Fall 2014: Vol. 17, No. 1.

Post-Trial Briefing Continues in Exxon Case

HOUSTON—On June 23, NELC submitted “proposed findings of fact and conclusions of law” to U.S. District Judge David Hittner. This 450-page filing presents every relevant piece of evidence and each legal precedent proving that ExxonMobil Corporation should be held liable for approximately 18,000 violations of the federal Clean Air Act at its Baytown, Texas, refinery and chemical plant complex since 2005.

NELC submitted these proposed findings and conclusions to assist the court in writing its final decision following a three-week long Houston trial that pitted Environment Texas and Sierra Club against Exxon this past February.

The evidence includes the testimony of 25 witnesses and over 1,000 trial exhibits, and covers over 4,000 separate incidents at the Baytown complex, from which Exxon released a total of more than 10 million pounds of unlawful pollution.

NELC attorneys are asking Judge Hittner to find that the number and seriousness of Exxon’s violations, and its refusal to take the steps necessary to prevent the escape of dangerous pollutants, justify the maximum allowable penalty of $641 million and the appointment of an outside monitor to oversee Exxon’s environmental compliance efforts. There is no timeline for issuance of the final decision.

Suit Seeks Stronger EPA Protections for Aquatic Life

BOSTON—In September, NELC attorneys filed a petition with the First Circuit Court of Appeals challenging the Environmental Protection Agency’s new regulations governing the intake of cooling water at major industrial facilities.

Across the country, industrial facilities take in water from surrounding lakes, rivers, or bays to cool their machinery, killing trillions of aquatic organisms in the process. The new regulations, which apply to 1,065 existing power plants and manufacturing facilities, fail to mandate what the Clean Water Act requires: a national standard requiring “the best technology available for minimizing adverse environmental consequences.”

As a result, fish and other aquatic organisms will continue to be killed and injured by the intake of billions of gallons of cooling water at these facilities each year.

Unless the new regulations are improved, citizen groups seeking safer intake measures with less environ- mental impact will have to challenge each one of the 1,065 cooling water permits separately, while facing the daunting task of “outdueling” well- heeled companies and their hired consultants in each case.

The EPA has set the bar at the level that can be achieved by the worst- performing facilities, rather than the best ones.

The EPA has determined that water intake systems cause potential harm to aquatic organisms in two ways: by entrainment (killing or injuring aquatic organisms by drawing them into and pulling them through the cooling water intake apparatus), and impingement (killing or injuring aquatic organisms by pinning them against the cooling water intake screen).

The EPA has determined that closed cycle cooling is “indisputably the most efficient technology at reducing entrainment.” Rather than requiring this technology, however, the new regulations essentially set the bar at the level that can be achieved by the worst-performing facilities, not the best.

Further, the regulations rely on a case-by-case approach that will al- low large companies to use lawyers and consultants to overpower citi- zen opposition and negotiate weak permit terms.

NELC will argue that a better approach, and one that complies with the Clean Water Act, is to require the installation of closed cycle cooling or another system that achieves similarly protective results, while allowing case-by-case exceptions for those facilities that can prove that such technology is not practical at their particular location.

Interview with Environment Texas’ Luke Metzger

Luke Metzger, the long-time director of Environment Texas, describes his group as “a non-profit environmental organization dedicated to protect- ing the air, water, and open spaces of Texas through tough-minded advocacy, winning concrete results for our environment.”

In December 2010, Environment Texas joined the Sierra Club in a lawsuit seeking to compel ExxonMobil to comply with the Clean Air Act at its Baytown refinery and chemical plant complex outside Houston. The case went to trial this past February; the National Environmental Law Center represents both organizations in the case.

Why did Environment Texas decide to sue ExxonMobil for violating the Clean Air Act?
We made a decision several years ago not to sit on the sidelines while the Texas Commission on Environmental Quality (TCEQ) lets some of the largest companies in the world foul our air without meaningful consequences. The suit against Exxon is the third we’ve brought against chronic Clean Air Act violators along the Houston Ship Channel, one of the most heavily polluted areas in Texas.

We focused on Exxon because the Baytown Complex has experienced more than 4,000 so-called “emission events” since 2005: That’s an average of more than one a day! Each of these mechanical breakdowns, operator errors, and other failures caused an unauthorized release of air pollutants, adding more than 10 million pounds of flammable, toxic, and smog-forming chemicals to the air.

Because these emissions endanger the health and safety of thousands of Houston-area residents, we decided to blow the whistle on Exxon’s flagrant lawbreaking and demand they clean up their act.

How can citizen groups like Environment Texas get involved when companies violate the law?
The Clean Air Act allows citizen groups to file suit against polluters when the state fails to enforce the law. This right is especially important in a state like Texas, where the TCEQ has been notoriously lax in its enforcement.

What was it like to testify in federal court during the three week long trial of this case in Houston, before Judge David Hittner?
It was pretty intimidating to get cross-examined by Exxon’s top lawyers, but the NELC attorneys did a great job helping me know what to expect and feel comfortable on the stand. It was definitely a profound “speaking truth to power” experience.

I was on the witness stand for several hours, testifying about what Environment Texas is all about as an organization, why we and our members are concerned about illegal pollution from the Baytown Complex, and how the TCEQ has actually coop

erated with Exxon in allowing these violations to continue. And I spent a great deal of time going through the hundreds of pages of spreadsheets that we compiled that document each and every one of Exxon’s 18,000 violations. This is the evidence that I hope will convince Judge Hittner to penalize Exxon and to order them to upgrade the Baytown Complex so that it complies with the law.

Can cases like this actually improve environmental compliance in Texas?
They already have. Our earlier Clean Air Act cases against Shell Oil Company’s Deer Park refinery and chemical plant and Chevron Phillips Chemical Company’s Cedar Bayou chemical plant in Baytown each resulted in binding settlement agreements that forced each company to cut its illegal air pollution by about 95 percent compared to pre-lawsuit levels.

These lawsuits, and the pollution reductions, have caught the attention of other companies and government regulators. A successful result against Exxon would keep the momentum going for clean air.

Children’s Health Clinic Funded by Chevron Settlement Opens in Houston

HOUSTON—The Baylor College of Medicine’s Environmental Health Service (EHS) opened a clinic this April to service children in the heavily-polluted Houston Ship Channel Area. The clinic is the result of a 2011 settlement NELC negotiated with Chevron Phillips Chemical Company, which provided $2 million for the project.

The clinic targets children with elevated blood lead levels or poorly controlled asthma—symptoms associated with industrial pollution—and also provides training to minimize environmental hazards in the home.

As explained by EHS Director Winifred Hamilton, “We may work with the city to address a nearby emission source, help the patient and their family to reduce allergens and combustion gases in the home, and possibly address other issues, such as nutrition and stress.”

With only 25 percent of the $2 million settlement fund spent to date, the fund will continue to provide aid to those facing significant environmental health impacts. EHS plans to open a clinic for adults in late 2014 and is already looking for other income streams to support the clinic.