Excessive Air Pollution and the Oil Industry: Fighting for Our Right to Breathe Clean Air

Introduction

The Federal Clean Air Act was enacted to prevent the deterioration of air quality by controlling emissions of hazardous air pollutants that could endanger public health and the environment. According to the Environmental Protection Agency:

Reducing emissions of hazardous air pollutants is extremely important and numerous studies have linked air pollution to respiratory illness, birth defects, learning disabilities, heart attacks, and various forms of cancer. ² The Clean Air Act guarantees all Americans that legal right to breathe clean air. Air quality, however, varies markedly across the country; according to the American Lung Association's 2009 State of the Air report, most Americans don't breathe clean air. Indeed, six out of ten Americans (186.1 million) currently live in counties with unhealthy air quality. ³

Air Permitting Process

States are required to submit State Implementation Plans (SIPs) to the EPA which outline how the state “will attain and/or maintain the health-related primary and welfare-related secondary National Ambient Air Quality Standards (NAAQS) described in Section 109 of the Clean Air Act.” ⁴ While the air permitting process differs from state to state, in general, companies that emit or plan to emit emissions are required to apply for general operating permits as well as permits for each industrial source of emissions. Air permits are documents which authorize hourly and annual emissions levels for numerous toxic and hazardous chemicals. Maximum allowable emissions rates are stipulated for each source of pollution. The permitting process is designed to improve air quality and protect public health by limiting the amount of pollution produced by major industrial sources. When a company exceeds permitted air emissions limits, the EPA and the state environmental agency can issue a range of civil or criminal sanctions.

The Clean Air Act stipulates that there may be instances in which companies exceed air pollution permit limits due to unavoidable or unpreventable accidents. These excess emissions events are known as “upset” events. Companies are able to offer a number of affirmative defenses in order to avoid enforcement action, alleging that these events were unavoidable. ⁵ In order to utilize an affirmative defense, the company must show that excess emissions were “caused by a sudden, unavoidable breakdown of technology, beyond the control of the owner or operator.” ⁶ Affirmative defenses are not applicable for facilities with a history of similar failures, improper facility design, improper maintenance, or poor operating practices. According to the EPA, start-ups, shut-downs, and maintenance should not be considered “unforeseeable” or “unavoidable” because they are considered part of “normal” operations. ⁷ Yet 28 states and the District of Columbia grant some exemptions for upset events, with many states allowing exemptions for normal operations. ⁸ Even more importantly, the lax regulatory environment in many states means upset emissions may be avoidable, but regulators are not checking the validity of industry claims.

Upset Event Research

Reports produced by national and state environmental organizations since 2002 provide alarming evidence that upset event exclusions allow companies to greatly exceed permitted levels of air pollution which are arguably too generous at present. National and state environmental interest groups have called attention to the frequency and magnitude of upset events by the petroleum refining industry and the negative impact of these emissions events on the health of people in neighboring communities. Upset events often involve large releases of concentrated toxic chemicals in a short amount of time, unlike emissions from routine operations. Events can last for just minutes or for possibly several weeks. While these pollutants are released into the environment with harmful consequences to public health they are often not counted in permit totals and allow industry to violate the formal and substantive intent of the Clean Air Act.

Accidents Will Happen, a 2002 report published by Washington D.C.-based Environmental Integrity Project (EIP), analyzed Port Arthur, Texas air emissions from start-ups, shut-downs, and malfunctions at five refineries and chemicals plants over a seven month time period. ⁹ The study found that these five plants were responsible for an average of twenty-one excess emissions events per month in 2002. A report released by Public Citizen entitled Industrial Upset Pollution: Who Pays the Price? closely examined twenty upset events in two counties with high concentrations of industrial pollution in Texas. ¹⁰ The report found that “some facilities … emitted particular carcinogens during upset events that exceeded the amount of the carcinogen released through annual routine operations by more than 1,000%.” Another EIP report in 2004, entitled Gaming the System found that more than half of 37 facilities in Louisiana and Texas had upset events of at least one pollutant that were 25% or more of their reported annual emissions for that pollutant. ¹¹ EIP (2004) also found that some Texas companies omitted more than eighty percent of actual emissions in their annual emissions reports, seriously compromising the integrity of the EPA's Toxic Release Inventory (TRI). Thirty facilities in Texas released over 45 million pounds of pollution through upset events alone.

Limited access to air emissions data and the laborious nature of data collection have prevented researchers from large-scale studies which examine the magnitude and frequency of air emissions events over time. Texas is one of few states that offers online public access to upset event data. Prior to 2003, Texas upset emissions reports were difficult to obtain and like most states, data could only be obtained in person or through public information requests. Consequently, the research examining air emissions data has been limited until recently and to date, research examining upset events outside of Texas is limited. Preliminary research from our longitudinal analysis of upset event emissions from six petroleum refineries in Texas reveals that the refineries in the analysis display a tendency to use the upset event exclusion rather liberally, regardless of the cause or amount and type of pollutant discharged.

The Petroleum Refining Industry

The majority of the research on upset events examines emissions from the petroleum refining industry, a major source of air pollution. The United States is one of the largest producers of crude oil in the entire world, responsible for approximately 25% of world refinery production. Even though we only represent five percent of the world population, Americans consume over 25% of the world's oil production. Our nation uses two times more petroleum than natural gas or coal and four times more than nuclear power or renewable energy. ¹² The petroleum refining industry is comprised of a very small number of companies and facilities. The Energy Information Administration estimates that 143 petroleum refining facilities in the United States produce approximately seventeen million barrels of oil per day. ¹³ While thirty-one states have at least one oil refinery, sixty-four of these facilities (and over half of our refining capacity) are concentrated in just three states: Texas (26), Louisiana (19), and California (19). The petroleum refining industry is the largest industrial source of volatile organic compounds (VOCs); the second largest industrial source of sulfur dioxide; and the third largest industrial source of nitrogen oxides. ¹⁴

In Your Backyard

Air pollution is cause for concern, particularly for the approximately five million people in the United States who live within a three mile radius of one or more oil refineries and the over 390,000 people who live within a one mile radius of one or more oil refineries. ¹⁵ Over two million people residing in Texas, California, and Louisiana live within three miles of one or more refineries and over 225,000 people live within one mile. Approximately 35 to 40 percent of people within close proximity to one or more oil refineries are under the age of 17 or over the age of 65 (children and the elderly are especially vulnerable to air pollution).

Not surprisingly, many communities located in close proximity to petroleum refineries are comprised of low income, minority residents; in line with numerous studies that have shown that minority and/or low-income communities are disproportionately affected by environmental hazards. ¹⁶ According to 2000 Census data, 66% of the population is white, non-Hispanic and 34% are minorities (non-white, non-Hispanic). ¹⁷ Comparatively, over 41% of people living within one to three miles of one or more refineries were minorities. In California, 61% of people living within three miles of one or more oil refineries were minority. In California, Louisiana, and Texas, the percent of minorities living within one to three miles of an oil refinery was five to ten percent higher than the percent of minorities in each state (CA: 63% vs. 53%; TX: 57% vs. 47%; LA: 42% vs. 37%). According to the Census (2000), the percent of households with total income less than $15,000 a year is approximately 13% nationwide. Comparatively, 21% of households within three miles of a refinery have total income less than $15,000 per year. In Texas, approximately 30% of households make less than $25,000 per year; however, 41% of households within one mile of a refinery make less than $25,000 per year. The data clearly show that people living in close proximity to one or more oil refineries in the United States are disproportionately minority, disproportionately low-income, and disproportionately affected by air pollution, upset events, and the petroleum refining industry.

Petroleum Refining, Pollution, and Public Health

Air, water, and soil pollutants generated by the petroleum refining industry are directly related to a wide range of human health and environmental problems. Many of the toxic and hazardous air, water, and soil pollutants emitted by oil refineries are known cancer-causing agents and are also responsible for liver damage and cardiovascular impairment. Human health consequences of exposure to petroleum refinery air pollutants also include gastrointestinal toxicity, kidney damage, blood disorders, reproductive and developmental toxicity, pulmonary disorders, polyneuropathy, cataracts, and anemia. ¹⁸ Benzene exposure is associated with aplastic anemia, multiple myeloma, lymphomas, pancytopenia, chromosomal breakage, and weakening of bone marrow. ¹⁹

Emissions produced during upset events are cause for a great deal of concern. Rates of hospital admissions for adult and pediatric asthma as well as chronic obstructive pulmonary disease are elevated in counties with excessive air upset events. ²⁰ Attendance rates at several schools located close to petroleum refineries were dramatically lower following upset events at the refineries. ²¹ Children are most at risk when exposed to polluted air because they have higher breathing rates and spend more time playing outdoors.

In addition to causing a plethora of human health problems, exposure to pollutants generated by petroleum refineries causes a great deal of worry and fear among residents living near petroleum refining operations. Residents who believe their health is directly affected by air pollution from nearby oil refineries are faced with numerous personal challenges. Not only must residents deal with the health consequences of pollution, they also are subjected to numerous emotional and economic maladies. Their homes lose value, they worry about cancer, and they are concerned about losing jobs in the very industry that pollutes them. Fighting for justice creates even more hardships.

Current Regulatory Environment and Upset Events

Environmental Integrity Project and Public Citizen, in conjunction with several state and local grassroots environmental justice groups, offer numerous suggestions and recommendations for the EPA and state regulatory agencies regarding upset events. According to Environmental Integrity Project, many of the upset events in Port Arthur, Texas could have been prevented had the EPA and the state required plant operators to fix the underlying cause of the “accident” by either installing better pollution control equipment or replacing outdated equipment. ²² Environmental interest groups adamantly state that the Texas Commission on Environmental Quality (TCEQ) has done very little to prevent or eliminate upset events. For example, both EIP and Public Citizen examined TCEQ upset event data and enforcement responses in 2004. In 2004, 7,522 upset events were reported. Less than 1% resulted in a financial penalty and only nine companies were required to submit corrective action plans. In 2000, TCEQ issued 12,918 Notices of Violation yet that number fell to only 9,891 by 2004, a 24% decrease in Notices of Violation in less than four years. The Public Citizen report found that several refineries had not been inspected in over four years, mirroring results from Jarrell (2007) which found that from 2003 to 2004 the EPA did not inspect over half of all refineries for violations of the Clean Air Act and states did not inspect over thirty percent of facilities for violations of the Clean Air Act. ²³ A Government Accountability Office (GAO) study from 2001 found that less than 4% of all emissions were from direct monitoring and testing and over 96% of emissions were based on self-reported estimates. ²⁴

Given the impact of air pollution on respiratory illness, cardiac health, and mortality rates in the general population, it is of utmost importance to conduct further research on upset events to better understand how much air pollution is emitted during upsets and better determine the harm caused by exposure to excess pollution. Environmental groups like Environmental Integrity Project and Public Citizen can be credited with illuminating the numerous problems associated with upset events. Today, it is widely recognized among environmental advocacy groups that upset events are cause for concern and should be included in the permitted emissions limits. As a result of these reports, state and federal regulators as well as the public were made aware of the problems (and potential problems) associated with upset events. Environmental advocacy groups examined upset event data in 2002, 2004, and 2005; to date, academic research involving upset event data is virtually non-existent and there have been no longitudinal analyses of upset events to determine if these events increase or decrease over time or if enforcement actions are taken. We are currently in the process of collecting and analyzing upset event data for all petroleum refineries in Texas and suggest that researchers examine data in other states. Studies need to examine whether upsets are occurring from the same source over time. Currently it is unknown if emissions caused by upset events are the result of a series of isolated events occurring within large industrial facilities or simply the same fugitive emissions released by the same faulty equipment time and time again. Even though the data collection process is laborious, we believe it is of critical importance to collect and analyze upset event data in order to provide the necessary empirical support for policy recommendations.

At present, citizen groups have found the EPA and state agencies as well as policymakers unable and/or unwilling to address the myriad problems associated with upset events. While agency reports and government memos suggest emissions regulations need to be reexamined, no action has yet to be taken. As a result, citizen groups have taken matters into their own hands. In January 2008, two environmental groups, Sierra Club and Environment Texas, filed a lawsuit in a Houston federal court against Shell Oil Company's Deer Park Refinery. These groups, armed with extensive upset event data, alleged that Shell repeatedly violated the Clean Air Act at the Deer Park Refinery for at least five years, including more than 1,000 permit violations from over 300 upset events. The suit alleged that many of these upset events could have been prevented. For the first time, private citizens, frustrated by the lack of government enforcement, used a provision in the Clean Air Act which allows citizens to sue for violations if the government fails to stop upset events from occurring. As a result, the federal courts found Shell's Deer Park Refinery in violation of the Clean Air Act. The refinery is required to reduce emissions caused by upset events by 80% over the next three years and the refinery is also required to adopt numerous pollution control measures. ²⁵ In August 2009, Sierra Club and Environment Texas filed a lawsuit against a Chevron refinery in Baytown, Texas. In 2009, as the result of Sierra Club v. EPA, a U.S. Court of Appeals in the D.C. Circuit ruled that emissions count even during upset events, vacating rules established under the Bush EPA which had exempted pollution from start-ups, shut-downs, and malfunctions. ²⁶ However, we have yet to see if state environmental agencies will actually enforce the rules.

Conclusion

While non-governmental organizations (NGOs) such as Public Citizen and Environment Integrity Project have undertaken data-driven studies to illuminate the problem of upset events and the Sierra Club is bringing legal action against refineries, there is still a significant role for academics to play in the fight to protect air quality for the general public and people living near industrial facilities. In order for social justice to be achieved, academics must be committed and willing to extend their expertise and efforts beyond traditional academic roles and expectations; even if our efforts aren't well received by the traditional vanguard.

One method of contributing to more positive health outcomes and social justice for those living near refineries is to bring attention to the problem. Relatively few studies exist on upset events. The need for longitudinal studies is especially pronounced, which is why we are undertaking a six-year study of 24 refineries in Texas. Academics can lend their skills to this fight by studying upset emissions from power plants and other facilities, gathering enforcement and compliance data, assisting local activists to petition government for better monitoring and regulation of upsets, or simply teaching the next generation about environmental justice.

Many people are familiar with the work of environmental justice pioneer Dr. Robert Bullard. Dr. Bullard provides an ideal example of how an academic can use his/her skills to fight for social justice; Bullard teaches at Clark Atlanta University, writes books and articles on environmental activism, justice, and sustainable development, gives lectures and presentations on social issues, and assists activists and NGOs with their work. Grassroots activist Lois Gibbs (Love Canal) assists thousands of other grassroots activists and numerous communities through the Center for Health, Environment, and Justice (CHEJ). While we stand on the shoulders of such giants and may never match the magnitude of their contributions, we can certainly lend a hand and our expertise. Social justice will not happen without a committed and sustained effort from all of us that extends beyond theorizing and rhetoric. We need to be a part of that change.