Environment from The Center for Public Integrity

Clean Air case yields rare criminal convictions in New York

2013-06-19T11:53:46-04:00

In a rare criminal prosecution under the Clean Air Act, the U.S. Department of Justice scored a double victory this year, winning convictions against a western New York coke manufacturing plant and its former environmental manager.

Next up: sentencing for the company and its manager in July — and hope, in the town of Tonawanda, just upstate from Buffalo, that the prosecution will help end decades of concern over the toxins tainting the community.

The federal case focused on Tonawanda Coke Corp. and environmental manager Mark L. Kamholz, of West Seneca, N.Y.

For years, residents had complained that elevated levels of benzene, a carcinogen, emanated from the plant. Homeowners began taking evidence with their own hands, testing the air with special buckets and pressing authorities to take action. Their contention: The plant had for years underreported its emissions. The community’s struggle for clean air was explored as part of a 2011 series, Poisoned Places, by the Center for Public Integrity and NPR.

In March, a federal jury confirmed the community’s long-standing fears.

Charged in a 19-count indictment, the company and executive were convicted of 14 and 15 felonies, respectively. Each was convicted of five counts of violating the Clean Air Act by emitting coke oven gas from an unpermitted emission source, along with other convictions for operating the plant without required pollution control devices called baffles. Other violations involved the Resource Conservation and Recovery Act.

They were acquitted of four Clean Air Act counts. Kamholz, but not the company, was convicted of obstruction of justice for instructing an employee to conceal emissions during an inspection.

“Citizens of this community are entitled to breathe clean air and drink clean water,” U.S. Attorney William J. Hochul Jr. said in a prepared statement after the verdict. “From the evidence of this case, where literally hundreds of tons of coke oven gas containing benzene was released into the atmosphere and significant quantities of hazardous waste containing benzene were left out in the open, it would be hard to imagine a more callous disregard for the health and well being of the citizens of this community.”

Tonawanda Coke and Kamholz are scheduled to be sentenced July 15 in federal court in Buffalo, though the defense is asking for a delay. While the convictions could yield prison time and millions in fines, the plant itself still produces worry for the working-class western New York town, where many living near the facility suffer from health problems.

For Joyce Hogenkamp, watching lawyers present evidence in the downtown Buffalo courthouse made her think of her late mother.

Growing up on Hackett Drive about two miles from the plant, Hogenkamp remembers how her mother always slept with the window open, out of a fear of closed spaces, even though winds from the southwest blew in smoke from the coke plant that smelled like burning tires. She, like many in the community, eventually became sick.

When the trial recessed one day, “I cried the entire drive home that day,” Hogenkamp said.

Jackie James-Creedon, who founded a local group that used buckets and hand-held vacuums to test the air near the plant, watched nearly every day of the four-week trial. For years, she and her neighbors pressed state regulators to act. It took five years before New York regulators formally blamed Tonawanda Coke for the town’s air pollution; it took another four years for the criminal trial to begin.

Still, James-Creedon said she had been “concerned” that the jury wouldn’t see the evidence as she did.

“I literally was shaking, just with anticipation,” James-Creedon said.

Uncommon Criminal Case

Yet Tonawanda’s case proved to be nearly unique: A rare criminal prosecution of the federal Clean Air Act.

Prosecutors say the complexity of Clean Air Act cases makes them difficult to prove — one reason prosecutions are so rare, the Center for Public Integrity reported in Poisoned Places. Since 1990, fewer than 800 Clean Air Act cases had led to fines or prison time — the fewest of any of the three major environmental laws designed to protect air, water and land, the Center found.

Instead of criminal prosecution, the federal government is far more likely to pursue civil cases, which typically result in corporate fines and agreements to curtail emissions. Companies would surely prefer to settle cases with civil fines — than face criminal prosecution.

"Usually it doesn't get to this point," said Richard Lippes, an environmental attorney representing about 400 personal injury cases against Tonawanda Coke. “Usually once a company’s hands are found in the cookie jar, they’ve got to put the cookies back and maybe have to beg for more cookies.”

The EPA says that fewer criminal cases were initiated in part because of personnel cuts, and as part of a strategy to focus on the worst polluters. According to agency data, the EPA initiated 320 criminal investigations overall in 2012 and charged 231 defendants — both down from 2011. The agency says asbestos prosecutions made up 41.5 percent of cases — still the most common, but down from previous years. Cases involving false statements, tampering with equipment or permit violations were 23.6 percent of all cases opened, the agency said.

“The criminal enforcement program identifies and investigates cases with significant environmental, human health, and deterrence impacts while balancing its overall case load across all pollution statutes,” the EPA said in a statement.

The EPA closed 28 criminal cases involving the Clean Air Act in fiscal year 2012 and so far in 2013, the Center found, yet few involved air pollution from industrial plants. Instead, more than 60 percent involved asbestos disposal violations. About 10 percent covered violations of ozone rules, two prosecutions targeted scammers who sold biofuel credits for fuel they didn’t produce, and two cases targeted vehicle inspectors who accepted payoffs to falsely pass cars that didn’t meet pollution standards.

Four cases concerned industrial polluters like Tonawanda Coke that reported false information to the EPA as part of Clean Air Act-mandated permits.

Prosecutions don’t always lead to prison time. Belvan Corporation, which operates a natural gas processing plant in Crockett County, Texas, and three of its executives pleaded guilty in 2012 to a Clean Air Act violation for failing to correct malfunctioning equipment that diverted acid gas into the plant’s flare system, releasing hydrogen sulfide, sulphur dioxide and other pollutants. The company waited years to report the emissions, “and thus placed people in imminent danger of death and serious bodily injury,” the EPA said.

The company was fined $500,000. The executives paid $50,000, $22,000 and $15,000 fines — and were ordered to spend eight hours completing an environmental awareness training program.

In the Tonawanda Coke case, jurors took five and a half hours to reach a verdict. At trial, prosecutors said the plant released coke oven gas, containing benzene, through an unreported pressure relief valve. The company skirted other anti-pollution laws through its “practice of mixing its coal tar sludge, a listed hazardous waste that is toxic for benzene, on the ground in violation of hazardous waste regulations,” according to prosecutors.

Just before a 2009 EPA inspection, Kamholz told a fellow employee “to conceal the fact that the unreported pressure relief valve, during normal operations, emitted coke oven gas directly into the air, in violation of the TCC’s operating permit,” the DOJ said.

Attorneys for Kamholz and Tonawanda Coke did not respond to interview requests. In court papers, the lawyers are asking the judge to dismiss most of the convictions.

In theory, the convictions could bring significant sentences: Tonawanda Coke faces a $200 million maximum fine, and Kamholz could be sentenced to prison for as long as 75 years. But few expect maximum sentences to be handed out.

A fine of $8 million to $10 million, and a year or two of jail time might be more realistic, said Erin Heaney, the executive director of the Clean Air Coalition of Western New York.

Assessing the damage

In Tonawanda, state officials are still trying to measure the damage to the air, water and soil — and to people’s bodies — in an effort that will continue long after sentencing.

According to a draft health outcomes review published in February by the New York Department of Health, residents living near the plant have been more likely to suffer lung and bladder cancer; men showed more cases of esophageal cancer, while women were more likely to have uterine cancer than the rest of the state. The study cautioned, however, that it couldn’t prove what caused the illnesses.

When residents started using homemade air tests using buckets and vacuums almost 10 years ago, they found levels of benzene 500 times above state health guidelines. State tests later found benzene levels between 10 and 75 times above the guidelines, plus high levels of formaldehyde, carbon tetrachloride and other toxins. Federal officials then forced the company to install monitoring equipment that pinpointed benzene emissions at 91 tons per year — about 30 times more than its previous reports to air regulators had indicated.

Investigators later found the plant didn’t have required pollution control devices. For years, the omission went unnoticed by state officials. The plant also opened an emergency valve every 20 to 30 minutes that released untreated gas laced with chemicals.

Now, residents say money is needed to continue the monitoring long-term, and help people pay for health services. Activists are concerned that, under the EPA’s rules, there’s no guarantee fines remain in the community. In theory, Heaney said, they could simply be deposited in the U.S. Treasury.

Hoping to prevent this, residents have launched a frantic campaign to gather victim impact statements. The hope, James-Creedon said, is that U.S. District Judge William Skretny will order fine money allocated for community improvement projects. The Clean Air Coalition is holding a series of community meetings to let the public brainstorm and ultimately vote on which projects residents prefer.

Still, the uncertainty has James-Creedon nervous. “We’re not sure we’re even going to see one penny of that money,” she said.

And, Tonawanda Coke must comply with numerous EPA violations that began with the initial investigation — and manage pollution levels if production, which dipped during the economic downturn, begins to rebound.

“It’s a relatively obsolete plant,” said community attorney Lippes, “so bringing themselves into compliance may not be that easy.”

Lautenberg chemical bill drawing skepticism

2013-06-07T09:48:44-04:00

One of Sen. Frank Lautenberg’s last bills could represent the best chance to update the nation’s chemical safety regulations by requiring proof that a chemical is safe before it can be used.

But the legislation is drawing deep skepticism from some environmental groups and state officials who fear it could actually weaken safety standards.

Lautenberg, a New Jersey Democrat who died Monday of viral pneumonia at age 89, worked for decades on environmental legislation, including a 1986 law that created the Environmental Protection Agency’s Toxics Release Inventory, a database that allows members of the public to track pollution.

Lautenberg’s newest proposal, the Chemical Safety Improvement Act, was the product of a compromise with Republican Sen. David Vitter of Louisiana. Introduced May 22, it won the endorsement of nine Senate Republicans, along with the influential American Chemistry Council, a trade group.

A council spokesman called it “a balanced, comprehensive approach to updating the law, which will give consumers more confidence in the safety of chemicals, while at the same time encouraging innovation, economic growth and job creation by American manufacturers.”

An earlier, stricter chemical safety bill — essentially unchanged from legislation Lautenberg had put forward in each Congress since 2005 — failed to draw Republican support.

Lautenberg’s latest bill has been referred to the Senate Committee on the Environment and Public Works, which has not yet scheduled it for a hearing.

Meanwhile, prominent environmental groups like the Natural Resources Defense Council have expressed misgivings.

The bill “still leaves too many gaps in protecting the public,” Daniel Rosenberg, a senior attorney with the group, said in a statement May 24. Rosenberg said it lacks statutory deadlines for the EPA to review chemicals and may do little to improve on the Toxic Substances Control Act of 1976, which many dismiss as ineffective because it makes it difficult to require that chemicals be tested.

The existing law “has never accomplished its goal of protecting the public from dangerous chemicals,” Rosenberg said.

Others worry that the legislation could preempt stricter chemical regulations in states like California, known for its environmental laws, many of which were passed by voters in referendums or signed by Republican governors.

A 2003 law, for example, banned lead, cadmium, mercury and hexavalent chromium from product packaging, and was updated three times during Gov. Arnold Schwarzenegger’s administration. State lawmakers have also banned the sale of jewelry containing lead, and enacted a 2011 law to toughen fines against retailers who violate the restrictions.

In a statement Thursday, California’s Department of Toxic Substances Control said it was “reviewing the federal legislation and looking at what effect the preemption could have on our laws and regulations.”

In a May 31 letter to Sen. Dianne Feinstein, D-Calif., an official with the agency warned that the bill could impair the state’s decision-making because its authority relies on obtaining waivers from the EPA.

Under the proposed law, “the criteria to qualify for such a waiver make obtaining one nearly impossible,” wrote Josh Tooker, the department’s deputy director for legislation.

Richard Denison, a senior scientist at the Environmental Defense Fund, said the bill could override the requirements of California’s Proposition 65, which requires the state to maintain a list of chemicals that cause cancer or reproductive harm. Businesses are then required to notify customers when those chemicals are present. The list contains about 800 chemicals, according to the website of the state’s Office of Environmental Health Hazard Assessment.

Some states also ban bisphenol A, a chemical used in food packaging and other products, and certain flame retardants that federal officials have been slower to act on, Denison said.

“That’s why the industry has come to the table,” he said. “There’s got to be some expansion of preemption or there’s no reason for them to even play.”

While the bill would require the EPA to review an initial list of chemicals and test them for safety, if a chemical were found to be safe, states would be bound by that decision with few exceptions. Denison said it might be possible for industry to stall the EPA and put state rules on hold while new research was pending.

Denison wrote in a blog post Wednesday that he thought the legislation’s problems could be resolved in negotiations between Democrats, Republicans and industry groups.

Even in its current form, the bill is “significantly better than the status quo,” Denison wrote.

Cancer-cluster study seeking to debunk 'Erin Brockovich' has glaring weaknesses

PG&E Corporation — 2013-06-03T10:04:11-04:00

Even before the film Erin Brockovich depicted the true-life plight of a California town with poisoned water, state scientist John Morgan was calling claims of a cancer cluster there pure fiction.

For the past 18 years, the Loma Linda University professor, who also works as an epidemiologist for the California Department of Public Health, has tenaciously tried to debunk the notion that families in the desert community of Hinkley were suffering from a high rate of cancer after Pacific Gas & Electric Co. dumped tons of a contaminant into an unlined wastewater pond.

Morgan has kept his research up to date and even today presents it at scientific conferences. His message is not subtle. At a conference in Maryland last year, he popped up one slide comparing Brockovich to a delusional Don Quixote and another mocking the Academy Awards for honoring the film “in spite of the absence of evidence of a cancer excess in Hinkley.”

Morgan doesn’t hide his disapproval of a recent ruling by the California Environmental Protection Agency that drinking hexavalent chromium, the rust inhibitor that PG&E dumped in Hinkley, can cause cancer. The agency based its ruling on rodent studies, but as Morgan says, “We’re not big rats.”

The U.S. Environmental Protection Agency has reached the same conclusion internally as California’s EPA — that drinking chromium causes cancer — but it faces powerful opposition from the chemical industry in making its ruling official. At stake is whether regulators will set stricter limits on how much chromium is allowed in drinking water. Tens of millions of Americans drink small amounts of chromium each day in their tap water.

The ongoing controversy has resurrected interest in Morgan’s work. Some writers and scientists cite it as proof that Brockovich was wrong.

But a review by the Center for Public Integrity found glaring weaknesses in Morgan’s analysis that challenge the validity of his findings. In his first study, he dismisses what others see as a genuine cancer cluster in Hinkley. In his latest analysis, he excludes people who were exposed to the worst contamination.

Morgan has done other questionable work. As an advisor to the American Council on Science and Health, which gets funding from the chemical industry, Morgan is featured on the group’s website, Riskometer.org. He claims that exposure to a number of toxic chemicals, including known carcinogens such as dioxins and hexavalent chromium, has killed no one from cancer in America.

Morgan stands by his research. He says he was dispelling a misconception fostered by the lawsuit and film that the entire community of Hinkley suffered from a high rate of cancer because of the pollution.

Questionable methods

In his Hinkley analysis, Morgan fails to distinguish residents who were exposed to heavy doses of chromium from those who were exposed to little or none at all. With any carcinogen, the more you’re exposed to it, the higher your odds of getting cancer as a result.

Morgan tallies all cancers among roughly 3,500 people in a 137-square-mile census tract. Yet the families who sued PG&E at Brockovich’s urging lived in a neighborhood of 13 homes covering roughly one square mile. Those families were exposed to chromium levels up to hundreds of times higher than anyone else in Hinkley.

Despite obvious limitations, local and state health officials often do this sort of back-of-the-envelope calculation when people complain about too many cancers in a neighborhood. Still, some epidemiologists say such analysis is weak science.

Other problems in Morgan’s work are not so common. In his first analysis from 1988 to 1993, Morgan actually found the cancer rate in Hinkley was 25 percent higher than in the surrounding counties. But he dismisses this cluster as a statistical mirage, a mere fluke.

Other epidemiologists who looked at Morgan’s numbers at the Center’s request disagree. Statistically, there’s at least 95 percent certainty that the cluster is not a fluke, said Richard Clapp, a Boston University professor who used to direct the Massachusetts Cancer Registry. He said that’s the statistical standard most epidemiologists use.

In his 2011 update, Morgan reports fewer cancers than expected in Hinkley. But he starts counting cancers in 1996, coincidentally the year PG&E settled the Brockovich lawsuit.

By then, PG&E had bought and bulldozed every home in the neighborhood where it had dumped chromium. All the people who had sued and were portrayed in the film had moved. One of them, Roberta Walker, said only a couple of families stayed in Hinkley. So, hardly anyone exposed to high levels of chromium are in the Morgan analysis most often cited.

“It seems to me that what’s going on here is this guy has got a bias. He’s trying to use his science to confirm his opinion,” said Stephen Lester, science director for the Center for Health, Environment & Justice, a group that helps communities with environmental problems.

Morgan defended his analysis, saying that he wasn’t testing whether chromium was safe to drink. He acknowledges that he has no data on who was exposed and by how much. But he said there was a popular notion that people in Hinkley were suffering from a high rate of cancer, and his analysis proves that was not true.

But what about the cancer cluster that other epidemiologists discovered in his first analysis? Morgan acknowledged that a 95 percent confidence interval is the standard most epidemiologists use. But he said the guidelines for the California Cancer Registry — guidelines he helped craft — call for 99-percent certainty. The cancer cluster in Hinkley didn’t reach that bar.

Morgan himself isn’t consistent in his use of the standard. He says the real problem in Hinkley is a cluster of cervical cancers as a result of women not getting Pap smears. But Morgan relies on a 95-percent confidence interval to deem that cluster statistically significant.

He justifies switching to a lower standard by saying his most recent research was done in his role as a college professor, not a state epidemiologist, so he didn’t have to adhere to state guidelines. In other words, the job Morgan is working determines whether a cancer cluster is real.

He struggled to explain why he started his latest Hinkley analysis in 1996, saying demographics change from one census to the next and for that reason it may be impossible to do a study over more than a decade. Morgan’s latest study stretches over 12 years, but he says he was pushing it by looking at such a long period of time.

Clapp said it is possible to do studies spanning more than a decade, and there are ways to adjust for changing demographics.

Morgan knows the neighborhood portrayed in the film was gone by 1996. He also knows that levels of chromium in most of the water in Hinkley are not much higher than is found naturally in the Mojave Desert. But again, he said it didn’t matter to him whether people in his study were exposed to chromium. He wasn’t looking into chromium exposure, he said; he was addressing the misconception that there was a cancer cluster in Hinkley.

Morgan speculated that people in Hinkley may be exposed to less chromium than others because he doesn’t believe they had been drinking the water since the film came out. In a visit in 2000, he noticed everyone had switched to bottled water. If he’s right, Morgan is left counting cancers in a town where an unknown number of people drank small traces of chromium many years ago.

Surprised by being asked about his analysis, Morgan said, “Now, what I presumed was you're going after Erin Brockovich.”

Limitations of epidemiology

Whether anyone in Hinkley got cancer from drinking chromium is an obvious question to ask. But science may not be able to answer it. Epidemiologists must rely on statistics, which aren’t capable of detecting whether a few extra people in a community got cancer from exposure to a toxic chemical. Either the chemical has to be really deadly, or the number of people in the study has to be very large. Epidemiologists sum it up this way: If they can detect a problem, you know you have a true catastrophe.

Morgan’s analysis illustrates the scientific limitations the EPA grapples with whenever it evaluates a toxic chemical.

The boundaries of the groundwater polluted by PG&E are now drawn around wells in Hinkley with more than naturally occurring levels of hexavalent chromium. The Lahontan Regional Water Quality Control Board currently defines that as 3.1 parts per billion — equal to about a tablespoon of chromium in an Olympic-size swimming pool.

Only 18 homes had private wells exceeding that level in recent years, according to Lauri Kemper, the board’s assistant executive officer. Based on the state’s estimate of risk, if a group of 6,500 people drank that much chromium every day, you might see one cancer caused by it. One additional cancer in 6,500 won’t show up in Morgan’s study of 3,500 people, even if everybody drank the most polluted water.

As is often the case, there simply aren’t enough people to do a study. Even if there were hundreds of thousands of people drinking low levels of chromium, gathering data on how much chromium is in each person’s well is a daunting and expensive task.

The families portrayed in the movie are a different matter. One well near where Roberta Walker used to live still reads 1,500 parts per billion, despite years of cleanup. That’s nearly 500 times more chromium than anyone in Hinkley is exposed to today. At that dose, a person’s risk of getting cancer increases — theoretically, at least — by one in 13.

The lawyers Brockovich worked for tracked down 650 people who lived in Walker’s neighborhood, dating back to when the dumping began in 1952. Many of those records are sealed as part of a lawsuit.

The California Office of Environmental Health Hazard Assessment mentioned but dismissed Morgan’s work in its 2011 public health goal, which concluded that drinking low doses of hexavalent chromium daily posed a cancer risk. State epidemiologist Jay Beaumont said in an interview that he reviewed Morgan’s work and found it “not very useful.”

Steven Patierno, an outside scientist who served on the EPA’s peer-review panel, criticized the EPA for leaving Morgan’s work out of its draft evaluation of hexavalent chromium. Patierno, now deputy director of the Duke Cancer Institute, has a long history of defending industry in chromium litigation. He served as a paid expert witness for PG&E in the Brockovich lawsuit.

‘I want to know the truth’

Morgan says he’s not paid by industry. His job as regional epidemiologist for the California Cancer Registry, he says, is to keep people in his Mojave Desert region from getting cancer.

He speaks with quiet passion, explaining that his philosophy is to wage war on cancer by focusing on the big things, like encouraging people to get screened. He argues that the Hinkley lawsuit doesn’t help him in his cause. Instead, he describes it as a crisis hyped up by a law firm to win a big settlement that ends up coming out of consumers’ pockets.

“I've heard different reports of $2 million or $3 million that Erin Brockovich received herself. And yet, she is the humanitarian. Well, I'm more humanitarian than she is. I want to know the truth. My salary is not dependent upon what I find,” Morgan said.

Brockovich said the personal attacks are disappointing. She said when she was investigating claims in Hinkley as a single mother of three working for a Los Angeles law firm, she was getting paid $800 a month. She said she was concerned about the people in Hinkley and had no clue she’d ever get a bonus.

Brockovich said she’s always considered Morgan’s analysis flawed because it didn’t track the people who were actually exposed to chromium.

“He’s projecting junk science onto me when he’s the one doing junk science,” she said.

Morgan did a cancer-cluster study in Redlands, Calif., at the request of scientists consulting for Lockheed Martin. The study was used in court to defend Lockheed Martin against allegations that an old rocket plant had polluted the groundwater with carcinogens. In a study very similar to the Hinkley study, Morgan found no cancer cluster.

Challenged in a 2004 deposition, Morgan testified that he didn’t know the scientists asking for the research were getting paid by Lockheed Martin. One of them, Michael Kelsh, worked at Exponent, a consulting company well known for defending companies in pollution cases.

In a 2005 report on one of the pollutants, perchlorate, the National Academy of Sciences said of Morgan’s study and others like it, “Because ecologic studies do not include information about exposure and outcome in individuals, they are considered to be the weakest type of observational studies.”

Still, Morgan’s work has been cited as evidence that cancer clusters are often creations of an ill-informed media. Morgan handed over an old clip from ABC’s 20/20 in which John Stossel uses his work to debunk the claims in Erin Brockovich that drinking hexavalent chromium can hurt people.

The American Council on Science and Health, a group whose stated mission is to present sound science in public debates, posted some of Morgan’s research on its website, Riskometer.org. On the site, the group says, “Americans are bombarded daily with warnings of dire threats to their health. … But in reality, most if not all of these warnings have little to do with the real threats to our health and lives.”

Morgan offers a list of toxic chemicals that includes dioxins and hexavalent chromium, chemicals that the International Agency for Research on Cancer classifies as known carcinogens. But Morgan concludes that in 2002, no one in American died of cancer from being exposed to any of these chemicals.

“It’s actually a ridiculous statement,” said Lester, a toxicologist at the Center for Health, Environment & Justice. He said although science may not be able to say what caused a person to get cancer, that doesn’t mean chemicals aren’t to blame.

Morgan now says he doesn’t remember the details of this analysis, done in 2007, or where he got his information.

Former Hinkley resident Julie Heggenberger watched her mother, who grew up across the street from the PG&E station, suffer from a host of painful diseases. In 1976, her maternal grandfather died of thyroid cancer. And Heggenberger says that on the day she was born in 1974, her grandmother died of stomach cancer.

Court records show the family may have been exposed to the worst contamination of all. A nearby well in 1965 had a reading of 15,000 parts per billion or nearly 5,000 times worse than any exposure today.

When you know your family drank a chemical known to cause cancer and you see them suffering, you don’t want to wait for the science to be perfect, she said, adding, “How much hurt has to happen before they say, well yeah, it was hurting people all that time?”

'Upset' emissions: Flares in the air, worry on the ground

Exxon Mobil Corporation — 2013-05-31T11:57:44-04:00

BATON ROUGE, La. — Shirley Bowman noticed the smell after 8 a.m. on June 14, 2012, her 61st birthday. In Baton Rouge, where the petrochemical industry dominates the landscape, foul odors resembling burnt rubber or propane are perennial. But this odor, caustic and potent, seemed especially foul — “like some sort of chemical,” she recalls.

Bowman found her daughter crying over a migraine. Her neighbors experienced headaches, dizziness, nausea. One family reported a toddler son coughing up phlegm; another, an elderly father collapsing on the floor. She soon suspected the cause: A leak of “steam-cracked” naphtha, a liquid mixture of volatile petrochemicals, occurring at the ExxonMobil Baton Rouge petrochemical complex a half mile away.

Four hours earlier, Exxon operators detected an odor in the East area tank field, and discovered a “bleeder” valve on Tank 801 dripping naphtha into a sewer. The leaky valve dumped 411 barrels into the underground system, company records filed with the state show. The liquid traveled a mile before pouring into a separator pit, vaporizing along the way, and releasing tens of thousands of pounds of benzene and other toxic chemicals into the air.

What happened that day in Baton Rouge is one thread of a larger story about the often toxic, sometimes hidden releases emanating from oil refineries, chemical plants and other industrial facilities along the chemical corridor of Louisiana and Texas. Those unplanned emissions — known in regulatory parlance as “upsets” — are occurring more often than industry admits or government knows, according to more than 50 interviews with regulators, activists, plant representatives, workers and residents, and an analysis of tens of thousands of records by the Center for Public Integrity.

For many communities, these upsets have evolved into an invisible menace: They disrupt lives, yet offenders are rarely punished. In Texas, where activists have clamored for relief, state officials say enforcement efforts helped reduce incidents by 6 percent in the most recent year of reporting; Louisiana officials cite a 41 percent decrease since 2008.

Yet those numbers tell only part of the story. The mass of pollution emitted in Texas, the nation’s refinery hub, hit a five-year peak in 2011, the Center found — so even as the number of reported events dipped, the amount of pollution increased. And, experts say upset releases are consistently underreported. For communities straddling industry fence lines, worry and fear remain in the air.

This hidden pollution can produce harm. Over the last five years, records show, upset events have yielded almost four million pounds of toxic air pollutants in Texas alone — the 189 chemicals deemed so harmful to health Congress sought to bring emissions under control two decades ago. That’s two percent of all upset emissions.

“These are a major public health threat,” acknowledges Larry Soward, a former commissioner at the Texas Commission on Environmental Quality, who served on its board from 2003 to 2009.

“Upsets” occur when equipment breaks down or production units are shut off, restarted and repaired; or, as regulations state, when there’s an “unavoidable” accident.

Under law, plant managers must notify officials when accidental releases exceed certain hazardous air thresholds. In Baton Rouge, Exxon did this. Yet its numbers kept escalating.

At 5:10 a.m. that day, Exxon supervisors told the state the benzene leak would likely exceed the 10 pound reportable quantity. Within hours, they classified it “level 2,” barricading areas and monitoring the air. According to a call log, company officials found benzene levels “so high” bordering a rail yard, they advised the railroad “not to let anyone go through that area.” By 12:30 p.m., the company was testing 400 workers for exposure to the cancer-causing chemical.

The following day, Exxon reported that benzene emissions totaled 1,364 pounds during the leak’s first three hours. By June 20, it increased the number to 28,688 pounds. In its final report filed 60 days later, Exxon revealed the benzene total was actually 31,022 pounds — nearly four times what the refinery released in upset events in eight years, according to company reports compiled by the nonprofit Louisiana Bucket Brigade. State regulators later deemed the leak “preventable,” issuing an enforcement order contending that Exxon “failed to provide notification of a change in the nature and rate of the discharge.”

Exxon doesn’t dispute the leak was preventable. But the company, saying it accurately reported the release, is appealing the state’s order. While plant supervisors acknowledge the “large” leak, they say it didn’t threaten residents. Tests along the fence line showed “no community impact,” their records state; air sampling by regulators back up the company.

“It was a large number. We regret that number,” says Derek Reese, Exxon Baton Rouge’s environmental manager. “But we believe we did an appropriate response to mitigate the impact.”

That’s little consolation to residents, like Bowman. “Everything seems to stop at that magical gate,” she says, motioning to Exxon’s South Gate adjoining her neighborhood. “But if you live here, you know. Chemicals are let out on you.”

Upsets plague plant, community — time and again

Last spring’s valve leak has played out again and again at the sprawling, 2,400-acre ExxonMobil Baton Rouge complex, which encompasses an oil refinery and a chemical plant, and dwarfs the Standard Heights community. The leak marks the 1,068^th upset emissions event at the compound in the last eight years, according to a database of incident reports compiled by the Bucket Brigade. Of these events, 172 involved benzene, a carcinogen that can trigger headaches, dizziness and rapid heart rate.

Exxon’s chemical plant had 265 of all incidents. At the refinery, the data show 803 accidental releases over these years; at its height, the facility averaged two a week.

ExxonMobil Baton Rouge questions the Bucket Brigade’s analysis, calling it “likely another misrepresentation of data.” In an email, the company criticizes the environmental group’s methodology and findings, contending that incident numbers published by the group don’t match the reports catalogued by the state.

The Bucket Brigade stands by its analysis, and explains that Louisiana doesn’t have a standardized system for companies to report upset events. Instead, reports are filed on a rolling basis and then posted online.

The steady hazards extend far beyond Baton Rouge. In the Gulf states of Texas and Louisiana, the vast number of plastics, power and gas plants provide an on-the-ground case study of a national problem.

“Non-routine” upset emissions have become regular occurrences at oil refineries, chemical plants and manufacturing facilities.

Data collected by the Texas Commission on Environmental Quality, TCEQ, offer a rare window into this pollution peril; the state agency requires companies to report events online within 24 hours, as well as annual totals.

From 2007-11, just over 2,400 of the largest facilities across Texas spewed almost 180 million pounds of upset emissions, contamination on top of the 14.8 billion pounds of routine air emissions in that time. Nearly half the facilities experienced at least one event in that period, pumping out sulfur dioxide and other smog-inducing pollutants. The greatest concentration came in 2011: 58.1 million pounds.

The 20 biggest offenders — oil refineries and natural-gas plants in Kermit, Beaumont, Corpus Christi and beyond — account for more than half of all such emissions in Texas.

“It’s a lot of stuff,” says Neil Carman, a former state air pollution inspector who investigated upset events.

Carman now heads the air program for the Sierra Club’s Lone Star chapter, which has filed several citizen lawsuits targeting illegal emissions. Two facilities the Club sued rank among the state’s top emitters: ExxonMobil, whose petrochemical complex in Baytown has released 5.1 million pounds of upsets in the five years; and Shell Oil, whose Deer Park plant has emitted 2.5 million.

Studies have also explored this problem, documenting how the releases sometimes occur every day or two, and for largely avoidable reasons: Equipment breakdowns and poor maintenance, for instance. One researcher, Texas A&M University’s Melissa Jarrell, says they “are happening so frequently, it’s more likely companies know about the problems and know what to do to stop upsets.”

Industry portrays the discharges as an inevitable — and overwhelmingly harmless — byproduct of manufacturing. Regulators have encouraged this casual attitude, some say.

For decades, the U.S. Environmental Protection Agency and state regulatory agencies have effectively ignored the emissions. Officials don’t count upset events in facility permits and compliance records, notes Kelly Haragan of the environmental law clinic at the University of Texas-Austin, because they “aren’t supposed to happen.” In August 2004, Haragan penned a 215-page report showing how easily facilities can get away with releasing more pollution than allowed by the federal Clean Air Act — with little to no repercussions.

At times, she says, “It’s like having a whole other plant no one is even acknowledging.”

These incidents skirt normal pollution controls, venting through flares and leaks. Plants can have scores of events a year, giving off a constant cloud of invisible spoliation.

“A big dose of toxins are coming out of these facilities,” says Soward, the former TCEQ official, who now works for Air Alliance Houston, “and into fence line communities.”

The health effects are harder to measure; little research exists on the threat to residents. But recently, Dr. Mark D’Andrea, at the University of Texas Cancer Center, began tracking 4,000 residents exposed to the poster child of all upsets — the “40-day Release” at the BP refinery, in Texas City, which belched 514,795 pounds of benzene and 20 other pollutants throughout the spring of 2010. Earlier this year, D’Andrea unveiled preliminary data showing the residents have “significantly higher” white-blood cell and platelet counts than their Houston counterparts. The data suggests BP’s release may have increased their risk of developing such cancers as leukemia, the doctor says.

In a statement, BP says it does “not believe any negative health impacts resulted from” its 40-day release. “To our knowledge, the University Cancer Centers’ pilot study does not support a claim for any plaintiff alleging injury from that flaring and has no relevance to those claims,” the company wrote, referring to pending litigation filed by 47,830 residents and workers against BP alleging health ailments caused by the release. D’Andrea has not been hired as an expert witness for either side in the case, but has testified in pre-trial discovery.

‘An Invisible Poison’

In Baytown, Texas, about 250 miles from Baton Rouge, ExxonMobil operates the nation’s largest petrochemical complex, replete with an oil refinery and two chemical plants. The mass of stacks, tanks and pipes spans 3,400 acres on Houston’s ship channel, looming over blue-collar neighborhoods nestled in its shadow. In Harris County, a manufacturer’s Mecca, Exxon’s refinery tops all 155 upset emitters, spitting out 3.8 million pounds’ worth from 2007 to 2011. Its olefins plant ranks third in the county, with 1.1 million.

Here, residents describe fiery flares that have rattled windows, belched black smoke and cast a sooty substance on the ground. At times, they’ve unleashed a thunderous boom, “like an Air Force fighter jet,” says Shae Cotter, who lived across a highway from the complex. He remembers the sound jolting him from sleep at 3 a.m. Occasionally, he videotaped flares aglow like celestial globes, flames ballooning toward his home.

Residents say smells drive them inside. Stuart Halpryn, whose house sits a quarter mile from Exxon, says he tried to adapt to the odors, along with the runny noses and allergy-like symptoms. That changed in February 2009, he says, when his family became sick after a valve leak at the refinery. His four children suffered from such severe indigestion, he says, they missed school for a week. Later, he learned from reading Exxon’s report the leak had unleashed 17,432 pounds of six different toxic chemicals.

“Nobody really understands what’s being dumped on them,” says Halpryn, who moved his family to Kentucky in June. “It’s an invisible kind of poison that’s being rained down.”

The Exxon complex ranks among the state’s biggest emitters of upset emissions involving carcinogens and noxious gases. Top chemicals include hydrochloric acid, 1,3-butadiene and benzene, toxins that can trigger skin irritations, respiratory problems, neurological disorders and gastro-intestinal diseases.

Baytown residents Cotter and Halpryn, worried over Exxon’s emissions, are witnesses in a citizen lawsuit against the company in the U.S. District Court in Houston.

The Sierra Club, along with Environment Texas, filed suit in December 2010, charging that non-routine incidents at the Baytown complex since 2005 have heaved more than eight million pounds of “unauthorized emissions.” The complaint alleges “longstanding systemic problems,” and company records revealed in court show some facility units have encountered dozens of upset events: The refinery’s Fluid Catalytic Cracker Unit 3 raked up 34 incidents from 2005 to 2011; at the olefins plant, the Cold Ends Unit has had 32.

In a statement, ExxonMobil Baytown says it has worked with regulators to “greatly” reduce emissions. “We are proud of the overall reductions we have made,” the company wrote. Since 2000, Exxon notes, it has decreased total emissions at the Baytown complex by more than 50 percent. The company declined to provide similar statistics for the facility’s upset emissions. “ExxonMobil is committed to continuously improving the environmental performance of our Baytown Complex,” the company said.

In court records, Exxon doesn’t deny the 9,374 violations alleged by plaintiffs for “unlawful upset emissions”; they’re based on its reports cataloged with the state.

In August, the company filed a motion to dismiss the suit, contending, among other issues, that environmental groups aim to “second-guess” enforcement practices by the TCEQ. On April 3, a federal magistrate denied most of Exxon’s motion, paving the way for a possible trial.

For residents, the court proceedings might not come soon enough. Since December, the Baytown facility has set off a wave of upset emissions. One, triggered by a tripped compressor in the refinery’s Booster Station Four, pumped out 114,000 pounds of sulfur dioxide in 18 hours. It was the 20^th upset recorded there by company reports.

“Exxon is emitting all of these day after day,” says Marilyn Kingman, a long-time resident. “Anybody who lives in the Baytown area is suffering.”

Infrequent monitoring, incomplete data

The threat to fence line communities may be even greater than industry self-reports — and official data — suggest. One reason is that companies rely on infrequent air monitoring to estimate chemical emissions, including upsets. When monitors do measure toxic air pollution, they can miss the short spikes characterizing upset events. “Part of the problem with upsets,” says Jarrell, of Texas A&M University, “is you’re not getting a lot of true data.”

Companies can misstate the magnitude of events through faulty calculations, environmental advocates argue. Formulas used to estimate what’s spewed from tanks and flares are so antiquated — 19 and 20 years old, respectively — they “do an extremely poor job of predicting emissions,” says Eric Schaeffer, director of the Environmental Integrity Project. Attorneys from his nonprofit are suing the EPA to force it to update these “emissions factors.” Recent studies have shown discrepancies between what’s reported and what’s emitted.

Take the 40-day release at BP’s Texas City refinery. Plant supervisors assumed one flare had destroyed nearly 98 percent of the emissions, a regulatory requirement. Three years earlier, however, regulators concluded that, in some cases, actual emissions were six times greater than what the company reported. BP maintained it has “multiple bases for concluding that the flared hydrogen stream was well combusted.”

Others aren’t so sure.

“It’s a typical example of what goes on in these situations,” says Jim Tarr, a former Texas air regulator who serves as a consulting expert in pending lawsuits against BP over its 40-day release. “Not all companies do it this way,” he says, referring to the flaring forecast, “but a lot do.”

If the calculations seem questionable, critics say, so do all those upsets that don’t count. Company reports don’t account for unpermitted releases falling beneath the thresholds for reporting requirements — up to 5,000 pounds for some pollutants. Plant supervisors must keep records detailing the events and include their emissions in annual totals, but not in incident reports. Considered “below reportable quantity,” they essentially never happened.

“That’s the bigger story on upsets,” asserts Jay DeLouche, a Lake Charles lawyer who has sued facilities over the emissions. Some managers “just determine [an upset] is below reportable quantity … and say, ‘Nothing happened, it’s a non-event.’ ”

“Non-events” can translate into big numbers. Company records revealed in court in the ExxonMobil Baytown case show thousands more “non-reportable” emissions events than the “reportable” ones filed online with TCEQ. Filling 235 pages’ worth of documentation, the 2,158 non-events outnumber the 333 reportable events by more than six to one. In Baton Rouge, Exxon’s refinery has boasted a similarly high ratio of non-events; according to the latest data compiled by the Louisiana Bucket Brigade, the company has designated 70 percent of refinery incidents “below reportable quantity” in 2011, up from roughly 10 percent in 2005.

“We believe the refineries under-report,” says the Bucket Brigade’s Anne Rolfes.

Exxon says it “is very diligent in its reporting of incidents, no matter how small.” Plant supervisors must notify authorities of events within an hour of discovery, even if the amount is unknown, the company notes; often, they must report back to regulators that “the quantity is less than initially thought.”

Over the last five years, the company says it has reduced incidents exceeding the reportable quantity at the Baton Rouge refinery by 86 percent, and at the chemical plant by 47 percent. “We take every environmental incident seriously,” Exxon wrote. “We have a passion to reduce incidents and releases.”

Some residents and workers wonder whether ExxonMobil disclosed the massive amount of benzene released last June because regulators had swooped in to investigate. “If they could have hid it, they would have hid it,” contends Bob Landry, of the United Steel Workers Local 13-12.

The Louisiana Department of Environmental Quality is exploring that question.

In their 206-page report in 2012, LDEQ inspectors determined that Exxon supervisors failed to notify the agency once they knew a “substantial amount” of benzene was emitted. An Exxon Baton Rouge environmental manager informed inspectors the company had become aware of the leak’s extent at 12:30 p.m. that first day — just seven hours after notifying the state — when its engineers calculated the vapor loss. Exxon disclosed the calculations six days later.

The agency “believes Exxon knew more about the leak than it shared with us,” says Cheryl Nolan, LDEQ’s enforcement chief. She declined to elaborate, citing the company’s appeal.

Exxon supervisors insist they intended to notify regulators of the growing leak. “As the data came in we shared those concentrations with” the LDEQ, says environmental manager Reese, noting that his calculations kept changing as workers collected the naphtha and tested the air. “We want to be open and honest.”

The Trouble in Shreveport

Upstate in Shreveport, residents have for years complained of the Calumet Specialty Products oil refinery’s upsets, which have shattered windows and shaken foundations. Regulators wouldn’t necessarily know about the drama from company reports. The refinery has filed just 83 incident reports with the LDEQ from 2005 to mid-2011, among the lowest numbers in the state, the Bucket Brigade’s data shows.

Tired of the pervasive “rotten-egg” stench, residents have kept event logs and taken samples with specially equipped buckets, exposing unsafe levels of hydrogen sulfide. The gas causes headaches, eye irritations and sore throats. “It’s a battle every day,” confides Velma White, of the Residents for Air Neutralization, “and I’m tired.”

In August 2011, after a push by RAN and the Bucket Brigade, EPA inspected the refinery, uncovering a series of plant failures. The agency also found a litany of reporting problems. Calumet managers notified the EPA of six incidents in five years, yet their internal files documented nearly 600 — 100 times as many — a 2011 EPA document shows. Inspectors audited 161 records, finding most lacked the basic required information. Some offered no details.

Calumet’s plant manager, Tom Germany, didn’t respond to emails and calls seeking comment, and neither did other facility representatives. According to the EPA’s inspection report, Germany told regulators that “he knows what good looks like and recognizes that Calumet is not there yet.”

In the ensuing 18 months, Calumet managers have filed 19 reports of “unauthorized discharges” with the state, nearly one a month. “You’d have thought they’d be more cautious” since the EPA visit, says RAN’s White. “But they’re still piling it on us.”

Sometimes, the government stick is more tepid than expected. More than a year and a half after the EPA’s damning report in Shreveport, regulators have yet to issue violations. Advocate White says she met with EPA officials and Calumet supervisors as part of negotiations in a civil enforcement action — relaying community demands for anti-pollution projects including a medical mobile unit. While EPA officials told her to expect a “large” fine, she says past settlements with Calumet, including a $1 million fine levied by state regulators in 2010, have meant little in real terms.

“It didn’t solve the problem,” White says. “You send DEQ and EPA to Calumet, and they come out with roses.”

Some former regulators view such fines as “ineffective.” As TCEQ commissioner, Soward tried to change the way the agency determines financial penalties, to no avail. Today, he says, upset events aren’t treated “any differently than a common violation,” rendering fines so paltry companies have no incentive to stop.

Citizen suits, whistleblowers expose truths

The citizen suits in Texas may reveal deeper truths than regulators have found. In 2008, environmental groups sued Shell over recurring emissions at its Deer Park facility, which ranked among the state’s top 20 upset emitters at the time. By 2010, Shell had settled the case, agreeing to pay a $5.8 million penalty for its violations, a record in any Texas citizen suit, and to annually reduce the plant’s upsets in volume and number. Since then, Shell has cut upset emissions by 35 percent, court records show.

“That proves it right there,” says Karla Lande, who lives across a river from Shell Deer Park, and attributes her lost sense of smell partly to its upsets. When companies are forced to ease upsets, she adds, “They’re able to do it.”

In Baton Rouge, it took an ExxonMobil worker to shine a light.

The first day of the valve leak, Bucket Brigade advocate Anna Hrybyk remembers giving two EPA officials a “toxic tour” of Standard Heights and noticing a “rancid smell.” She got a headache; the officials, she recalls, “were like, ‘Quick, get in the car, roll up the windows.’ ” On June 15, Hrybyk asked regulators about the incident, and received an email assuring her the initial “estimated quantity was 10 lbs.”

The next day, a whistleblower worker tipped off Hrybyk to a different scenario. More than 48 hours into the incident, company records show, refinery employees were still collecting naphtha from the sewer, trying to suppress benzene vapors. Hrybyk dialed the state’s hotline, setting off a series of regulatory activities that would end in the LDEQ’s enforcement order. The July 2012 notice of violation says Exxon, among other things, was “emitting pollutants not authorized by a permit.” The action, pending the company’s legal challenge, could result in penalties.

Critics believe regulators never would have brought down the hammer without outside pressure. Nolan, the LDEQ enforcement chief, acknowledges that agency officials “didn’t act until we got a complaint,” but stresses that the enforcement order proves “we do act when a company has unauthorized releases.”

For residents, it all seems like more of the same. In the aftermath of the leak, Bowman displayed posters in her yard declaring, “ENOUGH IS ENOUGH,” helped form the Standard Heights Community Association, and traveled to the nation’s capital to lobby.

As the months have passed, feelings of helplessness have surfaced. She has noticed other pungent odors pervading her neighborhood. The Bucket Brigade’s latest data show 13 incidents at Exxon’s Baton Rouge complex since last June’s release, emitting more than 62,000 pounds of hydrochloric acid in one upset last November alone.

“I live up in fear here,” Bowman says. “I’m just sitting here, waiting to get poisoned.”

David Donald contributed to this report.

Clean Air Act law, reality collide

Texas,United States — 2013-05-21T08:28:30-04:00

Nothing in the law allows for the invisible danger from “upset” emissions to persist, but legislation and reality often collide.

On the contrary, the federal Clean Air Act was meant to reduce harmful emissions by requiring continuous pollution limits for industrial facilities. But since its passage in 1970, state and federal regulators have created loopholes involving accidental releases — loopholes that have for years been challenged, re-written and bogged down in bureaucracy.

Nearly from the start, regulators began waiving pollution standards when equipment unexpectedly malfunctioned and had to be shut down, started up and maintained.

By 2004, 29 states had devised what University of Texas-Austin researcher Kelly Haragan calls “a flat-out exemption” for such emissions. The Environmental Protection Agency offered similar immunity for those involving hazardous air pollutants.

“There is a big caveat here,” acknowledges Adam Kushner, who headed the EPA’s air enforcement unit until last year. “They didn’t necessarily count against your compliance picture.”

This murkiness began fading after environmental groups sued the EPA in 2003, alleging its exemption violated clean-air laws. By December 2008, a federal court agreed, vacating the language. The agency has lagged at fully closing its loophole; earlier this year, it unveiled a proposed rule that would require facilities in any state to follow pollution limits during periods of start-up, shut down and maintenance.

At the state level, regulators have begun replacing blanket exemptions with rules that, critics say, aren’t much firmer. In Louisiana and Texas, plant managers can claim unauthorized releases are “upsets” as a defense to enforcement.

“When regulators get one of those reports, they don’t even think about it any further,” says Adam Babich, of the environmental-law clinic at Tulane University, who has sued a half dozen plants. “It’s like, ‘Look, here’s another incident report. Let’s file it away.’ ”

Frequently, state regulators — the primary enforcers of the Clean Air Act — fail to investigate the thousands of reports of emissions events they receive, let alone issue enforcement orders. When regulators do act, punishment can amount to a slap on the wrist. Less than one percent of the 7,533 upset reports filed by Texas companies in 2004 had ended in penalties or corrective plans, a 2005 study by the nonprofit Public Citizen found.

Little has changed, enforcement data collected by the Texas Commission on Environmental Quality suggests: Throughout fiscal year 2011, agency officials investigated 36 percent of emissions events. About 3 percent of the reports led to enforcement notices yielding fines or corrective action.

Regulators bristle at the notion they’re ignoring this fence line pollution. To some extent, they say, they must expect that industrial facilities — many complicated amalgamations of countless pieces of equipment — will have unexpected releases. Simply put, says Tim Knight, an environmental-compliance administrator at the Louisiana Department of Environmental Quality, “Industry will have problems.”

Earlier this year, the LDEQ launched a voluntary workgroup with ExxonMobil Baton Rouge and 39 other petrochemical facilities to identify common causes of upsets. The TCEQ has paid particular attention to emissions events over the past decade, requiring that companies report online and revamping permitting policies.

Larry Soward, a former TCEQ commissioner, believes such scrutiny has had an effect; indeed, upset events in Texas declined from 4,766 reported incidents in fiscal year 2010 to 4,469 a year later.

EPA officials, too, portray emissions as a “high priority.” Officials at the agency’s regional office encompassing Texas and Louisiana launched a program in 2011 inviting the area’s top 17 emitters to the table.

Program directors asked companies to analyze their own records of upsets. Under current voluntary-compliance guidelines, companies wouldn’t begin to “benchmark” the emissions and thus document reductions until 2014. So far, no company has agreed to participate.

“We have found that using multiple approaches to try and solve this problem has worked best,” says Sam Coleman, EPA’s deputy regional administrator, noting that a similar initiative in 1999 “consistently” reduced upsets for several years. “The voluntary approach is simply one tool in the toolbox.”

Advocates remind federal regulators problems continue.

Eric Schaeffer, director of the Environmental Integrity Project and a former EPA enforcement chief, has sent letter after letter to Texas and EPA officials, flagging “egregious upset releases” and urging them to pursue the worst offenders. On April 23, he asked the EPA’s inspector general to examine how regulators responded to repeated upsets by the biggest Texas emitters. In Louisiana, Bucket Brigade advocates have turned toward a little-known EPA program that inspects facilities for the risk of “unanticipated” releases.

After a flurry of lobbying activity by the group highlighting a benzene leak at ExxonMobil Baton Rouge, EPA inspectors showed up at the company’s refinery for four days last July. Inspectors outlined a host of concerns, including pervasive “piping, valve, and vessel corrosion,” a November report shows. Exxon supervisors also failed to “correct deficiencies” in processing equipment; to assure that equipment was installed correctly; and to inspect underground piping.

Exxon says it has reviewed the EPA report and is sharing information that “we believe may clarify many of the areas of concern.” The company stresses the report doesn’t constitute a notice of violation.

EPA officials declined to elaborate. Coleman says, “It’s not appropriate for me to say whether there will be violations or what the outcome will be.”

'Chemicals of Concern' list still wrapped in OMB red tape

2013-05-15T08:27:55-04:00

For anyone anxious about toxic chemicals in the environment, Sunday marked a dubious milestone.

It has been three years since the “chemicals of concern” list landed at the White House Office of Management and Budget. The list, which the Environmental Protection Agency wants to put out for public comment, includes bisphenol A, a chemical used in polycarbonate plastic water bottles and other products; eight phthalates, which are used in flexible plastics; and certain flame-retardant compounds called polybrominated diphenyl ethers, or PBDEs.

The EPA wants to highlight these chemicals because “they may present an unreasonable risk to human health and/or the environment,” the agency says.

But any such listing must first be vetted by the OMB’s Office of Information and Regulatory Affairs, OIRA.

The EPA proposal arrived at OIRA on May 12, 2010. There it remains — a symbol, some say, of a broken regulatory system.

“It’s far past time for the OMB to conclude its review of the EPA’s proposal to list chemicals of concern,” Sen. Frank Lautenberg, D-N.J., said in a statement to the Center for Public Integrity. “Americans deserve access to information about the chemicals found in products throughout their homes that might pose a risk to their health.”

In a statement, OMB spokeswoman Ari Isaacman Astles wrote, “The Administration is committed to chemical safety and when it comes to complex safety rules, it is critical that we get them right.”

An EPA spokeswoman said only that the agency’s list, which has been challenged by companies such as ExxonMobil and Dow Chemical, “remains in interagency review.”

By executive order, OIRA is supposed to review proposed rules within 90 days of receiving them, with the possibility of a single, 30-day extension. That’s four months, maximum.

Why has the chemicals of concern list been at OIRA for three years? No one is saying.

Yet in a draft of an upcoming law review article, former EPA official Lisa Heinzerling, a law professor at Georgetown University, offers some clues.

Heinzerling lays some blame on recently departed OIRA director Cass Sunstein, now teaching at Harvard Law School. In his new book, “Simpler: The Future of Government,” Sunstein makes clear “how much power he wielded” at OIRA — with the authority to make sure that some rules " ‘never saw the light of day, ’ ” Heinzerling writes.

Sunstein did not respond to an invitation to comment. President Obama has nominated Howard Shelanski, director of the Federal Trade Commission’s Bureau of Economics and a former law clerk for U.S. Supreme Court Justice Antonin Scalia, to replace him at OIRA.

Problems at the office have become entrenched, Heinzerling argues.

“Many outside observers believe that there is in fact a deadline for OIRA review,” she writes. “Not only is there no deadline for OIRA review, but OIRA itself controls the agency’s ‘requests’ for extensions. In this way, it comes to pass that rules can remain at OIRA for years.”

EPA rules seem to draw extra scrutiny. “EPA receives more sustained attention from OIRA than any other federal agency,” Heinzerling writes. Fifteen of the 22 EPA rules under review have been at OIRA for more than a year.

What’s so threatening about the chemicals of concern list?

The American Chemistry Council, a trade group, did not respond to requests for comment.

In a statement to the Center last year, however, the group said, “We are concerned that EPA is creating a list of 'chemicals of concern' for potential regulatory action, without establishing consistent, transparent criteria by which these chemicals are selected. ... It is OMB’s job to closely review the proposed action and consider any negative economic impact; we appreciate that officials are taking the time they need to fully study the matter.

“Failure to fully review such agency proposals undermines public and private sector confidence in the regulatory process and can seriously harm American innovation and jobs.”

Richard Denison, a senior scientist at the Environmental Defense Fund, said publication of the list would not restrict commerce and is within the EPA’s authority.

“OIRA has deprived the public of the right to even comment by refusing to allow EPA to issue the proposed rule,” Denison said. “The debate is being squelched by an office that doesn’t have any real scientific expertise and certainly shouldn’t have the ability to override the authority that Congress gave EPA.”

EPA adds safeguards to spotlight conflicts on scientific panels

2013-05-03T17:14:40-04:00

The Environmental Protection Agency announced new safeguards Friday to prevent conflicts of interest or bias from tainting its science, including efforts to assess the dangers of toxic chemicals.

The reforms, targeting scientific review panels selected for EPA by outside contractors, follow a Center for Public Integrity-PBS NewsHour examination revealing ties between scientists and industry on a panel reviewing hexavalent chromium, a compound commonly found in drinking water that may cause cancer.

In that case, three panelists who urged the EPA to delay potentially stricter drinking water standards had been expert witnesses for industry in hexavalent chromium litigation. The scientists denied any conflict and said their input was based on research, but the case study revealed how the EPA is unaware of potential conflicts on its own panels.

Under its own process, the Center reported, the agency turns over the job of selecting panelists to private companies, which handle conflict-of-interest reviews in secret. All information the vendors collect, including financial disclosure forms, is “considered private and non-disclosable to EPA or outside entities except as required by law,” the EPA policy says.

The changes announced Friday add more layers of review — and provide more public disclosure — to the process.

Environmental watchdogs, who had questioned EPA's existing process, say the steps are overdue.

“It brings transparency to a process that wasn’t there before,” said Francesca Grifo, a senior policy fellow and expert on scientific integrity at the Union of Concerned Scientists.

One key change: After an EPA-hired contractor selects members of a scientific review panel, “the contractor will consult with EPA to review whether the contractor followed existing conflicts of interest guidance and requirements, and identify and provide input on any issues.”

That step adds an extra layer of review by EPA.

Also, the agency said, the names of chosen panelists will be publicly posted before any meetings take place.

The new steps do not change EPA’s existing standards for assessing conflicts, the agency said, but instead add sunshine to the process.

“This process will ensure that existing conflicts of interest guidance and requirements are applied correctly and where a potential conflict of interest is identified, allow EPA to determine whether the contractor’s plan to address the conflict is acceptable,” the agency said.

The EPA’s acting administrator, Bob Perciasepe, said Friday the new steps show the agency is “committed to scientific integrity.”

“Improving the contract-managed peer review process and increasing transparency will lead to stronger science at the agency,” Perciasepe said in a statement.

Richard Denison, a senior scientist at the Environmental Defense Fund, has been outspoken about industry influence at the EPA. Denison praised the EPA for bringing more openness to the process.

“The hexavalent chromium example was the major impetus for this revision,” he said.

Hexavalent chromium, best known as the toxic chemical compound from the hit film Erin Brockovich, is found in the drinking water of more than 70 million Americans, according to the Environmental Working Group.

New animal studies published in 2008 showed that mice and rats given high doses of the compound developed large numbers of tumors. The National Toxicology Program, part of the National Institutes of Health, cited the compound as a “clear carcinogen.”

The EPA planned to revise its assessment of the compound in 2011, even as a trade group, the American Chemistry Council, urged the agency to wait for industry funded studies. Several members of the peer review panel also urged the EPA to wait.

One was Steven Patierno, then a scientist at George Washington University, who was a consultant on ACC studies.

Another was Joshua Hamilton, a scientist at the Marine Biological Laboratory in Woods Hole, Mass., which is affiliated with Brown University. Pacific Gas & Electric Co., the company that polluted the water in Hinkley, Calif., with chromium, hired Hamilton as a consultant in 2009.

Hamilton said that just before the EPA peer-review panel met, PG&E asked him if he would go back to Hinkley to discuss the health effects of hexavalent chromium. PG&E said it paid Hamilton $110,000 for his work in Hinkley. Hamilton said he revealed the PG&E work to the private contractor hired by EPA, Eastern Research Group, and that the firm concluded it was not a conflict.

Officials with Eastern Research Group, based in Massachusetts, have not responded to interview requests.

Meanwhile, some members of Congress are pushing potential change to support industry.

The House science committee recently approved a bill to change the rules at the EPA for setting up scientific advisory panels. It would prevent the EPA from excluding people from panels with industry ties, as long as those ties are disclosed. It would also exclude panelists whose research is incorporated in the assessment. The bill is awaiting action by the full House.

'Retail exemption' shields some fertilizer facilities from stringent safety inspections, rules

Texas,United States — 2013-05-03T11:16:41-04:00

The Texas fertilizer plant that blew up on April 17, killing at least 15 people, appears to have been claiming an arcane exemption that allowed it to avoid targeted workplace inspections and safety requirements and enter a “streamlined prevention program” with environmental regulators, a government spokesman confirmed.

The owner of the facility near Waco, West Chemical and Fertilizer, apparently determined that the exemption — a few words advocated by industry groups, including The Fertilizer Institute, as part of a 20-year-old regulation — applied. In the wake of the deadly blast in West, Texas, last month, the Occupational Safety and Health Administration is investigating whether this claim was justified, an OSHA spokesman said.

By claiming the exemption, the company became subject to other, less stringent requirements and avoided certain OSHA and Environmental Protection Agency rules.

West Chemical and Fertilizer did not respond to requests for comment.

The interlocking web of company-claimed exceptions has implications beyond a small town in Central Texas. Sites across a host of industries housing large amounts of dangerous chemicals could claim they sell primarily to end users and avoid stricter regulation, though the number of facilities invoking this exemption is unclear. A representative for a company storing toxic chlorine gas, for example, wrote to OSHA in 2005 to clarify that the exemption applied to the site.

“It’s a major flaw,” said Bryan Haywood, an Ohio consultant who advises companies on the safe use of dangerous substances. “This incident’s going to get a lot of people’s interest into how people are squirming out of [stricter requirements].”

Closely related OSHA and EPA rules require facilities using large quantities of hazardous substances to take preventive steps and plan for accidents. West Chemical and Fertilizer had enough anhydrous ammonia — a chemical that attacks the eyes, skin and respiratory system — to require it to follow OSHA’s Process Safety Management standard, issued more than two decades ago.

But the standard contains what is known as the “retail exemption.” The Fertilizer Institute spoke out in favor of the exemption while the rule was being developed. Soon after the rule became final, the institute asked OSHA to confirm that it would not apply to facilities that store and blend fertilizer and sell it primarily to end users, often farmers.

OSHA responded that a fertilizer facility could indeed avoid the strictures of the rule as long as more than half of the company’s sales were to end users. OSHA, however, does not check on the validity of an exemption unless it inspects the site, an agency spokesman confirmed.

The Fertilizer Institute said in a statement to the Center for Public Integrity that it agreed with OSHA when the agency concluded in 1992 that retail facilities “did not present the same degree of hazard to employees as other workplaces covered by the proposal.”

But the institute added, “While the cause of the West, Texas, explosion has yet to be determined, we will re-examine our stance if necessary when the report on the cause is made final.”

OSHA is also investigating whether the West plant was covered by a legislative rider that makes sites with fewer than 10 employees in industries with low reported injury rates off-limits for regular inspections, an agency spokesman said. The site had not been inspected since 1985.

Invocation of the “retail exemption” can begin a chain reaction of less stringent standards. The EPA’s program for designating the risk posed by a facility relies, in part, on the site’s standing with OSHA. The amount of anhydrous ammonia stored at West Chemical and Fertilizer normally would have placed the facility in the EPA category requiring extensive preventive measures and accident-response plans. But because the site claimed the OSHA exemption, it qualified for a “streamlined prevention program” under the EPA’s Risk Management Plan program, known as RMP.

The agency said in a statement that it “reviewed the RMP from the facility to determine the RMP was complete and correct.” Asked whether it verified the basis for placing the site in a lower-risk category — its exemption from the OSHA rule based on its sales records — the EPA did not respond.

This EPA designation, along with the site’s lack of a history of accidents or recent inspections, removed it from a list of facilities subject to an OSHA special inspection program targeting locations using large amounts of hazardous substances, such as anhydrous ammonia.

It is unclear how many facilities enjoy more relaxed regulation as a result of their self-designation as retailers, but Haywood said the number could be large. “A lot of these businesses like in West, Texas, they’re everywhere,” he said. “They’re in every small farming community in the country.”

OSHA strengthens protections for temp workers

2013-04-29T16:45:31-04:00

Federal regulators today announced new measures to protect 2.5 million temporary workers in America amid evidence such laborers are hurt more often than regular employees.

In December, the Center for Public Integrity and WBEZ/Chicago Public Media highlighted the case of temporary worker Carlos Centeno, who was badly burned in a Chicago-area factory in November 2011 and died three weeks later. Occupational Safety and Health Administration records obtained by the Center concluded that Centeno’s bosses refused to call 911 as his skin peeled and he screamed for help.

OSHA said today it had sent a memo to regional administrators “directing field inspectors to assess whether employers who use temporary workers are complying with their responsibilities” under the law.

“Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations,” the agency said in a press release. “Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand.”

As the Center/WBEZ story noted, recent research indicates temporary workers are more prone to injury than permanent ones due to often-subpar safety training and the feeling among some employers that temps are expendable. Last year, for example, researchers who studied nearly 4,000 amputations among workers in Illinois found that five of the 10 employers with the highest number of incidents were temporary staffing agencies.

The new OSHA memo, written by enforcement director Thomas Galassi, says the agency has received “a series of reports of temporary workers suffering fatal injuries during the first days on a job. In some cases, the employer failed to provide safety training or, if some instruction was given, it inadequately addressed the hazard, and this failure contributed to their death.”

Centeno was employed by a staffing agency at the time he was burned. A co-worker wound up driving him to a clinic after a delay of at least 38 minutes. Centeno didn’t make it to a hospital burn center until an hour after that.

OSHA recommended that the host employer, Raani Corp., which makes personal-care products, be criminally prosecuted for the accident. The agency has proposed a $473,000 civil fine against Raani, which is appealing. In court filings in a lawsuit brought by Centeno’s family, the company denies fault.

Centeno, a 50-year-old immigrant from Mexico, was among 4,693 workers who suffered fatal, work-related injuries in 2011. Three more workers died in 2011 than in 2010, according to the U.S. Bureau of Labor Statistics. Worker deaths in 2010 also rose when compared to the previous year: 4,690 died in 2010, while 4,551 died in 2009.

Workplace deaths up slightly in 2011

2013-04-25T12:30:02-04:00

As investigators unravel what caused a Texas fertilizer plant explosion last week that killed 14, the U.S. Bureau of Labor Statistics reported today that 4,693 workers died on the job in 2011, three more than in 2010.

The fatal injury rate for 2011, the most recent year with complete data, was 3.5 deaths per 100,000 full-time equivalent workers. That is down slightly from 2010.

According to the BLS, 1,937 workers died in transportation incidents; 710 through “contact with objects and equipment”; 681 from “falls, slips [and] trips”; and 419 from “exposure to harmful substances or environments.”

“The Texas plant explosion is the kind of catastrophe that really grabs the public’s attention,” said Tom O’Connor, executive director of the National Council for Occupational Safety and Health, an umbrella organization for a network of nonprofit groups around the country. “But that’s about the same number of people who die every day in the U.S., in ways that are much quieter and hidden from public view.”

On average, 13 workers a day are killed on the job in the United States and many more are injured. On April 17, the same day the fertilizer plant blew up in West, Texas, a dozen contract workers were injured when a fire broke out at the ExxonMobil refinery in Beaumont, about 300 miles to the southeast; seven suffered severe burns.

This year, for the first time, the BLS fatality report has a separate category for contract workers, who may not be afforded the same protections as regular employees. Five hundred forty-two died in 2011, the bureau found, accounting for 12 percent of all fatal injuries. Texas had the highest number of contractor deaths – 56 – followed by Florida (51) and California (42).

“Looking through the BLS data, you see some really simple, easily preventable causes of death: people falling off roofs, people dying in trench cave-ins, people falling off ladders, people dying in confined spaces,” O’Connor said. “The total death toll is far greater than what we see from a handful of catastrophic incidents. It seems that the public just sort of accepts that as a risk of going to work.

“We believe people shouldn’t have to risk their lives to get a job.”

Stephanie Moulton, a 25-year-old social worker at a Massachusetts group home, died at the hands of a schizophrenic client on Jan. 20, 2011. She was among 468 workplace homicide victims that year, according to the BLS.

Moulton’s death motivated her mother, Kim Flynn of Peabody, Mass., to press for a state law that would require mental health facilities to provide “panic buttons” to workers. In a report this week, O’Connor’s group recommends that the Occupational Safety and Health Administration issue a sweeping injury and illness prevention standard that would require employers to identify and address hazards, including the potential for violence.

In Flynn’s view, both the owner of the home in which her daughter worked and OSHA – which proposed a $7,000 fine in the case – “dropped the ball.”

The BLS data release comes three days before Workers Memorial Day, a union-sponsored event honoring those who die on the job.

“Many job hazards are unregulated and uncontrolled,” says the AFL-CIO. “Some employers cut corners and violate the law, putting workers in serious danger and costing lives. Workers who report job hazards or job injuries are fired or disciplined. Employers contract out dangerous work to try to avoid responsibility.”

OSHA, records show, had not inspected the now-demolished Texas fertilizer plant since 1985. “OSHA is so understaffed and underfunded that federal inspectors can inspect each workplace on average of one each 131 years,” the AFL-CIO said in its 2012 “Death on the Job” report.

As they have in the past, Democrats in Congress introduced legislation this year to strengthen the Occupational Safety and Health Act of 1970, whose criminal and civil penalties for employer misconduct are considered lenient by critics.

Under the act, an employer whose willful disregard for the law leads to a worker death faces at most a misdemeanor charge, with a maximum sentence of six months in jail. Such cases are rarely prosecuted. The maximum fine for a “serious” violation, which could lead to death or serious injury, is $7,000.

Other laws, in contrast, are far stricter. Last month, the owner of a bio-diesel fuel company was sentenced to 188 months in prison – 15½ years – fined $175,000 and ordered to pay almost $55 million in restitution after pleading guilty to wire fraud, money laundering and making false statements to the Environmental Protection Agency in violation of the Clean Air Act.

“The fact remains that penalties for harming workers are often the cost of doing business for some employers, if they get inspected at all,” Rep. George Miller, D-Calif., said in a statement last week. “Congress needs to work together to increase these outdated penalties and give real teeth to the law so that workers and communities can remain safe while trying to make a living.”