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  July 29, 2017

Green Groups Sue EPA Over Loophole for Big Polluters in Texas

Environmental groups filed five lawsuits against the EPA after state records showed the oil and gas industry illegally emitted 500 million pounds of pollutants but were only fined 3% of the 25,000 pollution incidents
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Gabriel Clark-Leach is a Clean Air Act attorney at the Environmental Integrity Projectís Austin, Texas office. His practice focusses on air permitting and compliance for coal fired power plants and petrochemical facilities in Texas. The Environmental Integrity Project is a non-profit, non-partisan organization that strives to improve enforcement of anti-pollution laws.


Dimitri Lascaris: This is Dimitri Lascaris for The Real News.

Texas has some of the worst air pollution in the United States. Houston and Dallas, where large oil refineries are concentrated, rank in the top 10 most polluted cities across the country. Within the past week, a coalition of environmental groups filed five lawsuits against the United States Environmental Protection Agency over the agency's Texas air pollution control permits claiming they allowed too much pollution and contain loopholes that effectively prevent enforcement.

Washington, DC-based Environmental Integrity Project, which is leading the litigation, says that an analysis of state records from 2011 through 2016 reveal that industrial malfunctions and poor maintenance of facilities emitted more than 500 million pounds of pollutants, yet Texas failed to impose penalties on less than 3% of what amounted to nearly 25,000 illegal air pollution releases.

With us to discuss the new lawsuit is Gabriel Clark-Leach who is an attorney for the Texas office of the Environmental Integrity Project. Gabriel is a Clean Air Act attorney at the Environmental Integrity Project's Austin, Texas office, and his practice focuses on air permitting and compliance for coal-fired power plants and petrochemical facilities in Texas. Gabriel joins us from Austin today. Thanks for joining us on The Real News, Gabriel.

Gabriel Clark-Leach: Thanks for having me, Dimitri.

Dimitri Lascaris: Before we discuss the lawsuit, let's deal with this staggering number of 25,000 illegal air pollution incidents. Please tell us, who are the biggest offenders and what type of pollution are they emitting illegally?

Gabriel Clark-Leach: We were surprised to see that a lot of the air pollution, more than half of it in the last year was emitted by smaller oil and gas production facilities in the West Texas Permian Basin. Those emissions were primarily sulfur dioxide. Then we also saw the second highest concentration of illegal releases in 2016 were from petrochemical plants and refineries, most located in the Houston Ship Channel area.

Dimitri Lascaris: Tell us about the five different lawsuits filed against the EPA. What relief do they seek, and broadly speaking, what is the legal basis of the plaintiff's claims?

Gabriel Clark-Leach: These permits that we're challenging, they're called federal operating permits. What they do is they compile requirements, all the federally enforceable requirements for the country's largest sources. Their purpose is just to ensure that the requirements that protect public health for these facilities are enforceable. EPA's job is to oversee Texas' implementation of this permitting program. EPA's aware that Texas isn't issuing permits, it actually assured compliance to protect people.

In a case where that happens, the public has a right to petition EPA to object to these permits and to compel Texas to fix them. So we filed five petitions on five different permits. These cases seek to compel EPA to respond to those permits because EPA isn't even bothering to answer to grant or deny the petitions that we filed.

Dimitri Lascaris: What are the principle loopholes in the law or the permits that allow these oil and gas companies and specific facilities to get away with polluting without paying the requisite fines?

Gabriel Clark-Leach: The issues that are the clearest violations ... We have one power plant, it's the Welsh Power Plant. Texas has established uniform particulate matter, which is essentially soot. It's the gray smoke that comes from the stacks and includes particles that are very dangerous. Texas regulations establish a uniform standard necessary to ensure public safety, but the permit Texas has issued has said that the Welsh Power Plant can blow past these limits whenever it is conducting a plant maintenance activity or a start up or shut down. So it's creating a loophole to that rule that was established to protect public health.

Then the second clearest example is that two of ExxonMobil's Baytown refineries and petrochemical plants, and those contain an exemption to major pre-construction permitting requirements for future refinery expansions. While the law requires all projects that will result in a significant increase in actual emissions to go through stringent pollution control requirements and to offset new pollution with decreases from existing sources, these permits establish a basis for determining whether or not expansion projects are big enough to trigger these requirements. It essentially makes it impossible for Exxon to trigger them. They could double their refinery size, in some cases double emission of some pollutants without actually triggering these major source protections. That's a source of serious concern.

Dimitri Lascaris: It's my understanding that the federal air pollution standards are, in theory at least, uniform across the country. Is it the plaintiff's position in this litigation, implicitly or explicitly, that effectively industry in Texas is being called upon to comply with a less rigorous standard and that relative to other parts of the country, Texas industry is getting more or less a free ride in terms of air pollution?

Gabriel Clark-Leach: I think that there's a lot of room to say things like that. These permits, the purpose isn't to establish new requirements. We're supposed to all agree on what is in the permits and what the sources are required to do. The problem here is that Texas ... I've given a poor answer there. I'm sorry.

Dimitri Lascaris: My understanding is that the federal standards for air pollution are, in theory, uniform across the United States, but my read on the plaintiff's claims is that effectively they're saying implicitly or explicitly that the standards are applied less rigorously in Texas than in other parts of the country and Texas industry is more or less getting a free ride relative to those parts of the country where industry is being obliged to comply with a more rigorous standard. Is that a fair characterization of the plaintiff's claims in this litigation?

Gabriel Clark-Leach: Texas has a federally-approved program for issuing permits that establish emission limits for industrial sources based on the Best Available Control Technology. What these permits do is they fail to actually list the limits that apply to these sources. They include instead a string of inscrutable legal citations that don't really explain how the applicable requirements apply, and they don't require monitoring. So even if the limits were clear, in a lot of cases they're just isn't enough monitoring to know whether or not the sources are complying.

So what you said is part of the problem, that the limits aren't strict enough, but the other part of the problem is even when limits are strict enough, you can't actually figure out what the limits are, and even when you can figure out what they are, you can't determine how they should be enforced or understand how these huge industrial sources are claiming to comply with these limits.

Dimitri Lascaris: As we all know, the Trump administration has put an enthusiastic supporter of the oil industry in charge of the EPA, Scott Pruitt. Both President Trump and Mr. Pruitt like to say that regulations, environmental regulations in particular, get in the way of doing business and that these regulations are in effect job killers. What's your response to that critique?

Gabriel Clark-Leach: The interesting thing about this case is a lot of the requirements that we found are underenforced and these permits we're challenging aren't necessarily the federal standards that were promulgated by EPA but are actually permitting practicing and standards that were issued by the Texas Commission on Environmental Quality to reflect their understanding of the proper balance between environmental control and economic development. So what we have is a situation where Texas is not willing to even enforce its own standards consistently.

Dimitri Lascaris: If these loopholes were closed, if the law was being properly enforced in the state of Texas, what degree does your organization think that this would actually affect air quality in Texas? Would it be noticeably materially better or would more rigorous enforcement of a weak law result in modest improvement at best in terms of air quality?

Gabriel Clark-Leach: I think we could expect significant improvements, but it's hard to tell because with these permits, like the ones we're challenging, the monitoring, it's so vague and nebulous. You don't actually know how much pollution a lot of these sources are emitting. So we would expect that closer monitoring with more reliable techniques would lead to significant reductions. It would help these facilities identify leaks and save product from being lost to the air. But it's hard to say exactly how much the improvement would be.

Dimitri Lascaris: Lastly, what are some of the adverse health effects we're seeing from this air pollution in the state of Texas in particular? One thing I'd like you to address is not just the adverse health effects but the economic costs of dealing with these adverse health effects because people like President Trump and Scott Pruitt who complain about the costs of environmental regulation don't often talk, if at all, about the other economic costs associated with a lack of regulation, in particular with the adverse health effects.

Gabriel Clark-Leach: Right. It is a serious problem. It's not just a problem, say, of people not being able to go to work, but it's a problem of children being absent from school and not being well enough to go out and interact with their friends. And you have conditions like asthma that you see much higher rates close to these industrial facilities, especially in the Houston Ship Channel. Instances of cancer, there are preliminary studies showing that they're much higher around the Houston Ship Channel near these large refineries and petrochemical sources than elsewhere in the state. So that's a big problem. But like you said, it's also a problem with adults being pulled out from work and children missing school and then adults having to care for their children and not being able to do all the things that they need to do to live full and healthy lives.

Dimitri Lascaris: This has been Dimitri Lascaris speaking to Gabriel Clark-Leach, a Clean Air Act attorney at the Environmental Integrity Project in Austin, Texas. Thanks very much for joining us, Gabriel.

Gabriel Clark-Leach: Thanks, Dimitri.

Dimitri Lascaris: This is Dimitri Lascaris for The Real News.


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