Senator Eliot Shapleigh - El Paso, Texas

The death of CES Environmental Services employee Joey Sutter at the company's Port Arthur facility last December was a striking reminder of the inherent danger present in the petrochemical industry, despite great advances in safety over the decades.

The investigation that inevitably follows such a tragedy was well underway when - less than four months later - another CES employee died at the same facility.

Police reports said Charles B. Sittig, 48, of Eunice, La., told co-workers he was not feeling well before he sat down in a chair and collapsed to the floor.

The same week that Sittig died, the autopsy results were released for Sutter, 36, of Arlington, Texas, listing the cause of death as asphyxiation and poisoning due to hydrogen sulfide inhalation.

While one death might underscore the inherent danger of the work, two deaths at the same facility in less than four months set off alarm bells that continue to ring as both investigations continue. The pair of deadly incidents has also focused attention directly on Houston-based CES Environmental Services and the state agency charged with regulating it, the Texas Commission on Environmental Quality (TCEQ).

Although definitive answers are in short supply, what is certain at this point is that both CES and TCEQ face increased scrutiny from official sources and the residents and businesses that live and work near CES facilities in Houston and Port Arthur.

The company, founded in 1999, has a troubled history involving incidents at its Houston plant dating back several years. The Port Arthur facility, opened in September 2008, had already faced numerous complaints from an adjacent business over odors and possible contaminant releases before the deaths of Sutter and Sittig.

CES Vice President Greg Bowman acknowledges the company has faced difficulties in recent months, but resisted any inference that the two deaths were linked other than the fact they took place at the same facility. In fact, Bowman expressed the opinion that both Sutter and Sittig died of natural causes and not because of any chemical exposure.

Justice of the Peace Tom Gillam III, who is conducting formal inquests into both deaths, said the autopsy results on Sittig are incomplete awaiting toxicology tests, but was adamant about Sutter.

"Mr. Sutter did not die of natural causes," said Gillam. "His cause of death was asphyxia and poisoning due to hydrogen sulfide inhalation."

According to TCEQ documents obtained by The Examiner, the CES plant at Port Arthur had only been operating for a matter of weeks before they were hit with a series of complaints.

On Sept. 23, 2008, Coast Guard personnel reported moderate to strong sulfur odors they determined were coming from CES. Subsequent investigation determined the source was personnel cleaning out a reactor tank.

The second complaint came on Oct. 6, 2008, when workers at a nearby plant reported strong odors from CES were making people sick.

A third complaint on Nov. 4 made similar allegations. The TCEQ investigation noted that CES "produces sodium hydroxide using dissolved sodium salts and sulfurized isobutylene oils." It is not uncommon for the process to create odors, although harmful amounts are not normally released into the air.

Bowman noted that the threshold for odors is half-a-part per billion, while regulations for the Occupational Health and Safety Administration (OSHA) is 20,000 times greater.

"You can have an odor that's unpleasant that has absolutely no effect on health," he said. "A lot of folks don't really distinguish between odor and health effects, and they think if something smells bad, it's hurting them."

Insisting it can stink without approaching hazardous levels, Bowman noted, "There's nothing out there that's even remotely close (to hazardous levels). We wouldn't have our own people out there if there was any safety hazard ...there's no cause for concern for our employees or our neighbors."

There is no report of either Sutter or Sittig complaining about the smell on the day they died, but neighbors of the CES plant in Houston have had plenty of complaints since the company took over an abandoned commercial tank-wash industrial facility originally built in the 1940s.

Unlike the remote Port Arthur CES plant, located on S. Gulfway Drive, miles from any residences, the Houston facility is located cheek-by-jowl with a residential neighborhood with three schools and a church located within an 800-foot radius of the CES plant in Southeast Houston.

After a series of noise and odor complaints resulted in CES paying $117,000 in fines and generating many hard feelings among neighbors, the events of December 2008 pushed hard feelings to a new level. On Dec. 7 and again on Dec. 16, loud explosions at CES rocked neighbors and sent debris raining down on the neighborhood.

"I would characterize them as over-pressurization," said Bowman, who said the situation occurred after CES installed equipment to address odor concerns. v"That's the only reason we had it was to try to mitigate any odor from any of the processing activities we have on site here," he explained, blaming the explosion on a "hiccup" in the process.

Taken together, the incidents at the CES facilities in Houston and Port Arthur have at least called into question the efficacy of the agencies designated to monitor and regulate the company's activities.

The death of CES workers led to mandated probes by OSHA, which spokeswoman Elizabeth Todd described as "open and ongoing at this point. By law, OSHA has up to six months to investigate" each incident.

Asked whether the second death in four months could signal a clear and present danger or subject that facility to more intense scrutiny, she responded, "Only in that it could increase any violations and any penalties that could be assessed against the organization or company. An organization should be abiding by OSHA's safety standards and regulations at all times."

But Todd insisted that the second death - or subsequent deaths in a shorter time frame - would not cause her agency to close the plant.

"We cannot close down an organization; we don't have that authority," said Todd. "OSHA does not have jurisdiction to close down an organization."

Whatever limitations may exist on the federal level pale in comparison to the functions of the TCEQ, according to some highly-placed critics in the Texas Senate who this week demanded that Gov. Rick Perry clean up the agency.

"Texas has serious air quality and environmental problems, with Houston and Beaumont at the top of the list of troubled areas," said Sen. Rodney Ellis (D- Houston), whose district includes the CES plant in Houston.

"Today, our system of protecting Texans from environmental problems is broken, and the lack of any progress on the investigation of CES Environmental is a perfect example of the systemic problems," said Ellis. "The Texas Commission on Environmental Quality is not standing up for ordinary Texans. We need a newer, stronger TCEQ; an agency that works for the people rather than against them. It's time for massive change at TCEQ, and that's why a coalition of concerned legislators has called for a top-to-bottom review of TCEQ, and a total shift in focus for the agency away from protecting polluters and to protecting neighborhoods."

TCEQ spokeswoman Andrea Morrow took exception to the statements from Ellis and two other members of the Texas Senate.

"We don't agree with that assessment," she said. "To the contrary, we are proud of our permitting and aggressive enforcement programs that are leading to a cleaner environment across Texas."

Morrow declined to address specific cases - including CES Environmental Services - but noted, "Air quality is showing improvement all across Texas, from Dallas-Fort Worth to Houston and from Beaumont to El Paso ... surface water quality was assessed at 3,470 sites in 2008. Overall, water quality in the state remains good, with most water bodies meeting their standards ... The TCEQ administers the state's waste disposal facility rules, and also works to reduce the overall amount of waste generated."

Morrow's spirited defense of TCEQ unwittingly highlights one of the principal defects of her agency, formerly known as the Texas Natural Resource Conservation Commission. That name more accurately reflects the legislative intent when it was originally formed that continues to a large extent today. What it does not do - through funding, staffing or statutory mandate - is establish TCEQ as a strong environmental enforcement agency.

Critics maintain this regulatory gap may contribute to Texas' reputation for a "healthy business climate," but it does little to protect residents and employees from danger.