Contact:
Tom "Smitty" Smith (512) 477-1155 or 797-8468
Beth O'Brien (512) 636-7871 or (202) 454-5196
Denny Larson, National Refinery Reform Campaign, Cell - 415-845-4705

New Study of Unpermitted or Upset Pollution by Public Citizen Released as TCEQ Begins Hearings on Upset Rules

AUSTIN - A new study by Public Citizen of "upset" air pollution from oil refineries and chemical plants shows why the TCEQ should tighten up the rules governing unpermitted air emissions. The study documents that there were over 7500 times where unpermitted emissions were reported to the TCEQ yet that the TCEQ only took disciplinary action in less than 1% cases. If this pollution continues these emissions may threaten the states' ability to meet federal clean air safety standards. The study shows the impact of these emissions on the health of children. The study found that on days after unpermitted emissions occurred school attendance dropped. The TCEQ is holding a series of hearings around the state to take citizen comments on the proposed revisions to the rules governing these unpermitted released of pollution.

The study, Industrial Upset Pollution: Who Pays the Price?, shows how some companies regularly emit far more pollution that they are permitted to emit under their permits and documents the threats to health public health that result. These emissions occur when a plant is started-up or shutdown, or maintained. Some of these upset emissions occur during accidents, some due to operator error some due to leaks, and others due to illegal burning of products that don't meet specifications. One plant released 10 times more of one toxic chemical during single upset event than they were permitted to release during the entire year. Another industrial plant emitted 37 times more toxic pollution during several upset events than they were permitted to release over the entire year.

Some of these toxic emissions have impacts on the respiratory health of children but they are also neurotoxins. "The data show an alarming pattern. On days after these unpermitted emissions of respiratory irritants and neuro-toxins school attendance drops . The subsequent decreases in attendance rates at the schools near refineries are frequent and large enough to show there is a statistical correlation that warrants further study. If upset events are keeping Texas children at home from school, they are critically damaging our youth and our economy" said the report's author, Beth O'Brien of Public Citizen's Texas office. "Worst of all, our state regulatory agency turns a blind eye toward these large companies when they repeatedly and illegally pollute the air with toxic emissions far beyond what their permits allow."

"Communities near refineries and chemical plants are burdened daily from toxic emissions that these facilities release from everyday operations," said Suzie Canales of Citizens for Environmental Justice (CFEJ) in Corpus Christi. "Under the cover of darkness, people are routinely assaulted as they sleep from pollution from flares so bright they light up the sky and toxic clouds of hazardous chemicals that leave the plants and invade the community. In the slim chance a company is caught and fined, the fines are so low that the polluter profits from breaking the law."

The Public Citizen study examines the causes and impacts of 20 upset events in Corpus Christi and Port Arthur, Texas. The unpermitted emission events studied were from facilities owned by Valero, Flint Hills Resources, Motiva Enterprises, BASF FINA, and TOTAL Petrochemicals USA

Findings in the study include:

• The TCEQ has the authority to take enforcement action against unpermitted air emissions but rarely does so. Out of the 7,553 upset events reported to TCEQ in 2004, fewer than 1 percent resulted in a potential penalty, and TCEQ approved only nine corrective action plans for the 7,553 events.

• One plant experienced upset conditions on average 48% days of the study.

• The emissions aren't required to be included in the states' clean air plants. If the state's air quality staff don't include the predictable but unpermitted emissions that occur when a plant is started up, maintained or shut down they may be seriously underestimating emissions that are causing ozone violations. For example one plant reported emitting 1,986,880 pounds of criteria air pollutants during routine operations in 2003. The facility released an additional 2,323,980 pounds during emission events and scheduled maintenance, start-up, and shutdown activities.
• The agency ignores evidence of willful violations of the law, such as upsets that result from repeated human error or the illegal burning of poor-quality product.

• The acute health effects from upset events and unpermitted emissions can keep children home from school and force parents to miss work. Public Citizen's study performed a statistical analysis of the attendance rates at nearby schools following upset events nearly plants. The analysis found several schools have dramatic decreases in attendance rates following upset events at a nearby refinery. All of the schools showed some decrease in attendance rates.

• Upset emissions include hazardous air pollutants that can have significant impacts on the public's health, causing cancer, birth defects, reproductive and neurological disorders. The residents of Nueces and Jefferson counties, where many industrial facilities are located on the Texas coast, have higher death rates from cancers associated with industrial pollution. These cases of cancer cost Texans. Taxpayers in Texas pay 47 percent of the cost for all cancer treatments.

• Texas citizens ultimately pay the costs associated with people that do not have health insurance in Texas, either through higher health insurance premiums or through taxes that pay for uncompensated health care and related state programs. Approximately 25 percent of Texans do not have health insurance. In 1999, the Texas Medicaid program treated more than 123,000 asthma patients, costing the state $41.6 million.

• Upset pollution also leads to respiratory diseases, decreased lung function and exacerbations of asthma attacks. The rates of hospital admissions for adult and pediatric asthma in Nueces County are significantly higher than the Texas average. Hospital admissions for chronic obstructive pulmonary disease in Jefferson County are also significantly elevated compared to the state average. Annual asthma-related costs for the state of Texas are an estimated $763 million.

"Each year refineries and chemical plants dump tons of poisonous gases and chemicals that are out of compliance with state and federal laws and it's time to stop," said Hilton Kelley of Community In-power and Development Association (CIDA) in Port Arthur. "Polluters must shoulder the responsibility of protecting the people living on the fence lines from the toxic chemicals they emit."

"These rules are important to local communities because upsets, startup, shutdown and maintenance emissions often dramatically affect people living around industrial facilities," said Denny Larson of the National Refinery Reform Campaign. "Since these emissions aren't required to be put through pollution control devices, these emissions are frequently more harmful to local communities than permitted emissions. Yet emissions from upsets have historically been allowed to slip through legal loopholes and avoid the health effects reviews and pollution control requirements included in the permitting process."

"Oops, I did it again" shouldn't be an acceptable excuse for health-endangering pollution," said Luke Metzger of TexPIRG. "The TCEQ's proposed rules aren't strong enough to stop the problem. These new rules won't require emissions controls to be installed to prevent harm to the publics health, don't assure that the we don't violate pollution limits, and don't assure that penalties are high enough to deter repeat violations. We need Gov. Perry to take charge, round up Texas polluters, and make our air safe to breathe again."

TCEQ is accepting public comments on proposed changes to rules governing unpermitted emissions until August 8. Citizens may submit written comments by mail or oral comments at five public hearings around the state. The hearings will be Tuesday in Austin, Wednesday in Arlington, Thursday in Houston, Friday in Corpus Christi and August 8 in Midland. For more detail on these hearings, see http://www.tceq.state.tx.us/rules/hearings.html.

View Public Citizen's report, Industry Upset Pollution: Who pays the Price? @ http://www.citizen.org/texas

Public Citizen recommends the following changes to TCEQ rules :

1. All routine or predictable emissions should be subject to all permitting requirements. When sources go through permitting, they must estimate their total emissions, must use appropriate pollution control devices, must evaluate the effects of the emissions on ambient air standards and on local health. All routine or predictable emissions including emissions from scheduled startup, shutdown and maintenance should be subject to all permitting requirements.

2. No routine or predictable emissions should qualify for an exemption or defense to penalties. Industry should not get the right to use an affirmative defense or get out of jail free card for emissions that are routine or predictable.

3. TCEQ should increase monitoring at the fence lines of facilities, especially for air toxics, and require additional monitoring for facilities reporting continual excess emissions. When unpermittted pollution is "flared" or burned off they often releasing more harmful emissions than industry admits. Monitors should be required on fencelines to record the actual emissions.

4. All excess emissions should be promptly reported. The online emissions database is an excellent tool but the rules need to require immediate posting of the types of pollution being emitted. Communities have a right to know what is in the air they are breathing so they can decide how to respond.

5. TCEQ should fine companies that illegally pollute and ensure penalties are substantial enough that violators are not profiting from polluting. Penalties must act as a deterrent to future violations and thus take into account the economic benefit gained from violating the law.

6. TCEQ should establish mandatory fines so enforcement is sure and swift and deters repeat violations. If emissions from upset events exceed a certain threshold, penalties and enforcement action should be automatic.

7. Require Supplemental Environmental Projects (SEPs) to benefit directly the communities affected by the associated violations. SEPs are often used by industry to avoid a paying a fine, but these projects are often feel good projects, such as hike and bike trails rather that projects that really reduce pollution or help citizens that have had their health harmed by these unpermitted emissions.

8. The state must conduct detailed inspections at these industrial facilities annually. State inspectors should also conduct drive-by inspections at night when facilities are most likely to have upset conditions.

9. TCEQ must force companies that have regular, repeat upsets to install equipment to prevent such events from reoccurring. If an accident happens once, TCEQ should require the facility to identify the cause and propose and implement a strategy to prevent it from happening again. If it happens twice, the TCEQ should require installation of new equipment to prevent excess emissions from another repeat of the same event.

10. The state should allow cities and counties the right to sue the TCEQ and polluting companies if laws are not properly enforced.
11. Make state health effects screening levels (ESLs) enforceable standards so TCEQ can take enforcement action against a facility emitting air contaminants at levels that harm the health of the public. Regardless of the cause of excess emissions, they may affect ambient air quality and the health of local residents.

12. Require the modeling for State Implementation Plans (SIPs) to include air contaminants from emission events and start-up, shutdown and maintenance activities. If these emissions aren't included, the state clean air plant won't work The emissions from these events can lead to quick ozone formation and therefore modeling must consider them. The current TCEQ database records all upset emissions and the times of the events. TCEQ air modelers should have access to create database queries of hourly emissions that include those highly reactive volatile organic compounds and volatile organic compounds emitted during upset events.

Download Industry Upset Pollution: Who pays the Price? in Adobe pdf format.