A Legacy of Environmental Racism

What's really floating in the flood waters, settling into the soil and water supply? Exxon Mobil Is Still Pumping Toxins Into Black Community in Texas 17 Years After Civil Rights Complaint.
Sharon Lerner
August 13, 2017
The Exxon Mobil refinery as seen from Gulf States Road, June 6, 2017, in Beaumont, Texas.
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Although Obama’s EPA failed to clear out the backlog of outstanding environmental civil rights cases, it did make some progress in limiting emissions from refineries. In Beaumont, the biggest changes came as the result of a lawsuit the agency filed against Exxon Mobil over six of its refineries, which resulted in a 2005 consent decree that mandated serious pollution reductions. Those and other changes resulted in a 70 percent overall decrease in emissions from the plant, according to an email from Charlotte Huffaker, a communications adviser at Exxon Mobil. Huffaker emphasized that “over the last 15 years, ExxonMobil Beaumont has invested over $1 billion in environmental performance measures” and that the company continues to invest in environmental improvements.

“Our work and controls, coupled [with] regulatory actions, have been effective in reducing overall emissions,” Huffaker wrote in response to questions from The Intercept. She also pointed out that the company has “installed new clean technologies that were not available back in 2000 which have resulted in great environmental gains” and that Beaumont is not currently on the “watch list,” which TCEQ uses to designate cities with particularly high levels of certain chemicals.

The Charlton-Pollard neighborhood was on the watch list for high levels of benzene from 2004 to 2010, for hydrogen sulfide from 2002 to 2009, and for sulfur dioxide from 2003 to 2016 — making it one of only two Texas neighborhoods the state environmental agency has ever noted as having unsafe levels of all three chemicals.

And while total emissions from the plant have decreased levels of some of the most dangerous chemicals have not — and, in some cases, they have increased. The refinery released almost four times as much of the neurotoxin hydrogen sulfide in 2016 as it did in 2000.

The overall downward trend also masks the fact that emissions have vacillated considerably since the complaint was first filed, sometimes decreasing for several years only to spike later. And the decrease of annual totals doesn’t reflect short-term, high-impact releases, such as the emission of more than 92,000 pounds of sulfur dioxide in just a few hours in February 2016 or 866,000 pounds of VOCs that escaped from the refinery over four days in the fall of 2015.

Permits are supposed to limit emissions and let the public know the level of pollution to which it is exposed. But such unpermitted “upset events,” the result of unplanned releases from faulty equipment, fires, accidents, and flare blasts, significantly add to the pollution in Beaumont and elsewhere. The amount of VOCs emitted by the Exxon Mobil refinery has exceeded its permit limit every year between 2000 and 2016, the last year for which data is available. That year, according to preliminary data, the plant released more than 468,000 pounds of VOCs in unpermitted emissions. In 2012, the Beaumont plant emitted more than three times the amount of hydrogen sulfide and sulfur dioxide than was permitted.

Texas oil companies do pay penalties for permit violations and breaking environmental laws, but only rarely. According to a recent report by the Environmental Integrity Project, between 2010 and 2015, the TCEQ, which is responsible for enforcing the Clean Air Act in Texas, took no action against companies in the vast number of illegal releases of sulfur dioxide, benzene, and other pollutants from upset events. The state imposed penalties for fewer than 3 percent of almost 25,000 events, which together released more than 500 million pounds of air pollution. And enforcement efforts have steadily decreased over the past five years, according to the report. In 2016, the state punished fewer than 1 percent of illegal pollution releases.

Exxon Mobil is not the only company that gets away with violating its permits. And though it emitted 675,000 pounds of pollutants during unpermitted events last year, it’s not the worst offender. The Beaumont refinery ranks second among Texas industrial facilities in terms of how much benzene it emitted above the limit, and fourth in terms of VOCs. But Exxon Mobil’s vast size and wealth compared to the relatively piddling size of the penalties make the company particularly insensitive to the fines.

Consider an enforcement action the state issued in May over Exxon Mobil’s unpermitted release in April 2016 of nearly 2,125 pounds of carbon monoxide, sulfur oxide, nitrogen dioxide, hydrogen sulfide, and VOCs. The plant not only emitted the chemicals, it failed to report the emissions within 24 hours, as the law requires. The fine for both violations was $7,001, an amount unlikely to deter a company valued at $343 billion.

According to an email from TCEQ spokesperson Brian McGovern, “penalties are calculated in accordance with the TCEQ’s Penalty Policy,” which is based on several factors, including the documented impact the violation has on human health or environmental receptors, the duration of the event, and “economic benefit gained.”

The other problem with both permits and tracking violations is that the reported emissions are based on the company’s own estimates, which according to Neil Carman “are totally bogus.” Carman is a chemist and the clean air director for the Lone Star chapter of the Sierra Club. Before that, he worked for the Texas environmental agency for 12 years, inspecting refineries around the state. Carman says that emissions are often reported as averages over time, which means that pollution spikes go unpunished.

Reporting on VOCs is particularly misleading, according to Carman. Regulators require testing for only a few of the hundreds of chemicals in this class. And the few air monitors for them are too far from the plant to pick up emissions. The nearest monitor “is so limited in what it’s measuring as an ambient air monitor that it paints a fraudulent picture for all the emissions from the refinery and chemical plants at Beaumont,” Carman wrote in an email. This means that the official upset reports filed with the state significantly underrepresent the amount of toxins the plant releases.

The state requires companies “to use the best available method to determine and report emissions,” according to the email from TCEQ’s McGovern, which also noted that “the TCEQ network of monitors in the Beaumont area is sited with the intention of measuring ambient air quality over populated regions rather than emissions from specific sources.” According to McGovern, the “Beaumont Downtown monitor, which is located south of the Exxon Mobil Refinery, measures volatile organic compounds, nitrogen oxides, ozone, and sulfur dioxide, in addition to meteorological parameters such as temperature and wind.”

While the mechanisms for measuring pollution call each record of an upset event into question, the total number of events that refineries report is wildly off, according to Josh Kratka, a senior attorney at the National Environmental Law Center. Refineries are required to report relatively large upset events, and the only official way to obtain records of unpermitted releases below a certain level, which presumably pose less risk to the public, is through legal discovery. When Kratka obtained these records over the course of suing Exxon Mobil over its Baytown plant, about an hour west of Beaumont, he found that during an eight-year period, the company reported 350 larger upset events at that plant, but also had almost 4,000 smaller occurences that hadn’t been publicly disclosed. “Even though each individual event might seem insignificant, they can be symptomatic of much bigger underlying problems,” said Kratka, who added that these smaller releases can add up to a significant amount of pollution. Kratka won his suit in April, when a federal court hit Exxon Mobil with a $19.95 million penalty for 16,386 violations of the Clean Air Act. In response to questions from The Intercept, Exxon Mobil’s Huffaker wrote that “the court recognized that none of the events in question actually or potentially harmed public health or the environment,” and that the company was considering an appeal.

As CEO of Exxon Mobil, Rex Tillerson already had an outsized influence on government. But not even his appointment as secretary of state signaled how quickly and effectively the Trump administration would retool federal rules and regulations to the benefit of the oil and gas industry — to the detriment of communities like Charlton-Pollard.

In 2015, the Obama administration introduced the Clean Power Plan, which, according to EPA estimates, would have prevented more than 140,000 asthma attacks among children and between 2,700 to 6,600 premature deaths by reducing air pollution. Trump issued an executive order killing the plan in March.

The new administration has also delayed implementing several regulations that would have made life safer in Beaumont. Among them are new chemical safety standards, which EPA administrator Scott Pruitt recently announced would be delayed until 2019. The Obama administration had overhauled the rules in an effort to make plants safer after 15 people died and 180 were injured at another Texas oil refinery.

In June, Pruitt, who had joined oil companies to sue the EPA over lower ozone standards when he was attorney general of Oklahoma, announced that the agency would also delay by a year the reduction of ozone limits. (On August 2, after being sued by 15 states, he backed down.) Pruitt also tried to delay a rule limiting methane emissions, another air pollutant from oil and gas production, but a federal appeals court recently found the move illegal.

Trump’s revival of the Keystone pipeline via executive order in his first week in office will also change Charlton-Pollard. The pipeline is expected to deliver more than 800,000 barrels of oil a day from Canada to Exxon Mobil’s Beaumont plant and other oil refineries on the Gulf Coast.

“A lot of the stuff flowing down the Keystone is really dirty, and air quality in Beaumont will get a lot worse,” said attorney Kelly Haragan. And while greater production also increases the likelihood of flare events, fires, leaks, and other incidents, Haragan, who has helped represent the Charlton-Pollard community on its EPA civil rights case, said she is also bracing for “even less enforcement, less federal attention to the refineries.”

In fact, during the first six months of the Trump administration, there was a 60 percent drop in civil penalties against polluters, according to a report from the Environmental Integrity Project.

Trump’s proposed budget has cut funding for the EPA enforcement office by 40 percent and reduced grants to state enforcement offices by 45 percent. His appointment of a former industry lobbyist to head the federal office, along with several other recent hires at the EPA — including Erik Baptist, a former lobbyist from the American Petroleum Institute, and Dennis Lee Forsgren, both of whom have deep ties to the Keystone pipeline — reinforces the sense that the oil industry has now utterly captured the agency responsible for regulating its activities.

The recent nomination of Michael Dourson to head the EPA’s Office of Chemical Safety and Pollution Prevention also bodes ill for the people of Charlton-Pollard. Dourson helped TCEQ set significantly weaker emissions standards for several chemicals emitted by the refinery, including the carcinogens benzene and 1,3 butadiene, according to a 2014 report from Inside Climate News and the Center for Public Integrity. In his new role, Dourson will be in a position to affect a range of policies relating to toxic chemicals, including those emitted from the refinery.

In response to inquiries from The Intercept, the EPA provided a statement that it had issued on May 23, the same day it put out the letter resolving the complaint over the Beaumont refinery, which stated that the agency was “resolving this complaint based on an Informal Resolution Agreement” between TCEQ and the EPA’s External Civil Rights Compliance Office. The statement also said that “ECRCO will now monitor TCEQ’s implementation of this Informal Resolution Agreement to ensure its full implementation. ECRCO will not close this case until this agreement is fully implemented.” The EPA declined to answer specific questions or comment on the issues raised in this article.

While pollution protections are moving backward, Exxon Mobil is planning to expand its Beaumont operations yet again, increasing the output from its refinery by 40,000 barrels a day and the capacity of its petrochemical plant by 65 percent. According to Exxon Mobil’s Huffaker, the chemical plant expansion “is estimated to generate $20 billion in economic activity in the first 13 years of operation, and it will use best available control technology to minimize emissions. At the peak of construction later this year, the project is expected to employ 1,400 workers in the Beaumont area.”

Huffaker said the company was still “considering” the refinery expansion. If Exxon Mobil does decide to move forward with the plan, the boosted production will result in more than 1 million pounds of air pollution on top of current emissions, according to preliminary paperwork the company filed in order to obtain permits necessary for expansion.

Although Exxon Mobil announced it would expand its operations before the election, in March, Trump tried to take credit for the move. In a video posted on the White House website, Trump announced the expansion as if it were new: “This was something that was done to a large extent because of our policies and the policies of this new administration.”

In the video, Trump pointed to Exxon Mobil’s growth as evidence that “we’re really doing well.” From the perspective of the energy company, that’s an accurate statement. Already the largest oil and gas company in the world, Exxon Mobil’s earnings have surged 122 percent since Trump took office.

It’s hard to argue that the people in Charlton-Pollard are doing really well. Almost everyone I spoke with there had ailments they attributed to the refinery, though it’s all but impossible to prove that the poor air quality caused all these individual illnesses. For Malveaux, who has spent the past two decades working to curb the refinery’s pollution, the prevalence of health problems linked to high levels of air pollution in his community requires no further explanation.

When the children Malveaux teaches in Sunday school have memory problems, which, along with IQ deficits, have been tied to air pollution (especially hydrogen sulfide), he assumes that is the likely cause. “My kids at the church, you can tell them something and, five or six minutes later, they done forgot it,” said Malveaux. “It used to irritate me because I thought they were messing with me, but I’ve come to understand that they really don’t remember.”

Many Charlton-Pollard residents who have seen the lives of friends and family members cut short by cancer, heart disease, and respiratory ailments can’t know for sure what role air pollution played, but they live with the obvious possibility that it was a factor. Charles Trahn, who is 67 and lives down the street from Joseph Gaines, said the air he breathes sometimes has an immediate effect. When there are major emissions events, “it feels like you’re swimming in your own head,” Trahn said. He recently lost his wife to lung cancer.

E.J. Johnson, a good friend of Gaines, is unable to say for sure why health problems have plagued his family. Johnson lost his mother to cancer in her 30s and his grandfather to heart disease in his early 50s. His sister-in-law, who is in her early 40s, recently developed kidney cancer. And Johnson himself, who is 51 and has lived in the neighborhood since he was 10, had a stroke when he was in his 30s and had to use a wheelchair for several years. These days, he can walk unsteadily, but his brain hasn’t fully recovered. “I lost words I would normally know,” Johnson told me. “I lost my education.”

But Johnson said he was fairly sure that his respiratory troubles are a result of the local air quality. “Within a day of leaving here, I breathe and cough up and my sinuses clear out,” he said. “By the time we get back to Beaumont, I can feel my head tightening up.”

According to the EPA’s data, people in the neighborhood have a risk of cancer from air pollution of 54 in a million, which is significantly higher than the national average of between zero and one in a million. But even that considerable number is based on Exxon Mobil’s own estimate of its emissions. Jefferson County, where the refinery is located, has a cancer death rate for African-Americans that is significantly higher than both the state and national rates. But it’s impossible to know Charlton-Pollard’s exact cancer rates, since the neighborhood accounts for less than 1 percent of the county, and the state doesn’t make available cancer statistics for that smaller area.

What’s clear, however, is that air pollution kills. One recent study showed that people who die prematurely from air pollution lose about a decade from their lives, on average. Another study, led by a Harvard professor of biostatistics and published in the New England Journal of Medicine, found that increases in levels of particulate matter and ozone, both of which are elevated in Charlton-Pollard, were associated with increases in all causes of death. The study found that African-Americans are about three times more likely to die from tiny particles in air pollution.

Even small improvements in air quality can make a huge difference; tightening the current limits for particulate emissions by just a single microgram per cubic meter of air (one-twelfth of the current limit) would prevent some 12,000 premature deaths, according to the authors of the Harvard study. Conversely, small increases can cost thousands of lives. By freezing and delaying rules limiting pollution, the Trump administration is quite literally killing thousands of people.

Trump has framed his regulatory rollback as improving the economy. Yet in Charlton-Pollard, the costs of pollution can be measured in both dollars and lives. Health and environmental problems depress property values, making it harder for homeowners to sell without sacrificing their life savings, which in turn means that the people most likely to remain there are those with the least resources. And these beleaguered residents are the least able to combat the siting or expansion of industrial projects.

The dynamic helps explain why the poor and people of color experience more exposure to pollution. Both African-Americans and Latinos are more likely than whites to live near the country’s 149 refineries. One 2012 study from Yale looked at 14 toxins in air pollution and found that African-Americans had higher exposure levels than whites for 13 of those compounds, while Latinos had the highest levels of pollution overall.

Ivan Frederick, whose two-bedroom house is a couple hundred feet from the refinery fence line, has had a front-row seat to his neighborhood’s environmental and economic decline. “All this property has become cheaper and cheaper,” he said, gesturing to the vacant houses and empty lots on his block. Frederick, 64, understands what might have driven his neighbors to leave. At least once a day, intense smells make it impossible to sit on his porch. While the “funky air,” as he calls it, lingers, he can’t run his air conditioner or window fan, which would bring it into the house. So sometimes he’s stuck inside with no way to beat the heat.

As soon as he moved in 18 years ago, Frederick began feeling nauseous and getting headaches when the smells descended. Although these acute symptoms have subsided over the past few years, he has since developed chronic health problems. By 57, he had experienced three heart attacks and developed serious respiratory problems.

Frederick owns his home and could theoretically sell it. But it’s hard to find anyone who wants to buy a house inundated daily with air pollution. Several years ago, Exxon Mobil extended the boundary of its property and bought all the houses in the two blocks nearest the refinery. Many residents remain hopeful that the company might purchase their homes, too. Frederick said he hasn’t received an offer, but in any case he’s heard the company doesn’t pay much for houses. One person I spoke with said his neighbors had sold their house to Exxon Mobil for $11,000. Property records show houses in the area nearest the refinery to be practically worthless.

Back when they first filed their civil rights complaint with the EPA, Frederick was one of hundreds of Charlton-Pollard residents who used to show up at community meetings to talk about how to limit pollution from the refinery. But as time passed and there was no response from the EPA, the excitement began to wane.

In an email, spokesperson Huffaker emphasized Exxon Mobil’s history of community involvement — citing its contributions to the United Way of Beaumont and its participation in local business groups — but Malveaux experienced the company’s philanthropy differently, believing that its largesse focused on community members who supported it.

Malveaux believes some community members stopped coming to meetings because they feared getting on the wrong side of the powerful company. Others, he said, were too consumed with the demands of everyday life. “We’re talking about people making $8, $9 an hour just to keep the lights on and food on the table.” But he admits that time may be what really dampened the fight in Charlton-Pollard.

“It was a drip, drip,” said Malveaux, “People stopped getting interested because nothing got better. They didn’t see any tangible results after complaining about the same things year after year. Eventually, over time, they just decided it wasn’t worth it.”

And so perhaps it wasn’t surprising that only three people showed up when Malveaux and a Lone Star Legal Aid attorney named Colin Cox held a community meeting last spring about Exxon Mobil’s latest effort to amend its permit to allow for greater production at its Beaumont plant. Nor was it surprising that Joseph Gaines, Rebecca Thibeaux, and Ivan Frederick were among the many people who skipped it.

“No matter how much you protest, you’re spinning your wheels. They got the power. It’s called money,” said Frederick. “At the end of the day, they’re going to do what they want to do.”

This article was reported in partnership with The Investigative Fund at the Nation Institute.

Sharon Lerner covers health and the environment for The Intercept and is a reporting fellow at the Investigative Fund. Her work has also appeared in The New York Times, The Nation, and The Washington Post, among other publications, and has received awards from The Society for Environmental Journalists, The American Public Health Association, the Women and Politics Institute, and The Newswoman’s Club of New York. Her series, The Teflon Toxin, was a finalist for a National Magazine Award. Follow her on Twitter @fastlerner.

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September 11, 2017