P.O. Box 1931 Austin, Texas 78767 SIERRA CLUB (512) 477-1729 (512) 477-8526 (fax) fOUNDED 1191 Lone Star Chapter April 13, 2000 BY FEDERAL EXPRESS Ms. Ann E. Goode, Director Office of Civil Rights U.S. Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Dear Ms. Goode: This is a complaint under Title VI of the Civil Rights Act of 1964 by People Against Contaminated Environments (PACE), a grassroots community group representing residents of the City of Texas and the Lone Star Chapter of the Sierra Club, PACE and Sierra Club ("complainants") allege that the Texas Natural Resources Conservation by issuing a permit amendment to Mobil Ojl and by failing to enforce environmental laws pertaining to Mobil Oil's operation. has discriminated against nearby residents on the basis of race. color, and national origin, and therefore, has violated Title VI of the Civil Rights Act of 1964 and the Environmental Protection Agency's implementing regulation, 40 C.F.R. § 7.35. TNRCC is a recipient of EPA assistance /"""' pursuant to 40 C.F.R. § 7.25. L INTRODUCTION This complaint comes as a result of several instances of discriminatory behavior by the TNRCC. The first set of discriminatory actions by the TNRCC involves the issuance by the agency of a penni! amendment to Mobil Oil for their refinery operations in Texas. This permit amendment allowed for increases in several categories of emissions, including hydrogen sulfide emissions, a chentical for which Mobil has exceeded the standard in the last year. Further, the agency approved the permit amendment without allowing the public the opportunity to participate in a contested case hearing. The agency claimed that the proposed amendment was a ntinor amendment because Mobil was off-setting emissions increases with entissions reductions from other facilities. Complainants argue that TNRCC should not have allowed Mobil to use emission reductions associated with their responsibilities under federal laws for the purpose of justifying entission increases associated \\ith their refinery expansion. The second set of discrintinatory actions pertain to the failure of the TNRCC to take any fonnal enforcement actions against Mobil Oil for exceedences of the sulfur dioxide (S02) and hydrogen sulfide (IUS) standards at their Beaumont refinery. Sulfur dioxide problems were most recently documented in a health effects evaluation report dated August 25. 1999 and a Monthly Program Monitoring Report submitted by Mobil to TNRCC with a cover letter dated August 27, 1999. Hydrogen sulfide problems were most recently documented in July 1999. By issuing the penni! amendment and failing to take enforcement action, the TNRCC violated Title VI and EPA's implementing regulations due to the fact that the community most affected by action is predominantly African-American (95% as-demonstrated below). This decision, however, is not an aberration. TNRCC's method of administering its policies and procedures has created and perpetuated a system of discrintinatory facility siting and e>."j)ansion throughout tlte State of Texas. Repeatedly, poorer communities of color, like those in are hosts to polluting facilities such as oil refineries and chemical plants thus bearing a disproportionate share of the state's environmental dangers. Tills clear pattern of discriminatory impact cannot be ignored by the ,-... TNRCC or U.S. EPA. and cannot be allowed to continue. '; sds@igc.org . To explore, enjoy, and protect the wild pla·ces of the earth. www.sierraclub.org/chapters/tx 100%/ree Free Kenol paper IL Rfi'ENESS This is timely filed under +O C.F.R. § 7.120(b)(2). The penni! amendment was issued to Mobil Oil on December 2, 1999, which is within the 180 day limit. Exhibit l contains a letter documenting the authorization by TNRCC. It also contains a copy of a letter from the Sierra Club protesting the authorization. The latest documentation of S02 exceedences was provided in August 25 and August 27, 1999. See Exhibit 2 for copies of these documents. Although these violations were ROt documented within the 180 day limit set out in EPA's implementing regulations, complainants allege that this is a continuing violation that TNRC has not acted upon and thus not subject to the 180 day limit. For this reason. complainailts request that this rule be waived. The latest documentation of an H2S exceedcnce was provided in July 1999. See Exhibit 3 for records documenting this exceedence. Although these violations were not documented within the 180 day limit set out in EPA's implementing regulations. complainants allege that this is a continuing violation that TNRCC has not acted upon and thus not subject to the 180 day limit. For this reason. complainants request that this rule be waived. IlL BACKGROUND INFORMATION OVERVIEW OF MOBIL'S OPERATIONS IN BEAUMONT Mobil has a very large industrial operation adjacent to a residential area in the City of Beaumont. The operation consists of a large refinery (SIC 2911), several chemical plants (SIC 2869, 2821) and a few smaller facilities (SIC 5171). The folloning is a list of Mobil's criteria air emissions in Jefferson County in 1997. Complainants assume that most if not all of these facilities will be located at the Beaumont site. FACILITY NAME (SIC) TOTAL PLANT EMISSIONS Mobil Oil Corporation Beaumont Refinery (2911) 35.908 tons ""' Mobil Chemical Company Olefins/Aromatics Plant (2869) 1,949 tons Mobil Chemical Company Polyethylene (2821) 551 tons Mobil Chemical Company BCSP (2869) 150 tons Mobil Pipeline Company (5171) 56 tons Mobil Oil Corporation (5171) 42 tons Mobil Oil Corporation Magpetco (5171) 12 tons Total 38.668 tons MOBIL OIL BEAUMONT REFINERY CRJTERJA EMISSIONS BY POLLUTANT Sulfur Dioxide 13,155 tons Volatile Organic Compounds 6,043 tons Carbon Monoxide 8,418 tons Nitrogen Oxide 8,290 tons - Particulate Matter (PM!O) 2 tons TOTAL 35,908 tons 2 EMISSIONS DATA AND RANKING$ FOR MOBIL OIL. JEFFERSON COUNJY AND TilE STATE COMPARISON OF TEXAS REFINERIES TO REFINERIES NATIONWIDE A state-by-state ranking of the performance of oil refineries by the En,ironmental Defense Fund shows that among states with four or more refineries, Texas, Oklahoma, Montana and Wyoming refineries emit the greatest pollution per barrel of crude oil processed. Texas' 23 refmeries emit the greatest quantities of toxic pollution per barrel of crude oil processed. The seven Texas refineries in the r:mkable refineries in the U.S. were Shell Odessa Refining Company (formerly known as Shell Oil bottom 20% overall of the Products Company) in Odessa, Lyondell Citgo Refining Company in Houston. Phillips 66 Company in Borger, Specified Fuels & Chemicals LLC (formerly known as Howell HC & Chemicals Incorporated) in Channelview. Coastal Refining & Marketing Incorporated in Corpus Christi, Mobil Oil Corporation in Beaumont, and Shell Deer Park Refining Company (formerly known as Shell Oil Products Company in Deer Park. CATEGORIES IN WHICH JEFFERSON COUNTY RANKS IN THE TOP I 0"/o FOR MNOR CHEMICAL RELEASES WHEN COMPARED TO OTHER COUNTIES IN TilE U.S. (FROM EDF SCORECARD) Total Environmental Releases Air Releases Total Off-Site Transfers Total Production-Related Waste Ozone Depleting Potential Cancer Risk Score Non-Cancer Risk Score Recognized Carcinogens Recognized Developmental Toxicants Recognized Reproductive Toxicants 16 Categories of Toxicants with Suspected Health Effects CATEGORIES IN WHICH JEFFERSON COUNTY RANKS IN THE TOP 10% FOR MAJOR CHEMICAL RELEASES WHEN COMPARED TO OTHER COUNTIES IN TEXAS (FROM EDF SCORECARD) Total Environmental Releases Air Releases Water Releases Total Production-Related Waste Ozone Depleting Potential Cancer Risk Score Non-Cancer Risk Score Recognized Carcinogens Recognized Developmental Toxicants Recognized Reproductive Toxicants 16 Categories of Toxicants with Suspected Healtl1 Effects CATEGORIES IN WHICH THE MOBIL OIL REFINERY RANKS IN THE TOP 10% FOR MAJOR CHEMICAL RELEASES WHEN COMPARED TO OTHER FACILITIES IN TilE U.S. (FROM EDF SCORECARD) Total Environmental Releases Air Releases Total Production-Related Waste Cancer Risk Score Recognized Developmental Toxicants 9 Categories of Toxicants with Suspected Health Effects J CATEGORIES IN WIUCHTHE "•J'-'""' viL REFINERY RANKS IN THE TOP .• % WHEN COMPARED TO OTHER FACILITIES IN TEXAS (FROM EDF SCORECARD) MAJOR CHEMICAL RELEASES Total Environmental Releases Air Releases Cancer Risk Score Recognized Developmental Toxicants 9 Categories of Toxicants with Suspected He:llth Effects MOBIL OIL BEAUMONT REFINERY CRITERIA POLLUTION RANKINGS IN 1997 AS COMPARED TO 30 TEXAS REFINERIES The Mobil Refinery ranked #I in plant-wide criteria air emissions (35,908 tpy). Mobil's emissions are 385% above the Texas refinery average. The Mobil Refinery ranked #I in sulfur dioxide emissions (13, 155 tpy). Mobil's emissions are 521% above the Texas refinery average. The Mobil Refinery ranked #3 in volatile organic compound emissions (6043 tpy). Mobil's emissions are 326% above the Texas refinery average. The Mobil Refinery ranked #I in carbon monoxide emissions (8418 tpy). Mobil's emissions are 636% above the Texas refinery average. The Mobil Refinery ranked #5 in nitrogen oxide emissions (8290 tpy). Mobil's emissions are 227% above the Texas refinery average. Exhibit 4 contains additional information about the rankings of the Mobil Refinery in the these catergories. MOBIL OIL TOTAL TOXIC RELEASE AND TOXIC AIR RELEASE RANKINGS IN JEFFERSON COUNTY IN 1997 r-- Mobil Oil Beaumont Refinery ranks #2 and the three Mobil chemical plants rank #II, #13 and #23 in total environmental releases. Mobil Oil Beaumont Refinery ranks #I and the three Mobil chemical plants rank #9, #11 and #22 in total air releases. Exhibit 5 contains the rankings lists for facilities in Jefferson County on total en,ironmental releases and total air releases. MOBIL OIL AIR EMISSION RANKINGS IN JEFFERSON COUNTY IN 1997 The Mobil Refinery is the largest source of criteria air emissions in Jefferson County {35,980 tpy). Mobil Chemical Plants rank #9, #16 and #32 in criteria air emissions in Jefferson County. The Mobil Refinery is the second largest source of hydrogen sulfide emissions in Jefferson County (9.1392 tpy). The largest source of hydrogen sulfide emissions, Clark Refining, is located in Port Arthur. See Exhibit 6 for a listing of all sources of criteria air emissions and top ten hydrogen sulfide emissions sources in Jefferson County. COMPLAINTS REGISTERED BY THE COMMUNlTY Residents of the affected area have been adversely affected by Mobil's operations in Beaumont. These residents have registered several complaints that may be associated with Mobil's operations, including: / (a) (b) (c) -(d) (e) flaring; odors (causing headaches, nausea nose/eye irritation, unconsciousness, etc); fires; smoke; and ,. ,. soot on residents' property. 4 According to TNRCC records. at least ...ne1een complaints were filed from April 1" ,,; to .><:vtember 1997 against the Mobil Oil Beaumont Refinery and Mobil Chemical Company. Only one complaint (October 1, 1996) led to the issuance of a notice of violation for nuisance level odors. No formal enforcement action was taken on any of these complaints. The following arc some complaints worth noting. ,- On 1996. four complaints about soot all over complainants' property were registered. Although black particulate on residents' property was confirmed. no violation was documented since the source could not be identified. On July 19, 1996. a complaint was registered about a fire at Mobil that was caused a student at bible school to experience a headache. Although the complaint was confirmed. no ,;elation was documented because Mobil complied with protocol for reporting upset conditions. On June 4, 1997, a complaint was registered about odors that caused nausea and dizziness. An upset condition was reported by Mobil. therefore a nuisance condition was not confirmed and no violation was issued. TNRCC's failure to take any formal enforcement actions on any of these issues has clearly discouraged residents from filing any additional complaints as their concerns will obviously be ignored by the agency. The letter from the Sierra Club (dated 11124/99) included in Exhibit I contains as an attachment a summary of complaints and compliance history for the facility since about 1996. A class action lawsuit has been filed against Mobil Oil on behalf of over 1000 residents alleging negligence, gross negligence. nuisance, trespass, unjust enrichment, strict liability, intentional infliction of emotional distress. and toxic assault and battery. A copy of the text of this lawsuit is included in Exhibit 7. IV. SPECIFIC ALLEGATIONS OF DISCRIMINATION . approved a pernut amendment to Mobil's Beaumont Refinery on December2,. I 999: thus allowing Mobil to expand its refirung operatiOns. The pernut amendment allows mcreases m several categones of emtsstons. mcludmg mcreased enusswns of hydrogen sulfide. A newspaper article included in Exhibit l discusses the adverse health effects of hydrogen sulfide on the human brain and the levels that are deemed to be safe for adults and children. The facility has already been e:q>eriencing problems with the ,....._ emission of hydrogen sulfide (see Allegation #5). Increases in hydrogen sulfide and other emissions allowed under the amendment will have a disparate adverse impact on the affected communitv that is predominantly African-American. (2) TNRCC issued the penni! amendment "ithout allowing the public an opportunity to participate in a contested case hearing on tlte matter. TNRCC justified the approval of the permit amendment without an opportunity for a contested case hearing by allowing Mobil to off-set the emission increases proposed by Mobil with emissions decreases from other emission sources in the refinery. 1 Complainants challenge the issuance of reductions credits to Mobil because TNRCC allowed the agency to use emissions reductions >J associated with their responsibilities under federal laws for the purpose of justifying emission increases associated with their refinery expansion. Of particular concern are increases pertaining to Volatile Organic Compounds (VOCs). An emissions table (dated ll/LS/99) included in Exhibit I specifies that VOC increases in the permit amendment totaled 229.9 tpy and that VOC decreases in the penni! amendment totaled 68.2 tpy. On 11119/00, Mobil Oil submitted a letter specifying emissions reduction projects that it offered for the purpose of off-setting the net VOC increases in the penni! amendment. The following is a summary of the reductions. Crude Oil Reductions Gas Oil Reductions Slotted Guide Poles Marine Vapor Recovery Other 38..16 7.H 127.85 16.20 Total 166.31 Gasoline Reductions Total 29.61 730.64 173.66 l20l.l8 139l.l3 Our research indicates that reductions related to "slotted guide poles" and "marine vapor recovery" are reductions required by the ,....._ federal government. Last year, EPA created a voluntary compliance program to reduce the leakage of smog-causing vapors from large above-ground petroleum product refinery storage tanks through the installation of emission controls on slotted guide poles. EPA created the program because of observable emissions from uncontrolled guidepoles in violation of a prohibition in the air quality New 5 Source Performance Standards (N::;PS). As a condition of program panicipation, Er'A agreea to refrain from enforcement action on any fa<;ility not presently subject to enforcement action for uncontrolled guidepoles. - Reductions achieved through "marine vapor recovery" are required under Texas Administrative Code is 30 TAC § 113.300. CFR 63. Subpart Y. The corresponding reference in the These facts demonstrate that the vast majority if not all of reductions claimed by Mobil Oil through emission reduction projects should not have been credited. As previously stated. only a 68.2 tpy reduction in VOCs is actually included in the pennit amendment. '-·, ·' } -).. I Complainants maintain that all emissions reductions should have been in the pennit amendment because othen,ise the reported reductions may have no relevance to the action taken as illustrated in the case of the "slotted guide poles" and '"marine vapor / recovery" reductions. TNRCC should not have allowed the use of such emission reductions for the purpose of evaluating the pennit amendment. TNRCC's acceptance of questionable emissions reductions allowed for the denial of the rights of members of the affected community to receive notice of the expansion and to participate in the pennitting process in violation of their civil rights. (3) As described in Section III, Mobil Oil's Beaumont Refinery ranks #1 in sulfur dioxide emissions compared to 30 Texas refineries. In Jefferson County, Mobil's Beaumont Refinery ranks #1 in sulfur dioxide emissions. Not surprisingly, this facility has e'-,.;1 permitting of industrial facilities and the enforcement of environmental regulations. As of January 2000. more civil rigbts complaints bad been filed in the State of Texas than in any other state in the country. In Texas. 12 complaints have been filed. Of these 12 complaints. six have been accepted for investigation. three bave been rejected and three are under consideration for investigation. A sununary of several pending complaints is included in Exhibit 9. If EPA finds discrimination with regard to any of these cases. EPA may initiate procedures to terminate funding to the state for environmental protection. "'"' A review of the active civil rigbts complainu; indicates that air quality is a prevalent problem. All nine active complaints involve facilities that bave or will potentially have negative impacts on the air quality of surrounding communities.' Seven of these complaints involve facilities that emit an array of toxic chemicals (e.g.. chemical plants. refineries. a higb-tech company. a power plant. etc.). Two of these complaints involve cement operations. Two pending complaints relate to petro-<:hemical operations in Corpus Christi and Houston. The Corpus Christi complaint was filed in 199-l by PACE and other community organizations because TNRCC does not inform residents of environmental bazards. does not adequately document and follow-up on citizen complaints and does not adequately enforce en,ironmentallaws. TI1e Houston complaint was filed by Texans United and the Sierra Club Lone Star Cbapter in 1998 because ofTNRCCs lax enforcement regarding repeated violations by Crown Central Petroleum. Protestants cite a TNRCC enforcement order requiring payment of a S I million penalty for an illegal activity that provided a $1-l million profit to Crown Central Petroleum. The complaint pertaining to the Mobil Oil Beaumont Refinery further illustrates the fact that TNRCC's current permitting and enforcement procedures do not ensure the equitable application of environmental regulations. The consideration of cumulative effects when evaluating permit applications bas also proven to be a problem at the TNRCC. Cumulative impacts refers to the effect of multiple sources. chemicals and routes of exposure on populations affected by pollution. Although impacts may be from different media cumulative impacts assessments usually relate to air emissions. Although the issue of cumulative impacts is not strictly an environmental justice issue, minority communities often suffer the effects of high concentrations of industries. Civil rigbts complaints filed by PACE (Corpus Christi). PODERIMANIC (Austin) and Texans United (Houston) raise concerns about the cumulative effect of air emissions from multiple facilities. The complaint pertaining to the Mobil Oil Beaumont Refinery does involve the consideration of cumulative effects because there are multiple plants (e.g .. the oil refinery and various chemical plants) and multiple facilities within each plant. r- The case of Mitsui San Antonio Components is a case where the community tbat would bave been affected by the proposed aluminum die-<:ast facility raised concerns about the fact that this community was already negatively affected by a bazardous waste processing plant. a rendering plant, a landfill. a superfund site and several fuel storage tanks. In this case. TNRCC referred the case to the State Office of Administrative Hearings for the purposes of determining if a community organization had standing. The order that made the referral stated the following: SOAH shall limit its consideration to issues specific to the Mitsui application. including. for example. air emissions. and shall not consider matters unrelated to the application. for example. other facilities. pre-existing conditions. or cumulative effects. There is nothing that prohibits TNRCC from considering cumulative effects, just as there is nothing that prohibits TNRCC from considering issues pertaining to en,ironmental justice. The agency has simply chosen to ignore such issues. TNRCC commissioners discussed the possibility of conducting a cumulative risk pilot project as recently as a November 1998 Work Session but the agency never moved forward with the project. VI. REMEDY Complainants request that U.S. EPA immediately suspend TNRCC's Clean Air Act permitting authority unless and until TNRCC devises a methodof administering_ its Clean Air Act responsibilities that does not result in the violation of Title VI and EPA's implemenilng.regiilaiioiis.-ComplaiiiantsTiirllierrequests that U.S.-EPA immediately suspend all grants to TNRCC unless and until TNRCC (I) revokes the permit amendment issued to Mobil Oil, (2) changes its policy relating to the types of emissions reductions that a company can claim credit for in order to offset emissions increases associated with a permit amendment. and (3) establishes more effective policies for following-up on citizen complaints. undertaking formal enforcement actions for ,;olations of environmental regulations and determining penalty amounts associated with formal enforcement actions. Complainants also request that they be sent all correspondence between U.S. EPA and TNRCC concerning this administrative complaint. 1 The complaints that were rejected deal with issues pertaining to (I) a low-level radioactive waste disposal facility. (2) a confined animal feeding operation. and(3) illegal NPDES dumping. 8 VU. CONCLUSION - As this complaint makes clear, the African-American communities li'ing near the Mobil Oil Beaumont refinery typify the communities of color burdened in this state by disproportionate environmental impacts because ofTNRCC's permitting and enforcement processes. The discriminatory impact created and sanctioned by TNRCC's actions is a clear violation of Title \11 as implemented by EPA regulations. Because TNRCC receives federal funding from EPA it is subject to Title VI as per EPA's implementing regulations. lbis complaint is timely filed as the Mobil permit amendment became final on December 2, 1999, less than 180 days ago. We look forward to an active investigation by EPA. Please notify us promptly of the schedule for your investigation. , Rev. Roy Executive irector People Against Contaminated Environments P.O. Box 6672 Dr. Neil Cannan Clean Air Program Director Sierra Club Lone Star Chapter P.O. Box 1931 Austin. Texas 787 ti/J I' ul varez Environmental Justice Director Sierra Club Lone Star Chapter P.O. Box 1931 Austin, Texas 78767 .xc (without attachments): Ms. Carol Browner, Administrator, U.S. EPA Mr. Barry Hill, Office of Environmental Justice. U.S. EPA Mr. Greg Cooke, Regional Administrator, U.S. EPA Region VI Mr. Haywood Turrentine, Chair, National Emironmental Justice Advisory Council Mr. Mr. Mr. Mr. George T. Frampton, Jr., Council on En,ironmental Quality Robert Huston, Chair, Texas Natural Resource Conservation Comntission Luke Cole, Center on Race, Poverty and the Environment Joey Longley, Texas Sunset Advisory Commission 9