Episode 3: Regulator Whistleblowing Part 1

Episode 3: Regulator Whistleblowing Part 1

Tim Doty worked at the Texas Commission on Environmental Quality for nearly three decades because he believed in the agency’s mission to protect Texans’ public health and natural resources. But he retired after it became increasingly clear that the agency’s leadership had little to no interest in proactively monitoring, documenting and minimizing air emissions in Texas.

Listen and subscribe now via Apple, Spotify, Google Podcasts, Amazon Music, Podcast Index, Stitcher, Pandora, TuneIn, Deezer, or iHeartRadio.

Episode Transcript

(music)

Tim Doty: Well, I would say that things seem to change… well, to be candid with you, seemed to change with the fracking boom in Texas. You know, when all that happened, things changed at the TCEQ. It became not politically palatable. And we came back and said, holy cow. You just can’t imagine what’s out there and what we’re seeing and detecting and all that kind of stuff. Pictures were taken of employees in the field with respirators and that didn’t go over too well, meaning that it brought… it alarmed the public, it made it politically unpalatable in the agency that that happened. You know, respirators were taken away from all employees, right? And we were told not to take samples. And still to this day the TCEQ has not re-implemented respiratory protection for any of its employees. But that agency, you know, is highly controlled in a highly political environment. Retaliation is not uncommon. Yeah, make no mistake about it. The TCEQ is in business to permit industry. That’s their number one function. 

(music)

Miguel Escoto: Welcome back to the show. So far, we’ve covered the horrors of the Permian Basin oil and gas shale, the climate and health impacts of fossil fuel production at the oil patch, and we’ve provided a deep dive into the loopholes of the state environmental regulatory system. For the next couple of episodes, we will speak to two former TCEQ regulators who have opened up about the negligence they’ve witnessed at this state agency. We will learn about the agency’s internal politics, their culture and relationship with fossil fuel corporations. It’s important to keep in mind that this fossil fuel captured state agency doesn’t only affect Texas. Because so much of federal environmental regulation comes down to state enforcement, the TCEQ’s relationship to oil and gas companies affects the entire country, the entire world, really. Texas is home to some of the worst polluting oil and gas shales like the Permian Basin and the Eagle Ford that emits global scale levels of methane emissions. So when you listen to these regulator whistleblower ears, keep that in mind. The emissions from Texas oil fields affect the entire world. To kick us off, we’ll start with my conversation with Tim Doty, a former TCEQ employee who worked at the agency for decades. During his time at the agency, he worked hard to serve the public and value health and environmental protection over corporate profits. It became clear to Tim, however, that the TCEQ did not hold the same priorities. 

(music)

Miguel Escoto: Great. So Tim, thank you so much for joining us on this episode. As someone who has led a major air quality division within the TCEQ, your perspective is very important in helping us understand what this agency is like from the inside. You know this agency that is tasked with regulating this polluting industry of oil and gas. We’re very appreciative of you being able to be on this episode and tell us about what it was like from the inside. So to kick us off, would you mind giving us a bit of your background regarding your work in the TCEQ? How long have you worked there? What inspired you to join the agency?

Tim Doty: I first started working, I guess, for the state of Texas at the Texas Air Control Board in 1990. In the early 1990s, around 1992 or so, the Texas legislature combined resources and made one all-encompassing environmental agency, which was, you know, water issues, air issues, and then the solid waste program. Around 1992, there was what used to be called the Texas Natural Resource Conservation Commission, which is a mouthful. And so eventually that changed names to the Texas Commission on Environmental Quality, often known as the TCEQ. And so I worked at the TCEQ and retired in August of 2018 after 28 plus years doing environmental work. During that time period, I managed the large ambient air mobile monitoring trips to large industrial areas from about 1990 to until about 1999, when I became the mobile monitoring team leader for organic monitoring projects. And then in 2002, the agencies… there were two different teams… they were combined into one, and I became that team leader also over the inorganic monitoring stuff. So I remained basically the TCEQ’s mobile monitoring team leader from 1999 until 2015, so 17 years, which means I managed field projects, but also managed the ones that I led and also my team lead, strategized how to do the trips and all that kind of stuff.

Miguel Escoto: So, similar to Sharon Wilson, as we’ve discussed in this podcast, you’d go out into the field with this handheld OGI camera, right, to look for emissions from oil and gas sites?

Tim Doty: Yeah. So that started in about 2005 when the TCEQ invested in two infrared cameras. Back then, it was a FLIR, a gas finder camera. So the Houston regional office bought one. And the monitoring division in the central headquarters in Austin, Texas, bought another one. And so we helped, you know, explore that new technology, right? It was that it was the newest and the greatest. And it literally allows the visualization of, you know, hydrocarbon compounds in a certain spectral range between 3.2 and 3.4 micrometers in the infrared spectrum. So you can literally see what you can’t see through to the bare eye. You can see with this camera, right, the emission plumes, where they’re coming from, how intense they are, etc.. And so at the time, the TCEQ was kind of at the forefront again. This was new technology in a handheld format. And so we helped implement its use in the state of Texas right. In the beginning, it was all exploratory. You know, we knew theoretically what it could detect. But until you go out and actually use it in the field, it’s, you know, was tough to describe.

And so we used it in, you know, chemical plants and refineries and oil and gas operations, and we used it in emergency response applications. Anway, the TCEQ became, you know, kind of at the forefront of all this and we participated in early work groups with the regulated community and environmental groups and the EPA and all that kind of stuff, and developed its use and implementation with the state of Texas. And we tried to look and solve problems — where actually there before when we were only able to measure concentrations of certain chemicals downwind of, you know, infrastructure — we were now able to better pinpoint it and see it literally see it with this camera to figure out where the emissions were coming from, whether that was a flare or storage tank or something along that aspect.

Miguel Escoto: So even dating back to the mid 2000s, we have this great technology that the state of Texas is trying to… investing in and trying to advance. How has that changed over time? How did the TCEQ use response and application of this technology evolve, devolve over time in your experience?

Tim Doty: Yeah. So I mean, the TCEQ wasn’t by itself, but in essence this technology was sold to the public and of course industry bought the technology just like everybody else. You know, they’re trying to save money and trying to prevent certainly, you know, safety issues and that kind of stuff. So in the early days, it was a you know, I’m talking like 2005, six, seven, it was a very exploratory technology to where there would be technical roundtable meetings in Texas with the EPA and the different industries and the affected parties about how best to use the technologies, lessons learned, that kind of stuff. And so that morphed itself into the federal government, you know, establishing an alternative work practice program toward this OGI technology was used in place of or a supplemental means to do leak detection and repair in refineries and chemical plants. And of course, there was, you know, a lot of hesitation to do that because, you know, unlike other technologies, you actually get potential recording of videos and documentation and all that which, you know, not all companies are happy with. And so there was a rulemaking to put this technology into place, in an alternative work practice means. And then back then, you know, again, this was the early days, right? So the mobile monitoring team… I actually had the ability because I had Texas resources to, you know, when we went out and detected hydrocarbon emissions, there were a lot of declarations about we were seeing steam or, you know, that it was just heat and that kind of thing. And so there was a lot of ability and a lot of folks – some out of just not knowing about the technology, but some purposeful too — you know, just misrepresent some stuff that was being detected.

And so where I was going with that is, you know, I help manage a lot of resources in Texas. And so we had the ability because it was, you know, relevant to do an environmental monitoring at the time to go in and prove that what we were seeing with that camera was actual hydrocarbon. And so we were able to put monitoring bands downwind of those emission sources in some cases. In other cases, we used handheld instruments and sample media like stainless steel canisters to collect samples that we could later be analyzed. So we could basically scientifically prove, you know, what we were seeing was actual hydrocarbon. And then because it was such a new technology, you know, there were a lot of folks outside of the agency and inside the agency that wanted to hear about it. And so we, a coworker and I, made a lot of presentations at external conferences and that kind of stuff , in front of industry, in front of other agency staff to, you know, shore up. This is what we were seeing. These were the conversations we had with the company and this is what was actually detected in the sample. Sometimes in the early days we would… I would climb to the top of storage tanks, right, with an instrument over my shoulder and a canister under my arm and go collect samples while we were recording images, my coworker recording OGI images down on the ground. So there could be a comprehensive environmental and scientific look at what we were seeing, right? To prove what the camera could detect, to show what it could see, and to dispel some of those rumors or misperceptions that people would be putting out, you know, to the public and that kind of stuff.

Miguel Escoto: So even like… like they’re doing it to this day, even back then, industry was trying to poke holes on this very solid and scientific finding that we’re seeing hydrocarbons and emissions polluting from these oil and gas sites, right? So it’s something that they’re still doing to this day?

Tim Doty: Yeah. I mean, you know, there’s all kinds of companies out there and some are better than others and some are more truthful than others. And I’m saying the obvious here, no matter what you think about whether it’s environmental folks that are interested in climate change or whether it’s the actual regulators themselves, everybody’s interested in safety. Just about everybody, right? Nobody wants to see a plant explode. Nobody wants to see people in a plant, workers killed or maimed or injured. Nobody wants to see residential areas around the facilities have that kind of issue. And so, you know, OGI technology, you know, is a really great technology to try to minimize emissions. But there has to be follow up work done on it, right? Because there’s no magic answer to the images. You have to do your due diligence as a regulator and as a company to figure out what was going on in the plant at that time. In other words, we would see images in the field and if we deemed at some point I mean, we’re talking like I don’t know, maybe this is 2007/8 kind of by this time period, if we thought they had relevance, meaning the bigger type emissions, you know, we would knock on the plant’s door, right? Whether it was at night or in the daytime, and we would ask to speak with the person that was in charge of their environmental program or whoever in authority we could talk to. And we would sit down and show the companies the images and try to get real time, technical information as feedback from them.

Miguel Escoto: Tim, so listening to you here, it seems like something changed along the way. You have the early days of Texas implementing the OGI program. You were a manager there. You went on these mobile monitoring trips and in many ways you were kind of exploring, pioneering this important instrument for reducing emissions, for helping the climate. But it seems like something happened — in an opinion piece that you wrote for the Austin American-Statesman, you stated that you retired from the TCEQ “after it became increasingly clear that the agency’s leadership had little to no interest in proactively monitoring, documenting and minimizing air emissions in Texas.”Can you tell us, what were some examples of how you saw that?

Tim Doty: Well, I would say this, that things seemed to change. Well, to be candid with you, it seemed to change with the fracking boom in Texas. My team and I were sent to the Barnett Shale up in the Dallas-Fort Worth area, and we were asked to do some initial OGI assessments of various oil and natural gas sources in that part of the state. You know, there had been various odor complaints and that kind of things being submitted because, hey, in the Barnett Shale, you know, people tended to develop all the natural gas sites somewhat in the rural counties. But it wasn’t unusual for the site to be developed around residential neighborhoods, schools, nurseries, churches, places of worship. I mean, you know, it would be literally a few hundred feet away from you to where, you know, emissions could definitely have the potential to directly impact downwind parties, so to speak. And so the TCEQ had received, I don’t know, say 15 odor complaints or various complaints about odors and health effects in the Barnett Shale area. And we were asked to go check it out for the state and do an assessment. And we had basically two teams of two each with an OGI camera and each with some survey instruments and some canisters. And I don’t know, we did like a three or four day project in multiple counties. And we obviously hit like the, let’s just say, 15, approximately 15 targets or, you know, companies that we’re interested in and then we went and looked at, you know, anything else, oil and gas related that we saw to try to get an idea as to what Texas was dealing with. And so, lo and behold, just about every single odor complained or almost every single company, with the exception of maybe one could have been two, but one or two that we were assigned to go look at were all emitting hydrocarbon in some form or fashion. And so the two teams documented those particular industries and, you know, I don’t know, dozens of other sites in that area. And we came back and said, holy cow, you just can’t imagine what’s out there and what we’re seeing and detecting and all that kind of stuff. And so the TCEQ leaned in and we went back with multiple sampling vans and traditional monitoring and, you know, with other staff members and that kind of thing, and did more in-depth trips that fall on that kind of stuff. And it turned out that, you know, the findings weren’t very politically palatable, meaning we found, you know, in one particular case we found a benzene concentration at one site that was over 1.4 million. I mean, serious benzene concentrations…

Miguel: For context, that is the carcinogen that is very harmful to health. And so high amounts…

Tim Doty: Yeah, it’s a carcinogen. It can cause leukemia. And it is a red light for everybody. And so we had multiple trips, you know, in the fall and worked into December. And, you know, when all that happened, things changed at the TCEQ. It became not politically palatable. They changed messaging, you know. Because all these places — or not all of them — a lot of them were next to downwind receptor, so to speak, and all that. And so, you know, I’ll leave it mostly at that. I will say during that part of this process, you know, they reorganized the mobile monitoring program and decided that they were going to… instead of a mobile monitor… oh we were going to do mobile monitoring in the emergency response guys came over and we were going to combine and have, I don’t know, 16 people at that point in time, I think. And we were going to concentrate on mobile monitoring issues. And then after several months, they decided, whoops, we don’t like all this stuff and so let’s concentrate on emergency response issues instead of mobile monitoring issues. We had been filmed or pictures taken in the field wearing respirators, right? The TCEQ had a respiratory protection program for its employees, because hey, I get it that a lot of the regional investigators and the mobile monitoring folks, we all get that the majority of the inspections, you know, you don’t need a respirator for. But there are some cases where, you know, our own staff members, public health is important. Right? And so if you’re going to be in the plants in certain units or if you’re going to be downwind in close proximity to things, you want to be able to have respiratory protection. I mean, you know, we all had annual physicals every year to pass a physical to be able to wear a respirator. But during that moment, that Barnett Shale time, you know, pictures were taken of employees in the field with respirators and that didn’t go over too well, meaning that it brought… it alarmed the public, it made it politically unpalatable in the agency that that happened. And instead of, you know, discussing, putting new policies in place, or just flat protecting your employees, you know, the respirators were taken away from all employees. And we were told not to take samples. If we had to take environmental samples at a place where we deemed it necessary to put on the respirator, we had to call back to Austin to ask management for real time permission in the field to do so. And it’s ridiculous, right? I mean, seriously, I have to call back somewhere in Austin to ask a high up manager if it’s okay if I took an environmental sample that my basic job functions tell me to do? Because you’re worried about the public perception of what it might look like? How about just make the area… How about just like the company clean up? How about that? So it’s still to this day, you know, that lent itself eventually over a number of months and still to this day the TCEQ has not reimplemented respiratory protection for any of its employees. And as a regulatory agency, I mean, shouldn’t you protect… have respiratory protection for your own staff members, for their own health, for the protection of the state, for protection of the public out there and just trying to do the right thing? Right? And comply with your own respiratory protection plan assigned, you know, by an executive director of the agency? I don’t know. It doesn’t ring quite true for me.

Miguel Escoto: Well, it was making oil companies look bad. So we can’t let that happen.

Tim Doty: Yeah, that’s correct.

Miguel Escoto: So, you mentioned that you felt sort of a palpable shift when the fracking boom happened. You feel that I mean, you saw that respirators were withheld from employees for public perception purposes instead of actually cleaning up these operators, like you’ve mentioned. How was the office culture like in this moment? Were there other employees like yourself that felt that something was wrong? Was there changes in leadership? What were some other manifestations of this politically unpalatable situation that was happening at this time?

Tim Doty: In the months prior to all this happening, there was a change of leadership in the division. So, how was the culture? It was not good, right? It was very negative within… at least the division that I was in. And it wasn’t good. It was completely nonfunctional. And it became a retaliatory environment. Retaliation was not uncommon and all that kind of stuff.

Miguel Escoto: In what way?

Tim Doty: Against the employees, against the people that needed to wear respirators. You know, again, they tried to change functions from all mobile monitoring to all ER functions. And they weren’t necessarily completely forthcoming with all the data that was collected. It just wasn’t a good environment. Right? Um, you know, I don’t know how else to describe it other than that. It was very, you know, I’m not talking necessarily about the TCEQ culture, I’m talking about that culture right there and that division at the time. And the basic end result of that was that they, you know, broke up the mobile monitoring program. But then the TCEQ was the end result of how it all went down. You know, at some point they restructured again and took that management out and replaced it with different management. But really damage had been permanently done at that point. What high up manager’s going to admit to wrongdoing? I’m just saying. And so they restructured, took out generally the more thorough and more stringent mobile monitoring program that had been at the state of Texas since about… even before my time, before 1985. So basically the services, mobile monitoring services were, you know, were lessened and, you know, it had been in place from literally 1985 until about 2010. So 25 years it had been in place. And they… because they couldn’t handle the criticism of… and the pressures of dealing with emissions, oil and gas emissions, climate change, scientific data, potential impacts on on, you know, downwind receptors, again, schools, all that kind of stuff that instead of politically handling that in a meaningful way, they just… you know, basically took out the mobile monitoring functions of the TCEQ and it still has not recovered. They went from they went from a highly specialized, actually at the time, two highly specialized group of teams, the emergency response team and the mobile monitoring team that were both nationally recognized for their abilities by other states, by municipalities, by the EPA, and because of their own reasons of the TCEQ, they literally destroyed both teams of both programs. 

And, you know, it’s still that way today, right? They have abilities… the TCEQ could check a box and say that they have technologies. But it’s different, right. There’s no environmental solicitation process. There’s no, you know we used to do an annual solicitation process to go out to external customers like, you know regional offices or permits or sometimes they would get citizen complaints and we would respond to those and all that kind of stuff. And there’s just none of that process anymore, like everything’s a bottleneck with a certain group of managers of the TCEQ to ensure that everything is palatable for them. They don’t want… they don’t want anything, you know, they don’t want — I’m just saying what I believe in my personal, professional opinion and from being in that environment — they don’t want bad moves. They would prefer to find nothing than something. And sometimes that’s associated with ignorance. Sometimes it’s associated with laziness. But a lot of time it’s just the politics of the agency, our agency. Or… not our, because I don’t work there anymore. But that agency, you know, is highly controlled in a highly political environment: the three commissioners that sit up top, are appointed by the governor’s office, and they have to be confirmed by the legislature. And, you know, the folks high up in the agency at the very top, you know, they have to be… I won’t say approved, but they certainly you know, they certainly are hired at the discretion of the politicians and Texas. Right. And so that’s the system you have. It’s generally supposed to be built on honesty, on self-reported information, information and data and analysis by the different individual companies. Air is not like water, where you have a lot of regulations as to what concentrations of different compounds should be. Right? It’s all based on a comparison with your permit, which is there for practical matters. How does a regulatory agency go to ensure that they are compliant with their permit?

Miguel Escoto: Especially after the agency’s been gutted for, like you say, politically unpalatable reasons. But what you mentioned there about the agency being biased, right? I mean, that is one thing that personally we’ve seen here. If you go to a public hearing for a refinery permit, the TCEQ goes to a school auditorium or a public place, and they present themselves as a very fair, unbiased organization that listens to both sides. They listen to the polluter, they listen to the public, and they make…. They decide somewhere in the middle. But as you’ve been describing here, the reality is more like they are a highly politically charged agency with interests of, like you said, avoiding bad news. Avoiding the bad news and the bad perception. Would you say that’s a fair characterization?

Tim Doty: Yeah, make no mistake about it. The TCEQ is in business to permit industry. That’s their number one function. Their number one function. I mean it says it right there in their mission statement… is to permit industry and is to do what they perceive is in the economic benefit of the state. Right. That’s the important thing as opposed to environmental protectionism. And that’s just the reality on the ground. You know, they’re going to issue permits and it’s a pretty rare occurrence, it’s an unusual occurrence, if a permit gets rejected. I mean, and even if it gets rejected, they’re going to try to work with the company to figure out how to make revisions, to be able to give them their permit. That’s what the business of Texas is based on. They’re not in the business to openly reject and rescind permits, not saying they haven’t done it. But that’s not their normal business mode in Texas. And how many hundreds or or thousands of chemicals are there out there that are basically unregulated beyond just getting a permit? There’s no practical way to measure them. And what is the comparison value for a concentration of a compound versus what their permit is based on, which is a quantity, not a concentration. There’s no one to one comparison to even do compliance and enforcement value.

Miguel Escoto: Can you elaborate on that, on that difference between the concentration of versus the amount?

Tim Doty: Yeah. I mean, your permit’s not going to say that you can emit one part per million by volume of methane or ethylbenzene or a compound. That’s not going to have that concentration on there. It’s based on the quantity of total emissions that your site puts out, which is based on the amount of emissions. In other words, as your facility or site or unit puts out more than 100 tons per year, well, how do you go out and determine that it puts out more than 100 tons per year? The company’s not going to do it. The state’s not going to do it. NGOs don’t have the ability to go out and do it… I mean, nobody does. It’s just the regulators and the companies that have the ability to go in there. Because you have to have, you know, what chemicals you’re putting through their flow rates, volume, right? You gotta know how hard the emissions are coming out with flow rates, how big it is, the diameter or whatever to be able to do the mathematical calculations. Well, you can’t do that on the roadside from, you know, just an environmental citizen or whatever. You have to have the ability to go in there, you either have to have the ability to go ask for the information or regulations in place that require you to do it.

But there’s just not a real good, easy way to put all that stuff into place. But anyway, the TCEQ is not a strong regulatory agency in the state of Texas, and oil and gas is putting out a tremendous amount of emissions that, you know, from my professional opinion, vantage point for being able to visualize it with an analytical tool — it’s a whole lot more than people think, even with those permits, even people that think that it’s understated. I mean, how in the oil and gas world or any other world for that, if a flare is supposed to burn at 98% combustion efficiency, which is expected, what happens if it’s not 98%? If it’s 92% or if it’s 90% or 80%? How does the state account for that or the feds account for that on permits? How do they account for their own net total airshed emissions? How would they account for that in any modeling, any state implementation plan, any of that? And the answer is they don’t. 

Miguel Escoto: They don’t. And it would take an army. It would take so, so many resources, so many, a lot of commitment. And as we’ve seen through just looking at the TCEQ’s numbers, for every inspector, there are more than a thousand sites that they are tasked with investigating and looking at. And yeah, like you’ve mentioned, this is a system based on the principle of honesty. And you’ve got the regulator who is incentivizing and systematically promoting corporations over the public. So to review, you’ve laid out how the TCEQ has been gutted through abolishing this nationally recognized mobile monitoring program, how it retaliates against employees documenting emissions and bringing up the bad news that they don’t want to hear. They’re withholding respirators for employees, endangering the inspectors, and also creating a better image for corporations and erroneously evaluating based on quantity versus concentration. I mean, I can go on and on and on. But my last question that I have for you is: what would be your message to someone in the TCEQ right now, who joined for noble causes, for noble reasons, protecting health and the environment, and that have been exposed to this systematic inefficiency? What would be your message to them?

Tim Doty: Well, if you choose to stay in the TCEQ, try to make a difference, try to be truthful about what’s really going on out there. Try to change the prospects of what the agency is currently doing. Be proactive in your job. Don’t do the bare minimum. Go over and beyond. You owe it to yourself and to your family and to your community and to your country and you owe it to your planet to try to do the right thing.

(music)

Miguel Escoto: Thank you for listening to this conversation. Stick with us. Stay tuned. Next episode, we will continue our conversation about the TCEQ with another regulator whistleblower. Hope to see you there.

Next: Episode 4 >>

<< Previous: Episode 2