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State Records from 2011 through 2016 Reveal Lax Enforcement During Industrial Malfunctions and Maintenance

Washington, D.C., and Austin, TX  – Texas imposed penalties on less than 3 percent of illegal air pollution releases during industrial malfunctions and maintenance from 2011 through 2016, even though these incidents emitted more than 500 million pounds of pollutants, according to an analysis of state records by the Environmental Integrity Project and Environment Texas.

A new report, “Breakdowns in Enforcement,” ranks the worst illegal air pollution events from oil refineries, chemical plants and other industrial facilities across Texas in 2016. The report concludes that the infrequency and small size of the state’s fines (averaging just three pennies per pound for pollution) are a major problem, because the lack of enforcement means that the owners are less likely to invest money to upgrade and repair known problems.

“To protect public health from dangerous air pollution, Texas needs to start more vigorously and consistently penalizing industry for illegal emissions,” said Gabriel Clark-Leach, an attorney for the Environmental Integrity Project.  “The truth is, many of these industrial ‘accidents’ can be avoided – as long as industry feels a financial incentive to improve.”

Luke Metzger, Director of Environment Texas and a co-author of the report, said: “With less than a 3 percent chance of getting busted, it’s no wonder Texas polluters are repeatedly and flagrantly breaking the law. It’s the Wild West when it comes to environmental enforcement in Texas, except the Sheriff seems to be asleep at his desk.”

For years, industries in Texas have argued that they should not be held responsible for much of the air pollution they release because they claim a loophole from permitted limits for industrial malfunctions or maintenance.

But the law and increasingly the courts do not support a free pass for these industrial “upset” events. An example was the April 26, 2017, decision by a federal judge in Houston to penalize ExxonMobil $20 million for emitting 10 million pounds of air pollutants from its Baytown complex during malfunctions and maintenance over eight years.

This penalty was not initiated by the state of Texas, but instead by a lawsuit brought by local residents represented by Environment Texas and the Sierra Club. The analysis of state records by Environment Texas and EIP reveals that Texas imposed penalties on only 588 out of 24,839 malfunction and maintenance events reported by companies from 2011 through 2016.  The total fine for these violations of the law was $13.5 million, which averages about $.03 per pound.

The report ranks the worst illegal polluters during “upset” events (malfunction and maintenance) for 2016 by region of Texas.  Among the key findings:

• The largest releases of illegal pollution, in terms of total pounds released, happened in the oilfields of West Texas (the Midland region), where there were 2,004 “upset” incidents that released 34 million pounds of pollution.
• The Houston region had the second most, 453 incidents that released 5.2 million pounds of illegal air pollution.

Some examples highlighted in the report that have not yet resulted in any penalties from the state include:

• In 2016, the Houston Refinery, owned by LyondellBasell, reported five separate illegal releases, including one in which a leaking connection at the plant released 54,286 pounds of volatile organic compounds in less than an hour and a half on May 2, 2016. Short, intense pollution spikes like this pose a serious threat to millions of Houstonians, including the 316,000 people who live within five miles of the plant.
• Between February 24 and March 3, 2016, at the Amerada Hess Seminole Gas Processing Plant in West Texas (Gaines County), a loose wire and operator error resulted in the release of 578 tons of sulfur dioxide. The incident might have been avoided, but the plant’s “alarm was configured improperly” and operators did not become aware of the problem until it was too late, according to a company report.
• In January and February of 2016, an oil and gas operator in Garden City, Texas, reported production in excess of what the facility’s equipment was capable of capturing. This resulted in the release of 300,000 pounds of natural gas volatile organic compounds and 800 pounds of benzene, a carcinogen, from the facility’s storage tanks.

A significant issue across Texas highlighted by the “Breakdowns in Enforcement” report is that supposedly small sources of air pollution, like oil and gas wells, release as much pollution during equipment breakdowns as large factories, but escape factory-style regulation because they claim to be minor or “insignificant” polluters.

Under state and federal law, sources that emit less than 25 tons of sulfur dioxide and volatile organic compounds each year can claim an exemption from the federal Clean Air Act’s more stringent permitting requirements that call for public notice and modern air pollution control equipment.  Many Texas facilities that have claimed this exemption emitted more than 25 tons of these pollutants during malfunctions and maintenance events during 2016, meaning that they violated applicable emission limits.

Of the 96 sites statewide that reported more than 25 tons of sulfur dioxide emissions during maintenance and malfunction in 2016, almost half — 47 — improperly claimed to be “insignificant sources” that are exempt from the more protective permitting requirements, according to state records.

“The result is that thousands of tons of illegal air pollution is threatening public health, but is not being taken into account by Texas regulators as they issue permits and assess the air quality across the state,” said Clark-Leach of EIP.

Another problem highlighted by the “Breakdowns in Enforcement” report is that Texas is increasingly curbing the power of cities and counties to use their local power to enforce air pollution violations.

Community groups and local governments in recent years have attempted to step up and enforce clean air laws. In response, industry lobbyists have worked with state officials to change the law to shield themselves from local anti-pollution efforts.  For example, in 2015, Texas Governor Greg Abbott signed House Bill 1794, which severely restricts local governments from enforcing pollution laws and caps penalties on pollution lawsuits brought by local authorities. On June 12, 2017, Governor Abbott vetoed funding for air pollution monitors across Texas.

“With the state failing to deter illegal pollution, cities, counties and even non-profit groups are having to fill the void by filing lawsuits to stop the lawless contamination of our air,” said Metzger. “Unfortunately, by signing bills to make it harder to hold polluters accountable and by appointing feckless regulators, Governor Abbott is aiding and abetting these big polluters.”

The report lists the worst malfunction and maintenance polluters in 2016 in terms of total pounds of all illegal pollution reported by companies in several metropolitan statistical areas of Texas, with Dow Chemical in Freeport the worst in the Houston area; Owens Corning the worst in Dallas; the Exxon-Mobil Beaumont Refinery the worst in the Beaumont/Port Arthur area; the Fain Gas Plant the worst in the Amarillo area; Equistar the worst in Corpus Christi; the James Lake Gas plant the worst in Midland-Odessa; and Texstar Field Services the worst in the San Antonio area.

Below is a year-by-year listing of how often Texas imposes fines for these illegal air pollution releases:

Penalties Assessed by Texas for Illegal Pollution Releases during Malfunction and Maintenance, 2011 – 2016 (Table 2 in Report)

Source: Texas Commission on Environmental Quality (TCEQ) records

Read the full report, here.

To listen to an audio recording of the press conference, click here.

The Environmental Integrity Project is a 15-year-old nonprofit, nonpartisan organization, based in Washington D.C. and Austin, Texas, that is dedicated to enforcing environmental laws and holding polluters and governments accountable to protect public health.

Environment Texas is a nonprofit advocate for clean air, clean water and open spaces with more than 35,000 members and supporters in Texas.

Media contacts:  Tom Pelton, Environmental Integrity Project, (202) 888-2703 or tpelton@environmentalintegrity.org

Luke Metzger, Environment Texas, (512) 479-0388 or luke@environmenttexas.org