Refinery Reform Campaign

Texas Groups Demand Immediate Investigation of Texas Environment Commission Following Scathing Audit of by EPA's Top Cop of Regional EPA office

- Inspector General Notes Serious Problems Apply to Regional EPA, Not Just Louisiana-

(Austin, TX) Two Texas environmental watchdog groups sent demands to the Inspector General at US EPA seeking an immediate investigation of Texas Commission on Environmental Quality in light of a scathing audit of the Region VI EPA and the Louisiana DEQ. The Refinery Reform Campaign and the Community In-power and Development Association of Port Arthur, Texas, filed the investigation request, in part due to serious pollution and lack of enforcement in the Port Arthur, Texas area.

"In the Inspector General's report just issued February 3, 2003, it states: "although our audit focused only on the Region's oversight of Louisiana, Region 6 may improve the oversight of all its states by implementing these recommendations." The Refinery Reform Campaign and the impacted communities of Texas believe that a thorough investigation of TCEQ and EPA Region VI's oversight is necessary to determine the precise corrections that must be made with regard to Texas," stated Denny Larson, Coordinator of the Refinery Reform Campaign, a project of the Texas SEED Coalition.

The Refinery Reform Campaign has assisted Louisiana communities in requesting a just competed investigation of Louisiana DEQ and Region VI EPA by the US Inspector General last March. The Inspector General issued his report on February 3, 2003, which stated that "EPA Region 6's oversight was insufficient and could not assure the public that Louisiana was protecting the environment because Region 6 leadership:

The Refinery Reform and CIDA letter to the Inspector General requests an inquiry into various aspects of TCEQ and Region VI EPA's performance:

REQUEST FOR INVESTIGATION OF TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND REGION VI EPA BY INSPECTOR GENERAL

FROM THE REFINERY REFORM CAMPAIGN OF THE SUSTAINABLE ENERGY AND ECONOMIC DEVELOPMENT (SEED) COALITION AND THE COMMUNITY IN-POWER AND DEVELOPMENT COMMISSION

Ms. Nikki L. Tinsley
Inspector General
U.S. Environmental Protection Agency
Washington, DC 20460

We are writing as Texas community members and representatives to request a complete and thorough investigation of the Texas Commission on Environmental Quality (TCEQ) and EPA Region VI performance as the delegated authority of the EPA to ensure and verify full compliance with Federal Environmental, Civil Rights and related Public Health laws, regulations, programs and policies. This includes, but is not limited to Title V, RCRA, NPDES and the Executive Order on Environmental justice. An immediate response by your office is required due to the extremely serious findings of your recent report on Region VI and the Louisiana DEQ. In watch-dogging TCEQ and Region VI, we believe that the thousands of innocent families are threatened by TCEQ's mismanagement and lack of appropriate oversight by Region VI.

The Refinery Reform Campaign has assisted Louisiana communities in requesting a just competed investigation of Louisiana DEQ and Region VI EPA. In that report just issued by your office, it states: "although our audit focused only on the Region's oversight of Louisiana, Region 6 may improve the oversight of all its states by implementing these recommendations." The Refinery Reform Campaign and the impacted communities of Texas believe that a thorough investigation of TCEQ and EPA Region VI's oversight is necessary to determine the precise corrections that must be made with regard to Texas.

One example of the serious problem with TCEQ and Region VI EPA is found in the Port Arthur, Texas area. There are several refineries and a chemical plants adjacent to the African American neighborhoods of the Westside of Port Arthur. This situation is among the worst example of how this mismanagement has threatened the health and safety of residents.

Unequal protection is a serious issue. TCEQ and Region VI EPA are potentially in violation of certain civil rights and environmental justice provisions. Port Arthur, like many refinery neighborhoods, is primarily an African-American community. The level of enforcement and appropriate agency activity in communities of color and low-income areas by TCEQ and Region VI requires an investigation to ensure that federal laws are not being violated.

In Beaumont/Port Arthur, clean air plans that are developed by TCEQ and approved by Region VI have been delayed for years. The first issue is that EPA had violated the Clean Air Act by granting an extension of the statutory deadline for meeting national standards for ozone pollution in the Beaumont area, and in approving a "SIP," (State Implementation Plan) for the area based on that extension. The SIP is the comprehensive plan for cleaning up the region's air. The Clean Air Act amendments of 1990 established November 15, 1996 as the compliance deadline for areas like Beaumont-Port Arthur. In December 2000 the EPA extended the region's compliance deadline until 2007. With that deferral the EPA had effectively given industry in the Golden Triangle an 11-year pollution extension. A recent court sided ruled in favor of the Sierra Club and against EPA on this issue.

The second question considered by the Court was whether the EPA had reasonably interpreted the Clean Air Act as not requiring any additional air pollution control measures in the Beaumont area's SIP. The 5th Circuit said that the Reasonably Achievable Control Measures (RACMs) approved by EPA complied with the Clean Air Act. But since the SIP extension has been ruled illegal and remanded back to EPA, this second ruling is legally moot because now EPA will have to require a new SIP for the region, including a new set of control measures.

The Triangle's serious ozone problem is caused primarily by heavy emissions of nitrogen oxide (NOx) and volatile organic compounds (VOCs) from industrial point sources of pollution. More than 20 years ago the Beaumont-Port Arthur area was classified as "non-attainment" by the EPA for the one-hour ozone standard by exceeding the standard four times or more in a three year period. The region has exceeded the one-hour standard on numerous days each year. This is another example of the long-term failure of Region VI EPA and TCEQ.

The failures of TCEQ and Region VI regarding the Beaumont/Port Arthur SIP and to require adoption of out of control industrial emissions, especially NOX and VOCs, is related to the agencies' failures to stem the tide of illegal upset emissions. As a result of investigations by citizens and their technical experts , the following serious problems have been revealed:

Unfortunately, these accidents are apparently a way of life in the Westside of Port Arthur, an African American neighborhood of about 15,000 people. Documents obtained from the Texas Commission on Environmental Quality (TCEQ) show that in the first seven months of 2002, accidents and equipment startups, shutdowns, or maintenance at five Port Arthur plants and refineries, including Atofina Petrochemicals Refinery Inc., BASF Fina Petrochemicals L.P., Chevron Phillips Chemical Co., Motiva Enterprises, L.L.C., and the Premcor Refining Group, Inc., released almost 725 tons (1,449,069 pounds) of SO2, nearly 10 tons (19,927 pounds) of hydrogen sulfide, 844 tons (1,688,077 pounds) of VOCs, nearly 42 tons (83,426 pounds) of benzene, a probable human carcinogen, and over 57 tons (115,483 pounds) of carbon monoxide.

The Environmental Integrity Project (EIP) recently released a report documenting excess emissions from startup, shutdown, maintenance, and malfunction practices at local refineries and chemical plants in Port Arthur, Texas "Accidents Will Happen", October 2002, available at (www.rffund.org). Analysis of upset reports filed by local refineries and chemical plants revealed that at least 725 tons of sulfur dioxide, 10 tons of hydrogen sulfide (H2S), 844 tons of smog-forming volatile organic compounds (VOC's), nearly 42 tons of benzene, and over 57 tons of carbon monoxide were released from such h incidents at five Port Arthur companies between January and July of this year alone. Alarmingly, pollution totals for certain pollutants such as VOC's and H2S may be as much as 30 times greater because flares, the primary method of pollution control used during malfunctions and shutdowns, do not appear to be working as well as company reports claim.

Instead of using enforcement and authority tools, EPA Region VI and TCEQ have relied largely on "voluntary" programs such as the Episodic Release Reduction Initiative (ERRI) in 1999-2001. While laudable, the data from Port Arthur shows that the effort has failed and that more enforcement is warranted. It is important to note that the public was excluded from the effort.

Smoking Flares Violate Federal Law- Federal law prohibits flares to smoke for more than five minutes in any consecutive two-hour period. Yet, as Table A of the EIP "Smoking Guns" report indicates, companies often report smoking flares for much longer periods in apparent violation of this requirement. However, a Catch 22 situation appears to exist as TCEQ does not require smoke readings to occur to verify violations. Region VI EPA, while aware of this problem, has done nothing to correct the problem. Without a system to ensure that smoking flares are monitored and smoke readings occur, violations cannot be pursued and corrections ensured.

There is no warning system to raise a red flag when a facility violates the same provisions an unreasonable number of times or when the state of affairs is such that citizens are reduced to living in fear and terror if they can't afford to move elsewhere. In other words, the management system is not designed to prevent pollution or protect public health but rather to protect the government from criticism by showing that every box has been checked and every bean counted.

The most effective environmental protection is not being done by the paid professional but by unpaid but highly motivated citizens. For example, there are insufficient monitors for toxic gasses set up in the Texas refinery neighborhoods, especially when it comes to tracking the peaks of pollution from upsets. What upset air monitoring there is, is done by voluntary citizen bucket brigades - groups of citizens who sample the air themselves. If TCEQ truly wanted to be effective, it would set up upset event air monitors in impacted neighborhoods and at least pay for the bucket brigades. It would also establish real time toxics monitors in hotspots and make the data available in real time on the web. These toxics monitors would be tuned to particular emissions of the facilities nearby.

If TCEQ truly wanted to be effective it would make sure that all complaints are reported and acted upon and that reliable records are kept on compliance and enforcement and that these records are easily available (e.g. on the web and in local libraries) to the public and the Agency as well. This would allow both the Agency and the public to do analysis, especially time line analysis of the performance of regulated facilities and their affect on neighboring communities.

If TCEQ truly wanted to be effective it would it would work much more closely with the public in the affected communities. It would do this by assigning one inspector to a given area like a beat cop. S/he would know not only the track records of the regulated facilities in he area but would also know the local citizens and workers and s/he would know whom to rely on for good information. The public would be involved in the inspection process and the inspector and community representatives would be involved meaningfully in the enforcement and compliance process. Instead, community relations usually mean holding public meetings to convince a skeptical community to "trust us".

If TCEQ wanted to be truly effective it would monitor the health in communities who are heavily impacted by polluting industries remembering that the stress of living in fear is often as great a health problem than measurable toxicity. Pollution can be prevented by hardware but the prevention of stress requires trust in the honesty and efficacy of the health and regulatory agencies.

As you should recognize by now, the affected communities stand ready, willing and able to work honestly to correct these serious problems. However, we need the immediate assistance of the US EPA Inspector General in completing a thorough investigation into the entire TCEQ and Region VI EPA's oversight of the agency in order to ensure that the problem is fully known and then corrected.

Please contact us upon receipt of this letter as to your plans to begin your investigation The contact person(s) for this letter are as follows:

Denny Larson
Coordinator, Refinery Reform Campaign
611 South Congress, Suite 200
Austin, Texas 78704

Hilton Kelley
Founder, Community InPower and Development Association
1301 Kansas
Port Arthur, Texas 77640

CC:
Christine Todd Whitman, EPA Admininstrator
Region VI Administrator, Lawrence E. Starfield
Region VI Enforcement Sam Coleman