Across Louisiana, people who live in the communities surrounding industrial facilities have often complained that pollution from those plants is responsible for their elevated rates of cancer and respiratory illnesses. And people with weakened immune systems and trouble breathing are particularly vulnerable during the ongoing coronavirus pandemic. However, oil refineries and other industrial facilities are burning hazardous chemicals and causing more pollution across the state — all in the name of COVID-19.
Following a March announcement from the Environmental Protection Agency that it will not seek to penalize companies if they are noncompliant with pollution monitoring and reporting obligations because of COVID-19, the Louisiana Department of Environmental Quality began fast-tracking permit waivers to industrial companies, effectively allowing them to disperse more pollution into their surrounding communities. The LDEQ also issued a pandemic-related order that postponed public hearings, allowing the waivers to be processed without the same level of input — and possibly without the knowledge — of residents in the communities around the plants seeking waivers.
A search of LDEQ records since April 1 shows 22 variance or permit modification requests from industrial facilities. All the requests cite COVID-19 as the reason the company cannot follow normal environmental requirements, and, in every instance, LDEQ granted the requested variance or permit modification.
One company, Indigo Minerals, is responsible for half of the 22 permit waivers, covering 12 of its facilities across Louisiana. The waivers allow the company to store natural gas condensate in temporary storage tanks. (The condensate is a liquid byproduct of natural gas extraction.)
The LDEQ approved many of the 22 requests within weeks — and sometimes days — of receiving them. Obtaining variances and permit modifications can often be a lengthy process. LDEQ has sometimes taken years to grant them.
The state’s environmental agency’s response to the pandemic has effectively allowed industrial facilities, manufacturers and other businesses to operate with fewer restrictions than their permits would otherwise allow.
“That’s the basic idea,” said Clay Garside, an environmental attorney in New Orleans. “We’re going to do something that’s not in compliance with our permit, but don’t bring the hammer down. Give us permission.”
Waivers that allow plants to ignore their routine monitoring and reporting requirements have the potential to worsen the air quality for people who live nearby..
“If you’ve got twice as much on site than your emergency plan accounts for, then that’s a problem for community safety,” Garside said.
The issue is not confined to Louisiana. To solidify the temporary EPA policy, President Donald Trump signed an executive order in early June that has effectively reduced environmental protection oversight to levels not seen in the United States for half a century.
Trump’s order directs the EPA and other federal agencies to take actions that would have “significant environmental impacts without observing the regulations” if those actions are necessary to help curb the economic losses caused by the pandemic. In short, it hits the pause button on laws such as the Endangered Species Act and the National Environmental Policy Act (NEPA). Referred to as the “Magna Carta” of environmental policy, NEPA, signed into law by President Richard Nixon in 1970, was the first major environmental law in the U.S. It ensures agencies consider the significant environmental consequences of their proposed actions and inform the public about their decision making. Under NEPA, residents are allowed to attend a hearing and voice their concerns whenever a project is proposed that would bring pollution or environmental risks to their community. Those hearings, however, have now been suspended.
Though the president cites the reeling economy as his reason for invalidating NEPA, his administration already had its sights on weakening NEPA. Trump announced his plans to roll back NEPA protections Jan. 9. He declared coronavirus a national emergency March 13.
For companies like oil refineries, the pandemic waivers are providing solutions to problems related to storing hazardous chemicals, which is what many of the variances requested.
Garside said that while it may sound like a perfectly reasonable and legitimate situation, it’s not difficult to see how companies can capitalize off the lax rules.
In its request to the LDEQ, Indigo wrote that the pandemic has decreased the demand for fuel; therefore, “in order to continue natural gas production, Indigo must temporarily store the excess condensate on site until refineries are capable of accepting our liquids.”
Indigo did not submit equipment details or pollution emissions data for the tanks, citing “time constraints for both Indigo and LDEQ personnel during the COVID-19 emergency,” according to the company’s requests. Providing such data would have allowed officials to assess and monitor the environmental impact, if any, of storing the condensate on site.
Indigo did indicate that emission rates of volatile organic compounds (VOCs) would increase. VOCs can irritate the eyes, nose and throat, cause difficulty breathing and nausea, can damage the central nervous system as well as other organs, and can cause cancer. Not all VOCs have all these health effects, though many have several, according to the American Lung Association. Nonetheless, the LDEQ approved all 12 of Indigo’s requests within about two weeks of receiving them.
Following a reporter’s email, a representative at Indigo promised to try to get a response from the company, but none was provided.
LDEQ Communications Director Gregory Langley said Indigo’s emissions increase is relatively small with no significant risk to the community.
“All in all there’s no real increase or risk with those emissions there,” Langley said.
Some of the companies that received waivers have had recent environmental incidents.
On Nov. 6, the Calcasieu Refining Company in Lake Charles allowed 159 barrels of oil to leak into the Calcasieu River. A sheen of oil travelled as far as 3 miles from the refinery. Following a coordinated cleanup by contractors, the U.S. Coast Guard and other agencies, the refinery estimated that about 40 barrels were recovered from the river, Moss Lake, surrounding estuaries and shorelines, according to LDEQ records.
In response to Calcasieu Refining’s waiver request, LDEQ gave the company a 30-day extension to properly dispose of hazardous waste, specifically, a container of broken mercury thermometers. Exposure to mercury vapors can cause chest pain, vision problems, headaches, increased blood pressure and heart rate, among other ailments, according to the CDC.
On April 5, 2019, Indorama Ventures in Lake Charles had a relatively small incident in which 105 gallons of fuel oil leaked into a small stream, resulting in a fish kill.
Rubicon, a polyurethane plant in Geismar, received a notice of deficiencies from the LDEQ following an October inspection that cited the facility for various hazardous waste violations. In response to Rubicon’s COVID-19 waiver, LDEQ gave the company a 30-day extension to respond to the violation notice.
In its request, Rubicon wrote, “Due to stay at home order for the coronavirus pandemic, the ability to obtain information from other associates is limited.” No other reasons were given. Following the extension, Rubicon informed LDEQ that the violations had been addressed and corrected. On June 10, the LDEQ notified the company of potential penalties forthcoming for the October violations.
A Dec. 31 ammonia spill at the Rubicon plant released 258 pounds of the chemical into the air and soil. A technician investigating the spill was exposed to the vapors and was taken by first responders to St. Elizabeth Hospital in Gonzales for emergency treatment. The technician was later cleared to return to work.
Reached by phone on Monday, a representative at Rubicon promised to try to obtain a comment from the company but ultimately did not.
This raises alarm bells to me – Michael Brown, attorney with Earthjustice
ECONOMY VERSUS SAFETY
Langley, the DEQ spokesman, said that variances are being issued solely to address the pandemic and not a stalled economy.
“We haven’t done anything in response to market conditions,” Langley said. “The things we’re doing are in response to COVID-19, not market conditions.”
Trump’s order, on the other hand, holds up market conditions as the primary goal for relaxing EPA regulations: “To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.”
However, some LDEQ records suggest that market conditions are being considered.
LDEQ granted Valero Oil refinery in Meraux an eight-month waiver that allows Valero to exceed its hourly emission limits for a nitrogen oxide heater used in the production of Ultra-Low Sulfur Diesel.
The variance says, “sudden and drastic changes in market conditions” due to COVID-19 and “global price swings in crude oil” have “forced” Valero to quickly respond to the continuing demand for diesel by using naphtha and kerosene in its heater. As a result, the heater “intermittently exceeded its permitted maximum firing limit.”
Valero did not respond to the Illuminator’s request for comment.
In another case, Indorama Ventures Olefins’ ethylene plant in Lake Charles, received a four-month waiver allowing the plant to burn off C4 hydrocarbons that have stockpiled due to “significantly” low demand. The variance notes an expected emissions increase for VOCs and more than half a ton of 1,3-Butadiene, a hazardous chemical with links to cardiovascular disease and cancer, according to OSHA.
Michael Brown, an attorney with Earthjustice, reviewed some of the waivers and said they appear to “short circuit” the Clean Air Act.
“This raises alarm bells to me,” Brown wrote in an email. “I’m not aware of prior examples of companies using market-oriented arguments to avoid complying with their permits” … “Allowing increases in harmful air pollution is especially galling in the middle of a pandemic that we know is disproportionately harming people exposed to higher rates of some air pollutants, such as Black communities in many parts of the state.”