Senator’s bill would fine Texans for multiple environmental complaints that don’t lead to enforcement

The bill would impose fines when residents make more than three complaints to the state environmental agency in a year if they don’t result in enforcement action. Critics warn the bill would discourage people from reporting pollution.
A concrete truck is washed at a concrete batch plant.
A concrete truck is washed at a concrete batch plant.(Shelby Tauber for The Texas Tribune)
Published: Apr. 17, 2023 at 7:13 AM CDT
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GUNTER, Texas (TEXAS TRIBUNE) — From the big glass windows in her dining room, Linda Hunter has seen her view transformed from grand, green pastures to a row of side-by-side concrete batch plants.

The 59-year-old, who lives on her 224-acre ranch, says the plants have disrupted what used to be a tranquil area. The bright lights from the nearby plants keep her up at night, she says, and so does the rumbling of trucks that start passing her house as early as 2 a.m. And when Hunter tries to tend to her garden, dust from the plants stings her eyes and irritates her asthma.

“The only time I breathe [easily] and my blood pressure is down is on Saturday and Sundays,” Hunter said. Those are the days the concrete batch plants typically don’t operate.

Over the past five years, Hunter said, she has made numerous complaints to the Texas Commission on Environmental Quality about dust clouds and water runoff from nearby plants into her property.

Under a bill filed in the Texas Senate, residents like Hunter could face fines if they make three or more complaints to environmental regulators in a calendar year and their complaints don’t result in an enforcement action. Senate Bill 471, filed by Republican Sen. Drew Springer of Muenster, doesn’t specify the amount of the fine but says it would be “less than or equal to the cost” of investigating the complaint.

Under the bill, TCEQ would decide when to pursue fines against residents and the amount of the fine.

In a March hearing of the Senate Committee on Water, Agriculture and Rural Affairs, Springer said the bill targets “abusive” complaints that “weaponize the system.”

“The state would be better served investigating other things that the agency sees as potentially a real threat to our environment,” Springer told the committee.

Each year, TCEQ conducts more than 100,000 investigations, issues thousands of violation notices, assesses millions of dollars in administrative penalties, and provides compliance support to thousands of small businesses and local governments, according to an email from TCEQ spokesperson Victoria Cann. TCEQ received 9,440 complaints in fiscal year 2021 and 10,070 in fiscal 2022, according to its biennial report to the Legislature.

During the bill analysis, TCEQ prepared several examples of what Springer said were the kind of excessive complaints the bill intends to target. The examples, which were distributed during the hearing, included a person who filed 28 complaints in 2022 against a landfill that did not result in any confirmed violations. In a second example, two people filed 28 complaints against two asphalt operations in 2022.

In both cases, the handout didn’t provide enough information — such as the names of the people who complained or the names of the companies — for The Texas Tribune and InsideClimate News to learn more about the nature of the complaints.

Hunter, who has complained about what she considers legitimate pollution concerns more times than she can count, said the bill is aimed at discouraging Texas residents from reporting environmental problems across the state.

“It’s absolutely and totally offensive,” she said.

Deirdre Diamond, a 40-year-old respiratory therapist and lead advocate for Gunter Clean Air, a local group created to fight pollution from concrete batch plants, called Springer’s bill “an intimidation tactic. People are going to think twice before filing an investigation.”

Slow response to complaints could lead to missed violations, critics say

Tim Doty, an independent environmental consultant and former TCEQ air-monitoring employee, said responding to citizen complaints is part of the agency’s job: “Just because it doesn’t lead to an enforcement action doesn’t mean your complaint is not valid.”

Doty said residents often file multiple complaints because TCEQ typically takes weeks or months to resolve investigations.

Doty said it can take TCEQ weeks just to send an investigator to check out a complaint, and by then the problem may have disappeared or changed. If Springer’s bill becomes law, that situation would result in a strike against the complaining person, even though the problem they reported may have been a violation had the agency responded faster.

Adrian Shelley, director of the Texas office of Public Citizen, a consumer-advocacy nonprofit group, said if a problem persists, residents are justified in filing multiple complaints.

“If you are facing a situation where pollution is impacting your quality of life or even your health, then you are going to complain about that every single day,” Shelley said.

Mary Evans, an economist and professor of public affairs at the University of Texas at Austin, published a paper in March with two colleagues that analyzed complaints citizens made to TCEQ between 2003 and 2019 and found that, on average, investigations stemming from citizen complaints were two to four times more likely to find violations than investigations not instigated by complaints.

“Based on our work, it looks like citizen complaints are helping TCEQ,” Evans said. “I would be hesitant to support anything that would discourage the submission of complaints.”

Critics of the bill say it would also discourage low-income communities of color — which are more likely to face the health and environmental impacts of industrial pollution — from reporting that pollution.

Researchers at Indiana University found that in the Houston area, concrete batch plants — which combine sand, water and cement to create concrete — tend to be in low-income and Hispanic-majority census tracts. The Environmental Protection Agency has found that the air pollution and particulate matter from batch plants can increase the risk of asthma and cardiac arrest if people inhale too much. The TCEQ regulates batch plants as a source of particulate matter.

Shelley said that for these communities, paying a fee for filing complaints will be “especially burdensome.”

Bill clashes with Sunset review recommendations

The bill was introduced as legislators contemplate reforms to the TCEQ after a yearlong Sunset Advisory Commission review process. That state review evaluates the effectiveness of the agency and produces a report with recommendations on what changes should be made. Then legislators craft a bill based on those recommendations.

This year, the bill includes increasing TCEQ penalties from $25,000 to $40,000 per day for industrial facilities that violate state regulations.

The state review described TCEQ as a “reluctant regulator” and highlighted public distrust of the agency. Lawmakers encouraged the agency to find ways to increase public engagement and build trust. Opponents of SB 471 say the bill does the opposite and discourages citizen reports of air and water pollution.

“We clearly need more regulatory oversight from this reluctant agency, not less,” said Jennifer Hadayia, executive director of Air Alliance Houston, a nonprofit focused on the health impacts of air pollution.

Springer, who sits on the Sunset Commission, said the state environmental agency has only a finite amount of resources and is overwhelmed by citizens’ complaints.

“We’re not trying to say you can’t file complaints. If you think something’s wrong, we want to hear from you,” he said during the March hearing at the Capitol. “But when done over and over and over again, I think it gets to the point that we’re getting abusive on weaponizing the agency with that.”

Filings with the Texas Ethics Commission show that Springer has accepted campaign donations from industries that are often the subject of citizen environmental complaints. During 2022, for example, industry groups that donated to Springer included the Texas Aggregates and Concrete Association PAC ($2,000), Texas Oil and Gas Association Good Government Committee ($5,000) and the Texas Chemical Council Free Enterprise Political Action Committee, known as FreePAC ($1,000).

TCEQ is seeking $56 million for salary increases for staff positions including attorneys, geoscientists and engineering specialists. The agency said it’s struggling to retain staff and many skilled people, including investigators, have left the agency for better-paying jobs.

Turnover has remained high at TCEQ’s largest regional office, in Houston. Last fiscal year, it increased to 52%, from 31% the fiscal year prior.

Gunter residents prepare for fight

Hunter, who lives in Springer’s district, said after calling his office with her concerns, his chief of staff and another staff member visited her ranch in August. They sat at her dining table and looked out the same window she gazes through each day. She wanted them to see how the concrete facilities have “ruined” her way of life.

Hunter said she pointed to a creek that she says appeared on her property after the concrete plants opened. She’s convinced it’s runoff from the concrete plants, where workers frequently hose down the inside of concrete trucks. She suspects that contaminated water from the plants got into a pond on her property and caused the deaths of five of her cows in the winter of 2019-20. She said she filed complaints with TCEQ after the cows died.

“They’ve ruined the health of our cattle,” she said.

Three companies that Hunter has complained to the TCEQ about — Nelson Bros. Ready Mix, Wildcatter Redi-Mix and Preferred Materials — didn’t respond to the Tribune’s request for comment.

TCEQ records show that after receiving complaints from residents (the agency did not release the names of people who file complaints), the agency issued notices of violation to all three companies between 2020 and 2022 for failing to control dust from their facilities. It also issued notices of violation to Wildcatter Redi-Mix and Preferred Materials for failing to minimize or prevent contaminated wastewater discharge.

As of April 12, TCEQ public records don’t show any enforcement action against the companies related to those violation notices. The agency’s website says most violations “are quickly corrected in response to notices of violation” within the time frame the agency gives companies to fix the problems.

Hunter is still mourning the death of her cows — only nine remain. She said she used to see herself retiring on her property but doesn’t anymore because of the dust and noise, and she worries that she can’t make a living from raising and selling cattle.

She said her complaints are valid and if SB 471 becomes law, it won’t stop her from calling TCEQ when she sees what she thinks is a violation. (It’s unclear how the bill would apply to Hunter’s situation, since TCEQ took preliminary action after her complaints and “enforcement action” isn’t defined in the bill.)

“They want to fine people like me who complain, but would they rather have my money or find something? I think they would rather have my money,” Hunter said.

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