Marty Schladen

El Paso Times

AUSTIN — Add Texas’ top environmental regulator to the list of state agencies that appear to have few, if any, records of massive spills of oil and toxic chemicals photographed by the Civil Air Patrol in recent years’ flooding.

The Texas Commission on Environmental Quality is supposed to be the agency that coordinates the response to spills, but it refuses to say whether it has any record of the scores of oil slicks and inundated fracking sites photographed during flooding on the Trinity, Sabine, Colorado and Red rivers in 2015 and 2016.

It instead referred questions to the Texas Railroad Commission, an agency that this year was again slammed by a legislative watchdog for woefully inadequate record-keeping and enforcement when it comes to spills of oil and toxic chemicals into Texas waterways. In its response, the Railroad Commission said the review, “misinterprets, and misapplies portions of the procedures, data, and practices of the commission,” but it said the report represents an opportunity for the commission to improve.

The state’s apparent blindness to many of the spills photographed by the Civil Air Patrol is alarming, a long-time environmentalist said.

It comes at a time when the number of oil and gas-production sites has exploded while Texas has been repeatedly stricken by historic floods. The problem was made worse when energy prices plummeted last year, crippling some producers’ ability to clean up after themselves, said Ken Kramer, water resources chairman of the Lone Star Chapter of the Sierra Club.

“In some ways, it’s virtually a perfect storm,” Kramer said.

He added that the situation might have gotten so out of hand that “it may be impossible to avoid public impacts in weather events.”

Indeed, state officials on Friday said they are investigating a 50-foot sheen spotted by fishermen in the Gulf of Mexico as the possible result of an inland spill during the state’s most recent floods.

Regulatory gaps

The El Paso Times in May began reporting on big spills photographed during floods since 2015 on Texas waterways.

The Railroad Commission, the agency responsible for regulating the oil-and-gas industry, reported having some records of cleanups from some spills. But in at least one instance, even though it had a cleanup report, the spill was not listed in the agency’s spill database.

Just after the Times began reporting on the photos, the Department of Public Safety, the agency responsible for coordinating disaster response, removed them from public view on a University of Texas website, citing privacy concerns.

The paper editorialized that it would be useful for the public – especially those affected by flooding to be able to see them.

During the most recent flooding of a huge swath of Texas, Department of Environmental Quality spokeswoman Andrea Morrow said TCEQ is the lead agency when it comes to responding to spills, but it is the Railroad Commission’s responsibility to make sure they’re cleaned up.

But she wouldn’t answer repeated questions asking whether her agency had any record of the many oil spills in the photos or whether TCEQ did anything to monitor the Railroad Commission’s response to them.

“The TCEQ works with other state agencies as part of the state’s Emergency Management Council during emergency situations where responses are coordinated using all relevant data,” Morrow responded via email after being asked a third time. “Any relevant information pertaining to spills is evaluated and appropriate action is taken by TCEQ or other members of the council. The TCEQ, as the state’s primary agency for Hazardous Materials and Oil Spill Response, is responsible for state-level coordination of incidents to ensure the lead agency (agency with jurisdiction), as designated by statutes, is responding or, to determine jurisdiction and facilitate the response.

“As we’ve told you before, the (Railroad Commission) has jurisdiction over oil and gas production sites and oversees clean up where warranted. The TCEQ assists the (Railroad Commission) when requested to do so.”

Pressed again on whether TCEQ had any record of the spills, Morrow responded, “I don’t mean to be confrontational either but the Texas Railroad Commission has jurisdiction. I suggest you talk to them.”

Kramer, of the Sierra Club, said the responses were clearly inadequate.

“I would think TCEQ would be able to at least tell you what role they have been playing,” he said. “If TCEQ had been interacting with the Railroad Commission they should be able to tell the public about it.”

The unique politics of Texas have long hamstrung the environmental agency when it comes to oil — and now fracking fluid — escaping into state waterways, said Kramer, who has been with the Sierra Club since the 1970s.

Who should have primacy on water-quality issues “has been an issue for decades in Texas,” Kramer said. “It’s testament to the ongoing influence of the oil and gas industry that they have been able to promote the Railroad Commission as the agency.”

The Railroad Commission has been accused of being too cozy with the industry it regulates. Last year, each of the three commissioners received most of his or her campaign funds from the energy industry.

“The oil and gas industry naturally favors the Railroad Commission,” Kramer said. “The oil and gas industry thinks of the Railroad Commission as an agency to protect the industry, not the public.”

Scathing review

When the Texas’ environmental regulator refers questions about oil spills to the Railroad Commission, it’s referring them to an agency with an abysmal record of documenting spills or penalizing companies that pollute, according to a report this year by the Sunset Review Commission, a legislative watchdog that periodically reviews state agencies to determine if they’re effective – or even necessary.

Ramona Nye, spokeswoman for the Railroad Commission, has said it’s a violation of commission rules any time oil and chemicals are spilled into the environment – regardless of whether raging floodwaters are the cause.

However, the commission doesn’t maintain a count of major violations that are reported by its own inspectors, the Sunset Advisory Commission said in a review published in April.

“While the Railroad Commission tracks the number of violations by rule, violations of a single rule may vary from a small oil spill next to a tank battery to failure to report a large spill that contaminates freshwater,” the report said. “The Railroad Commission tracks the number of major violations referred to the Enforcement Section, but does not track the total number of major violations cited by field inspectors. In fiscal year 2015, inspectors referred 842 major violations to the Enforcement Section, but more than 37,000 citations could have potentially qualified as major violations under the Railroad Commission’s definition.

“Without a sound process for distinguishing between minor and major violations and tracking the number of major violations cited, the Railroad Commission cannot guarantee that major violations are being appropriately addressed.”

In its response, the commission seemed to deny this was a problem.

“The Railroad Commission already systematically tracks all violations, whether major or not, and takes appropriate enforcement action,” it said. “All unresolved violations of pollution or safety rules are referred for administrative penalty action, and some serious violations, such as intentional or repeat violations, are referred for administrative penalty action even after they have been corrected. Like most enforcement authorities, the commission exercises enforcement discretion in determining the nature and degree of enforcement action required in particular circumstances.”

Bad numbers

Perhaps worse for the Railroad Commission, the sunset review said that until very recently, the commission reported wildly inaccurate figures for the number total violations that occurred.

“The Railroad Commission struggles to report reliable data,” the sunset review said. “Since at least 2010, the Railroad Commission has reported to the public on its website, the Legislative Budget Board, and multiple sunset staff review teams a number of oil and gas enforcement violations. Railroad Commission staff now indicates this number is incorrect. The unreliability of this data point — how many oil and gas violations occurred in Texas last year — only came to light during the last week of a seven-month review despite considerable effort to obtain this number.

“The difficulty accurately providing basic data after so much time and attention has been focused on the agency’s enforcement perpetuates concerns about the commission’s overall data capability and accuracy.”

The sunset review also said that the Railroad Commission had not followed recommendations it had made in 2011 and 2013 to levy more fines against energy companies that violate pollution rules. The commission instead focuses on bringing violators into compliance, the review said.

“This lack of data is concerning because certain violations pose such a threat to public safety or the environment that requiring operators to come into compliance alone is not enough,” the review said. “While the Railroad Commission places a strong emphasis on bringing operators into compliance with regulations, this emphasis does not always incentivize operators to comply with regulations in the first place because operators have a reasonable expectation they will likely not be penalized.”

Despite the criticisms, the Railroad Commission said its “highest priority is protecting public safety and the state’s natural resources through science-based rulemaking and aggressive enforcement of state and federal laws regulating the exploration and production of oil and gas. The oil and gas industry is rapidly evolving in its development and use of technology, and the commission regularly reviews and updates rules to ensure thorough, effective regulation of the industry. As a result of this comprehensive approach to rulemaking and enforcement, the Commission is widely recognized as a global leader in energy industry regulation.”

Marty Schladen can be reached at 512-479-6606;mschladen@gannett.com; @martyschladen on Twitter.