Representatives for Port Arthur Community Action Network said the $12,000 fine the Texas Commission on Environmental Quality imposed against German Pellets Texas does not fit the violations the facility committed during a fire that lasted 102 days in 2017.

Speaking to TCEQ commissioners in Austin on Wednesday, Houston attorney Amy Dinn asked that the executive order against German Pellets, a wood pellet facility on the Port of Port Arthur, be remanded to TCEQ executive director Toby Baker. German Pellets was fined $15,000 in October 2018, with $3,000 deferred. German Pellets has paid the fine.

“While a positive step by the agency, the executive order contains two critical errors and therefore is a misapplication of the penalty policy,” said Dinn, a managing attorney with Lone Star Legal Aid’s environmental justice team. “For these reasons, the matter needs to be remanded to the executive director.”

The TCEQ charged German Pellets with failing to prevent nuisance odor conditions. According to an agreed order document, TCEQ staff detected “moderate, unpleasant burning wood and smoke odors coming from Silos 2 and 3” on 22 dates between April 17 and June 4, 2017. Port Arthur Community Action Network, or PA-CAN, stated residents in the area were experiencing coughing, headaches, dizziness and breathing problems from a nearby facility.

A hot spot was detected in Silo 2 on April 15, 2017, and ignited early the next morning. That silo collapsed on June 4, 2017.

The cause of the fire has not yet been determined.

PA-CAN founder and leader John Beard told commissioners he was speaking up for several residents on the predominantly black Port Arthur West Side impacted by the fire, including a woman who was paraplegic and died from symptoms caused by the fire.

“By giving them a simple slap on the wrist of that meager and small fine, you don’t send a message to that company and others that you’re going to be diligent about doing their job to protect others and protect communities of color,” Beard said.

He added German Pellets should have been fined at a minimum of $165,000 and that the violations should have been classified as “major” instead of “moderate.” The violations were calculated as four separate moderate offenses — one for each day a nuisance condition was noted out of the 22 dates TCEQ monitored the fire.

“The TCEQ agrees in this case that there were significant amounts of pollutants released,” Dinn said. “In this case, the fire at the facility caused health issues. The penalty calculation is based on four events instead of one.”

State response

Bryan Sinclair, TCEQ enforcement division director, said during the hearing the penalty was calculated as moderate because significant amounts of pollutants did not exceed protective levels.

“In the investigation report, there was no documentation of health effects,” Sinclair said. “It does mention that some of the complaints included some health effects, but we did not have documentation such as medical records or anything specific about that.”

TCEQ investigators used a protocol known as FIDO, which is “frequency, intensity, duration and offensiveness,” Sinclair said. “The smoke and burning wood smells were characterized as moderate, unpleasant odors and classified accordingly in the protocol or procedures for that,” he added. “If we had called it a continuing violation … we would have ended up with monthly events with three or four months depending on when it started and when it ended.”

If the TCEQ had followed its guidelines for penalizing German Pellets, the fine would have been $700,000, Beard said. A Penalty Calculation Worksheet for the case is on file, but an exact mathematical formula for determining the penalty was not immediately clear.

“Can you imagine, like if you were having a barbecue and you burn something in the kitchen and the house is full of smoke, imagine outside being that smoky room, 24 hours a day, seven days a week for 102 straight days, you having to breathe those fumes and obnoxious odors that come from the facility because of something they did?” Beard told commissioners. “We as citizens don’t have a lot of protection in that area because a gag order was placed on the city as well as German Pellets. They can’t even tell us what they’ve done to make us any safer or better.”

Company talks

Davin Boldissar, a lawyer for German Pellets, told the TCEQ the fire was an accident and not a normal business operation.

“There was a smoldering burn that was experienced at the facility that the company exercised very strenuous effort to put that out, which took many months,” Boldissar said. “That was done with coordination and with the supervision of the Port Arthur Fire Department, who was on the scene directing all efforts. It was also done in conjunction with the TCEQ, who was involved and was part of the air monitoring that was done.”

Boldissar added third-party fire expertise firm Jenson Hughes conducted a complete analysis plan of the facility in association with the city of Port Arthur. He added German Pellets and the city agreed with the Port Arthur fire marshal on “a number of actions” that were taken to prevent a recurrence of the fire.

“The burn started in one of the silos quickly,” Boldissar said. “The fire started quickly without warning at all and became a significant event. Other than the fact it started at one of the silos, what actually went wrong has never been determined.”

“[German Pellets] certainly regrets the impact this had on the community but did everything within its power to address it.”

TCEQ commission chair Jon Niermann asked Boldissar how German Pellets could understand it had the correct preventative measures if the root cause is not known. Boldissar referred to the analysis plan, which he said took a year to complete.

German Pellets filed for bankruptcy on April 30, 2016, suspended all operations on April 15, 2017, and completed the removal of all wood pellets by Jan. 13, 2018, according to the TCEQ.