TLPJ AND ENVIRONMENTAL GROUPS WIN MAJOR RULING AGAINST TEXAS POLLUTER

Air Pollution Case Reinstated Against Crown Central Petroleum

In a major victory for citizen enforcement of environmental laws, the U.S. Court of Appeals for the Fifth Circuit yesterday reinstated a citizen suit that charges Crown Central Petroleum Corporation with serious and longstanding violations of the federal Clean Air Act at its Pasadena, Texas refinery. The appeals court reversed a lower court ruling that had dismissed the suit on the ground that it impermissibly duplicated state administrative orders against Crown.

"This decision prevents polluters from using sweetheart out-of-court deals with industry-friendly state regulators to block citizen enforcement of their obligation to comply with air pollution laws," said lead counsel Jim Hecker, Environmental Enforcement Attorney for Trial Lawyers for Public Justice (TLPJ), a Washington-D.C. based public interest law firm. "Crown will now be held accountable in court for its violations."

A coalition of environmental groups and citizens represented by TLPJ filed suit against Crown in July 1997 for thousands of violations of the Clean Air Act at Crown’s Pasadena, Texas refinery. The coalition includes Texans United Education Fund, the Lone Star Chapter of the Sierra Club, the Natural Resources Defense Council, and two individuals (Texans United) who live near the Crown plant. The complaint alleges that Crown repeatedly violated federal air pollution limits for sulfur dioxide and hydrogen sulfide, sending massive amounts of these pollutants into the surrounding community, which has schools and hundreds of homes within one mile from Crown’s refinery. The U.S. Environmental Protection Agency (EPA) has found that sulfur dioxide is acutely toxic and can cause serious harm to human health. Overall, Crown exceeded federal pollution limits for sulfur dioxide and hydrogen sulfide during more than 15,000 hours between May 1992 and March 1998. During that time, Crown released over 1,000 tons of excess sulfur dioxide into the nearby community, exposing nearby residents to overpowering and dangerous odors. The releases are caused by frequent shutdowns and other problems with the refinery’s antiquated pollution control equipment.

In response to the suit, Crown and the Texas Natural Resources Conservation Commission (TNRCC) agreed on an administrative order in 1998 requiring Crown to study the causes of its actions and to pay a penalty for its past violations. The TNRCC is the Governor-appointed state agency charged with enforcing the Clean Air Act in Texas. Texans United objected to this order because it did not contain a compliance deadline, did not require Crown to replace its inadequate pollution control equipment, and did not force Crown to disgorge the money it had saved by delaying its pollution control expenditures. EPA and the Harris County Pollution Control Department also opposed the state’s inadequate order. EPA and the U.S. Department of Justice also filed an amicus brief with the Fifth Circuit supporting Texan United’s appeal. Since TNRCC’s 1998 order was issued, Crown has continued reporting the same types of violations.

The appeals court held that the plaintiffs had presented sufficient evidence of harm from Crown’s violations to have standing to sue Crown in federal court for injunctive relief and civil penalties. The court also held that citizen suits under the Clean Air Act can not be precluded by state administrative actions, but only by government enforcement actions filed in a federal or state court. Since neither TNRCC nor EPA has ever sued Crown in court, Texans United’s suit is not barred by TNRCC’s administrative order.

The appeals court specifically rejected Crown’s argument that the TNRCC’s orders were an adequate enforcement response, stating that:

Texan United’s lawsuit is based on the premise that the 1998 [TNRCC] Agreed Order does not go far enough to ensure that Crown will not violate federal emission standards in the future. The summary judgment evidence [presented by Texans United] supports this premise.

"The TNRCC, under Governor Bush, tried to block and sabotage citizen efforts to get Crown to clean up its act," said Neil Carman, Clean Air Director of the Lone Star Chapter of the Sierra Club. "Now citizens will finally have their day in court to seek the comprehensive remedy that TNRCC should have required years ago."

"Crown's violations have continued because TNRCC has been in bed with the company," said Texans United Director Rick Abraham. "TNRCC let Crown continue its violations for years until citizens took action to protect themselves. Then it let Crown off the hook with an inadequate administrative order and left residents to continue breathing Crown’s illegal pollution." Crown was one of ten companies that, in November of 1997, joined Governor Bush's well-publicized "voluntary compliance" program to reduce air pollution from older facilities like Crown’s. TNRCC recommended Crown for a "Clean Air Action" award in June 1998 that said that "we’re breathing easier thanks to you." According to Abraham, "Crown got a sweetheart deal" from TNRCC because it helped Governor Bush promote his program.

In addition to Hecker, the coalition is represented in the case by Michael Caddell and Joe Phillips of Caddell & Chapman in Houston, Texas. The Fifth Circuit's decision in Texans United for a Safe Economy Education Fund, et al. v. Crown Central Petroleum Corporation is available at www.ca5.uscourts.gov/opinions/pub/98/98-21043-cv0.htm.