Galveston-Houston Association for Smog Prevention - Houston region

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.

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

Industrial (point source) emission inventory (2003)

John Wilson — Mon, 05 Jun 2006 07:30:22 -0700

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GHASP obtained the complete point source emission inventory for 2003 from the TCEQ for the Houston region and some other selected counties. (The other counties were at the request of the Environmental Integrity Project, which is working on some related research.)

The (very large) database and a much smaller excel spreadsheet are attached to this article for your use.

As a very quick introduction to how these day may be used, for each facility (plant, etc.) the emissions are separated into two columns - one is for 'routine' emissions, the other is for 'emissions events' which includes accidents, startup, shutdown, and maintenance emissons. The emissions are also broken down by class of pollution emitted.

The database has more detail, including species of pollutant emitted and points within each facility where the pollution originated.

Hope is a real thing

John Wilson — Thu, 09 Mar 2006 13:00:00 -0800

As someone who works on air pollution issues, I get to hear stories from a lot of people. People have shared stories about kids with asthma, parents who got cancer from exposures at work, neighbors who got nauseous from the unavoidable accident at the plant down the street, employees who participated in illegal dumping, and just questions from average people about whether or not it is safe for them to take a walk in the morning.

Air quality outlook 2006

John Wilson — Mon, 23 Jan 2006 21:00:00 -0800

This year, air quality should get better in the Houston region. Better science, new technology and, especially, stronger regulations will all come together this year to make a difference. As an advocate for clean air in Houston, I expect to enjoy 2006.

Things haven't been quite the same since 2000, when hundreds of independent scientists convened in Houston to take a close look at our air quality as part of the first Texas Air Quality Study. They brought vision and perspective to the issue at a time when city leaders were reeling from headlines proclaiming Houston as the nation's smog capital.

Big Breaks for Big Polluters

GHASP — Mon, 12 Dec 2005 09:00:00 -0800

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Houston Area Industries Escape Fines When Texas Fails to Follow Its Policies

When refineries and chemical plants break air pollution laws, they can rely on getting a light penalty from the Texas Commission on Environmental Quality (TCEQ). We analyzed 26 enforcement cases handled by the TCEQ during the past five years, and found that the TCEQ assessed just 14% of the fines it could have imposed in these cases.

The TCEQ was consistently lenient in the cases with the largest potential fines. In cases where the TCEQ could have assessed fines exceeding $40,000, the TCEQ never collected more than 45% of the potential fine.

The vast majority of the TCEQ’s lenient penalties can be attributed to three causes:

Lax prosecution of leak monitoring violations.
Although leaking equipment is among the biggest causes of air pollution in our region, state enforcement officials were particularly easy on companies that failed to properly monitor equipment for leaks. When state investigators found that companies didn’t have a functioning program to watch for leaks, state enforcement officials reclassified the violations as “recordkeeping” violations. As a result, the state collected only $106,500 in fines for these types of violations when it could have collected about $1.7 million.
Breaches of penalty calculation policy.
When determining penalties, the state routinely took liberties with its own written policies for counting the number of events in a violation. A typical abuse of the state’s policy involved counting an ongoing violation as one event, regardless of whether it had been occurring for one month or for five years. By using this technique, state enforcement officials let more than $800,000 in penalties slip through their fingers and created the impression that there is no greater penalty to be incurred for long-term violations of air pollution laws.
Dropped enforcement cases.
The TCEQ dropped some cases without adequate documentation, or based on policies that are neither written down nor uniformly applied. If the TCEQ had not dropped these cases, the state could have collected more than $160,000. When this happens, the offending companies don’t just escape current fines. If they commit similar violations in the future, they also avoid the higher penalties that usually apply to repeat offenders.

We also found that the TCEQ is taking an inordinately long time to settle some cases. Most of the 26 cases we reviewed took more than a year and a half from the date of the initial investigation to the final agreed order, and seven took more than two years. When this type of delay occurs, the offending company often ends up with a very large break on its fine.

We are calling for Texas environmental officials to follow their own published procedures for seeing penalties. We are also asking the U.S. Environmental Protection Agency (EPA) to review recently-settled cases and take independent enforcement action in situations where it agrees the state was too lenient. In addition, we are asking the Inspector General of the EPA to investigate our allegation that Texas is failing to carry out enforcement in a timely and adequate manner.

How We Conducted This Study

The state’s process for investigating and enforcing air pollution regulations is driven by three institutional policy decisions:

The state decides to initiate an investigation. Such a decision could be made based on a citizen complaint, an internal strategic plan, or in response to a mandate from the EPA.
The state decides to initiate enforcement. When an investigator identifies a violation, the state uses Enforcement Initiation Criteria to determine if the violation should result in a penalty.
The state determines the appropriate fine (and other remedies).

Our study is exclusively limited to the final step; we have not determined whether the state is investigating companies adequately or initiating enforcement adequately.

We reviewed 26 enforcement cases against chemical plants, refineries and other petrochemical industry facilities in the Houston region, as listed in the table below. These cases involved 13 companies and encompassed 147 violations. The earliest investigation occurred in October 1998, and the most recent investigation was in October 2004. Most of the cases in our study were resolved between mid-2003 and mid-2005.

We selected our cases by examining both electronic and paper files maintained by the TCEQ. First, we reviewed TCEQ enforcement referral documents that we had previously obtained for other research projects. Then we obtained a database of enforcement referrals from the TCEQ and selected cases from that list to review. We tried to select cases representing a variety of types and sizes of companies, and a wide range of actual fines. Because of the labor intensive nature of the file search, we attempted to include every recent case for any company that we included in the study. While most of the raw data for the study came from the TCEQ’s paper files, some data were obtained from the TCEQ database or from notices in the Texas Register.

However, we did observe that the TCEQ database of enforcement referrals appears to be incomplete. For example, in one case the enforcement referral from our files did not appear in the official TCEQ database, indicating that it had never been entered or had been erased.

Generally we attempted to obtain three types of documents for each case:

Investigation reports, including the initial list of violations cited by the regional field staff and the initial enforcement referral to headquarters enforcement staff;
Enforcement deliberations, including communications with the offender and proposed settlement documentation; and
Final enforcement documents, including the final agreed order and the penalty calculation worksheet used to determine the administrative penalty or fine.

Typically the documentation was woefully incomplete; we were able to fully document the state’s enforcement process in only six of 26 cases.

Several cases, in fact, were dropped from our study because we could not locate sufficient documentation. In the rest of the cases, we were able to establish with reasonable certainty (a) the initial violations cited by the TCEQ and (b) the final penalty amount and the basis on which that penalty was calculated.

To calculate the potential fine for each case review, we followed the TCEQ penalty policy in a strict manner, assessing the documentary evidence from the case files. We classified each violation into one of several issue areas, and attributed portions of each fine to different steps in the TCEQ penalty calculation process. We then considered the many potential factors that may affect the size of a fine. At the end of this process, we were able to identify the three main areas where the TCEQ has been especially lenient over the past several years.

Although it may be reasonable at times for the TCEQ to compromise with the offending company in order to obtain a settlement, TCEQ fines were frequently lower than policy indicated. We believe the evidence supports the conclusion that the TCEQ routinely sets penalties for refineries and chemical plants at a much lower level than it would if it closely followed its own policy.

TCEQ Fails to Prosecute Flagrant Leak Monitoring Violations

In our study, the TCEQ could have fined chemical plants and refineries in excess of $1.8 million for failing to properly operate programs to detect and repair leaks at their facilities. Instead, the state assessed only $106,500; in some cases, the offenders paid less than 2% of the potential fine.

Leaks are a major source of unreported emissions, and faulty leak detection programs are a key part of that problem. According to self-reported data submitted by industry and analyzed by the state, about 97 tons of organic chemical air pollution are released from leaks each day. Furthermore, the state estimates that an additional 168 tons per day of such air pollution goes unreported by industry. The hundreds of tons of pollution are released from literally thousands and thousands of tiny leaks at the many chemical plants, refineries and other facilities in the region.

Thus, while each leak contributes a relatively small amount of air pollution to the region's skies, finding and repairing the leaks quickly is necessary if our air is to become safe to breathe. The day-to-day effectiveness of leak detection and repair programs depends on the careful attention to detail by plant management; in this regard, the lax attitude of TCEQ enforcement officials can encourage a similarly lax attitude by plant managers.

For example, Texas Petrochemicals routinely reports that less than 1% of its plant components are leaking at any time. Yet in four investigations, city and state investigators auditing the plant's actual performance found much higher leak rates: 10%, 3%, 5% and 2%. This demonstrates that the actual pollution being leaked into the air from Texas Petrochemicals is many times higher than its self-reported data indicates. Unfortunately, this is not a unique situation; the TCEQ has found serious shortcomings in leak detection programs at a number of chemical plants.

Among the cases we reviewed, state investigators caught six plants with inadequate programs for leak monitoring. (Note: The fine amounts below refer only to fines for leak monitoring violations. Cases ofen involve several types of violations.)

Dow Chemical LaPorte paid a fine of $3,335 for having "failed to maintain fugitive emission records," though the company could have been assessed a fine of $690,000. The investigator concluded, "Dow failed to maintain a fugitive emission monitoring program for the two-year period of 2001 and 2002. . . . there are examples of questionable data, falsified records and/or inconsistent reporting for every quarter of 2001 and 2002." While Dow agreed that its contractor was not performing the required duties, the case file does not give any reason for such a dramatic reduction in the severity of the regulatory violation. (Case Review #25)
Rohm & Haas Deer Park was fined about $66,000 for failing to monitor a variety of equipment over a four-year period, when it could have been assessed penalties of $611,000. During the enforcement process, for reasons that are not documented, the number of events was adjusted downward to "make the penalty commensurate with the situation." (Case Review #26)
Dow Hampshire Deer Park was fined about $12,500 when the TCEQ discovered that its leak detection contractor was fabricating data. Although this represents the full fine that could have been collected under state policy, the investigation hinted at a much larger and more systematic violation. However, the investigator was not assigned to pursue the case further. (Case Review #23)
A field investigator cited Chevron Phillips Pasadena for failing to monitor a number of valves and other components over the course of several years. However, the enforcement office agreed to "assess the monitoring violations as one recordkeeping violation, rather than as emissions events." Had the violations been assessed as emissions events, the penalty could have been $153,900. Although the TCEQ had previously proposed a fine of $75,150, the final fine was just $570. No reason for the penalty reduction is given other than to cite a meeting of TCEQ Enforcement Division staff with Chevron Phillips' representative and attorney. (Case Review #16).
Solutia Chocolate Bayou admitted operating a unit for six months without a leak detection program. The TCEQ collected about $40,000 from Solutia for this infraction, about one-third of what could have been collected under state policy. Much of this shortfall occurred because the TCEQ, without documentation, dropped one of the monitoring violations. (Case Review #21)
Texas Petrochemicals Houston could have beenfined over $63,000 for inadequate leak monitoring, but the case was dismissed during its corporate bankruptcy proceedings (discussed below). Due to case dismissals and otherwise inadequate enforcement, the official compliance history for Texas Petrochemicals does not reflect the severity of its actual history of noncompliance. (Case Review #17)

In these six cases, as well as two other smaller cases involving the same companies, the state's response not only appears inadequate, it also seems to deviate from its official policy.

TCEQ Breaches Its Own Policy and Lets Polluters Escape Major Penalties

In 10 of the 26 enforcement cases we reviewed, the state breached its own policies for calculating its “violation base penalty.” The state calculates this penalty by multiplying the base penalty for an offense by the number of events. The base penalty of an offense may range from $100 to $10,000, but refineries and chemical plants almost always receive a base penalty of either $1,000 or $2,500 per offense. More important, however, is how the number of events is calculated; the state can make large reductions in fines by manipulating this number.

In some instances, the number of events is clear cut, as in the case of “discrete” events, which are distinct occurrences and are not continuous. The state’s policy regarding these events is clear, and we found few instances when it was not followed. In those few instances, failure to follow the policy appeared to be simple error and had a modest impact on the fine.

The state’s policy for continuous violations works differently: in selecting a number to represent the “number of events,” the TCEQ is supposed to consider both the duration of the event and its severity. By design, state enforcement officials are left with some flexibility to interpret the policy more or less strictly depending on the type and severity of the violation. In practice, though, enforcement division staff frequently makes decisions that bear little relation to the actual policy and result in penalties that are heavily discounted.

In ten of the cases we reviewed, the TCEQ chose the number of events without clearly following its policies (see box below). For example, TCEQ staff often assessed continuous violations as beginning with the date of the investigation, even when the investigation documented noncompliance as dating from the issuance of a permit or the effective date of a regulation. Often, TCEQ staff wrote that the number of events was chosen to make the "penalty commensurate with the situation" in the opinion of TCEQ Enforcement Division staff. Since the difference between one event and ten events is typically as much as $22,500, this can result in a large reduction in the violation base penalty.

In every case where the number of events was set in a manner inconsistent with established state policy, the staff recommendation resulted in a substantial reduction of fines (never an increase). Ten of the cases we examined involved incorrect counting of events, and in those cases the state assessed approximately $394,000. If the state had followed its own policies, it could have collected at least $800,000 in additional penalties.

Excerpt from the TCEQ Policy on Continuous Violations

For continuing violations, the number of events will be linked to the level of impact of the violation by considering the violation as if it recurred with the frequency shown in the chart below.*

The duration of events concerning continuous violations, for the purposes of preparing an enforcement action, may begin with the initial date of noncompliance with a requirement, rule, or permit and extend up to the time that the enforcement documents are prepared.

In practice, continuous violations will be assessed beginning with the documented date of noncompliance (i.e., sample results, record review) or the date that the respondent "should have known," whichever is appropriate, as the beginning point. The respondent is always considered knowledgeable of permit conditions.

_{*This chart can be viewed in the original TCEQ document, "Penalty Policy of the Texas Commission on Environmental Quality," Enforcement Division RG-253, Sept. 2002.}

For example, the penalty for two four-year violations by Rohm and Haas Deer Park was calculated on the basis of "one single event." For another violation, the enforcement division staff noted that the company had been out of compliance for 27 months when estimating economic benefit, but based the penalty on "three monthly events." These adjustments resulted in as much as $190,000 in reduced fines. (Case Review #24)

The state counted three long-term self-reporting violations by Total Petrochemicals LaPorte as single events, and it also lumped together several discrete failures to repair leaks as quarterly violations. On one of the self-reporting violations, the state initially recommended "Thirteen semiannual events . . . for the thirteen semiannual reports that were not submitted." However, the state changed its assessment to "one single event" after the company complained. These adjustments resulted in as much as $120,000 in reduced fines. (Case Review #20)

One of the most dramatic relaxations of the state's policy was for Solutia Chocolate Bayou. The company failed to "have an adequate monitoring plan that will reliably detect a leak from the heat exchangers to the water of [three] cooling towers" and to "have an adequate monitoring plan for [two] absorbers." The state's penalty policy allows up to daily violations for each of the three towers and two absorbers, and the plant was out of compliance for at least three years. Yet the TCEQ assessed just "one single event" for each violation. A conservative interpretation of state policy could have increased Solutia's fine by $145,000. Under the strictest policy interpretation, penalties could have been calculated on a daily basis, and the fine would have been in the millions of dollars. (Case Review #22)

TCEQ Drops Enforcement Cases without Adequate Reasons

Four of the 26 enforcement cases we reviewed were dropped without adequate documentation, or based on policies that are not written down and are not uniformly applied. One enforcement case was misplaced; another was dismissed due to a company's bankruptcy. When cases are dropped without adequate reason, these companies not only avoid the current fines; they also dodge the stiffer fines and penalties often associated with future violations.

Equistar LaPorte could have been fined $25,000 for a major upset on June 27, 2003 when it released over 1,300 pounds of pollution in one minute. According to the investigation, the release was "caused by poor maintenance and operation practices." According to a TCEQ database, the case was referred for enforcement and then the case was closed. The case file contains no documented reason for closing the case. (Case Review #12)

Rohm & Haas Deer Park could have been fined $13,000 for failing to monitor cooling towers for pollution leaks and for failing to repair leaking equipment in a timely manner. Although the company was sent a notice of enforcement, the case does not appear in any TCEQ database, nor is there any documented reason for dropping the enforcement case. (Case Review #7)

Texas Petrochemicals Houston could have been fined more than $125,000 for violations in two separate cases. In the first case, which occurred in 2002, Texas Petrochemicals was sent a notice of enforcement for several upsets that were "part of a recurring pattern indicative of inadequate design, operation or maintenance." This case was referred by the City of Houston, and its staff discussed the status of the case with the TCEQ. However, the case does not appear in any TCEQ database, nor is there any documented reason for dropping the enforcement case. (Case Review #14)

Then in 2004, the TCEQ discharged another case against Texas Petrochemicals without adequate reason. According to the TCEQ memo:

. . . due to Texas Petrochemicals' legal status during its bankruptcy proceedings, we are unable to pursueenforcement action for these violations. The inspections occurred after Texas Petrochemicals had filed for bankruptcy but before its reorganization date, which is May 6, 2004. Texas Petrochemicals is discharged from penalties or obligations for violations documented during this time period. (Case Review #17)

That explanation is inconsistent with its actions in other bankruptcy cases, and the TCEQ should not have discharged these violations.

Although bankruptcy is not addressed in any general policy statement available from the TCEQ, two memos in other enforcement cases make it clear that bankruptcy is not a legal shield from enforcement action. In a letter to Solutia Chocolate Bayou, a TCEQ Enforcement Division coordinator wrote:

Please be aware that the Automatic Stay imposed by the Federal Bankruptcy Code does not apply to the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power, by virtue of the exception set out at 11 U.S.C. § 362(b)(4). Accordingly, TCEQ, as a governmental unit . . . is expressly excepted from the automatic stay in pursing enforcement of the State's Environmental Protection Laws including but not limited to liquidating its damages for such violations. (Source: Letter from Tel Croston to Solutia, April 23, 2004.)

Four years prior to the Solutia case, Allwaste / Fitzgerald Railcar Services Angleton was informed that the TCEQ planned to pursue litigation against the company because "we have been unable to reach agreement due to your facility filling (sic) for bankruptcy." These two cases, one of which occurred almost at the same time as the Texas Petrochemicals case, indicate that despite bankruptcy status, the TCEQ has pursued enforcement against companies that violate air pollution regulations. (Case Review #15)

However, not only did the TCEQ discharge the Texas Petrochemicals violations referred to in the memo, at the same time it also discharged violations that occurred prior to the company's bankruptcy filing of July 20, 2003. According to TCEQ staff, violations that were found during investigations on November 19, 2002 and on May 12, 2003, were dismissed along with the later violations. This further demonstrates that the Texas Petrochemicals case was handled in a manner inconsistent with TCEQ policy.

Even if the TCEQ believes it cannot recover monetary damages from a violator, there are other good reasons to follow through with an enforcement case. In addition to a fine, an enforcement order from the TCEQ usually includes provisions requiring corrective action and ordering the company to cease the violations in the future. This means that if the violations occur again, the company is subject to substantially enhanced fines and that additional pollution control requirements may be imposed.

When enforcement cases are dropped, on the other hand, the offending companies escape fines and any enforceable obligations to correct the practices related to these violations. In addition, future violations of the same nature may not be penalized at higher levels if the TCEQ has dropped the previous violations.

GHASP's Recommendations

As a result of this study, we concluded that the TCEQ is inadequately enforcing air pollution regulations by assessing fines that are dramatically lower than warranted and by dismissing enforcement cases without adequate justification. Furthermore, we believe that the TCEQ is failing to carry out enforcement in a timely manner.

TCEQ should follow its enforcement policies. We recommend that the TCEQ adhere to its current written policies regarding the calculation of fines instead of assessing fines that are clearly lower than intended. Over the past several years, fines assessed for violations of air pollution regulations in the Houston region appear to reflect the personal preferences of TCEQ Enforcement Division management rather than clear implementation of the commission's official policies. Where necessary, the TCEQ should amend its policies to clarify the minimum penalties for certain classes of violations. We believe this stricter application of current policies would result in more appropriate fines.
TCEQ should fully document case dismissals. We also recommend that the TCEQ adopt a policy regarding the dismissal of cases that have been referred for enforcement. Presently, there does not seem to be a procedure or requirement that the TCEQ document the reason for the dismissal of a case. In addition, if the TCEQ deviates from its usual dismissal policy, as it did in the case of the Texas Petrochemicals bankruptcy, the TCEQ should clearly document the reasons for such actions.
EPA should investigate TCEQ’s failure to implement timely and adequate enforcement. We are asking the U.S. Environmental Protection Agency (EPA) to address the state’s failure to meet federal expectations for timely and adequate enforcement. Much of the authority for enforcing air pollution regulations is delegated to Texas by the EPA.

We suggest that the Inspector General of the EPA further investigate our allegation that Texas is failing to carry out enforcement in a timely and adequate manner. The EPA expects that enforcement action will be completed for high priority violations within 9 to 11 months of an investigation. Yet most of the cases in our study exceeded that guideline, and seven cases took more than two years.

The EPA also expects state enforcement actions to assess a penalty sufficient to achieve effective deterrence, both for the offending company and for all regulated companies. This penalty should reflect both the economic benefit of noncompliance and an amount reflecting the seriousness of the violation. We do not believe the TCEQ is meeting this standard, because it assesses fines that are dramaticallylower than warranted, and because it dismisses enforcement cases without adequate justification.

We also suggest that the EPA regional enforcement office review recently-settled cases and take independent enforcement action in situations where it agrees that the state was too lenient. If the EPA acts, this could result in additional fines being collected from serious offenders of air pollution regulations.

TCEQ Method for Determining Economic Benefit Needs Further Review

One issue that has been raised with regard to the fines assessed by the TCEQ is economic benefit. In theory, the size of the fine being levied should be greater than the economic benefit that the company gains by not implementing practices that would prevent pollution.

In the 26 cases we reviewed, we found that the fine assessed by the TCEQ was usually larger than the estimated economic benefit gained as a result of the violation.

Because our study is targeted, our conclusion should not be generalized to other media, to small companies, or to other parts of the state where air pollution issues are ofen quite different. Furthermore, we have questions about the method by which the TCEQ calculates the economic benefit. Although we did not systematically review the calculations, it appears that TCEQ economic benefit estimates may be too low - particularly in cases where companies have failed to monitor for leaks or have allowed major upsets to occur.

Clean contracting

John Wilson — Wed, 02 Nov 2005 07:00:00 -0800

Body

In November, 2005 the H-GAC Board adopted the following resolution. However, H-GAC staff have showed little enthusiasm for seeing that this regional effort is implemented successfully.

Clean Contracting Program for Houston-Galveston Area Local Governments

Background

To attain the federal standard for ozone pollution by the 2010 deadline, additional reductions in emissions of nitrogen oxides (NOx) and volatile organic compounds (VOCs) need to be achieved, beyond those already adopted by the state. One possible program for achieving additional emission reductions is a clean contracting program.

Current Situation

The Texas Department of Transportation offers a Clean Contracting program. The TxDOT Clean Contracting incentive does not affect the established bid process for awarding contracts. Rather, the Clean Contracting incentive adds an increment to the contract cost if the contractor chooses to make use of it, similar to incentives for early completion and other factors that are often included in contracts. The TxDOT incentive complements the Texas Emission Reduction Program (TERP). Although TERP grants fund the same or similar emission reductions, many contractors are not participating due to the complexity of the grant program.

The value of the incentive is based on two factors: length of time the equipment is used on-site and an EPA rating that is related to the emissions of the equipment. Simplicity and financial return are the critical factors that will determine whether or not contractors perceive an incentive to reduce emissions by their diesel equipment. Local governments should be encouraged to adopt the TxDOT incentive language without any substantive changes, except for varying the reimbursement rates. The total cost of the incentive should be less than approximately 1% of the total project cost. Each local government should make its own decision as to the rate schedule it would choose to offer.At its October 27, 2005 meeting, the Regional Air Quality Planning Committee acted to recommend the following actions:

The Houston-Galveston Area Council and the Transportation Policy Council should send a joint letter to local governments encouraging adoption of the Clean Contracting Incentive.
H-GAC staff should survey local governments every 4-6 months to determine which local governments have adopted the incentive, the reimbursement rate being offered, and the response of contractors to the incentive program.
H-GAC staff should review the recommended reimbursement rate schedule after each survey and revise as warranted by actual cost data and participation rates.

Additional Background (not included in final resolution)

How the clean contracting incentive works

In order to encourage participation by contractors, the incentive program needs to be as simple as possible. After extensive negotiation with contractors, TxDOT arrived at a simple approach for awarding the incentive. Local governments should be encouraged to adopt the TxDOT incentive language without any substantive changes, except for varying the reimbursement rates.

If the TxDOT incentive language is used, then the reimbursement rate is the key factor in determining whether or not contractors will perceive a value in participating. The reimbursement rate also determines the potential cost to the contracting government.

Few contractors have indicated that the current TxDOT reimbursement rate is sufficient to interest them in completing the paperwork necessary to obtain the incentive, much less to change their equipment purchasing practices. Construction industry representatives have suggested a higher rate schedule.

The two rate schedules are presented in Table 1; each local government should make its own decision as to the rate schedule it would choose to offer. Local governments could also adopt a cap for the maximum reimbursement and a deadline for applying for reimbursement.

Table 1: Reimbursement rates

EPA Tier	TxDOT Payment Rate per Engine Horsepower Rating per Month	Industry Suggested Payment Rate per Engine Horsepower Rating per Month
1	$0.50	$2.50
2	$0.75	$3.50
3	$1.00	$4.50

Notes: The reimbursement rates suggested by construction industry representatives are based on the cost of the new engine. For each engine tier rating, the average price of replacement engines were determined for horsepower ratings from 100 to 350. Where engine pricing information was not available, data was either interpolated or extrapolated. Using an industry standard of 60 months to pay off a piece of equipment, the average prices for each tier were divided by 60. The average price per month was then divided by the average horsepower. The results were rounded to the nearest $0.50. The results are in units of dollars per horsepower per month.

The wide range of rates results from a difference of approach. TxDOT assumes that the contractor is participating in the TERP program, and is receiving this reimbursement in addition to the TERP grant. The Industry suggested amount assumes that the contractor will not apply for TERP funding, and that the entire cost of the cleaner engine will be paid by the reimbursement over a 5 year period.

TxDOT developed additional time adjustment factors for equipment that is not in use on a project for the full month. Equipment in use less than one full month receives a corresponding fraction of the potential monthly reimbursement.

Example Calculation

An example calculation using the TxDOT rates is: A 125 horsepower front-end loader rated at Tier 2 was used on a project for a full month. The incentive it qualifies for is: $0.75 x 125 hp = $93.75.