Springer’s Senate Bill 471 would amend the water code to assess a fee against anyone who files three or more TCEQ complaints about the same issue in one calendar year that result in no enforcement or corrective action by the agency. The fee would be less than or equal to the cost of investigating the complaints.
Kathryn Bazan, a former TCEQ employee and current chair of the Dallas Environmental Commission, said the bill would create an extra burden for people looking for the state agency to address their concerns.
“I think that repetitive complaints are not necessarily indicative of vexatious complainants,” Bazan said. “I think it’s indicative of a disconnect between what the TCEQ can and should be doing for them and what the TCEQ believes it can and should be doing for community members.”
She said the disconnect is that the agency doesn’t always believe that what is being reported constitutes a violation of the Federal Clean Air Act or TCEQ enforcement policy. Under this bill, Bazan said people would have to know more about federal air quality regulations and how the TCEQ handles complaints if they hope to avoid a fine. “This bill places an inequitable burden on communities to learn Federal Clean Air Act regulations and TCEQ enforcement policies, which is something I don't think most legislators themselves are willing to do,” Bazan said.
“You go outside and you smell an odor or you see a visible emission, you should be able to report that to your state agency for further investigation,” Bazan said. “You shouldn't have to first go and look up that very specific permit and all of the permit conditions that are very technical in most cases to understand whether or not your complaint will result in a violation.”
Bazan also said the bill has implications on the confidentiality of these complaints. “The bill would require a breach of the confidentiality that the TCEQ maintains in its complaint process, which protects community members and employees at that facility from retaliation,” she said. This would likely result in complainants not giving their contact information or not complaining in the first place. If they don’t give their contact information, investigators won’t have anyone to follow up with, Bazan said. This could make it more likely for the investigation not to result in a violation.
On top of all of this, Bazan said there are plenty of reasons it could take multiple complaints to get any action from the TCEQ. She said there was a local batch plant that was illegally operating, and it took numerous complaints from both residents and herself before any action was taken.“You go outside and you smell an odor or you see a visible emission, you should be able to report that to your state agency for further investigation." – Kathryn Bazan, Dallas Environmental Commission
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For one thing, the bar for what’s considered a violation can be subjective. The TCEQ’s odor nuisance policy, for example, says that if someone complains about an odor, alleging it is causing them adverse effects, the investigator has to experience the same thing in order to secure a violation. “You have so many various layers as to whether or not a violation can be confirmed,” Bazan said.
The Sunset Advisory Commission’s review of the TCEQ cited inefficient administrative processes and the increased strain of nuisance-based complaint investigations that diminished the agency’s ability to monitor compliance and take necessary enforcement measures. According to the commission, which periodically reviews state agencies, the TCEQ conducted more than 117,000 inspections in fiscal year 2021. About 4,750 of those were based on complaints the TCEQ received. The commission recommended the agency change its approach to nuisance complaints to make better use of investigative resources.
In an emailed statement, the TCEQ said the bill would not change how the agency handles complainant information or the ability to file complaints anonymously. “If the bill passed, TCEQ would work towards implementation, including a review of policies and procedures related to complaints,” the agency said.
Springer’s office didn’t respond to a request for comment, but he discussed his bill during a meeting of the Senate Committee on Water, Agriculture and Rural Affairs on Monday. He gave an example of two people who filed 39 complaints in 2022 against the same asphalt operator, resulting in no findings by the TCEQ. From December 2019 to the present, Springer said there have been 44 complaints filed by eight individuals in the Dallas-Fort Worth area that resulted in no findings of air quality violations.
He said these are examples of vexatious complaints for which people should be fined. The TCEQ would be tasked with establishing a fee for each type of complaint, with each fee less than or equal to the cost of investigating the complaints. Springer said investigations can cost anywhere between $700 and $9,000. The commission could also decide to waive the fee “for good cause,” Springer said. He said he wants the TCEQ vexatious filing rules to be more like what the court system has to make the process “more tried and true and more fair and equitable.”
“We have a finite amount of resources to investigate things,” Springer said. “Those finite amounts of resources we have at the state [level] would be better served investigating other things that the agency sees as potentially a real threat to our environment,” he said.
Springer said he’s not trying to discourage people from filing legitimate complaints.
“I’m just trying to find a common ground here,” he said. “We’re not trying to say you can’t file complaints. Look, if you think something’s wrong, we want to hear from you. But when we’ve done it over and over and over again, I think it gets to the point that we’re getting abusive and weaponizing the agency.”
Three people turned out to testify against the bill on Monday. No one from the public testified in favor of it. Danielle Goshen, the policy specialist and counsel for the National Wildlife Federation, told the committee Monday that the bill discourages public engagement. “There’s many reasons for people to file multiple complaints,” Goshen said. “There could be another complaint about the same subject. There could be more evidence that was found. So, we just really hope people aren’t discouraged from participating."
She added, “I understand that the TCEQ needs more resources for investigation. I think that should be more of the focus instead of really punishing folks if they’re filing multiple complaints.”
Tim Doty, a former TCEQ employee, also testified against the bill Monday. “The proposed legislation could unnecessarily punish economically challenged communities living adjacent to big polluters,” he said.“We’re not trying to say you can’t file complaints." – Sen. Drew Springer
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Mary Evans, an economist and professor of environmental economics at the LBJ School of Public Affairs at the University of Texas at Austin, told the commission she's been researching environmental policy for 20 years. She and her colleagues have looked at tens of thousands of complaints submitted to the TCEQ from 2003 to 2019. What they found was that investigations resulting from these complaints uncovered violations more often than investigations the TCEQ conducts for other reasons. These complaint-prompted investigations are also more likely to uncover serious violations.
Evans said while she understands that the TCEQ doesn't have unlimited resources, she doesn't think SB 471 is the solution. "I'm an economist, so I do recognize the TCEQ doesn't have unlimited resources to respond to citizen complaints," Evans said. "However, the bill as written risks creating a chilling effect that may result in Texans hesitating to report important, valuable information to the TCEQ."
The bill is still in committee and was left pending on Monday. SB 471 would take effect on Sept. 1 if passed and signed by the governor.
