Exxon On Trial

Attorneys Dave Nicholas, Heather Govern, and Josh Kratka enter the federal court in Houston on the final day of trial.

HOUSTON – Standing before a packed federal courtroom on the final day of trial, NELC Senior Attorney Josh Kratka and NELC cooperating attorney David Nicholas delivered a simple message to U.S. District Judge David Hittner: Hold ExxonMobil accountable for its thousands of violations of the federal Clean Air Act at the nation’s largest refinery and chemical plant complex in Baytown, Texas.

Speaking on behalf of Plaintiffs Environment Texas and Sierra Club and their individual members, who offered dramatic testimony during the 3-week trial about noxious emissions and frightening flaring events, the two attorneys laid out the reasons why Judge Hittner, sitting without a jury, should install an independent monitor to oversee environmental compliance at the Baytown Complex and impose a multi-million dollar civil penalty on the world’s largest oil company.

The primary focus of the suit is illegal emissions of air pollutants—toxic chemicals such as carcinogens and respiratory irritants—resulting from nearly 4,000 so-called “emission events” at the Baytown Complex since 2005 (see graphic on p. 4). Such emission events stem from a variety of causes, including equipment breakdowns and malfunctions, operator error, and poor design.

Dr. Neil Carman, Clean Air Program Director for Sierra Club’s Lone Star Chapter, testified during the trial that more than 10 million pounds of pollutants have been released during these emission events.

Environment Texas Director Luke Metzger testified that these emission events resulted in approximately 18,000 separate violations of federal law.

The Clean Air Act provides for a maximum civil penalty of $37,500 per day of violation, and NELC argued that in this case the maximum penalty is appropriate.

“Exxon’s terrible track record of non-compliance, the serious nature of its violations, and its attempts to evade responsibility by asking state regulators to undercut this enforcement suit, all point to a penalty at the top end of the scale,” explained Kratka.

Two expert witnesses, a refinery engineer and an economist, provided evidence that Exxon’s violations are the result of a long history of under- spending on preventive maintenance and plant upgrades, a shortfall estimated to be $90 million per year.

To put that number in context, Exxon-Mobil made $90 million in net profits every 18 hours in 2012, when its after-tax profit was $44 billion.

A final decision by Judge Hittner is not expected until later this summer.

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Appeals Court Argument Focuses on Endangered Fish

BOSTON – On March 3, NELC’s Charles Caldart told the judges of the U.S. Court of Appeals for the First Circuit that four hydroelectric dams on Maine’s Kennebec River, operated by affiliates of Brookfield Renewable Energy, are violating the Clean Water Act by allowing endangered Atlantic salmon and American shad to access the dams’ rapidly spinning turbines, where they face a high risk of injury or death.

Arguing on behalf of plaintiffs Environment Maine and Friends of Merrymeeting Bay, Caldart explained to the Court that each dam’s license provides that, if the company desires to pass downstream-migrating adult salmon or shad through the turbines (as well as through fish bypasses or over the spillway), the companies must first demonstrate that turbine passage will be safe. And the companies admit that no showing of safety has been made.

Brookfield argued that the companies must merely make some effort, no matter how ineffective, to keep the fish out of the turbines. When a member of the three-judge panel asked, half in jest, whether Brookfield could simply put up a sign telling the fish to stay away from the turbines, Brookfield’s attorney replied that, yes, that would suffice.

A decision is expected before the end of the year.

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Expert: Exxon Emits More Air Pollution Than It Reports

NELC Paralegal Mary Rock in the courtroom with the evidence of Exxon’s violations, collected in plaintiffs’ trial exhibit binders.

HOUSTON – Using evidence rang- ing from cutting-edge engineering studies to a diagram of an industrial flare that he drew on a courtroom easel, Caltech-trained engineer Dr. Ranajit Sahu testified in U.S. District Court in Houston that Exxon routinely and drastically under-counts the amount of pollution emitted from flares at its Baytown refinery and chemical plant complex.

Factors such as crosswinds, and the amount of steam Exxon injects into flaming flares to reduce the formation of soot, can each cause dramatic reductions in combustion efficiency.

There are 26 elevated flares at the Baytown Complex that burn gases in open flames, much like gigantic Bunsen burners hundreds of feet high. These flares reduce explosion risks by burning off flammable gases generated, intentionally or unintentionally, during the refining process.

Dr. Sahu, an expert in flare combustion technology, testified in Environment Texas and Sierra Club’s Clean Air Act lawsuit that current state and federal regulations allow companies like Exxon to assume that 98% to 99% of the toxic gases sent to the flares are fully combusted—even though, in practice, such high levels of combustion are rarely achieved.

Factors such as crosswinds, and the amount of steam Exxon injects into flaming flares to reduce the formation of soot, can each cause dramatic reductions in combustion efficiency. “Over-steaming” can actually quench a flame completely, resulting in no emission control at all.

The practical import of this, Dr. Sahu explained to U.S. District Judge David Hittner, is that far more pollution is released from Exxon’s flares into the surrounding communities than Exxon reports.

Studies in which airplanes have flown over the Houston Ship Channel to directly measure pollutant concentrations have shown that actual emissions from flares are 10 or more times higher than what industry has reported.

And for the people who live in Baytown and other nearby communities, this means far higher levels of exposure to harmful pollutants whenever Exxon uses its flares during the hundreds of emission events that occur each year at the Baytown Complex.

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Attorney Heather Govern Joins NELC

Attorney Heather Govern

BOSTON – In December 2013, Heather Govern joined NELC as a staff attorney in NELC’s Boston office. Heather graduated from Amherst College in 2002 and earned her JD degree from Northeastern University School of Law and her Master of Environmental Law & Policy from Vermont Law School in 2013. During law school, her pro bono project for the Conservation Law Foundation on the application of the public trust doctrine to Boston waterfront development was honored as the American Bar Association’s Law Student Environment, Energy, and Resources Project of the Year.

While a law student, Heather served as an intern with the Supreme Judicial Court of Massachusetts, where she prepared recitation memoranda, assessed cases for direct and appellate review, and worked on access to justice issues. Heather also interned with the Environmental Enforcement Section of the United States Department of Justice in Washington, D.C., the public defenders of Massachusetts at the Committee for Public Counsel Services, and the Boston law firm of Sugarman, Rogers, Barshak & Cohen.

Since coming to NELC, Heather has worked as part of the litigation team preparing memoranda and exhibits for the Clean Air Act lawsuit against ExxonMobil. After spending a month in Houston for the Exxon trial, she is now convinced there is no better way to get to know one’s colleagues (including all their traits and quirks) than to work 312 hours with them and eat 70 meals with them over the course of one legal proceeding.

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Witnesses Describe Impacts of Exxon’s Pollution

Photograph of a smoking flare at ExxonMobil’s Baytown Complex shown by Mr. Shae Cottar to Judge Hittner.

HOUSTON – Exxon’s lawyer demanded that Sierra Club member Marilyn Kingman document for him, while she was sitting on the witness stand in federal court, her most recent experience of air pollution coming from the company’s Baytown Complex.

“Can I use my nose?” Ms. Kingman asked.

Ms. Kingman, who has lived and taught school in the Baytown area since the 1970s, proceeded to describe the powerful chemical odor she encountered one evening the previous week, while visiting an area near the plant.

Sure enough, a check of Texas’s emission event report database showed an unauthorized release of benzene, a human carcinogen, and other air pollutants at that very date and time from the Baytown Complex.

Earlier in the trial, Exxon’s attorneys had demanded the same information from Baytown resident Shae Cottar, who promptly pulled his smart phone out of his pocket and showed Judge

David Hittner a photograph he had taken just a month earlier of a smoking refinery flare that caused him to cut short his family outing at a Baytown nature preserve near the plant.

Mr. Cottar had lived across the street from the Baytown Complex for several years, and played in court the dramatic videos he had taken of smoke billowing from gigantic flare flames in the middle of the night.

Environment Texas member Diane Aguirre and Sierra Club member Sharon Sprayberry each testified about the respiratory problems they experienced growing up and living near the Exxon facility—symptoms that disappear whenever they leave Baytown, and that reappear whenever they return.

Plaintiffs’ public health expert, Dr. Edward Brooks of the University of Texas-San Antonio Health Center, testified at length that the “chemical soup” created by Exxon’s emissions increases the risk of a wide variety of adverse health effects for Baytown residents.

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