Massive Violations|Alleged at ExxonMobil

HOUSTON (CN) – According to its own records, ExxonMobil violated the Clean Air Act by releasing “more than 8 billion pounds of pollutants into the atmosphere” from its Baytown industrial complex over the past 5 years, two environmental groups claim in Federal Court.

     ExxonMobil’s giant industrial complex covers 3,400 acres along the Houston Ship Channel, 25 miles east of Houston. It is the “largest petroleum and petrochemical complex in the United States” and contains the country’s largest refinery, the Sierra Club and Environment Texas Citizen Lobby say in their complaint.
     “According to the United States Environmental Protection Agency (‘EPA’), thousands of people live within a mile of the Baytown Complex; tens of thousands of people live within 3 miles of the Baytown Complex; and hundreds of thousands of people live within 10 miles of the Baytown Complex,” the groups claim.
     Both groups say they have members who live and work near ExxonMobil’s “Baytown Complex,” and ExxonMobil’s violations of the Clean Air Act have had a tangible effect on them.
     “Excess emissions from the Baytown Complex cause and contribute to chest congestion, coughing, fatigue, headaches, itching eyes, and other conditions among plaintiffs’ members,” according to the complaint. “Plaintiffs’ members worry that the complex’s excess emissions heighten the risk of cancer.”
     ExxonMobil operates not only a refinery but a chemical plant that “produces more than 7.2 billion pounds of petrochemical products a year,” and an olefins plant that “produces 6 billion pounds of ethylene, propylene, and butadiene; it is one of the largest ethylene plants in the world,” according to the complaint.
     “Plaintiffs have members who can see air pollution coming from the Baytown Complex, such as plumes of smoke from flares at the Baytown Complex and thick haze that sometimes hangs above the complex and nearby neighborhoods,” according to the complaint.
     “A sticky, sooty substance is deposited in neighborhoods near the Baytown Complex,” the groups say. “Plaintiffs have members who believe this substance originates in the Baytown Complex.”
     The groups add that ExxonMobil’s plants emit noxious odors. “The types of odors emanating from the Baytown Complex that plaintiffs’ members smell include: a rotten egg odor, an odor like burning rubber, and chemical odors. The odors become stronger closer to the Baytown Complex.”
     The groups say their members suffer from “chest congestion, bronchitis, asthma, headaches, sneezing, coughing, itchy and watering eyes, and fatigue,” which typically diminish when they “go on vacation or visit friends and relatives out of the area” of Baytown.
     “Plaintiffs’ members who moved to neighborhoods near the Baytown Complex from other parts of the state or country began experiencing these symptoms only once they moved to Baytown,” the groups say.
     “Plaintiffs’ members who live in the vicinity of and downwind of the Baytown Complex are exposed to higher levels of a variety of pollutants – including hazardous air pollutants, known carcinogens, volatile organic compounds, sulfur dioxide, nitrogen oxides, hydrogen sulfide, carbon monoxide, and the ozone that is formed as a result of the emissions of these pollutants – than they otherwise would be,” according to the complaint.
     ExxonMobil’s violations stem from a variety of causes, the groups say. “These include, but are not limited to, equipment failures and malfunctions, operational problems, electrical problems, inadequate maintenance, poor record keeping, and other longstanding systemic problems,” according to the complaint. “Plaintiffs are unaware of any actions by the defendants that have solved, or will solve, these persistent problems, or that will otherwise eliminate similar violations of the [Clean Air] Act, in the future.”
     Though ExxonMobil’s Baytown Complex is subject to several federal and state “regulatory mechanisms” the company continues to flout the law, the groups say.
     “First, the Baytown Complex is subject to technology-based standards promulgated by the EPA under the Clean Air Act,” according to the complaint. “Generally speaking, these technology-based standards are set based on an evaluation of the level of pollution reduction that can be attained through the use of particular technologies.
     “Second, the Baytown Complex is subject to regulations promulgated by the State of Texas known as the Texas State Implementation Plan (‘SIP’). Under the federal Clean Air Act, a SIP is a plan developed at the state level that sets forth how the state will achieve and maintain compliance with National Ambient Air Quality Standards (‘NAAQS’) set by EPA to protect human health and the environment.
     “Third, the Baytown Complex is subject to conditions set forth in source-specific operating permits. Most large stationary sources of air pollution are required to obtain federal operating permits under Title V of the Clean Air Act,” the groups say.
     These “Title V permits are intended to contain all air pollution control requirements that are applicable to a stationary source,” according to the complaint.
     “The Title V permits for the Baytown Refinery, Baytown Chemical Plant, and Baytown Olefins Plant impose emission limits expressed in pounds per hour on specifically named pollutants,” according to the complaint.
     “Repeatedly during the applicable statute of limitations period, the Baytown Complex has violated these pounds per hour limits.”
     ExxonMobil uses flares to burn waste gases at its complex and according to EPA’s regulations: “Flares shall be designed for and operated with no visible emissions … except for periods not to exceed a total of 5 minutes during any 2 consecutive hours.”
     But the groups say, “Flares at the Baytown Complex have repeatedly had visible emissions exceeding a total of 5 minutes during any 2 consecutive hours.”
     The Texas Commission on Environmental Quality tried, in vain, to rein in ExxonMobil’s rampant pollution, according to the complaint.
     “TCEQ has issued agreed administrative orders pertaining to some of the Clean Air Act violations alleged in this action. None of these administrative actions was brought in a court. Any actions taken under or administrative penalties assessed in those agreed orders have failed to put a stop to the ongoing violations alleged in this action. The deputy director of TCEQ’s enforcement division, John Sadler, stated publicly that TCEQ’s fines, capped at $10,000 per violation, are incapable of changing the behavior of large corporations. In addition, in very few agreed orders did TCEQ require defendants to actually pay the full penalty assessed, and frequently forgave as much as half of the assessed penalty,” according to the complaint.
     Violations of federal and state air quality standards are “directly enforceable by citizens under the citizen suit provision of the Clean Air Act,” the groups say.
     “The citizen suit provision of the Act grants jurisdiction to the United States District Courts to issue an injunction remedying violations of the Act and to impose appropriate civil penalties, and authorizes an award of costs of litigation.”
     The plaintiffs ask the court to declare ExxonMobil “to have violated and be in continuing violation of the CAA.”
     They want the court to “permanently enjoin [ExxonMobil] from operating all stationary sources of air pollutants at the Baytown Complex except in accordance with the CAA and any applicable permits and regulatory requirements” and to “take appropriate actions to remedy, mitigate, or offset the harm to public health and the environment caused by the violations of the Act.”
     Finally, they want ExxonMobil to pay a civil penalty of up to $32,500 for each violation of the Clean Air Act for the 5 years and 60 days prior to Jan. 12, 2009 (the applicable statute of limitations period), and “up to $37,500 per day for each violation of the Act and applicable permits and regulations occurring on and after January 12, 2009.”
     The plaintiffs are represented by Philip Hilder.

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