Environmental advocates have accused the Texas Commission on Environmental Quality (TCEQ) of failing to protect state waterways in violation of the Clean Water Act — and the U.S. Environmental Protection Agency (EPA) revealed this week that an investigation is finally underway.
The investigation results from a 2021 petition signed by more than two dozen environmental advocacy groups against the state agency.
The petition also states that industries are not required to document “the economic or social necessity of projects,” which environment advocates believe companies should provide when seeking permits for their projects to avoid polluting water in the state.
“If proven to be true, the allegations outlined in the petition are concerning,” Charles Maguire, the EPA’s acting deputy regional administrator, wrote in a letter dated January 24th to attorneys for the state.
Environmentalists say that TCEQ’s processes for issuing permits have made it too easy for energy companies and those in other industries to contaminate Texas rivers, lakes, and estuaries — and that the fines levied are not sufficient to dissuade them from doing so. Thus, they are asking the EPA to step in to force the state to make changes to the agency.
Erin Gaines, senior attorney at Earthjustice, a nonprofit environmental law organization and one of the petitioner groups, said similar petitions to the EPA have been ignored in the past and believes that it’s significant that the agency is finally taking them seriously.
“It is noteworthy I think that they’re responding and they’re saying it’s concerning these claims,” Gaines said. “The state of Texas doesn’t have a right to implement these programs however they want. The EPA has determined TCEQ can issue these permits, but they have to comply with federal requirements. … It really is the EPA’s role and responsibility to see that these programs are implemented properly.”
Gaines cites an ongoing case in which an oil storage and export terminal company named Max Midstream is seeking to expand the capacity of its terminal near Port Lavaca.
In the public meetings regarding the site, the TCEQ denied challenges by multiple citizens who lived within three miles of the location, saying they only allowed challenges from within one mile.
One challenge came from a commercial oysterman and shrimper who works in the bays near the proposed expansion of the industrial area.
Another challenger was a man with chronic asthma and related respiratory illnesses. He said that creating such an industrial facility would directly affect his health and prevent him from recreational fishing in the area 2 miles away.
The groups have advocated for more transparency into permitting processes, additional opportunities for community input, and more state agency accountability. In addition, they have repeatedly recommended lawmakers increase fines on polluters for violations.
The TCEQ declined to comment on the EPA letter but said the federal agency reviewed the state permitting process in 2020 and found it met federal requirements.
A 2022 review of the agency by the Texas Sunset Advisory Commission found the TCEQ to be ‘reluctant regulators,” — and the agency has a reputation for being overly eager to allow permits for industrialists.
And a staff report released in 2021 found that how the agency handles public comment at permit meetings contributes to a “concerning” amount of public distrust in their work.
The commission recommended including more information for the public on the TCEQ website, extending the time citizens can comment on specific proposed permits by 36 hours, and increasing a $25,000-per-day cap for administrative penalties to $40,000 a day, according to the Houston Chronicle.
“We really feel that the TCEQ regulations, frankly, are not sufficient to ensure clean water,” said Annalisa Peace, executive director of Greater Edwards Aquifer Alliance, a San Antonio-based environmental nonprofit. Her organization and twenty other groups allege that state waterways are “so polluted they are considered impaired under the federal Clean Water Act,” the 1972 law designed to reduce pollution in the nation’s waterways.
In addition, part of the group’s petition complains that the TCEQ’s water permitting process does not consider the rights of Texans who use channels for recreational purposes, such as fishing or kayaking, and instead only the right of landowners.
In a June 2022 complaint, 13 environmental nonprofits said that TCEQ unlawfully restricts public participation in multiple ways. For example, under state law, only deemed to be “affected” people can get involved in contested cases — but the agency says that only those citizens who own property or live within a mile of a facility seek an air permit.
In their complaint, the group says the rule is “arbitrary” and “denies ‘affected person’ status to those whose health, aesthetic, or the proposed permit harms recreational interests.”
In addition, the EPA opened two civil rights investigations of TCEQ in August last year.
The first was an attempt to determine if TCEQ’s criteria for its permitting process for concrete batch plants in Harris County — including whether it discriminated based on race or national origin in violation of Title VI of the Civil Rights Act.
The second was to examine whether the state agency blocked public participation from citizens for whom English is not a first language and may have needed help making their voices heard.