Harris County officials are using flood control regulations passed after Hurricane Harvey to delay the reopening of two chemical companies where fires erupted in recent weeks, killing one worker and sending large plumes of black smoke into the Houston area.

The Harris County Attorney’s office cited the post-Harvey rules on floodplain construction and stormwater drainage in its civil lawsuits against KMCO and Intercontinental Terminals Co., where cleanup is still ongoing after the fires.

“We don’t shy away from going after the biggest, baddest companies out there,” said Harris County Attorney Vince Ryan. “It sends a message to everyone.”

The county is digging through maps and available data to determine if both companies are in a floodplain. The new regulations put chemical facilities that are in a 500-year floodplain under tighter scrutiny.

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The drainage rules restrict discharges of hazardous materials into the county’s stormwater system. If a company is found to have discharged hazardous materials, it can be cited by the county. Larger releases could lead to additional legal action.

The floodplain rules apply to more than facilities with fires and toxic releases and can force companies to meet new requirements when seeking to expand or change an existing facility, said Rock Owens, managing attorney for the Harris County Attorney’s environmental section.

The new rules were used in the county’s suit against the Arkema facility in Crosby that caught fire in the aftermath of Harvey after losing control of its stores of organic peroxides. The site had a 40-year history of flooding and its former insurer FM Global warned the company it was in a floodplain in a 2016 report to Arkema.

Nonetheless, the company did not have the proper permits for operating in a floodplain and must now clear all floodplain rules before resuming operations.

A Houston Chronicle report in 2016 found there’s a major chemical incident every six weeks in the greater Houston area.

The report, researched in coordination with Texas A&M University, evaluated facilities based on the potential dangers posed by chemicals on site and the number of people who lived nearby. The analysis found there were 55 chemical facilities with high potential in the greater Houston area, with 35 percent of those facilities located inside the 100- or 500-year floodplain.

About one in five of the more than 500 facilities that posed a medium potential for harm are inside the 100- or 500-year floodplain.

String of new legislation

For most of the history of environmental law in Texas, local governments have had the authority to penalize companies for violating state regulations, according to Cathy Sisk, retired chief of the environmental division of the Harris County Attorney’s Office.

Local government would file suit, include the state as joining local officials in the lawsuit, and then both would resolve the suit through a trial or settlement. If the case closed with a penalty, the state and the local government would each get half of the fine.

“The main goal of penalties were to pose as deterrents to bad behavior,” Sisk said.

But in 2015, the state Legislature started taking away authority from the local governments. Lawmakers approved a bill capping the amount of money a local government could receive from civil penalties sought in environmental cases.

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In 2017, another bill passed forcing local authorities to ask permission from the Texas attorney general before seeking penalties. If the attorney general’s office does not file its own suit in 90 days, the local government can go forward with a civil suit.

Lawmakers are currently considering two bills that would restrict local governments even more.

House Bill 3981, filed by state Rep. Jeff Leach, R-Plano, would give the attorney general the authority to settle lawsuits started by the county, without the approval of the county.

House bill 2826, filed by state Rep. Greg Bonnen, R-Friendswood and three others, would let the attorney general prohibit the county from hiring outside attorneys on cases.

“The concern isn’t that the local governments are intentionally causing any problems with these suits, just that a more efficient state-led effort may at times be more desirable,” said Justin Till, Bonnen’s chief of staff.

The restrictions have left county officials looking to other enforcement tools, such as the floodplain regulations, to regulate the chemical industry.

“We don’t have to ask the AG’s office for permission to do this kind of enforcement,” Owens said.

‘Keep the conversation going’

There are limits to the new regulations, however. Facilities have to be in unincorporated Harris County and in the 100- or 500-year floodplains.

And the city of Houston has authority over any facilities that are within 2,500 feet on either side of the center of the Houston Ship Channel, according to Owens.

“That’s still a huge part of Harris County,” Ryan said.

The county attorney said it’s a constant challenge to make sure everyone in the petrochemical industry is following the rules. His office deploys five attorneys that are frequently involved in enforcement actions against companies large and small. That’s on top of the county’s Pollution Control Services Department.

“For every enforcement action against a big facility, there’s five or ten going out to smaller or medium sized companies,” Ryan said.

Not all are bad actors though.

Owens said the county’s goal is compliance. If a company has some permitting issues but is not a habitual violator, the county will work with the company to get in compliance.

Craig Beskid, executive director of the East Harris County Manufacturers Association, says the organization and its members work with regulatory agencies like the county all the time.

The organization represents 90 companies and 130 facilities in the area. On behalf of its members, it focuses on health, safety, security and environmental issues. As far as the county using new regulatory tools on the industry goes, “we’re happy to keep the conversation going on,” Beskid said.

The conversation changed some when a new administration swept into office after the 2018 elections.

Harris County Judge Lina Hidalgo and a number of new county commissioners have put an emphasis on environmental enforcement.

“We live in the petrochemical center of the world,” Hidalgo said recently, “and protecting the health of our residents and the environment are top priorities.”

matt.dempsey@chron.com