Report: Texas Clean Air Project
Industrial facilities in Texas continue to violate their Clean Air Act permits by releasing large amounts of air contaminants during “emissions events” or “upsets” — the regulatory terms used to describe unauthorized emissions from equipment breakdowns, process malfunctions, operator errors or maintenance work.
Emissions events are supposed to be accidental, unanticipated releases of air pollution. However, the data show that these events occur so frequently as to be almost routine at some facilities, and often
involve large releases of health threatening pollution. A recent study found that emissions events in Texas lead to the premature deaths of at least 16 people and $148 million in health-related costs per year.
According to reports filed by companies through the State of Texas Electronic Emissions Reporting System (STEERS) in 2017, 275 companies reported 4,067 breakdowns, maintenance incidents, and other emissions events that resulted in the release of more than 63 million pounds of illegal air pollution.
Some pollutants, including benzene and particulate matter, are especially harmful to human health. Two Houston-area facilities —Magellan’s Galena Park Terminal and Dow’s Freeport chemical plant— took the top two spots statewide for unauthorized releases of benzene, a known carcinogen.
Valero’s Port Arthur refinery had the highest unauthorized emissions of particulate matter, linked to a range of cardiovascular problems, including heart attacks, strokes, and congestive heart failure, followed by Arkema’s Crosby chemical plant and Phillips 66’s oil refinery in Borger. Members of the public submitted hundreds of complaints to the Texas Commission on Environmental Quality (TCEQ) regarding emissions events in 2017. In one case, after the Seminole Gas Processing Plant in west Texas reported an unauthorized release of more than 1.1 million pounds of sulfur dioxide over the course of sixteen days, a complaint was filed with the TCEQ alleging that the emissions were “impacting children at a summer camp.”
Despite the thousands of violations totaling hundreds of millions of pounds of unauthorized pollution, and despite hundreds of citizen complaints, the vast majority of violations escape any consequence. The TCEQ levied financial penalties against just 58 facilities in 2017. Looking back over the last seven years, the total number of enforcement orders filed by TCEQ is less than 3 percent of the total number of emissions events recorded by the agency in that time. The trend since 2011 is that enforcement actions are declining.
In the few cases when fines are issued at all, the fines are on average a fraction of what TCEQ is authorized to levy. Under state law, TCEQ is authorized to collect penalties as high as $25,000 per day per violation.
- If TCEQ levied the maximum penalty against emissions events in 2017, using the agency’s practice of counting each 24-hour period of an event as a single violation regardless of how many individual pollutants were released, they could have collected at least $277 million in fines.
- If instead the TCEQ followed the practice of the EPA and the Texas Attorney General’s Office and counted each pollutant released during an emissions event as a separate violation, a practice called “speciation,” TCEQ could collect as much as $2.3 billion in fines for 2017 emissions events.
TCEQ has wide discretion in determining the amount of a penalty and rarely assesses the maximum. The agency’s penalty policy directs staff to calculate a penalty based on factors including the degree of harm and a facility’s past record of compliance. In 2017, TCEQ levied a total of $1,281,047 in fines for emissions events12, or $0.02 per pound of unauthorized emissions.
To fill the void, environmental groups and local governments in Texas have been forced to file suit to enforce air pollution limits when the government fails to do so.
- Last year, Petrobras’s Pasadena Refining Systems, Inc. — which had ranked number one in Texas for unauthorized releases of particulate matter in 2016 according to a 2017 study — settled a lawsuit with Environment Texas and the Sierra Club, agreeing to reduce emissions events and pay a $3.5 million penalty14. Since our first analysis of emissions events in 2016 and since the citizen lawsuit was filed against it, Petrobras has reduced its unauthorized emissions of particulate matter by 83%.
- Harris County District Attorney Kim Ogg filed criminal charges against the CEO and plant manager of Arkema’s Crosby, Texas, facility for “recklessly” releasing chemicals into the air during Hurricane Harvey. According to reports the company filed with TCEQ, Arkema emitted more than 20,000 pounds of particulate matter during Hurricane Harvey, second highest in the state in 2017.
A 2001 legislative analysis suggested, “the frequency of unplanned upset events raises concerns that the upsets may be part of normal operating procedures.”16 These events are largely preventable and should not be tolerated as normal operating procedures.
In order to reduce illegal air pollution and hold violators accountable, the state should:
- Develop a plan to reduce emissions events and increase compliance
- Adopt mandatory minimum penalties for emissions events
- Eliminate the “affirmative defense” from penalties that is offered to polluters
- Revoke a facility’s permit after repeated violations until the facility implements plans to return to compliance
- Require sources operating under a standard permit or permit by rule (“PBR”) to obtain a source-specific New Source Review permit and/ or a Title V operating permit when emissions events cause source emissions to exceed standard permit/PBR limits or Title V major source threshold
- Establish additional monitors, including SO2 monitors in the Permian basis, to accurately measure air quality impacts from unauthorized emissions from industrial sources
At the national level:
- Congress should reject efforts to weaken or eliminate the ability of citizen groups to sue to enforce environmental laws when government agencies are not enforcing the law
- Congress should maintain, and increase, funding for enforcement by the EPA
- EPA should maintain, and vigorously defend in court, its requirement that states strengthen rules dealing with emissions from equipment startups, shutdowns, and malfunctions.