Environmental Protection Agency Hasn't Won Improvements It Touted

The federal government has quietly allowed oil refineries nationwide to miss court-mandated deadlines to reduce air emissions, prolonging the exposure of hundreds of thousands of people to dangerous pollutants.

The federal government has quietly allowed oil refineries nationwide to miss court-mandated deadlines to reduce air emissions, prolonging the exposure of hundreds of thousands of people to dangerous pollutants.

In almost every instance, the Environmental Protection Agency did not tell the courts or the public about the deadline changes, even when legal settlements require it to do so, a Star-Telegram investigation has found.

"That's not appropriate. That's just not appropriate," said Sylvia Lowrance, a former top EPA enforcement official in President Bush's administration. "That information should be shared with the public."

Because of the numerous revisions, the EPA's Petroleum Refinery Initiative has not achieved the air quality improvements that the agency has claimed, the Star-Telegram found.

The EPA credits the initiative with slashing air pollutants and has declared it one of the most comprehensive and successful enforcement efforts. Under the initiative, the EPA uses legal settlements known as consent decrees to resolve decades of alleged pollution violations. In return for installing pollution controls and paying a fine, companies are immediately released from all legal liability.


"Settlements under EPA's Petroleum Refinery Initiative have reduced emissions of air pollutants by 200,000 tons per year at 48 refineries in 24 states," Tom Skinner, the agency's top enforcement official, touted in an October news release.

Skinner's claim was repeated the next day in an article in The Washington Post.

But in reality, the reductions apparently total only about a fifth of that amount.

A Star-Telegram review of oil company data submitted to the agency and interviews with oil company officials indicate that the program, to date, has resulted in annual reductions of no more than 40,000 tons of nitrogen oxides, sulfur dioxides and particulate matter -- the primary pollutants targeted by the initiative.

When asked how he came up with the figure of 200,000 tons, Skinner acknowledged that such a reduction has yet to be achieved.

"That's poor word choice," he said. "The bottom line is, once the controls are implemented that are contained in the consent decrees, we will achieve approximately 200,000 tons per year in emissions reduction. So, it's been achieved in the sense that there's a solid commitment to make it happen. But the emissions have not actually been removed from the air at this point.

"I'm sorry if that was misleading. When I reread it, I cringed and realized you could look at it a different way."

Skinner and other EPA officials said they do not know how much pollution has been reduced.

Many delays have been caused by widespread failure of pollution-control technology and equipment, the Star-Telegram found in reviewing more than 50,000 pages of documents.

Refinery officials also said that some deadlines were unrealistic and that they had to focus their resources on another federal mandate, to produce cleaner-burning gasoline.

All told, the problems led to deadline extensions at more than two of every three refineries with court-approved settlements.

The courts did not review most of the revisions because the EPA never submitted them. Federal regulators also failed to consistently alert state governments and environmental groups that are legal parties to the settlements, though they are required to do so.

Skinner and other top agency officials acknowledge the delays and said they should have informed the public. The agency has already devised an informal policy under which revisions will either require amendments or be filed with federal courts, Skinner said.

The EPA also intends to submit revisions made in the past four years as formal amendments to the settlements, said Adam Kushner, acting director of the EPA's Air Enforcement Division in Washington. That would allow the public the chance to comment.

"I think we should be telling the public what we're doing," he said.

Skinner is adamant that all the projects will be completed, even if they aren't on time. He blames the delays on the complexity of the pollution controls.

"There was never any intent on our part to change the terms of the consent decrees by extensions or other modifications in order to cut anybody a break," he said. "We want to get these emissions reductions, we want to get them as quickly as we can, and we want to make sure that what we're getting is effective, that what we're getting works."

But compliance suffers if changes are routinely made, said Patrick Parenteau, director of the Environmental and Natural Resources Law Clinic at the Vermont Law School. "If the deadlines don't mean anything, then the incentive of the companies is to agree to enter into these things and then roll them back," he said.

Richard Burton would be the first to tell you that Convent, La., southeast of Baton Rouge, is far from paradise. It's a blue-collar town with a lot of industry, including a Motiva Enterprises refinery and an Occidental Chemical plant.

"There's so much pollution in the area," said Burton, 65, "as you're passing through you smell one smell, and before you get out of that one you're smelling something else." But Convent is home. It's where he spent most of his childhood, and it's where he moved in 1980 after he retired from the Army. He said he had high hopes that Motiva's 4,000-acre refinery would clean up after it settled its case in August 2001.

Among other things, the refinery is required to use chemical additives to dramatically reduce emissions of nitrogen oxides, the chief man-made component of ground-level ozone. The next month, Motiva began using the additives. But within days, it was clear they didn't work. Even doubling the amount had no effect.

So as it has done at other refineries, the EPA gave Motiva extra time to find another additive that would work. The refinery tried another. And another. The deadline was extended again and again as additives failed.

But the EPA never told the public about the problems, and it never called for another solution.

The refinery has yet to find the fix. It recently completed another round of additive trials and still has hopes of success, according to a prepared statement from Shell Oil Co., which co-owns Motiva.

"I don't have any faith in them doing anything," Burton said.

The delays at Motiva's Convent refinery are typical.

Almost immediately after the first settlements were finalized in 2001, deadlines were revised.

Reasons vary.

Marathon Ashland Petroleum said it discovered that major pollution-control equipment it was to install in Robinson, Ill., wouldn't reduce emissions enough to meet court mandates.

It had to start from scratch with another technology and received a two-year extension, the company said.

British Petroleum's refinery in Toledo, Ohio, had all kinds of mechanical problems after installing the same kind of equipment in October 2003. It still hasn't met the pollution requirements and is awaiting EPA approval of an indefinite extension.

Navajo Refining Co. received a two-year extension to install pollution controls on problematic equipment at its Artesia, N.M., refinery. The company said it needed to make the change when the refinery was shut down for routine maintenance but decided instead to use that time on other projects. "Only so much work effort can be fit into the [shutdown] 'window' of opportunity," the company explained in a July 2003 report to the EPA.

The source of most of the delays, though, has been the chemical additives.

Almost every legal settlement depends on the additives to achieve quick emissions reductions until permanent pollution-control equipment, which can cost hundreds of millions of dollars, can be designed and installed. In fact, the government expected that most of the pollution reductions would be achieved in the first four years after each settlement, Kushner said.

Such additives have worked in other industries. That's why a panel of experts assembled by the EPA recommended them.

But the additives had never been fully tested at an oil refinery.

"Nobody knew whether it would work going in," said Lowrance, who worked for the EPA on refinery consent decrees until resigning in 2002 to protest enforcement practices.

In at least two cases, in Great Falls, Mont., and in Carson, Calif., the companies reported that the additives worked. At Great Falls, they reduced emissions of nitrogen oxides by 48 percent and sulfur dioxides by 99 percent, records show.

But in most other instances, such as Equilon Enterprises' Los Angeles refinery, the additives failed to reduce pollution, records show.

Sometimes, the additives were blamed for other problems. At the Equilon refinery in Martinez, Calif., the additives caused a major piece of equipment to vibrate so violently that they had to be discontinued, according to company reports.

Flint Hills Resources' Pine Bend, Minn., refinery told the EPA in January that it doubted existing additives technology "will advance sufficiently to allow our facilities to meet the compliance obligations."

Yet, the EPA continues to require companies entering legal settlements to use the additives. That was the case with Citgo Petroleum, which signed a settlement in October covering six refineries.

The chemical additives, and other technology, are relatively new for refineries, so they need time to iron out the kinks, Skinner said.

"There are sometimes unforeseen technical issues that you have to deal with," he said.

Lowrance said the EPA should meet with oil companies, state environmental officials and environmental groups to discuss the technology failures and potential solutions.

"It's a big issue that's come up," she said, "and they should share it with the public."

The agency has held meetings, but only with the refineries, said Kushner, the EPA air-enforcement official. In some instances, states didn't want to know, he said.

Such lack of disclosure is even more troubling than the extended deadlines to several outside observers who reviewed some companies' EPA submissions for the Star-Telegram.

"You would normally consider a change to a consent decree as requiring the normal procedural steps: notification, public comment, etc.," said Arnold Reitz, a professor at George Washington University's law school and an expert on the federal Clean Air Act.

That formal amendment process requires court approval as well.

And settlements with BP and Marathon Ashland Petroleum stipulated that all revisions required a judge's OK. Yet 27 revisions were made to the settlements, most without notifying the judge, records show.

That made Marathon worry that it could be left vulnerable to legal challenges or penalties. Officials at its Canton, Ohio, refinery complained to the EPA in April 2002 that they were "concerned that many of the changes and revisions ... have not been formally incorporated into the body of the consent decree."

Kushner said he, too, was uncomfortable that so many revisions were made without court approval. He said he learned when he joined the agency in 2002 that top administration officials weren't reviewing the decisions.

"We put a stop to that," he said. "From now on, if you want to extend a deadline, it's got to undergo management review and it's got to be embodied in an amendment."

Kushner helped the agency develop an informal policy requiring that revisions at least be filed with the federal court, which would allow for public review.

But there are practical reasons that the EPA should be able to grant some revisions without the court's OK, Skinner and Kushner said.

Among them, Skinner said, is that the agency expects continued problems with the additives.

"We're going to err on the side of filing, but there's certain types of instances where it doesn't make any sense to do it," he said. "Your resources would be consumed with a bunch of small filings, and you wouldn't be able to pay sufficient attention to the stuff that really matters."

U.S. District Judges Rudy Lozano in Hammond, Ind., and Paul Gadola in Flint, Mich., whose courts oversee the BP and Marathon settlements, respectively, did not return telephone calls seeking comment.

Last year, the EPA began adding sections in each settlement granting the EPA and the oil companies the authority to make "minor modifications" without court approval.

Many others say modifications are inevitable.

"When the initial agreement was made, it was understood that Marathon Ashland Petroleum would be evaluating developing technology and [that] minor changes to the agreement may at some point become necessary," said Angelia Graves, Marathon's director of public and state government affairs.

Regardless of delays, the company says it has already spent $200 million to comply with settlement mandates.

Oil companies say it's wrong to suggest that the revisions somehow weaken the pollution-reduction goals.

"We believe our approved modifications have strengthened our ability to meet the consent decree goals, and keep [the settlement] current with new practices and successes," according to a statement from Flint Hills Resources, whose refineries in Corpus Christi and Pine Bend, Minn., have court-approved settlements.

Subjecting each revision to the formal amendment process could further delay implementation of pollution controls by leading to challenges that take time to resolve, said Keith Hopson, an environmental lawyer in Austin who has represented oil companies.

But without notification, the EPA is making public policy in private, said Dan Esty, a senior EPA official in the first Bush administration and the director of the Yale Center for Environmental Law and Policy.

"It does seem to undermine the modern-day principle of good governance, which requires that things be done out in the open, in the light of day," he said. Adam Babich, director of the Tulane Environmental Law Clinic in New Orleans, said changes should at least be reviewed by a judge.

"A consent decree is a court order, and I think it's wrong for the EPA to treat a consent decree as a private deal, because it's not," he said. "I can't imagine not telling the court."

It's hard for people such as Linda Wahl to have confidence that refineries will ever clean up the air enough.

For more than 30 years, Wahl, 62, has lived three blocks from Marathon's refinery in Detroit, the last refinery in Michigan.

Its settlement with the government has been revised five times since a federal judge approved it in August 2001. The revisions include a one-year extension to control periodic emissions of large volumes of sulfur dioxides, as well as numerous extensions for chemical additives.

Wahl has lung cancer despite never smoking a day in her life, and both of her daughters have asthma, she said. Now, she worries about the health of the three grandchildren who live with her.

"I hate that I'm having to raise my grandchildren here, but when your finances are gone and you're just barely existing, you cannot afford to move," she said.

All the revisions invite skepticism about the EPA's efforts, said Kenneth Kristl, a supervising attorney at the Mid-Atlantic Environmental Law Clinic in Wilmington, Del.

"It's the illusion of progress without actual progress," he said.

Source: Knight Ridder/Tribune Business News