Clean Air In the News

Two environmental groups filed a Clean Air Act lawsuit against Shell Oil Co. on Monday, signaling a new approach for fighting refinery pollution in Texas. The Sierra Club and Environment Texas employed a little-used method outlined in the Clean Air Act to sue Shell over pollution from its Deer Park refinery near Houston.

The environmental law allows citizens to sue to enforce clean air standards if government agencies fail to do so. It is the first time this has been attempted in Texas to deal with refinery pollution, according to Luke Metzger of Environment Texas.

"Our hope would be that through this case we would shake TCEQ (Texas Commission on Environmental Quality) into action and prompt them to go after violators," he said.

 The lawsuit was filed in U.S. District Court in Houston. It focuses on emissions of pollution known as "upset events." Such emissions occur during equipment malfunction, unscheduled maintenance and other unforeseen events and are permissible when unavoidable. The lawsuit, which cites state documents, alleges that Shell's Deer Park refinery recorded more than 1,000 "upset events" in a five-year period, pumping millions of pounds of pollutants into the air above what is allowed by the facility's permits. They include benzene, butadiene, sulfur dioxide, nitrogen oxides and carbon monoxide.

Given the number and regularity of upset events, the environmental groups argue that the majority of them were not unavoidable, but likely the failure of the company to maintain its refinery or install the proper pollution control equipment.

Richard Alonso, formerly the Environmental Protection Agency's second-ranking official for Clean Air Act enforcement, said the lawsuit has the potential to reverberate all over the state and possibly the country. The issue could be particularly relevant to Texas refineries, he said, because the EPA seems to take a more stringent stance than Texas regulators on how upset events should be regulated.

"It could be precedent-setting depending on how litigation proceeds," said Alonso, who now works for the law firm Bracewell & Giuliani. "I would think that a lot of people will be looking at this lawsuit." Bracewell & Giuliani represents the refining industry, but is not representing Shell in this case.

Shell spokeswoman Destin Singleton, who responded to questions via e-mail, said Shell attorneys are reviewing the lawsuit and couldn't comment on the specifics. Singleton did say that Shell continues to improve the emissions at the Deer Park plant, and she cited "a 14 percent reduction in reported benzene air emissions in 2006 compared with 2005."

Singleton also said Shell would continue to discuss the situation with Environment Texas and the Sierra Club. "Shell Deer Park refining and chemical share the goal of the Sierra Club and Environment Texas to improve air quality," she said.

Upset events are common at refineries. The TCEQ requires refineries to report them, but many environmental and community groups have been critical of the state agency's efforts to force companies to limit such events. A 2005 study by the group Public Citizen found that Texas facilities accounted for 7,533 upset events in one year but that the state issued fines on less than 1 percent.

"The TCEQ has diligently enforced provisions of the Clean Air Act in accordance with state law and regulations," TCEQ Spokesman Terry Clawson said in an e-mail. Since 2003, the state agency has levied nearly $290,000 in fines against the Deer Park refinery for air pollution violations, according to state documents provided by Clawson. And the agency has 15 cases pending against it.

Attorney Josh Kratka argued that the fines have had little effect. "Shell is basically incorporating the costs of these upsets and the cost of these fines simply as a cost of doing business," he said. Kratka is asking a judge to penalize Shell $32,500 for each day it violated the Clean Air Act and to order the company to install the necessary equipment at the refinery to comply with the Clean Air Act.

acaputo@express-news.net