Senator Eliot Shapleigh - El Paso, Texas

Houston skyline

Houston is trying to become the first place in Texas to set a standard for hazardous air pollutants, a move that would make the city stricter than the state and federal government in policing the amount of cancer-causing substances in its air.

An amendment proposed to the city's nuisance ordinance would allow Houston to sue industrial facilities emitting toxic pollutants that, over time, could cause one additional person in

1 million to contract cancer.

Neither Texas nor the federal government has enforceable thresholds for the 187 chemicals deemed hazardous because they can cause cancer and other serious health effects.

"We are trying ... to have some clear, transparent, nondiscriminatory standard that could be used to let emitters know what is expected of them, and make the application of the law predictable," Mayor Bill White said of the proposal, which is expected to go before the City Council next week. A full vote likely will be delayed for another week to allow time for a public hearing.

The proposal is the latest in a series of actions taken by the mayor to give the city more control over its air pollution, a process that began in August 2005, when the city stopped inspecting local industrial plants for the state.

If passed, the action would put Houston, and White, at odds with the state environmental agency, some local legislators and industry, which despite studies showing Houston has high concentrations of some air toxics have opposed previous efforts to establish hazardous air pollutant standards at the one in 1 million risk level.

Industry representatives already are gearing up to oppose the measure, as they did two years ago when attempts to establish a statewide standard were before the Legislature. None passed.

The Texas Commission on Environmental Quality also said Friday that it believes the ordinance as written would be inconsistent with state law and extremely difficult to enforce.

But White said he was confident the measure was legal, and was unwilling to put off action. Yet, he said he would be open to discussing whether the standard should be one in 1 million or one in 100,000, depending on how much risk Houstonians are willing to accept. The state currently is working to set all its long-term guidelines at the one in 100,000 risk level.

"We cannot wait until the state acts to protect the health of our citizens," White said. But "I think the citizens of a region ought to be accorded some respect about the standards that should be applicable."

How the city would enforce the standard is unclear. Although data collected at state air pollution monitors could be used to determine when a threshold was exceeded, the city still would have to prove a particular facility caused the problem. That's difficult along the Houston Ship Channel.

"That was my first reaction ... how we are going to prove it, who are we going to cite?" said Jane Laping, executive director for Mothers for Clean Air. But "I think it generally shows how serious the mayor is about getting the air cleaned up in Houston."

The TCEQ, which has short-term and long-term guidelines for air toxics, repeatedly has said that it will go no further than a one in 100,000 risk level, which it believes is protective of public health.

Industry also is planning to argue that the nuisance ordinance, as drafted, is inconsistent with state law. In an e-mail to industrial groups, the Texas Chemical Council said the Greater Houston Partnership should "communicate to Houston City Council members the detrimental impact these ordinances would have on the Houston business economy that GHP has worked so hard to maintain."

Calls for comment Friday to the council, the Texas Oil and Gas Association and the East Harris County Manufacturers Association were not returned.

The Greater Houston Partnership said its board would not have a formal position until its meeting Wednesday.

Inspiration for lawmakers

"The city could reasonably say that that is not enough to protect the public from nuisance here," said Thomas McGarity, a University of Texas endowed chair in administrative law. "If the state wants to pre-empt them by coming up with a real regulation, they probably have the authority to do that."

The effect of the city's action could be exactly that.

Legislation filed in the state House and Senate this year once again is seeking to establish an enforceable statewide standard, albeit at the one in 100,000 cancer risk level. White's action could inspire the state to act, according to Ruben Longoria, legislative director for Sen. Mario Gallegos, D-Houston, one of the bill sponsors.