Opinion // Outlook

Metzger: State remains lax when it comes to regulating refineries

Agency can improve in protecting health, safety of the public

This is the official mission of the Texas Commission on Environmental Quality: "to protect our state's public health and natural resources consistent with sustainable economic development."

TCEQ has the economic development part down. But protecting public health? They've got some work to do.

Case in point: ExxonMobil's super-sized Baytown Complex, the largest manufacturing facility in the country. The complex stores and processes millions of gallons of gasoline and billions of pounds of chemicals each year, all of which is flammable, much of which is toxic and explosive, and some of which is regularly being released into the air.

There are innumerable places where things can go wrong and cause accidents that put public health and worker safety at risk. And nearly 70,000 people live within a five-mile radius of this 3,400-acre complex, located just east of Houston.

"Emission event" is the term TCEQ uses when something does go wrong, when equipment breakdowns, process malfunctions, or other incidents release pollutants into the air without legal authorization. It's a bland phrase for a condition that can put ordinary citizens at risk.

Since 2005, Exxon has experienced well more than 2,000 emission events at the Baytown Complex. These incidents have released millions of pounds of illegal pollution - over and above what the company is already allowed to emit by law. Environment Texas and Sierra Club are bringing a Clean Air Act lawsuit to force Exxon to do a better job at preventing these incidents, a part of the TCEQ mission that has been left unfulfilled.

But the story gets uglier. Shortly after receiving notice of our lawsuit, Exxon officials asked TCEQ to pursue an enforcement action against - Exxon! Why would a company beg an environmental agency to prosecute it? The history and terms of the "agreed order" that TCEQ issued to Exxon just over a year ago provide the answer.

TCEQ's former chief of enforcement testified at his deposition that Exxon actually wrote the first draft of this agreed order, and had significant input into any changes the agency tried to make to it. The noxious proof is in the pudding: This "non-enforcement order" has failed to stop Exxon's violations.

Exxon has publicly reported 34 new emission events (only the largest releases are reported publicly) since the agreed order took effect on March 3, 2012, releasing another nearly half-million pounds of illegal air pollution. A single event, on Jan. 8, sent almost a ton of benzene, a human carcinogen, into the air in Baytown, along with about 50,000 pounds of other pollutants.

This is all because the order does not actually require Exxon to prevent emission events. Instead, the order allows Exxon in most situations to pay a small pre-set monetary penalty regardless of how many days an emission event lasts or how many permit limits are exceeded - enabling the company to make cost-benefit decisions about whether it is "worth it" to upgrade plant design, operations or maintenance to comply with its permits.

Even worse, payment of such "stipulated penalties" bars TCEQ from counting the illegal emissions as a violation.

This is a huge benefit for Exxon, because companies with good compliance records are treated more leniently when they want to expand their plants - as Exxon now wants to do at Baytown.

TCEQ has called this agreed order a "model" for enforcement; we're sure Exxon would agree. In fact, Exxon has tried to convince a federal court that the order makes our citizen enforcement suit unnecessary.

But in the real world, union workers at the Baytown refinery had to threaten a strike recently before Exxon would agree to safety standards developed by the petroleum industry itself.

And Exxon's neighbors in Baytown, and residents of all the other Texas communities located near industrial facilities, have to wonder whether there is any room in TCEQ's "mission" for protecting their health and safety.

Metzger is director of Environment Texas, a citizen-funded advocate for clean air, clean water and open spaces.