07/07/2010 09:14 am ET | Updated May 25, 2011

Enviro Groups Prepare to Sue Nation's Largest Oil Refinery

By Chris Hamby and Elizabeth Lucas
The Center for Public Integrity

Tired of waiting for state regulators to take meaningful action, two environmental groups are preparing to file a lawsuit against the nation's largest oil refinery, accusing ExxonMobil Corp, of illegally releasing at least 5.9 million pounds of dangerous air pollutants over five years and jeopardizing the health of thousands of nearby residents.

Environment Texas and the Sierra Club hope the lawsuit will force ExxonMobil to cut emissions, enhance monitoring, and pay a multimillion-dollar civil penalty for pollution from its Baytown, Texas, facility. The case is due to be filed in federal district court late summer, reflecting a chorus of criticism of the state's environmental regulator, the Texas Commission on Environmental Quality (TCEQ), already under pressure from the federal Environmental Protection Agency to strengthen its air permitting program and more rigorously enforce current laws.

"We're doing what the EPA should have done and what TCEQ should have done," said Joshua Kratka, a lawyer at the National Environmental Law Center, a nonprofit legal service in Boston that represents Environment Texas and the Sierra Club.

ExxonMobil declined to comment on the impending lawsuit, but said it has spent hundreds of millions of dollars to upgrade its Baytown complex and reduce emissions.

Unplanned and unauthorized air emissions at the complex -- which includes the huge
refinery and two chemical plants -- started once every four days on average in 2005 and once every nine days on average in 2009, according to a Center for Public Integrity analysis of state emissions records included in a notice letter that precedes the filing of the lawsuit. The records show that ExxonMobil's chemical plants released nearly 1.3 million pounds of toxic substances in addition to 5.9 million pounds from its refinery, all above the facility's permitted emissions.

Chemicals spewed into the air included benzene and 1,3-butadiene, both of which have been linked to cancer, and sulfur dioxide, which can cause breathing difficulties and burning of the lungs, nose and throat.

Following the Deepwater Horizon catastrophe in the Gulf of Mexico, BP has been widely condemned for its safety and environmental practices, while ExxonMobil has sought to distance itself from the accident and promote its commitment to higher standards. The data behind the impending lawsuit, however, suggest that ExxonMobil's environmental record is hardly spotless.

The TCEQ categorized about 85 percent of the incidents at the three ExxonMobil plants in Baytown as "avoidable" or "preventable," according to a Center analysis of nearly 500 pages of enforcement orders issued during the past decade. In some orders, the Texas regulators described maintenance and training practices that could have prevented chemical releases, noting that one event in 2003 was "part of a frequent and recurring pattern indicative of inadequate design operation and maintenance."

The problem, said Neil Carman, clean air program director for the Sierra Club in Texas, is the TCEQ's light-handed regulatory approach. He likened the state enforcement actions to issuing "traffic tickets" -- fines too small to deter future violations -- and applying "Band-Aids" -- cheap and quick repairs and upgrades that fail to prevent unauthorized releases, known as upsets.

"These upsets are almost all preventable," Carman said. But companies "push the envelope because they want to make money."

The ExxonMobil incidents have lasted hours or even days. The TCEQ records cited in the lawsuit notice letter detail about 340 incidents over five years, with estimated chemical releases totaling about 7.2 million pounds from the company's Baytown complex. The letter alleges that an additional 4.5 million pounds released during maintenance, startup or shutdown activities could be illegal, but it's impossible to tell because they are addressed in a confidential part of ExxonMobil's permit.

Even for Baytown, a gritty industrial city 25 miles east of Houston, that rate of air-fouling emissions seemed high to some residents.