May, 22, 2015, was a red-letter day for Hilton Kelley. The 58-year-old environmental justice activist was on Capitol Hill in Washington, D.C., 1,300 miles from his Texas Gulf Coast home of Port Arthur. Kelley stood in a room with other activists and then-EPA administrator Gina McCarthy as she signed a directive ordering Texas and 35 other states to mandate penalties for industrial facilities when they illegally spew dangerous pollutants, fouling the air and making people sick. “Everyone in the room was clapping and excited about some protection from the oil refinery emissions,” Kelley said on Tuesday.
The order was the result of years of activism to close a loophole that’s long been exploited by industrial air polluters to escape penalties. It aimed to curtail the use of an “affirmative defense” that oil refineries, coal plants and other polluters commonly deploy to regulators after illegally emitting dangerous chemicals: claiming that the emissions were a result of a “start-up, shutdown or malfunction” at a facility — basically, an unforeseen, unavoidable situation. Such events caused 2,000 tons of sulfur dioxide and other volatile organic compounds to be released during Hurricane Harvey.
Companies tend to claim the “affirmative defense” loophole as a matter of course when submitting emissions reports to state regulators, however; in fiscal year 2017, polluters in Texas invoked the loophole in 97 percent of emissions events, according to the Texas Commission on Environmental Quality (TCEQ).
But despite the 2015 federal rule ordering TCEQ to close the loophole, the state never did. That same year, indicted Attorney General Ken Paxton filed suit against Obama’s EPA, claiming the order “make[s] it impossible for even the most carefully-regulated facilities to avoid costly penalties due to unplanned events out of their control.” Paxton managed to keep the case in court until Trump took office. Last week, Andrew Wheeler, the president’s current EPA chief and a former coal industry lobbyist, filed an order to rescind the directive.
As a result, Texas now won’t even have to fight a legal battle to keep the massive loophole open and energy companies will be able to illegally pollute with even less fear of state fines. “For them to overturn that, that’s sad. It’s heartbreaking to hear,” Kelley said.
In 2017, so-called facility start-ups, shutdowns and malfunctions caused 4,000 illegal emissions events and were responsible for 63 million pounds of air pollution statewide, according to an Environment Texas report. Such events are so common that researchers at Indiana University determined last year “they are in fact a routine part of industrial operations” in Texas. Sierra Club attorney Josh Smith told the Observer that industrial polluters will sometimes claim that illegal emissions were the result of unavoidable circumstances so they can invoke the loophole — even if the discharges could have been stopped with better planning. In any case, data appears to show that TCEQ goes easy on violators. In 2017, the agency issued fines in only 1.4 percent of the 4,000 emissions events.
The unauthorized discharges happen most frequently along the petrochemical complex that hugs the Houston Ship Channel, as well in West Texas oil fields where fracking has unlocked record amounts and crude and natural gas. Many of the pollutants are harmful to human health, and can even cause death in extreme cases. One of them, benzene, is a known carcinogen. Particulate matter can cause heart attack and stroke. Excess nitrous oxide forms smog and is a potent greenhouse gas that drives climate change. Children living within two miles of the Houston Ship Channel are 56 percent more likely to contract leukemia, according to the University of Texas School of Public Health; it’s no wonder that the Upper Gulf Coast, which comprises Harris, Brazoria, Jefferson and a couple other counties, is sometimes referred to as the state’s cancer belt.
The often-used defense has come up in some of the highest-profile emissions debacles in recent state history. For instance, ExxonMobil regularly used it while the company illegally released 8 million pounds of pollutants, including benzene, carbon monoxide and hydrogen sulfide, from its massive Baytown Complex from 2005 to 2010. The unauthorized emissions were accompanied by smoke fuming from the facility, gas flares blazing through the night and rumbling that reverberated out to nearby neighborhoods, a lawsuit filed against the company alleged.
An ExxonMobil executive testified at trial that he claimed the loophole in all of the emissions reports he submitted to the state — regardless of whether the company actually met state criteria for the defense. TCEQ did little to curb ExxonMobil’s pollution. It wasn’t until Environment Texas and the Sierra Club sued the company in 2010 that it was held accountable: a federal judge ordered ExxonMobil to pay nearly $20 million for violating the Clean Air Act 16,000 times.
Closing the loophole wouldn’t stop all emissions, but the threat of high financial penalties might make plant operators take unauthorized emissions more seriously and conduct more regular maintenance, said Bryan Parras, a Sierra Club community organizer in Houston. Kelley, the Port Arthur activist, said better regulation is needed to avoid more fires like the one that erupted at the Valero Port Arthur Refinery in 2017. Some 286,000 pounds of particulate matter were released into the air, making the emissions event one of the worst in Texas that year. TCEQ allowed the company to use the affirmative defense; no enforcement action was taken.
He lists a few of the people in Port Arthur — some former classmates of his — who have died of cancer before reaching 60. “Every day we have to deal with the start-up emissions, the shutdown emissions, the incidental emissions. I mean, it’s killing us,” Kelley said. “Looks like we’re gonna have to go back to the Hill.”