Over the Limit

Introduction

Rusk County, TEXAS — A gentle twilight pink stretches across the sky, touching the waters of Martin Creek Lake. The still air, smelling only of East Texas pines, brings the faint sounds of wildlife in the surrounding woods. Smog and traffic seem much further away than the 145-mile drive to Dallas.

But like so many still-idyllic scenes in Texas in the 21st century, this one is pristine only from a certain camera angle, and maybe only when the wind blows a certain way. Turn to the west, and three enormous smokestacks loom up, towering over jet-black pyramids of coal, products of the strip-mining that TXU helps facilitate throughout the state.

The draglines and smokestacks serve the Martin Lake Steam Electric Station, one of four coal-fired power plants operated by TXU, the vast utility that is the leading energy producer in the leading energy-using state in the country.

One night in October 2003, in the space of three hours, while the 94,000-plus inhabitants of Tyler slept nearby, Martin Lake pumped more than 150,000 pounds of sulfur dioxide into the East Texas air. The pollution was more than eight times the plant’s hourly emissions limits under federal regulations. Sulfur dioxide air pollution, as environmentalists, regulators, and TXU officials have known for many years, helps trigger asthma attacks and other respiratory diseases.

Like many power plants, the Martin Lake Steam Electric Station is fitted with electronic sensors that monitor smokestack emissions including sulfur dioxide and send hourly measurements to the federal Environmental Protection Agency. Although the EPA keeps records, it relies on state agencies to enforce federal air pollution standards. In Texas, state law requires companies to file deviation reports to the Texas Commission on Environmental Quality when a power plant exceeds federal emissions limits.

After the October 2003 event, TXU reported the emissions overage to TCEQ. But a comparison between EPA and TCEQ records shows that the company gave a far lower emissions figure to state officials than the smokestack monitor registered. Until reporters started raising questions nearly a year ago, TCEQ officials said they had no idea of the extent of TXU’s emissions.

If the October 2003 sulfur release were an isolated incident, perhaps Texas’s air-breathing citizens downwind of Martin Lake and TXU’s other plants might not have that much to worry about. But a three-month review of federal and state records by the Washington, D.C.-based Center for Public Integrity, a nonprofit journalism organization, suggests otherwise. The review, encompassing 25 million data entries spanning 10 years, shows that between 1997 and 2006, TXU’s coal-fired plants exceeded federal sulfur dioxide emission limits nearly 650 times, spewing more than 1.3 million pounds of excess sulfur dioxide into the Texas air.

A TCEQ spokesman called TXU’s action “inaccurate reporting.”Contacted about the reports, TXU representatives declined to explain, saying the company prefers to let its submission to state and federal agencies stand on their own merits.

But the company insisted that its environmental record is a good one. TXU spokesman Tom Kleckner said coal-fired power plants sometimes exceed standard emissions levels when a unit is shutting down, starting up, or is in an “upset condition” caused by maintenance. “At times the plants can also experience an exceedance in the course of providing safe working conditions for the workers repairing equipment. While these examples are exceedances – they are not compliance issues,” he wrote in an e-mail.

If companies knowingly provide false reporting they could potentially face costly fines under the federal Clean Air Act, which imposes penalties. “If TXU deliberately misled the agency, that is criminal, really,” said Eric Schaeffer, former head of the EPA’s Office of Civil Enforcement, who now runs the watchdog Environmental Integrity Project in Washington, D.C. Equally important, says Schaeffer, if the state was aware that TXU was exceeding emission limits, it could have forced the utility to install improved pollution control technology at its plants.

But here is what really happened as a result of the company’s inaccurate reporting: Nothing. In the first place, TCEQ allowed utilities to "self-report" such emission violations, and has no system for checking the EPA emission logs, though they are readily available. And when TXU did accurately report its emission overages from coal-fired plants to the state agency, it was never fined, despite the fact that some plants went over the line hundreds of times.

In fact, over the past 10 years, while North Texas governments wrestled with increasingly serious air pollution and the prospect of EPA sanctions, TXU was penalized only once for an air quality violation – a single fine of $720, according to TCEQ’s penalty enforcement records.

Faced with some of the dirtiest air in the country, and with what critics say is lax enforcement by the state, Texas has become a place where key air pollution controls in many cases have come only as a result of lobbying and lawsuits filed by citizen groups. Major business leaders and big-city mayors in recent years have joined forces to try to convince the state to enforce clean-air laws. And a broad coalition of Texas citizens who have grown increasingly skeptical of coal-based power and the state’s ability to protect their health are appealing the state permits granted to two planned TXU coal-burners.

They have a formidable opponent: TXU’s influence with state government is strong, thanks to a massive long-term lobbying effort. In early 2007, for example, TXU spent more on lobbying than any company in Texas except AT&T, according to the political watchdog group Texans for Public Justice. Their political influence, say activists, affects not only the state’s treatment of emissions, but actions like approval of the recent sale of TXU to new owners, construction of the new coal plants and — just as seriously — the levels of pollution that continue to be permitted from some of TXU’s older plants.

While environmentalists and utility officials fight over emission levels and economic impacts, the personal toll of air pollution is brought home every day to families like Robert and Carol Hanson of Freestone County, who live just downwind of a TXU coal-burner and whose grandson Jesse suffers from asthma so serious that he has become a well-known figure in the local hospital emergency room.

“There are days when the pollution is so bad that it blocks out the sun,” Carol Hanson said. And that’s why she and her family members have joined the fight to change things in Texas.

The living room table in the Hansons’ double-wide trailer is covered with medical equipment — prescription bottles, a shoebox-sized breathing machine called a nebulizer, the ever-present handheld plastic inhaler that Jesse carries at all times. A three-foot-tall steel oxygen tank and mask stand nearby, for jumpstarting his breathing if the other equipment can’t do the job.

There are times when even the oxygen tank isn’t enough to deal with his asthma. "I have had to carry him out of school to take him to the emergency room dozens of times," said Robert. He knows many local police officers by name because of all the times he’s called to warn them that he will be speeding down the highway to get his grandson to the nearest hospital, 35 miles away in Palestine. "During the drive he is panting, sweating, and gasping for air, because he just can not breathe," Robert said.

The Hansons are convinced that 10-year-old Jesse’s severe asthma is closely linked to power plant emissions. When the pollution from the TXU plant 15 miles away is at its worst, "I close the windows and lock the doors so that it doesn’t get into the house," Carol Hanson said. The Hansons say that Jesse’s asthma attacks become more frequent and more intense when the power-plant emissions are worst, and that many other kids in his class also have breathing problems. "In the winter time you can see the smoke wafting right over our house," Carol said.

Volumes of scientific evidence show that sulfur dioxide and other air pollutants released by power plants are closely linked to a variety of respiratory ailments. When particulate matter, or soot, which includes sulfur dioxide, becomes lodged in the lungs it constricts breathing, triggers asthma attacks, and can exacerbate respiratory disease

Prominent doctors in the east Texas medical community are concerned that TCEQ may have failed to force TXU to adhere to its federal emissions limits. "The tools I have to help people suffering from chest disease and respiratory ailments are fairly limited, and if they [TCEQ] are letting polluters exceed their limits, then they are counteracting what we are trying do here, as physicians," said Dr. David Coultas, a pulmonologist at the University of Texas Health Center at Tyler, one of the nation’s most prestigious lung and chest disease research institutions, located about 25 miles west of Martin Lake. He said many of his patients complain that their symptoms are intensified on days when air pollution is particularly bad.

Childhood asthma affected about 3 percent of the population in the 1960s, but that figure has climbed above 9 percent, according to the federal Centers for Disease Control. In Fort Worth, a 2003 city health department survey found that asthma rates here were more than double the statewide average, and even higher for children.

The facility that plays such an unpleasant role in the life of the Hanson household — and in Fort Worth’s pollution rates and ozone alert days — is Big Brown, a TXU power plant that was making news in Texas long before its Thoroughbred namesake won the first two legs of the Triple Crown this spring. Located just off I-45 about 120 miles southeast of Fort Worth, Big Brown shares with Martin Lake the dubious distinction of having been named by the Environmental Integrity Project as one of the worst polluting coal-fired plants in the country, not just for sulfur dioxide, but also for carbon, which affects global warming, and nitrogen oxide, which contributes to smog, one of the most serious air pollution problems in North Texas.

In the late 1960s, TXU lobbied successfully to get permits for the Big Brown plant approved just under the wire before passage of the Clean Air Act raised the standards on power plant emissions. Because it was grandfathered under the old rules, Big Brown is allowed to emit sulfur dioxide at more than twice the rate of its newer counterparts. Mostly, it stays within those emissions limits. But if it were subjected to the same rules that govern Martin Lake’s pollution, Big Brown would be breaking the rules virtually all year long.

In all, 19 coal-fired power plants currently operate in Texas, including the four owned by TXU. Texas has more plants on the list of top carbon dioxide polluters than any other state, and three of the five plants on the list are owned by TXU. According to 2005 figures from the federal government, Texas emits more carbon dioxide than any other state in the country — 70 percent more than California, the next highest state.

It’s those kinds of facts and figures, and the suffering of kids like Jesse Hanson, that convinced a coalition of environmental groups to appeal the granting of permits for two TXU coal-burning plants at a site called Oak Grove in Robertson County, which stands to threaten air quality in Austin and Dallas, and to fight Governor Rick Perry’s fast-tracking of the TXU plant permits.

Neil Carman, air program director for the Texas chapter of the Sierra Club, worked as a TCEQ investigator for 12 years. He believes the Center’s findings — the discrepancies in TXU’s excess emission reports and the lack of enforcement by TCEQ — provide a missing piece of TXU’s environmental record and should be considered during the citizen appeal against Oak Grove. And former EPA official Schaeffer said the findings show the need for TCEQ — and the legislature — to rethink whether TCEQ’s self-reporting system actually works.

As the battle between TXU and the environmental community over proposed new power plants wore on, the Center for Public Integrity was filing dozens of requests under state and federal public information laws, for hourly emissions records and enforcement reports in Texas.

In the summer of 2005, TXU had originally proposed to build a whopping 11 new coal-fired power plant units across Texas. The proposal caused an uproar, with citizens ranging from ranchers to businesspeople turning out to voice their opposition in hearings and demonstrations. Some were so vehemently opposed to the plan that they took part in a hunger strike in front of the Texas statehouse. But Governor Perry, a major recipient of TXU political support, moved to put the permits on a fast track, shortening the period for hearings and other public input.

The battle took a surprising turn in February 2007 when two private equity groups, the Texas Pacific Group and Kohlberg, Kravis, and Roberts, bought out TXU and announced plans to reduce the construction agenda from 11 to three new plants. The change was hailed by many in the Texas environmental community as a victory, but some remain concerned about the pollution potential of the three remaining plants.

State administrative law judges recommended that TXU’s permit applications for two of the three remaining plants, both located at Oak Grove, be denied because the company had failed to prove that its proposed emission controls would work properly.

The TCEQ board of commissioners, however, overrode that recommendation in June 2007, and approved the two permits. Although the Oak Grove permits are being appealed in court, the plants are now under construction.

In making that decision, the TCEQ commissioners cited the agency’s ability to enforce federal emissions limits. “I think the permits are strong. And to the applicants, if you can’t meet these limits, then you can’t operate,” said TCEQ Commissioner Buddy Garcia after the approval. But the records obtained by the Center raise questions about both TXU’s environmental record and TCEQ’s own enforcement record — questions not addressed in the hearings process.

In an e-mail, TCEQ spokeswoman Daphne McMurrer wrote that the agency only challenges a report submitted by a power plant operator if conflicting information is presented to TCEQ staff. And staffers themselves do not check the hourly emission records against what the company reports to TCEQ, even though the records are easily accessible on the EPA web site.

And so, in 2003, when TXU reported to the state agency that its Martin Lake plant had released twice as much sulfur dioxide on October 20 as allowed, TCEQ failed to look at the EPA records and find out that the actual release was more than eight times the legal limit. And TCEQ levied no fines or other penalties against TXU for what it did report.

In her e-mail, McMurrer attributed the disparity between what TXU reported on October 20, 2003 and what is in the agency’s own records to "inaccurate reporting by the company." She expressed confidence that the potential penalties associated with inaccurate reporting provide enough incentive to keep polluters honest, but she acknowledged that TXU was never subjected to such a penalty for its underreporting.

Dr. Jeffrey Levin, an occupational health expert based at the University of Texas Health Center at Tyler, said that the new data on the company’s emissions should be incorporated into any further review of TXU that may result as part of the appeal against construction of the plants at Oak Grove. “If you [TXU] are one to exceed what your permit says you are able to do and you do that without particular concern, then I think as a society we should look at that in the future and decide whether or not we want to grant that authority again,” said Levin.

The discrepancies between TXU’s state and federal emission reports also skew the record on the utility’s compliance history, say activists, as do time limits on a company’s record. TCEQ rules dictate that only the last five years of a company’s pollution record can be considered in the permitting process. “It’s pretty outrageous that a company’s environmental record can be wiped clean after five years,” said Carman, of the Sierra Club.

Although TXU filed reports the state now calls inaccurate, it is questionable whether or not the company would have been fined if TCEQ had known the truth about its pollution levels. When TXU did tell TCEQ it had surpassed its permitted limits, the state agency used a controversial loophole in Texas state law — since declared illegal by the EPA — that allowed for increased levels of pollutantsunder certain circumstances.

In March 2003, environmental groups lodged a series of complaints in the Federal Register, one of which claimed that the loophole was illegal and allowed TCEQ to avoid proper enforcement of the federal Clean Air Act. EPA agreed with the environmental groups, and gave TCEQ a deadline by which the state agency either had to revise the rule or allow it to expire. TCEQ never revised the rule, and it expired in 2006.

During the ten years before the loophole expired, TXU put over 1.3 million pounds of excess sulfur dioxide into the Texas atmosphere, with no regulatory repercussions. More than 1 million pounds of it came from one plant — Martin Lake. Most of the time, the excess would have been marginal, but not on days like October 20, 2003, when Martin Lake went more than eight times above its federal limit.

Short-term exposures to such spikes in air pollution can be harmful to human health, says former EPA enforcement chief Schaeffer. “Its like being pulled over for driving 150 miles per hour in a school zone and you say to a cop that 99 percent of the time you are within the speed limit. You would be handcuffed and the cop would laugh.”

Perhaps more importantly, TCEQ’s failure to act may have denied Texans a chance to force utility officials to clean up their act long-term, Schaeffer said. The excess emissions and threats of fines could have been used to induce TXU to install better air-scrubbing equipment on its dirtiest plants, he noted.

Carman blames TXU’s record on lax enforcement by state authorities. “They are trying to pass the buck on to TXU, and I think that is bogus,” the Sierra Club official said. When he was a TCEQ employee, he said, he was trained to make sure that polluters accurately reported their emissions. “These people are on the front lines of air enforcement,” he said. “What the heck are they doing?”

TCEQ’s McMurrer, in her e-mail, also pointed out that citizens can register complaints about air pollution through the TCEQ hotline and web site, and that citizens can also challenge the accuracy of utility air pollution reports. But environmentalists counter that it’s irresponsible for TCEQ to say it will only question a utility’s emission report if someone in the general public — rather than TCEQ’s own staff — presents evidence to challenge company reports.

Environmentalists said average citizens stand little chance of being able to determine whether a power plant is exceeding its pollution permit or to evaluate reports submitted by power plant operators. “It’s a dereliction of duty for TCEQ to rely on citizens to do their dirty work,” said Ilan Levin, a Texas-based environmental lawyer who works for Schaeffer’s Environmental Integrity Project.

TXU was by no means the only polluter given a free pass by TCEQ. The records gathered by the Center show that, again and again in Texas, air quality enforcement came at the point of a citizen lawsuit, not from the agency.

The Texas chapter of the Sierra Club and Public Citizen, for example, sued the American Electric Power company for a federal permit violation — releasing more carbon monoxide and soot than it is allowed, at a plant not far from Martin Lake. The lawsuit was later settled.

And in fact, the worst single polluter, in terms of excess sulfur dioxide emissions during the period of the Center’s analysis, was a power co-operative based in the small South Texas town of Christine. The San Miguel Electric Cooperative was the only plant penalized — $57,200 for emissions of sulfur dioxide and other pollutants — and had the most emission violations, more than 10,000 over a ten-year period.

But even that penalty, stiff by TCEQ standards, seemed to have little effect, and didn’t even address some of the utility’s worst overages. San Miguel also continued to exceed its sulfur dioxide limit even after the penalty was assessed in 2000.

Company officials say the plant is in compliance today. “Since we were penalized, we have reduced emissions, and addressed the problem that caused the excess SO2 emissions,” said Joe Eutizi, engineering manager of the San Miguel cooperative.

Then there are Texas’ oil refineries. In January, the Sierra Club and Environment Texas filed a lawsuit against Shell Oil Company claiming the company exceeded its permitted limits on several air pollutants, including benzene, a toxin that causes cancer. The environmental groups allege that Shell self-reported excess emissions to TCEQ that amount to 1,000 separate violations stemming from unauthorized bursts of air pollution caused by maintenance and refinery malfunctions.

In an e-mail, Dave McKinney, a spokesperson for Shell Oil Co. wrote, “The figure of 1,000 violations is greatly overstated and occurred over a period of five years. Many of the reported emissions cited in the lawsuit were authorized or within our permit limits. In some cases single emission events were reported by Shell several times as part of the reporting process.” He went on to say that 12 percent of the total emissions overages occurring between 2003 and 2007 were related to Hurricane Katrina.

Overall, according to a 2004 report by the Environmental Integrity Project, during 2004 more than 45 million extra pounds of pollution were released by 28 Texas oil refineries due to these spikes, which TCEQ calls "emissions events." As with power companies, TCEQ has not challenged the oil companies’ explanations for these events and rarely imposes any kind of penalty or enforcement action.

Cleaning up emissions from electric utilities and refineries would cost those industries many millions of dollars. And environmentalists point out that, like the oil companies, which historically have been some of the biggest players on the Texas economic stage, TXU is a political powerhouse that has spent plenty of money over the years lobbying to make sure that Texas clean-air laws and enforcement are weak.

As the largest energy provider in Texas, TXU has established an exceptional degree of influence in the Texas statehouse, through a network of high-profile lobbyists and political connections.

In spring 2007 when legislation to increase public oversight over the TXU buyout process was pending in the Senate, TXU and its buyers unleashed a powerhouse lobbying team including former state legislators Curtis Seidlits, Jr., Rudy Garza, Eddie Cavazos, Paul Sadler, and Stan Schlueter, and former Dallas Mayor Ron Kirk.

According to Texans for Public Justice, TXU and two investor groups spent approximately $17 million during the 2007 Texas legislative session on lobbyists, advertising, food and beverages, entertainment and gifts – including sending 2,400 tacos to legislators and their aides on the first day of the session.

TXU is never a slouch when it comes to lobbying. During the 2006 election cycle, according to another Texans for Public Justice report, TXU gave contributions to all but seven members of the Texas Legislature.

In October 2005, two years before the buyout of TXU was officially announced, Perry issued an executive order shortening the permitting process for TXU’s proposed new coal-burners from 18 months to six. That same day, former TXU CEO Earl Nye cut a $2,000 check to Governor Perry’s campaign fund. And the year after Perry expedited TXU’s permit, the company’s political action committees and its executives contributed over $100,000 to his campaign.

Environmentalists allege that part of the reason that TXU has made a full-court press in the last two years is due to the chance that Congress may pass carbon-regulating legislation in the near future, which could stymie their plans to build more plants.

“It was clearly part of the plan to get the original 11 [new] plants permitted and under construction before carbon legislation passed the [U.S.] House," said Tom "Smitty" Smith of Public Citizen. “But when the Democrats took control of Congress in November 2006, their free ride quickly came to an end, and that might be the underlying reason why they scrapped plans to build all 11 plants.”

Many observers see a direct parallel with a similar push the company made in the late 1960s and early 1970s. TXU, then a group of electric utilities under one corporate umbrella, fought to ensure that a few planned plants be approved ahead of the passage of the Clean Air Act, which occurred in 1970. Their effort was successful: The company’s Martin Lake, Monticello, and Big Brown plants were all permitted and built in that era, and all of them are currently among the dirtiest plants in Texas.

As public awareness about air pollution — the effects of carbon dioxide on global warming, the heavy price that North Texas cities will have to pay economically if their air isn’t cleaned up, the health effects of sulfur dioxide and other pollutants — Texas’ status as a dirty-air state has become increasingly problematic. And the controversy over TXU’s old plants and new ones, and TCEQ’s enforcement record continues to heat up.

Karen Hadden, executive director of the SEED Coalition, an Austin-based environmental group, is especially concerned about the expected mercury levels to come from two of the new plants to be built at Oak Grove, about 115 miles northeast of Austin. “This will be one of the largest mercury polluters in the nation,” said Hadden. Studies have shown that exposure to mercury, a neurotoxin, can stunt mental development in children. For its part, TXU says it is working to cut emissions by installing new technology. Kleckner says TXU has promised to cut coal plant emissions of nitrous oxide, sulfur dioxide as well as mercury by 20 percent from 2005 levels. “We know of no other company that has made such as significant commitment,” he wrote in an e-mail statement.

At UT-Tyler, Dr. James Stocks, head of the school’s Texas Asthma Camp for Kids, said that the sheer volume of pollution that the power plants are allowed to put out legally is more troubling to him than questions about over-the-limit emission incidents. “The fact that TCEQ hasn’t penalized them doesn’t bother me at all,” Stocks said. “It’s that we allow too much in the first place.”

Now families across Texas like the Hansons, who live in the shadow of enormous power plants with outdated pollution control technology, grow increasingly skeptical of the state’s assurances that their health and environment is protected.

So the Hansons take what precautions they can, when the smoke from Big Brown rolls their way. They keep Jesse indoors, have his medication ready, and if need be, are prepared to call the police to warn them that they will be speeding down the highway to take Jesse to the hospital — always worrying that each trip to the emergency room might be their last.