TCEQ Buckles On Oil & Gas Rules Under Pressure From Industry

After a 10-month process, the TCEQ finally ended the suspense regarding what emissions safeguards the oil and gas industry will have to follow in order to protect the citizens of Texas.   On Wednesday, the TCEQ adopted a much, much weaker rule than the one it proposed in July (see details at the bottom of this post).  The rule was dramatically scaled back to apply only to those living near the Barnett Shale near Dallas-Fort Worth and, miraculously, the process will begin anew to decide what protections will apply elsewhere. 

If you are reading this, you are probably wondering what I think about the outcome.   I’ll answer by telling you what I am going to tell my boss, who will surely ask how my efforts – scores of hours attending meetings, writing comments, coordinating and consulting with experts on this topic (as well as having to watch industry unrelentingly bully TCEQ staff) – translated into results.   

It is a fair question given that I truly threw myself into this one.  I convinced myself (and my boss) that – this time – it was going to be different.  With all of the attention focused on the emissions from natural gas operations, including reports showing how the emissions from the oil and gas industry were much higher than everyone assumed, I thought this time we actually had a chance to help TCEQ do the right thing.   

The most favorable answer I can give is that “it could have been worse.”  Maybe, just maybe, had we not made the effort, the final rule might have been even worse.  What issues went in favor of public health?  The TCEQ did expand the proposed definition of “receptors” that must be protected to include hospitals, day cares, and certain businesses (although this definition is still less protective than many other agency rules).  Oh, and in response to our expert modeler’s numerous examples showing that the agency’s modeling did not represent “worst-case” conditions as claimed, the TCEQ changed their description to “reasonable worst case” (while making numerous other changes that allowed far greater emissions of harmful pollutants than originally proposed).  Sadly, that’s all I can say went in a positive direction. 

The TCEQ’s initial proposal in July would have established a basic framework that provided greater assurances of protectiveness to the public.  But industry firepower overwhelmed the TCEQ staff, which had little, if any, apparent support from their Commissioners.  The final rule was gutted with so many exceptions and loopholes (see below) that it almost makes me wonder if there is sufficient environmental benefit left to justify the regulatory burden.  Especially troubling was the number of sweeping changes made to the rule during a 6-week continuance, out of the public eye, during which time staff was asked to attempt to resolve industry concerns.  

In the end, I have no choice but to admit that my time would have been better spent on something else.  This story is yet one more example of why the legislature’s required sunset review of the TCEQ is so timely.  It is time for the TCEQ to put the protection of public health and the environment first.

On this last point, State Representative Rafael Anchia (D-Dallas) who serves on the state’s Sunset Advisory Commission, ably captured the situation in an interview on KUT’s feature “Letters to the Lege” this morning:

“In hearings we’ve held, we’ve heard complaints from all over the state … and there’s definitely an issue at the TCEQ when it comes to the response to citizen complaints. There’s no doubt about it. The EPA is seriously put out with the TCEQ and there’s a real standoff going on right now between the Perry administration and the federal government on how the TCEQ regulates pollutants in Texas. And in my opinion, we need to shake the agency up and make it more responsive to the public.”

At EDF, we completely agree.     

Key Examples Of How The July 2010 Oil & Gas Permit by Rule Proposal Was Weakened:

  • Applies only to Barnett Shale. A new rule will have to be developed by January 2012 to apply to the rest of Texas
  • Allowable hourly emissions of benzene increased by up to a factor of 20X
  • Eliminated formaldehyde emissions limits and protectiveness review
  • Increased VOC and other pollution limits, and removed limits for others
  • Created an exception for “small operations,” specifically projects with a maximum engine horsepower (450 hp or less depending on fuel), or five defined combinations of emissions sources and components.  These only have to maintain equipment in good working order and maintain a minimum 50-foot setback with no notification to TCEQ required
  • Protectiveness review only required for new or modified sites within ¼- or 1/2- mile from a receptor (depending on size of facility), and excludes consideration of existing emissions at modified sites if the off-site concentrations are less than 10%-25% of an Effects Screening Level
  • Removed prohibition against increasing emissions of applicable pollutants in an Air Pollutant Watch List Area (where pollution levels already exceed the TCEQ’s own acceptable risk levels)
  • Replaced Executive Director’s right to deny a permit for good cause with limited additional pre-conditions for a permit
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  1. stan scobie
    Posted January 29, 2011 at 1:08 pm | Permalink

    Dr. Alvarez,

    Thank you for your clear, chilling, and sad account of how regulatory processes can be sidestepped and essentially defeated outside the clean fresh, so to speak, air of daylight.

    I am hoping that NY and PA and the other shale gas states can learn some lessons here.

    I am also saddened that the brave attempt by EDF to bring some rationality and openness to the issue of best practices has failed so miserably.

    I hope your boss is listening. The world is watching.


    Stan Scobie, Ph.D., Binghamton, NY

  2. Posted February 5, 2011 at 6:26 pm | Permalink

    Dear Dr. Alvarez,

    Thank you for all your many hours of trying and your boss for believing and allowing you to do so.

    This action of the TCEQ is so very, very discouraging. It’s an outright betrayal of the public trust. I’m not too terribly surprised because the Structural Pest Control Board did the same thing to me back in 1980, but it still makes me ill to read this as I know many of us in our town and all of our surrounding towns have been looking with hope that their decision will be an answer to some of our problems. I guess the burden is now passed back to EPA and if they fail, then the individual municipalities that may not have the clout and the dollars necessary to enforce stricter emission regs.

    I live in Flower Mound and we are in the middle of a similar battle. We’ve had a commission that’s been studying our ordinances and the situation for over 6 months and I’m scared we may end up not being nearly as strict as we should be. Actually, we have some ordinances in place for some safety devices right now; they’ve just not been enforced. We keep hearing this argument about their being “vested” and therefore, we can’t enforce it. I believe that this is totally incorrect and have the research to prove it, too.

    I grew up in oil and gas country and this sort of activity was never imposed in our neighborhoods. Commonsense prevailed – backed by case law (city of South Houston v. Tysco Oil – 1930’s is just one of many)!

    In my humble opinion, what our state needs to realize is that while our tax revenues are increased by this industry, they will eventually go the other way as our surface estate is devalued due to this pollution. In our town we have a huge tax base in upscale housing (many of my neighbors pay $30 – 60k a year in property tax. Now, these houses are sitting on the market a long, long time and some are just withdrawn.

    What do you suppose these affluent citizens (some of them lawyers) will do when they can’t sell or have to suffer a huge loss? First of all, they are not stupid; they will demand the county lower their tax rate.

    Secondly, if it’s impacting their health and/or freedom to move, I believe that we will see some lawsuits. What else can they do? This begs the question of just who will they choose to sue: the drillers and operators for sloppy adherence to town ordinances; the state and municipalities that issued the permits in areas that adjoin residential developments, some are even surrounded on all 4 sides, ignoring their prime responsibility to protect the health, safety, general welfare of their citizens and even orderly growth of their towns which is supported by a century of case law; the landowners that signed leases to allow them access to their minerals in the first place; the EPA for their role in the passing of the Halliburton Loophole Law and/or the TCEQ for inadequate responsiveness, standards and enforcement? If I were a lawyer and/or the plaintiff, I suppose, I’d choose all of them.

    Since when was the TCEQ put in place to protect and/or consider the economic feasibility of natural gas production. I thought the EQ stood for environmental quality. I thought that they were mandated to protect the citizen’s health FIRST and FOREMOST. I wonder how the TCEQ’s commissioners are going to feel when people sue them. Has anyone investigated the wording of their oaths they pledged to uphold when they were sworn in to protect the citizens of Texas?

    I wonder if the TCEQ could have made this decision if they had to do so in the presence of all the citizens that they met and listened to their fervent testimonies when they visited Dish, Texas? How can they betray good citizens like Calvin Tillman and his family who are experiencing illnesses and who haven’t been able to sell their property for over 6 months? I know others who live out there who aren’t going to even bother to put their property on the market.

    Am I just stupid? Because to me it seems that all of this could so easily be solved and it is so ridiculous to use economics as the reason. If all the operators all over the state of Texas have to comply then the playing field is leveled and the costs can be passed along to the consumer. Moreover, the emission recovery devices just might pay for themselves. If a second emergency control valve had been on the Williams/Smith well A #2 last December then perhaps that near tragedy would have been caught and the amount of gas lost could have paid for it.

    Instead, we have citizens that are afraid they won’t wake up in the morning.

    TCEQ – Shame On You!!!!!!!

    A concerned citizen.

  3. Mellany Lamb
    Posted February 5, 2011 at 9:08 pm | Permalink

    Thank you Dr. Scobie for confirming the sick (sic) feeling that I had after reading the EDF article written by Dr. Alvarez. One-Two sucker punched again by TCEQ–the regulatory agency that is to protect the people of the great state of Texas. Please do learn from our errors.

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