Poisoned Places

Published — May 21, 2013 Updated — May 19, 2014 at 12:19 pm ET

Clean Air Act law, reality collide

Introduction

Nothing in the law allows for the invisible danger from “upset” emissions to persist, but legislation and reality often collide.

On the contrary, the federal Clean Air Act was meant to reduce harmful emissions by requiring continuous pollution limits for industrial facilities. But since its passage in 1970, state and federal regulators have created loopholes involving accidental releases — loopholes that have for years been challenged, re-written and bogged down in bureaucracy.

Nearly from the start, regulators began waiving pollution standards when equipment unexpectedly malfunctioned and had to be shut down, started up and maintained.

By 2004, 29 states had devised what University of Texas-Austin researcher Kelly Haragan calls “a flat-out exemption” for such emissions. The Environmental Protection Agency offered similar immunity for those involving hazardous air pollutants.

“There is a big caveat here,” acknowledges Adam Kushner, who headed the EPA’s air enforcement unit until last year. “They didn’t necessarily count against your compliance picture.”

This murkiness began fading after environmental groups sued the EPA in 2003, alleging its exemption violated clean-air laws. By December 2008, a federal court agreed, vacating the language. The agency has lagged at fully closing its loophole; earlier this year, it unveiled a proposed rule that would require facilities in any state to follow pollution limits during periods of start-up, shut down and maintenance.

At the state level, regulators have begun replacing blanket exemptions with rules that, critics say, aren’t much firmer. In Louisiana and Texas, plant managers can claim unauthorized releases are “upsets” as a defense to enforcement.

“When regulators get one of those reports, they don’t even think about it any further,” says Adam Babich, of the environmental-law clinic at Tulane University, who has sued a half dozen plants. “It’s like, ‘Look, here’s another incident report. Let’s file it away.’ ”

Frequently, state regulators — the primary enforcers of the Clean Air Act — fail to investigate the thousands of reports of emissions events they receive, let alone issue enforcement orders. When regulators do act, punishment can amount to a slap on the wrist. Less than one percent of the 7,533 upset reports filed by Texas companies in 2004 had ended in penalties or corrective plans, a 2005 study by the nonprofit Public Citizen found.

Little has changed, enforcement data collected by the Texas Commission on Environmental Quality suggests: Throughout fiscal year 2011, agency officials investigated 36 percent of emissions events. About 3 percent of the reports led to enforcement notices yielding fines or corrective action.

Regulators bristle at the notion they’re ignoring this fence line pollution. To some extent, they say, they must expect that industrial facilities — many complicated amalgamations of countless pieces of equipment — will have unexpected releases. Simply put, says Tim Knight, an environmental-compliance administrator at the Louisiana Department of Environmental Quality, “Industry will have problems.”

Earlier this year, the LDEQ launched a voluntary workgroup with ExxonMobil Baton Rouge and 39 other petrochemical facilities to identify common causes of upsets. The TCEQ has paid particular attention to emissions events over the past decade, requiring that companies report online and revamping permitting policies.

Larry Soward, a former TCEQ commissioner, believes such scrutiny has had an effect; indeed, upset events in Texas declined from 4,766 reported incidents in fiscal year 2010 to 4,469 a year later.

EPA officials, too, portray emissions as a “high priority.” Officials at the agency’s regional office encompassing Texas and Louisiana launched a program in 2011 inviting the area’s top 17 emitters to the table.

Program directors asked companies to analyze their own records of upsets. Under current voluntary-compliance guidelines, companies wouldn’t begin to “benchmark” the emissions and thus document reductions until 2014. So far, no company has agreed to participate.

“We have found that using multiple approaches to try and solve this problem has worked best,” says Sam Coleman, EPA’s deputy regional administrator, noting that a similar initiative in 1999 “consistently” reduced upsets for several years. “The voluntary approach is simply one tool in the toolbox.”

Advocates remind federal regulators problems continue.

Eric Schaeffer, director of the Environmental Integrity Project and a former EPA enforcement chief, has sent letter after letter to Texas and EPA officials, flagging “egregious upset releases” and urging them to pursue the worst offenders. On April 23, he asked the EPA’s inspector general to examine how regulators responded to repeated upsets by the biggest Texas emitters. In Louisiana, Bucket Brigade advocates have turned toward a little-known EPA program that inspects facilities for the risk of “unanticipated” releases.

After a flurry of lobbying activity by the group highlighting a benzene leak at ExxonMobil Baton Rouge, EPA inspectors showed up at the company’s refinery for four days last July. Inspectors outlined a host of concerns, including pervasive “piping, valve, and vessel corrosion,” a November report shows. Exxon supervisors also failed to “correct deficiencies” in processing equipment; to assure that equipment was installed correctly; and to inspect underground piping.

Exxon says it has reviewed the EPA report and is sharing information that “we believe may clarify many of the areas of concern.” The company stresses the report doesn’t constitute a notice of violation.

EPA officials declined to elaborate. Coleman says, “It’s not appropriate for me to say whether there will be violations or what the outcome will be.”

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