information during their investigations, leading to a higher rate of complaint confirmations and a greater number of instances where the source of the pollution can be located and addressed. By providing investigators with more complete complaint information, problem-solving flexibility, useful field instrumentation, and backup assistance, investigations will yield better evidence to support corrective action or enforcement, when warranted. To make the most of limited resources, GHASP recommends that the agencies focus on standardizing intake forms and procedures; deploying real-time monitoring equipment; using problem-solving strategies; and supplementing investigation staff.

Standardizing intake forms and procedures. To capture information critical to investigations during intake, the agencies’ first contact with the complainant must encourage specificity. Agency websites and outgoing messages from voicemail recorders can detail the information a citizen will be encouraged to provide with a complaint.

The city operator or county investigator must take care to capture the specific categorical data relevant to trend analysis (Table 3), and the narrative details necessary to identify the problem and source and address the complainants’ concern as expeditiously as possible. Carefully designed intake templates and comprehensive training for intake operators and investigators can support these complementary information requirements.

For example, city staff check the TCEQ website daily for emissions events. The investigator uses this information during the intake process to determine whether a complaint reflects an emissions event. If so, the investigator will know to ask appropriate follow-up questions of the complainant.

The investigator’s initial communication with the complainant, to the extent possible, should clearly indicate whether the agency will investigate, including any reasons for not investigating. This communication should conclude with an agreement on how to share the results of any investigation or enforcement action, and, to the extent known, protective measures the complainant should take to minimize any adverse effects of the nuisance.

Deploying real-time monitoring technology. Some air toxics monitoring technology allows investigators to identify a wide range of chemicals present in the air within an hour or less. Real-time monitoring technology makes it easier for investigators to locate the source of an odor that may otherwise be too faint or indistinguishable to trace. However, some real-time technology has detection limits that are above odor thresholds. So investigators must make effective use of all the tools at their disposal.

The state and county use PID devices, which can provide some immediate measurements of air pollution. The state recently began using a Cerex monitor and a HAWK camera to identify substantial emissions previously undetected and unreported. So the city has high hopes for the two infrared cameras it is purchasing. The city and county – and ultimately the TCEQ regional office – should identify their collective technology needs and request the funding necessary to supply such technology as standard equipment, so that field investigators are prepared to respond at all times.

Using problem-solving strategies. Neighborhood-scale complaints can often be resolved by an investigator without the need to consider enforcement because they often involve disputes between neighbors or a lack of education about the effect of nuisances. In such situations, it may be best for the investigator to focus on identifying the source, resolving the immediate pollution problem as quickly as possible, and gathering data for use in mitigating, avoiding or preventing the problem in the future. This approach should not preclude the use of enforcement in response to neighborhood-scale nuisances or observed violations, but in the early stages would prioritize problem resolution over evidence gathering and assessment for enforcement purposes.

This protocol will also need to include procedures for quickly identifying incidents that are not appropriate for a problem-solving approach, either due to a more regional impact or due to a serious health or safety concern. While these will likely continue to be a small percentage of the overall complaint caseload, they will be among the most significant. In such cases, the protocol should place greater emphasis on gathering evidence for enforcement.

The county, with its decades of experience in investigating and managing the prosecution of nuisance cases, has been instrumental in the city’s development of more flexible protocols. The city is training investigators to prioritize problem resolution, while gathering evidence to use in developing enforcement actions. The city also uses surveillance, community meetings and discussions with suspected sources to identify and prioritize problems.

Supplementing investigation staff. Resources that shorten investigator response time will also improve investigations. More timely responses are the agencies’ best means for capturing the complainant’s condition, which is impossible to recreate. Because each agency can assign only about ten staff to handle air complaint investigations, the agencies can expand the available response personnel by requesting additional investigators or by using outside investigators to supplement their efforts. Supplemental investigators can respond to a complaint if the agencies’ investigators are overburdened or at a significant distance from the complainant’s location. While the agencies will still have primary responsibility for conducting complaint investigations, they can incorporate interagency referrals, volunteer odor monitors and local law enforcement units into their investigation strategy for backup assistance.

The simplest way for the agencies to reduce response time is to refer investigation responsibilities to another environmental agency when resources are insufficient to assess the odor in an appropriate time frame. The agency with the most appropriate enforcement jurisdiction can assume later phases of an investigation. For example, even though city investigators may not have the authority to enter a suspected facility located outside the city limits, they will still trace a nuisance or obvious flaring problem to its source. When necessary, the two agencies can make investigators available for a joint investigation of a complaint from within the city that potentially involves a source outside the city’s jurisdiction.

To make interagency referrals possible, the agencies must use a common set of standards and procedures for evaluating complaints. While under contract with the state, city investigators were obliged to follow the TCEQ odor protocol, which focuses on evaluating an odor based on its frequency, intensity, duration and offensiveness. County investigators, on the other hand, follow much more detailed guidelines that give the investigator more direction in how to conduct the investigation and more flexibility in evaluating the seriousness of the situation. Because of this greater flexibility to resolve problems, the city has created a more robust protocol that more closely resembles the county procedures, but care must be taken to encourage consistent application and documentation by investigators.

Another way for the agencies to reduce response time is to recruit volunteer odor monitors from high-risk communities where complaints are frequently initiated. A neighborhood volunteer odor monitor has a better chance of gathering essential information while the odor is still present, and can immediately begin evaluating whether a nuisance condition exists and locating the source of the odor. A trained volunteer can provide more useful information than an untrained citizen, and can commence a more timely investigation than an agency investigator. While it is important that an agency investigator conduct the onsite investigation of the potential source and document the nuisance condition for enforcement purposes, the information collected by the volunteer should give the agency a jump start on the formal investigation.

Incorporating informed citizens into the complaint process as volunteer odor monitors will help in other ways, too. These volunteers can make recommendations for improving the complaint intake process, provide citizen-collected evidence that is consistent with agency protocols, and help the agencies establish relationships with critical communities by serving as a point of contact between their fellow citizens and the agency. The agencies would need to allocate resources to establish and maintain a volunteer program. A training program would need to be designed and offered on a routine basis, and staff would need to be assigned to coordinate and communicate with volunteers.

A third strategy for improving response time is for the environmental agencies to formally rely on local law enforcement units who have received some training in complaint investigation procedures for backup assistance. A police officer in the field might be contacted to respond to an air complaint if he is known to be in the vicinity where the complaint was initiated. This officer would not replace the agency investigator, but rather could arrive at the scene more quickly, making it easier to acquire vital information from the complainant before the odor dissipates. At most, the officer would follow the agency’s standard operating procedure to track the odor to its source and inform the source that it is under investigation. This would also give the source an opportunity to identify a problem at its facility and reduce the harmful emissions more quickly. The agency investigator could then meet the officer at the facility to properly complete the onsite investigation. Because agency investigators have the right of entry, they generally must be the ones to investigate the cause of the nuisance at the suspected source and obtain documentation of any violation. City attorneys are reviewing ordinances and researching the differences in parameters and procedures of civil and criminal investigations.

The most appropriate units to involve initially are the Houston Police Department’s Environmental Investigations Unit (EIU) and Harris County’s Environmental Crimes Unit (ECU), but the practice could be expanded to other agencies. The EIU and ECU, together fielding 17 police officers, constables and trained civilians, primarily investigate complaints on illegal dumping and hazardous materials. Like the proposed volunteer odor monitors, these staff could also be trained to investigate air complaints. The agencies would have to train law enforcement units in the proper method for communicating effectively with the complainant, describing the intensity and offensiveness of the odor, using wind direction to track the odor to its source, and informing the source of the complaint alleged against them. The H-GAC could provide the training on behalf of the agencies through its Environmental Circuit Rider Program, which currently offers general training to local officials on environmental compliance and enforcement, and hosts sponsored workshops for investigators on air sampling.

To implement this procedure, the agencies must develop a system for intake staff to determine whether a member of a cooperating unit is in the vicinity. One advantage of this option over the volunteer odor monitors is that once a member of a law enforcement unit arrives on the scene, he can perform the entire first phase of the investigation before being met by an agency investigator, who would conclude the investigation of the suspected source.

Putting these changes into effect will bring more investigations to a satisfactory resolution, improve communication between the agencies and the public, and promote interagency cooperation. However, they will require allocation of additional resources by environmental agencies, and perhaps by local law enforcement agencies.

Increase public awareness and confidence in the complaint system.

By working to establish relationships with the most at-risk neighborhoods in their jurisdiction, air pollution agencies can more effectively use the complaint system to reduce air pollution. From intake through trend analysis, agencies should publicize themselves as the resource to call for complaints. Community outreach efforts should educate residents on how to report complaints most effectively, and encourage active citizen pollution monitors to share their experience and expertise with their neighbors and communities with similar air quality issues.

Even with more detailed complaints, agencies do not have the resources to investigate every complaint in a timely manner. To better leverage their limited resources, they can take citizen education a step further and facilitate citizen-collected evidence. By synthesizing and simplifying the instructions provided on the TCEQ website and training volunteer odor monitors in at-risk communities, agencies should receive information on air pollution problems not only more quickly, but also in more detail. This additional detail can be invaluable in securing compliance with regulatory and permit requirements, and in identifying problem areas and trends.

The city is developing a formal community training and engagement program designed to help citizens, particularly in at-risk communities:

Understand available air quality information;
Identify and collect evidence of specific problems;
Prioritize the problems they need addressed; and
Communicate to authorities these problems, priorities and recommendations for more responsive service.

A third way for the agencies to encourage citizen involvement is to communicate the effectiveness of citizen complaints by publicizing those that result in enforcement action and reduced pollution. The place to start is ensuring that investigation and enforcement results are reported to every complainant. In addition, the general public can be made aware of effective citizen action through the agencies’ websites and targeted articles.

Further, to ensure that as many complaints as possible are tracked, the agencies should require – or at a minimum encourage – companies and other organizations that commonly receive complaints to refer the public to an appropriate agency. We found that citizens often contact the company they believe is causing the problem or an organization such as a Local Emergency Planning Committee. The agencies may encourage complainants to call the suspected source, but typically, complaints made only to industry are not documented or shared with any environmental agency. To ensure that agencies are aware of such calls, companies and public or quasi-public agencies, should be required to periodically report public complaints.

Regional air quality depends on citizen input

Though citizen complaints represent only a small component of the region’s air quality control system, effective response to complaints and optimal use of the data they provide are essential to attainment of air quality standards. GHASP believes a more integrated regional strategy for handling this invaluable citizen input will enhance each agency’s other efforts as well. GHASP also hopes the state eventually will join in this much needed collaboration. More effective use of complaint systems will improve air quality in surrounding counties, and ultimately across the state.

Key recommendations

In order to enhance their internal complaint systems with an emphasis on expanded efforts towards a cohesive regional approach to air quality control, GHASP recommends that the city and the county:

Build a regional complaint system designed for strategic planning.

Standardize data elements and data exchange
Format periodic internal reports for strategic data analysis
Coordinate interagency trend analysis through a single office
Anticipate and accommodate state data requirements

Optimize available resources necessary for effective investigations.

Standardize intake forms and procedures
Deploy real-time monitoring equipment
Use problem-solving strategies
Supplement investigation staff with volunteer odor monitors and local law enforcement units

Increase public awareness and confidence in the complaint system.

Encourage active citizen pollution monitors to share their experience and expertise
Synthesize and simplify instructions for effective complaints
Publicize complaints that result in enforcement action and reduced pollution
Encourage companies and other organizations that commonly receive complaints to refer the public to an appropriate agency

Reporting Industrial Air Pollution

Laurie H — Sat, 10 Jun 2006 21:00:00 -0700

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A Guide for Residents of the Houston Region

If you live in the Houston area, you’ve probably seen or smelled air pollution from a refinery or petrochemical plant. Perhaps you’ve even begun to think of it as a normal or inevitable part of living in the region. However, some of these pollution events are violations of state and federal air quality regulations. If the pollution bothers you, or you suspect a facility is breaking the law, you should report the air pollution incident to a local air quality agency. See the back page for contact information and other resources.

How do I know if I’m witnessing an air pollution violation?

It can be difficult to know for certain when an industrial facility is violating the law. In general, though, let your senses guide you if something seems amiss. If you see large clouds of gray or black smoke coming from a facility, or if you smell a strong odor, make a report. Even if your complaint doesn’t result in the discovery of a violation, it may provide useful information to air pollution investigators.

What if I’m not at home when I see the problem?

If an air pollution problem affects you at home or work, it is more likely to lead to fines or penalties against the polluter. If you have to go inside because of the smell, or if you have difficulty breathing, make sure to inform the investigator. Such an incident may constitute an unlawful “nuisance,” because it affects the normal use and enjoyment of your home and property. If you aren’t at home or work, your complaint may not be considered a “nuisance.” Even so, it’s still a good idea to file a report, because it can trigger an inspection.

May I make an anonymous complaint?

If you wish, you may make an anonymous complaint. But if you can provide your name, address and phone number, your report is more likely to be admissible as evidence. Also, the investigator may need to contact you for additional details. Your confidentiality is protected, and this information will not be revealed to anyone without your consent. However, it is possible – though unlikely – that you may be asked to testify if the matter ends up in court.

What information should I provide in my complaint?

When you report an air pollution problem, an investigator will guide you through questions designed to help determine the characteristics and possible source of the pollution. If you have recurring problems with air pollution, consider keeping a journal or log that includes the details of each incident.

Visual Evidence

If you report smoke or a flare, you will need to describe the appearance of the pollution and duration of the event. A flare that emits smoke for more than five minutes, or that burns brightly for an extended time, may indicate a violation. For smoke, factors like color and opacity are important.

Odor Evidence

If you experience an odor, the investigator may ask you to describe how intense it is, how long it has lasted, and what it smells like (say, rotten eggs). If you limited your outdoor activities because of the odor, include that in your report.

Physical Effects

The investigator will also ask about the effects the pollution has had on you or others in your household, including health effects such as breathing difficulties or eye irritation. If anyone has needed to visit a doctor or take medication as a result of the incident, give the investigator the details.

Should I submit photographs or video of the pollution?

Yes. Even if your photos are not admissible as evidence, they can provide useful information. At a minimum, a photo can document the precise location of an event. If you take photos or video, it is helpful if you have a time/date stamp on them. Also, it is important to get a minimum of 5 minutes of coverage. Continue to take photos or recordings occasionally for as long as you observe the pollution. Make sure at least one of the photos or a portion of the video shows the overall location of the problem, including any company signs, cross streets or other identifying information.

Who should I call?

Who you call depends on where the problem is. Try to choose the agency with the proper jurisdiction, but don’t worry about calling the wrong one. Whoever answers the phone should direct you to the proper authorities.

Within Houston city limits
City of Houston – Bureau of Air Quality Control
Call 311 or (713) 640-4200

Within Harris County, but outside Houston city limits
Harris County – Public Health and Environmental Services
Call (713) 920-2831

Within Galveston County
Galveston County – Pollution Control Division
Call (409) 938-2251

Within the larger Houston region
Texas Commission on Environmental Quality Environmental Hotline

1-800-777-3186 or e-mail cmplaint@tceq.state.tx.us
You can also visit www.tceq.state.tx.us/goto/report_problem
To report a smoking vehicle, go to www.smokingvehicle.org
or call 1-800-453-7664

Where can I learn more?

GHASP has a variety of air quality information on its website. To find out more about air pollution complaints, download “Whiners Matter! Citizen complaints lead to improved regional air quality.” You can also download a form for recording air pollution incidents.