Above the Law in California

How California's Major Air Polluters Get Away With It

Thursday, July 29, 1999

Above the Law in California

How California's Major Air Polluters Get Away With It

View and Download the report here: Above the Law in California

Two years after a federal investigation found California’s clean air enforcement programs inadequate to stop big polluters, an Environmental Working Group (EWG) analysis shows that many of the state’s largest industrial facilities continue to break the law and pay fines too small to deter repeat offenses.

EWG’s analysis of recently released enforcement records finds a clear and persistent pattern of violations of federal and state clean air laws in five major California industries — oil and chemical refineries, pulp and paper mills, auto plants, iron and steelmaking and metal smelters. Since 1996, three-fourths of the California facilities in those categories surveyed by the U.S. Environmental Protection Agency (EPA) had at least one violation of state or federal clean air regulations or paid a fine to settle an earlier violation. By EPA’s standard, three out of four violations were significant, meaning they triggered orders to take corrective action.

The six most frequently cited offenders in the EPA’s California survey all are oil refineries. All are found within a 15-mile radius in Contra Costa County or just across San Pablo Bay in Benicia.

They include the Tosco Avon refinery near Martinez, where a fire in February 1999 killed four workers, and the Chevron refinery in Richmond, where an explosion in March 1999 forced hundreds of Contra Costa County residents to seek emergency hospital treatment. Two years earlier, also at Tosco in Martinez, an explosion killed one worker and injured 26. The Tosco facility tied with the Shell refinery in Martinez for the most violations in the period surveyed — 115 each. The Chevron refinery was the fourth-worst offender, with 75 violations.

Since 1996 these six East Bay refineries — Shell in Martinez, Tosco in Martinez and Rodeo, Exxon and Huntway Refining in Benicia and Chevron in Richmond — were cited for 481 violations of state and federal air quality regulations and resolved 380 violations for an average penalty of about $699 per offense. These six refineries accounted for almost 80 percent of statewide violations, but paid just 17 percent of statewide fines.

The total amount of fines paid by the six refineries over two and a half years, or $265,583, is less than one percent of the daily revenue of the smallest of the parent companies — Tosco, with more than $12 billion in 1998 revenues.

All six of these refineries are under the jurisdiction of the Bay Area Air Quality Management District in San Francisco (BAAQMD), to which the EPA delegates most enforcement activity. The air district contends that the high number of violations cited and low amount of fines paid are evidence that it is aggressively doing its job, by issuing a citation for every violation, no matter how “insignificant.” But there is a startling disparity between the BAAQMD’s enforcement activity and that of the South Coast Air Quality Management District in Los Angeles (SCAQMD): Bay Area refineries committed eight times as many violations as L.A. County refineries, but the average fine per violation paid by the Southern California refineries was more than 28 times the Bay Area average.

This analysis is based on compliance and enforcement records for 32 large facilities in California. These records, compiled for a EPA pilot project called the Sector Facility Indexing Program (SFIP), have been audited by state and federal regulators and by the regulated industries themselves. Unlike other environmental databases such as the federal Toxics Release Inventory, which the EPA admits is riddled with errors, the SFIP files are touted by the Agency as the most reliable enforcement data available. They show:

  • Twenty-four of the 32 facilities committed at least one violation of state or federal clean air regulations, or paid at least one fine to settle an earlier offense, over the past two and a half years. These 24 facilities were cited for an average of 25 violations each.
  • The fines levied were almost always too small to effectively deter repeat violations. During the survey period, the 32 facilities resolved 509 violations for a combined $1.6 million in penalties. The average fine paid during the survey period was about $3,000, but for the publicly held companies cited, the average 1998 revenue was more than $23 billion.
  • The health risks and other impacts of the air pollution from these facilities fall disproportionately on people of color. According to the EPA, 60 percent of the people living within three miles of these facilities were non-Anglo, compared to 51 percent for the nine counties where the facilities were located.

The EPA delegates most clean air enforcement activity to the California Air Resources Board. The ARB in turn delegates dayto-day authority to 34 local or regional Air Quality Management Districts (AQMDs). But both the EPA and the ARB are charged with oversight, and may intervene if a local district’s enforcement is inadequate. From the data, it is clear that federal, state and local officials share responsibility for failing to consistently, effectively or fairly enforce clean air laws in California.

Although the majority of California’s air pollution comes from automobiles, meaningful progress toward cleaner air could be achieved with strict enforcement of current laws and regulations on industrial emissions. Instead, weak enforcement permits industrial facilities to contribute to unhealthy amounts of air pollution, even as their owners fight against stricter standards or lobby for rollbacks of clean air laws under the guise of “regulatory reform” — shorthand for proposals to further relax the enforcement of environmental regulations. The regulatory record in California and other states shows that companies will rarely comply with the Clean Air Act, or any other environmental law, unless the law is given teeth — stepped-up enforcement, stiffer penalties and tougher oversight from every level of government.

Conclusions and Recommendations

EWG’s analysis of enforcement records, audited by federal and state officials and the polluters themselves, reveals a pattern of routine disregard for federal and state clean air laws by major companies in five California industries. Enforcement is spread ineffectively among federal, state and local authorities, denying Californians the health protections the law is supposed to provide. The level both of compliance and enforcement is abysmal.

This level of illegal activity would be not be tolerated under laws regulating other areas of society or commerce. The situation continues in part because most Americans have no way of knowing how routinely the clean air laws are violated or how poorly they are enforced. This EWG study, part of a national analysis of U.S. Clean Air Act compliance, is the first in a planned series of environmental enforcement reports. (The national analysis and other statelevel reports are available online at www.ewg.org.)

EWG recommends:

  • The California Legislature must limit the enforcement discretion of local air districts so that repeat violators don’t escape unpunished. Penalties for repeat violators must be mandatory, should increase with each new offense, and be large enough to curtail future violations: Current state regulations limit most fines to $1,000 unless the enforcement agency can prove that a company intended to break the law. New Jersey’s “three-strikes” law, which escalates minimum fines according to the number and nature of repeat offenses, provides a good model for California.
  • Congress must not pass “regulatory reform” legislation that will slow down the implementation and enforcement of public health standards or pollution controls mandated under the Clean Air Act or any other environmental law.
  • The San Francisco regional office of the EPA should exercise its authority and intervene in cases where local regulators don’t follow the Agency’s guidelines for effective enforcement against high-priority violators, and bring these persistent offenders into compliance with the law.
  • EPA should help California communities participate in the development and enforcement of air pollution permits issued under Title V of the Clean Air Act. Region 9 should monitor state implementation of Title V programs to ensure that information on compliance is readily understandable by and available to the public.
  • Local air districts, the ARB and the regional and national EPA must work together to eliminate the serious data gaps and inter-agency conflicts in the state’s air pollution reporting system. An effective enforcement and compliance program requires meaningful, reliable and publicly accessible data.
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