HOUSTON– Sierra Club and Environment Texas announced today that they intend to sue ExxonMobil Corporation in federal court for thousands of violations of the federal Clean Air Act at its Baytown refinery and chemical plant complex. The suit would be the third case filed by the two environmental groups since 2008 to stop illegal air emissions arising from so-called “upset” events at facilities along the Houston Ship Channel.
ExxonMobil’s Baytown complex operates under controversial “flexible permits” issued by the Texas Commission on Environmental Quality, which have been criticized by environmental groups and the U.S. EPA for failing to set sufficiently strict emission limits (among other deficiencies). Despite having such lax permits, the groups claim that ExxonMobil’s persistent violations of those permits have nonetheless resulted in the release of more than ten million pounds of excess air pollutants over the past five years, including toxic chemicals such as benzene and 1,3-butadiene.
“Exxon has had the benefit of running the country’s largest oil refinery under air pollution rules so weak they wouldn’t be allowed in any other state,” explained Neil Carman, Clean Air Program Director for Sierra Club’s Lone Star Chapter. “Yet the Baytown refinery has still released more excess pollutants – above and beyond its flexible permit limits – than any other Texas refinery we’ve looked at, including BP’s.”
“The State of Texas has not only bestowed overly generous emission limits on Exxon’s Baytown refinery and chemical plants, it has compounded the problem by failing to effectively enforce even those weak limits,” added Luke Metzger, Executive Director of Environment Texas. “Because neither the state nor federal government has put a stop to Exxon’s continuing violations, ordinary citizens need to step forward now and enforce the law themselves.”
The Clean Air Act contains a “citizen suit” provision that allows private citizens affected by violations of the law to bring an enforcement suit in federal court after providing 60 days prior notice to the violator and to state and federal environmental agencies. Citizens can seek a court order requiring compliance with the law and a monetary penalty of up to $37,500 per day for each violation of the Act.
ExxonMobil’s 2,400-acre complex in Baytown, Texas, is located about 30 miles east of downtown Houston and consists of an oil refinery – at 562,500 barrels per day, the nation’s largest – and two petrochemical plants. Residential neighborhoods are within one mile downwind of each facility, and almost 15,000 people live within three miles of the complex.
With over $450 billion in annual revenue, ExxonMobil is the largest publicly traded company in the world, making $45.2 billion in profit during 2008. Headquartered in Irving, Texas, ExxonMobil has about 80,000 employees in the United States and around the world.
On November 30, 2009, Environment Texas and Sierra Club notified ExxonMobil that they intend to sue the company for more than 400 instances of equipment breakdowns, malfunctions, and other non-routine incidents at the Baytown complex occurring over the previous five years, an average of nearly two per week. These “emissions events” have resulted in the release of millions of pounds of pollutants into the surrounding air, in violation of hourly limits in the company’s permits. A single such “upset” or emissions event can result in the release of thousands of pounds of air pollutants in a matter of minutes or hours.
On July 2, 2010, the groups sent a second notice of intent to sue ExxonMobil, listing several hundred additional violations of permit terms and regulatory requirements at the Baytown complex. These new violations – all taken from the company’s own semi-annual “deviation” reports – include such problems as additional emission violations, improper operation of flares, monitoring violations, and missing or improperly operated equipment.
According to the groups’ analysis of ExxonMobil’s own reports to TCEQ, air pollutants released during upsets at Baytown since November 2004 include approximately:
• 3.5 million pounds of sulfur dioxide;
• 2 million pounds of volatile organic compounds (VOCs);
• 6 million pounds of carbon monoxide;
• 275,000 pounds of nitrogen oxides;
• 35,000 pounds of benzene and 60,000 pounds of 1,3-butadiene.
Nitrogen oxides, VOCs, and carbon monoxide contribute to the formation of ground-level ozone, which, according to EPA, can trigger a variety of health problems including chest pain, coughing, throat irritation, and congestion. Sulfur dioxide contributes to respiratory illness, particularly in children and the elderly, and aggravates existing heart and lung diseases. Sulfur dioxide also contributes to the formation of acid rain. Benzene and 1,3-butadiene are carcinogens.
In June 2009, U.S. District Court Judge David Hittner entered a Consent Decree settling Environment Texas and Sierra Club’s Clean Air Act lawsuit against Shell Oil Company. The court decree required Shell to make numerous upgrades to its Deer Park, Texas, refinery and chemical plant to reduce emissions from upset events, and to pay a penalty of $5.8 million. On August 18, 2009, the groups filed an enforcement suit in federal court in Houston against Chevron Phillips over upset emissions at the company’s Cedar Bayou chemical plant in Baytown. That suit is ongoing.
Sierra Club has approximately 24,000 members in Texas who are dedicated to exploring, enjoying, and protecting Texas’ environment and natural resources.
Environment Texas advocates for clean air, clean water, and preservation of Texas’s natural areas on behalf of approximately 4,000 members statewide.
The groups are represented by Josh Kratka, a Senior Attorney at the National Environmental Law Center, attorney David Nicholas of Newton, Massachusetts, and Houston attorney Philip Hilder; copies of the notice letters are available upon request.