Pollution suit targets Port Arthur plants
Neighbors claim chemicals illegally released in area

By DINA CAPPIELLO
Houston Chronicle Environment Writer
Copyright 2003

June 26, 2003, 6:44AM

BEAUMONT -- The victims lined up in front of the Jefferson County courthouse, holding lists of chemicals released into their neighborhoods and aerial maps of the tanks and towers that loom over their streets.

One woman clutched a flowered box full of tissues, in case her respiratory illness flared.

On Wednesday, after years of living in the shadows of industry, they took action, filing a lawsuit with more than 500 neighbors against a half-dozen Port Arthur refineries and petrochemical plants that, they say, "forced" noxious fumes into their community. The fumes and vapors, they say, contaminated their soil and air, while the companies claimed their environment was safe.

"Port Arthur is really killing us all," said Lillie Tilley, one of about 25 plaintiffs flanked by three attorneys and a trio of environmentalists at the news conference Wednesday. "While we all knew what was going on," she said, "now we have somebody to help us."

The litigation -- environmental equivalent of a personal injury lawsuit -- seeks to recover medical costs, as well as money to monitor health problems in the community.

Nearly all of the plaintiffs -- many who live within a mile of the Port Arthur plants -- complain of asthma, or have watched a relative die of cancer, or remember when a company came to hose down their house or car after a chemical release.

Several joined the lawsuit on behalf of relatives whose deaths they believe were partly caused by the pollution.

To blame are Premcor Refining, Motiva Enterprises, Chevron Phillips Chemical Corp., Huntsman Petrochemical Corp., BASF Corp. and Atofina Petrochemicals, along with three plant managers, the lawsuit states.

These facilities legally release more than a million pounds of pollutants each year, according to 2000 federal data. But the lawsuit focuses on the plants' recent upsets. These unplanned releases, which occurred from January 2002 through January 2003, can be exempt from a plant's annual emissions, resulting in millions more pounds of pollution.

This pollution, the lawsuit alleges, was concealed by the companies from authorities and residents, and the amounts were grossly underestimated.

"To us, it is a quality of life issue. It's time now for the industries to be a good neighbor," said Don Maierson, one of the attorneys.

But some in the community, and some company officials, said Wednesday that it is best to solve the problems working together. Since 2000, the companies and citizens have sat down in an advisory group to discuss the community's concerns.

"This is the first time we have ever really sat down and talked to the refiners. They really have changed," said Luverda Batiste, 73, a local resident and activist who interrupted the news conference on Wednesday.

"I hate to see all these lawsuits filed," she said.

An official with Motiva Enterprises said the company could not comment on the lawsuit but hoped to continue discussions.

"Motiva has been and will continue to talk with residents in Port Arthur about actions we can take together to improve the quality of life for our neighbors," said Tim O'Leary, a spokesman for Motiva.

Such "toxic tort" cases are by no means new -- they have been used to collect damages caused by toxic mold, accidental spills and hazardous waste sites -- this one differs in the amount of pollution involved, according to lead attorney Newton Schwartz, a Houston lawyer who has worked three dozen such cases, including a lawsuit over the effects of the herbicide Agent Orange on Vietnam veterans.

Schwartz, who has been investigated by the State Bar for previous legal dealings, is paying the costs for the litigation. He said it would likely total about $1 million.

Unlike personal injury cases, toxic torts are harder to prove.

Cigarette smoking and other lifestyle choices can cause health problems similar to those cited. And unlike cases where there is a spill and there is a clearer cause and effect, the pollution being targeted in the Port Arthur case is from many sources, over years.

Still, unlike some previous cases in Harris County, which were dismissed or limited by judges, some lawyers said this case may have a better shot since Jefferson County has more liberal judges and fewer industrial facilities.

"If these people succeed, it's going to make everyone healthier," said Terence O'Rourke, a lawyer formerly in the Harris County attorney's office, who is now in private practice.

O'Rourke said the case would further be boosted if the companies were unlawfully polluting.

Data from the Texas Commission on Environmental Quality show that during the same period, the six Port Arthur facilities named, had hundreds of these so-called upset emissions. In 2002, the facilities were cited for more than 100 violations of state air pollution laws.

These facilities have "patterns of upsets that we contend aren't accidents, but are caused by inadequate design and maintenance," Maierson said.

Don Olsen, a spokesman for Huntsman Petrochemical Corp., said company officials had not seen the lawsuit, but "feel it is unfounded and without basis, and we will defend ourselves against it."

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