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REPORT:  EPA FAILS TO CLOSE LOOPHOLES IN 29 STATES WHERE “UPSET” AIR POLLUTION GOES UNPUNISHED, OFTEN UNTRACKED

 

State Laws Grant “Get-Out-Of-Jail-Free” Cards For “Accidental” Emissions;

Few States Do Needed Monitoring, Tracking or Enforcement

 

WASHINGTON, D.C.///August 18, 2004///At least 29 states have loopholes in their laws that allow “accidental” pollution emissions to exceed federal Clean Air Act limits, while many other states simply choose not to take enforcement against industrial facilities for such emissions, according to a report released today by the nonprofit and nonpartisan Environmental Integrity Project (EIP).  The U.S Environmental Protection Agency (EPA) is not acting to close the state loopholes that effectively encourage the so-called “upset” air pollution episodes at industrial plants that expose millions of Americans to hazardous emissions, including benzene, butadiene and other cancer-causing chemicals, the EIP report found.

 

In addition, the EIP analysis reveals that many states fail to accurately track upsets or to include upset emissions in state inventories, on which pollution control plans are based.   The annual upset emissions from a number of facilities in the study were actually greater than the total emissions those facilities reported emitting for the entire year.   For example, a close look at 37 facilities in two states showed the facilities released 63,411,603 pounds of excess pollution during upsets over just one year.

 

Though the EIP report is national in scope, it looks in detail at what is known (and not known) about upset pollution in California, Georgia, Louisiana, Ohio, Pennsylvania and Texas to illustrate the problem.  Entitled “Gaming the System:  How the Off-the-Books Industrial Upset Emissions Cheat the Public Out of Clear Air,” the report concludes:  “Air pollution limits are designed to keep the air safe to breathe.  Unfortunately, loopholes in the law render some of these limits virtually meaningless.  Upset loopholes, in particular, allow industrial sources to pollute significantly more than the law allows … Industry data show that upsets are causing air pollution in amounts above legal limits and, in some cases, far exceeding annual reported emissions.” 

 

Kelly Haragan, counsel, Environmental Integrity Project, said:  “The off-the-books pollution caused by unreported and unpenalized ‘upsets’ is at least as harmful as ‘routine’ pollution and should not be allowed to evade emission limits designed to protect public health.  ‘Upsets’ often result in large emissions of pollutions over short periods of time.  The pollution includes toxics and carcinogens that can affect the health of nearby communities.  Upsets are a significant problem for many areas, particularly the predominantly low-income and communities of color surrounding many refinery and chemical complexes.  We hope this report will encourage the EPA, states and industry to act now to make these plants operate in a cleaner and safer way.”

 

Suzie Canales, chair, Citizens for Environmental Justice, in Corpus Christi, TX., said:  “You have to live in or near an industrial plant that has ‘upsets’ to know the horror of wondering what these emissions are doing to you and your family.  The emissions aren’t just numbers.  They’re affecting our health.   Heart defects in babies in our area occur at two to six times the state registry rate.  My grandbaby was born with a heart defect.  I see the pollution coming out of these refineries and I ask myself:  How is this affecting my family’s health?  How is this affecting my community?  How sick must we be before someone pays attention?”

 

Marilyn Bardet, a resident of Benicia, CA said: “You can sometimes smell a terrible odor and feel a nasty taste in your mouth, but I’m just as concerned at all the things I can’t see that I know are occurring on a daily basis!”

 

MAJOR FINDINGS

 

The federal Clean Air Act mandates continuous compliance with its pollution limits.   It does not provide general exceptions for excess pollution from upsets, but instead requires that any pollution above federal limits be treated as a violation subject to enforcement.   The Clean Air Act requires states to adopt and enforce emission limits at least as stringent as those in federal and EPA approved state rules.  Despite the Clean Air Act’s requirement for continuous compliance, EPA and state’s rules have created numerous loopholes that allow emissions during upsets to exceed pollution limits.  The key findings of the report are as follows:

 

§  Illegal loopholes allow upset emissions to exceed pollution limits.   The EPA has not stepped in to address the fact that approximately 29 states now have laws that effectively excuse many upset emissions – allowing polluters to skirt compliance with health-based pollution limits set by the federal Clean Air Act.  In many of these states, facilities essentially get a “get-out-of-jail-free card” for some upset emissions, according to the report.  The 29 states (and the District of Columbia) identified in the EIP report are as follows: AL, AK, CA, CO, CT, DC, FL, GA, IL, IN, IA, KS, KY, LA, MS, ND, NV, NH, NM, NY, NC, OH, OK, RI, TX, UT, VA, WA, WV and WI (The loopholes in some of these states are larger than in others).

 

§  Lack of monitoring and reporting allow upset emissions to be kept “off the books.”  States rely on annual emission inventories to manage air pollution, but these inventories often don’t include upset emissions.  Of the 26 states that responded to an EIP survey, half said they either do not include or only sometimes include upset emissions in annual inventories of pollution.  As a result, this pollution is kept “off the books” and is left out of models and plans for clearing the air.  The publicly available online data in Texas is an outstanding exception to the general lack of tracking.

 

§  Upset emissions release toxic and carcinogenic chemicals that threaten the health and safety of communities already overburdened with toxic pollution.  Because facilities like refineries and chemical plants are often clustered together, neighboring communities are subject to repeated upset emissions.  The 37 facilities studied in detail for the report released more than 167,133 extra pounds of benzene and 142,754 extra pounds of butadiene during one year’s worth of upsets.  Both benzene and butadiene are carcinogens associated with cancers, including leukemia.  Benzene is ranked by EPA as one of two chemicals posing the greatest national cancer risk.  Butadiene is listed by EPA as one of the two most significant probable carcinogens contributing to regional cancer risk.  The upset emissions alone from BASF in Port Arthur, Texas make it the sixth largest emitter of butadiene and the twelfth largest emitter of benzene in the country. 

 

§  Annual upset emissions can actually exceed the total annual emissions a company reports to a state.  More than half of the 37 facilities studied in the report had upset emissions of at least one pollutant that were 25 percent or more of their total reported annual emissions of that pollutant.  For 10 of the facilities, upset emissions of at least one pollutant actually exceeded the annual emissions each facility reported to the state for that pollutant.  A typical case:  Upset emissions of carbon monoxide (CO) from Exxon Mobil’s Baton Rouge facility were almost three times its reported annual CO emissions. 

 

§  Upset emissions are largely avoidable.  A handful of plants appear to have minimized upset emissions, thereby proving that pollution from upsets is not an inevitable product of manufacturing.  Studies already show that better management practices would significantly reduce upset emissions.

 

Al Caporali, vice president, Community Labor Refinery Tracking Committee in Philadelphia, PA., said: “Air pollution and public health shouldn’t be political issues. The number one priority of every state and local government should be protecting the health of its citizens.  Yet the agencies responsible for making sure our air is safe to breathe are understaffed, underfunded and often don’t have the political will to stand up to these big industries.  It’s unbelievable that facilities can emit huge amounts of toxic pollution, but as long as they call it in and say it was an “accident” they don’t face any penalty.”

 

Johnny Lewis, member, St. Bernard Citizens for Environmental Quality in Chalmette, LA., said: “My home is within a mile and a half of the Chalmette, Murphy and Mobil refineries.  About 16 months ago one of the refineries blew up and, within an hour and 45 minutes, another one caught fire.  That’s when I decided enough was enough.  The pollution from the refineries stinks.  That’s how we know were breathing it in.  We’re like the canaries in the coal mine.  Know one really knows what breathing this soup of toxics does to a person.”

 

 

RECOMMENDATIONS FOR ACTION

 

The Environmental Integrity Project report makes the following recommendations for action:

 

§  Eliminate EPA and state loopholes.  EPA should eliminate the upset exemptions and defense provisions in its rules and in State Implementation Plans.  In addition, EPA and states should ensure that upset emissions are considered when issuing permits, tallying annual emissions and developing pollution reduction plans.

 

§  Improve state-level monitoring and reporting requirements.  States should require facilities to utilize the best technologies available for monitoring sources of upset emissions, including flares, valves and cooling towers.  They should centrally track all excess emissions, including those caused by upsets, and make this information easily accessible to the public using an electronic reporting system like that in Texas.  States should require facilities to report excess emissions electronically within 24 hours, and immediate for toxics, and the public should be able to access these reports through state agency websites within 72 hours.

 

§  Increase federal and state enforcement.  EPA and states should prioritize enforcement actions for illegal upset emissions.  States should make penalties for upset emissions automatic, based on the amount and toxicity of the emissions, and require reductions in routine emissions to offset releases from these events.  Making all excess emissions subject to regulation, enforcement and offset provides an incentive for facilities to prevent upsets and reduce air pollution.  In addition, permits should require facilities to shut down once they exceed a certain number of upsets.

 

§  More study of health effects.  Although communities near refinery and chemical complexes are exposed to a large volume of toxic emissions, there have been relatively few studies of the health effects of such exposure.  EPA and states should make funding these studies a priority.

 

The full text of the EIP “Gaming the System:  How the Off-the-Books Industrial Upset Emissions Cheat the Public Out of Clear Air” report is available online at http://www.environmentalintegrity.org.

 

Anita LaPorte, resident near refinery facility in Oregon, OH, said:  “I used to work across the street from a Sunoco refinery.  I now have a heart arrhythmia and chemical sensitivity.  We found nine people in a two-block area around the refinery with Multiple Sclerosis.  Something is obviously wrong.  We know emissions from the refinery are affecting our health, but we can’t even get basic information from the state about what is being emitted.  We’re at least entitled to know what we’re breathing.”

 

 

ABOUT THE ENVIRONMENTAL INTEGRITY PROJECT

 

 Founded by Eric Schaeffer, the Environmental Integrity Project is a nonpartisan, nonprofit organization established in March of 2002 to advocate for more effective enforcement of environmental laws.  Schaeffer directed the U.S. Environmental Protection Agency's Office of Regulatory Enforcement until 2002, when he resigned after publicly expressing his frustration with efforts of the Bush Administration to weaken enforcement of the Clean Air Act and other laws.

   

CONTACT: Stephanie Kendall, (703) 276-3254 or skendall@hastingsgroup.com.

 

EDITOR’S NOTE:  A streaming audio recording of a related news event will be available on the Web as of 5 p.m. EDT/2 p.m. PDT on August 18, 2004 at http://www.environmentalintegrity.org.  B-roll footage of upsets at various refineries nationwide will also be available to interested TV producers.