SOUTHEAST TEXAS RECORD

After spending nearly a year reviewing evidence and testimony, a federal judge in Texas has ruled that ExxonMobil does not need to be penalized for emissions violations at its Baytown facility.

U.S. District Judge David Hittner for the Houston Division of the Southern District of Texas issued his findings on Dec. 17 in a case filed by two environmental groups, Environment Texas Citizens Lobby Inc. and the Sierra Club.

According to the judge, there have been numerous unplanned emissions from the ExxonMobil complex over an eight-year period in question, but the company has not allowed a pattern of violations to continue. His findings saved ExxonMobil more than $642 million in penalties.

Case background

The case concerns ExxonMobil’s refinery, olefins plant and chemical plant in Baytown, a city near Houston. The facilities make up the largest petroleum and petrochemical complex in the U.S., producing products ranging from jet fuel to plastics and employing more than 5,000 people, according to court papers.

On Dec. 13, 2010, Environment Texas and the Sierra Club sued ExxonMobil Corp., ExxonMobil Chemical Co. and ExxonMobil Refining and Supply Co., claiming violations of the Clean Air Act since 2005.

Environment Texas is a non-profit corporation with a purpose to “engage in activities, including public education, research, lobbying, litigation, issue advocacy and other communications and activities to promote pro-environment political ideas, policies and leaders.” It has about 2,900 dues-paying members in Texas.

Sierra Club is a non-profit with a purpose to protect humanity, the environment and the ability to enjoy the outdoors. The Lone Star Chapter has approximately 25,000 members.

The ExxonMobil facility is governed in part by permits issued by the Texas Commission on Environmental Quality pursuant to Title V of the Clean Air Act.

TCEQ requires the company to record all emissions events that release emissions within threshold quantities and to report to TCEQ any emissions events that release quantities over the limit. ExxonMobil is also required to submit deviations from Title V. At issue were 241 reportable emissions, 3,755 recordable emissions events and 901 Title V deviations that occurred between 2005 and 2013. TCEQ investigates reported events to determine if the event was excessive and if the records indicate an inappropriate trend.

TCEQ found that the unauthorized emissions could not have been prevented, were not part of a recurring pattern and did not contribute to air pollution.

“It is undisputed Exxon complied with TCEQ’s aforementioned reporting and recording requirements,” Hittner wrote.

He noted that ExxonMobil has spent more than $1 billion on regulatory compliance and environmental improvements at the complex in recent years.

Bench trial

Beginning on Feb. 10, Hittner presided over a 13-day non-jury trial and submitted his findings of fact and conclusions of law based on the evidence, testimony and oral arguments, as well as some post-trial submissions.

During the bench trial, the plaintiffs called four witnesses who were either members of the Sierra Club or Environment Texas.

One woman testified that she grew up in Baytown within about a mile and a half of the complex and said she had allergies and chest constriction that required medications. The symptoms disappeared when she moved to California, she claims, but they return when she visits her parents in Baytown.

A member of the Sierra Club testified that she lives in a community near Baytown and shops, banks, goes to church and conducts other activities in Baytown several times a week. She reports chemical odors, flares and haze over the complex. But she did not claim physical ailments or health conditions that she can attribute to anything at the complex.

A man living within about two miles of the plant said he experienced flaring events that woke him up, rattled the windows, involved plumes of black smoke, large flames and lasted several hours. He said he smelled pungent odors so strong that he had headaches and woke him during the night. He had asthmatic symptoms that decreased when he moved further away from the complex. He was able to credibly correlate three flaring events to specific events or deviations.

Another member of the Sierra Club said she lived one mile from the complex, and heard flares from inside her home, smelled chemical odors, saw haze over the complex and experienced respiratory issues. She claims the issues went away when she moved another part of Texas. She claims she doesn’t like to even return to Baytown to visit and said she “would have retired in Baytown if the air quality were better.”

She was able to correlate two events she observed to events or deviations.

ExxonMobil also called on residents of Baytown to testify on its behalf.

ExxonMobil called three residents of Baytown to testify. One man has lived eight blocks from the facility for 35 years and has no health issues or concerns that he attributes to the complex. He claims he has only rarely heard loud noise from the flaring, the last time being six or seven years ago, and such noise “has never affected his ability to enjoy his property.”

Another resident testified that he has had “no health issues that he attributes to living across the street from the complex.” He said he has smelled odors a couple of times, but they were not “overpowering.”

A third man has lived very close to the facility for 28 years, and he testified that he “has never experienced any problems with flaring, odors or noises coming from the complex; has no health problems he attributes to anything happening at the complex, and has no complaints about Exxon as a neighbor.”

Conclusion

After considering all the information presented in the bench trial, Hittner found that the plaintiffs proved some but not all of the emissions were in violation and also failed to meet the burden to prove repeated violations.

He denied the environmental groups’ request for declaratory judgment, injunctive relief and penalties and granted judgment in favor of ExxonMobil defendants.