Shell Settlement Clears the Air, Establishes Precedent

NELC Senior Attorney Josh Kratka discusses the Shell settlement at a news conference in Houston on April 23. Behind from left: Phillip Hilder (local counsel), Luke Metzger (Environment Texas Director) and Neil Carman (Sierra Club – Lone Star Chapter Clean Air Program Director).

 Houston, TX – On June 16, U.S. District Judge David Hittner signed a precedent-setting consent decree settling NELC’s Clean Air Act lawsuit against Shell Oil Company and two affiliates. The consent decree requires dramatic air pollution reductions, extensive plant upgrades, and enhanced monitoring of air emissions at Shell’s Deer Park, Texas, refinery and chemical plant, and imposes a record penalty for a citizen enforcement suit.

“This settlement represents a major victory in the fight for clean air on Texas’s Gulf Coast,” said Josh Kratka, NELC’s lead attorney on the case. “It also demonstrates the crucial role that citizens can and sometimes must play in the enforcement of our environmental laws.” 

The lawsuit, filed in January 2008, is the first in Texas in which citizen groups sued to stop illegal air emissions arising from so-called “upset” events: equipment breakdowns, malfunctions, and other “non-routine” occurrences. 

The suit, filed on behalf of plaintiffs Environment Texas and Sierra Club, alleged that the Shell facility had committed more than 1,000 separate Clean Air Act violations since 2003, resulting in the unauthorized release of more than five million pounds of air pollutants, including cancer-causing agents and contributors to urban smog.

Despite this egregious history of illegal pollution, neither the Texas Commission on Environmental Quality nor the U.S. Environmental Protection Agency took effective action to end the violations. Numerous violation notices and small fines were treated by Shell as “the price of doing business,” noted Kratka.

Shell’s Deer Park facility is a 1,500-acre complex located on the Houston Ship Channel in Harris County, about 20 miles east of downtown Houston. It is the nation’s eighth-largest oil refinery and one of the world’s largest producers of petrochemicals. The facility is also the third largest industrial source of air pollution in Harris County, which ranks among the worst in the nation in several measures of air quality, including ground-level smog. 

To its credit, Shell agreed to enter into settlement negotiations early on in the litigation, rather than attempting to prolong the case with a court battle. The terms of the consent decree were hammered out over the course of a year, in coordination with air enforcement staff at U.S. EPA.

The centerpiece of the settlement is a “hard cap” on excess emissions, without regard to the cause of any particular release. This groundbreaking approach to upset events should create a powerful incentive for pollution prevention and chemical accident prevention, as it effectively requires the facility to anticipate and eliminate the underlying causes of upsets.

Highlights of the settlement include:

• A mandatory 80 percent reduction in upset emissions within three years;

• Automatic penalties for failures to meet pollution reduction benchmarks;

• Major plant upgrades to cut emissions and improve the reliability of equipment; and

• Comprehensive monitoring of air emissions.

In addition, Shell is required to pay a $5.8 million penalty for its history of violations – the largest penalty in an environmental citizen suit in Texas history, and nationally one of the largest ever against a single facility. The entire penalty payment will be used to fund environmental, public health, and educational projects in Harris County, including a project to reduce diesel emissions from school buses and a pilot program to install solar panels on local government buildings. 

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Federal Court Rejects Industry Attempt to Overturn Aquatic Pesticides Decision

Residents of Natick, Mass., organize against a plan to spray pesticides into Lake Cochituate.

Cincinnati, OH – On August 3, 2009, NELC attorneys defeated efforts by agriculture and pesticide industry groups to compel the reconsideration of a January 2009 decision allowing the regulation of aquatic pesticides under the Clean Water Act. That decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit was an important victory for the environment, as it invalidated a Bush-era regulation exempting applications of pesticides to and over water from the Clean Water Act’s permit program. Many of these pesticides contain chemical or biological agents that can be harmful to aquatic life.

Unhappy with the prospect of regulation, 39 industry groups asked the Sixth Circuit to order a rehearing of the case before all 24 of the judges on the court. Federal courts of appeal are authorized to call for such “en banc” review when they believe a decision of a three-judge panel may be in error. 

In seeking rehearing, the industry groups claimed the panel’s decision will have sweeping effects on agriculture, despite careful language in that opinion limiting its scope. Industry also argued that the Clean Water Act is ambiguous in its use of the simple term “from.” The full Sixth Circuit roundly rejected these arguments – not a single judge voted in favor of reconsideration.

“The panel’s decision was well-reasoned and wholly in accord with prior judicial precedent,” said NELC attorney Joe Mann. “Industry is trying to ‘muddy the waters,’ both literally and figuratively.”

Undaunted, industry groups have now filed petitions for review with the U.S. Supreme Court. Meanwhile, EPA is working to develop a permitting program by April 2011. 

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NELC Interview: Rhode Island’s “Sewer Rats”

From left, plaintiffs Henry Rosemont, Jr., David Wixted, Ted Wrobel, and Burt Hoffman stand above Atlantic Beach, the site of many sewage overflows, during NELC’s press conference announcing lawsuits against Newport and Middletown, RI.

Burt Hoffman, Henry Rosemont, Jr., Dave Wixted, and Ted Wrobel are founding members of the Sewer Rats, a group of citizens who joined together to address the longstanding problem of sewage overflows in Newport and Middletown, RI. They are plaintiffs in NELC’s lawsuits against the two municipalities, filed in the summer of 2008, which seek to bring the overflows to an eventual end and to clean up contaminated storm water. 

Why did the Sewer Rats take on this issue?

Ted: Sewage overflows have been a problem here for a long time. King’s Beach – the only beach in downtown Newport – has been closed since the 1990s due to high bacteria levels. 

Dave: And it goes back farther than that. Many decades ago, children were told to swim near the middle of the beach, not by Middletown’s Atlantic Beach Club or by Newport’s Cliff Walk, because of the sewage flowing down from each side.

Why do Newport and Middletown have overflows?

Henry: It’s both a sewage problem and a storm water problem. Newport has never fully separated its sewage drains from its storm water drains, so when we get our typical heavy rain or snow, storm water overwhelms the already struggling sewage system. 

Dave: Middletown contributes to the problem by pumping its sewage to Newport, and by discharging its own sewage overflows to a storm water pond that empties onto the beach. And separate storm water flows from both towns carry high bacteria levels to our beaches.

Burt: Many of these problems arise because of “deferred maintenance” – those in charge don’t want to raise taxes to pay for properly maintaining the system, so they leave it for next year, when it will cost more. Five years ago, for example, one of the main pipes collecting and pumping sewage to the Newport sewage treatment plant smelled awful. When I brought this up to the Newport City Council, they told me there is something wrong with my nose. This year the pipe finally broke, and it’s going to take a year and at least $15 million to fix it. 

Why did you finally decide to file these Clean Water Act lawsuits?

Burt: Other attempts at persuasion just didn’t work. Three years ago we championed a city-wide ballot measure, overwhelmingly approved by the residents of Newport, that prevented the city from accepting new sewage connections until it went ninety days without an overflow. But once the city reached that modest milestone, it went back to business as usual. 

Ted: Something had to be done to make Newport and Middletown address these problems seriously, and the municipal governments weren’t going to do it themselves. To put it bluntly, we felt it was time to stop putting poop into the water. 

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NELC Expands Campaign to Clean Up Texas Air

The eastern edge of Chevron Phillips’ vast Cedar Bayou Chemical Plant complex in Baytown, Texas. 

Houston, TX – On August 19, NELC attorneys filed their second federal lawsuit aimed at reducing emissions of toxic and smog-causing chemicals from petrochemical plants along Texas’s Gulf Coast, one of the nation’s worst air pollution “hot spots.” 

The suit, against Chevron Phillips Chemical Company, comes on the heels of NELC’s landmark Clean Air Act settlement with Shell Oil Company in June. Both cases target illegal air emissions arising from unplanned, but frequent, plant “upsets.” 

The lawsuit, filed on behalf of Environment Texas and Sierra Club, alleges that Chevron Phillips has repeatedly violated the Clean Air Act at its Cedar Bayou chemical plant in Baytown, Texas, illegally releasing more than one million of pounds of air pollutants, primarily smog-forming volatile organic compounds (VOCs) and carbon monoxide. 

Chevron Phillips is owned by Chevron Corporation and ConocoPhillips. The 1,200-acre Cedar Bayou facility, located some 25 miles east of downtown Houston, is the largest of its domestic manufacturing facilities, producing over six billion pounds of chemicals annually. 

“The effects of pollutants released from the Cedar Bayou plant can be felt in downtown Houston and beyond,” explained Dr. Neil Carman, a chemist and the Clean Air Program Director for Sierra Club’s Lone Star Chapter. 

“On October 7, 1999, I was in Houston when a cloud of VOCs released from a single upset event at the Cedar Bayou plant contributed to extraordinarily high ozone levels all along the Houston Ship Channel,” Dr. Carman added. “It was the single worst ozone day in Houston in the last twenty years.” 

The lawsuit seeks a court order requiring Chevron Phillips to end its Clean Air Act violations. The company also faces civil penalties of up to $32,500 or more per day for each violation. 

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