EPA enforcement often brings more hot air than heat

Although five Arizona companies are on a secret federal "watch list" of polluters who have not been subject to timely enforcement, the extent of air pollution in the state is clouded by poor record-keeping and bureaucratic miscommunication.

Eight sites statewide are on the watch list, including three construction material plants, a metal fabricator, a cement plant and a printing plant in the Phoenix area, a copper smelter in Miami, and an open-pit mine in Morenci. 

Beyond those sites on the Environmental Protection Agency's internal Clean Air Act list, there are 26 Arizona sites designated as high-priority violators by the agency.

But although we seem to have our share of sites among the 383 nationwide that appear on the September watch list, many violations across the state seem more ominous in records than in reality, a TucsonSentinel.com investigation shows.

Of the five Arizona companies on the EPA's internal list, one thought it had convinced the EPA long ago that it was never out of compliance and one fixed its emission problem before the EPA had issued the notice of violation.

Federal databases reveal that most of the 26 Arizona companies listed as high-priority violators have been fined or otherwise sanctioned. Others agreed in court to fix the problems. Some firms are listed because of paperwork errors, such as missed reporting deadlines, and not all high-priority violations are serious. Several are for dust control.

Even so, health and environmental groups maintain that Clean Air Act violations—even administrative ones—are a threat to public health, and two of the polluters identified in EPA data hope to expand.

Secret watch list

The EPA determines HPV status based on numerous criteria, including emissions and administrative compliance, such as reporting and record keeping. The program was launched in 1999 to help the EPA track and reduce violations that either do or could lead to serious air quality problems. The shorter watch list—obtained by the Center for Public Integrity's iWatch News and NPR after a Freedom of Information Act request— names hundreds of companies that have not had formal action by the EPA at least nine months after a violation.

Partnering with local news organizations, including TucsonSentinel.com, iWatch and NPR conducted a nationwide investigation that found the EPA "knows of more than 1,600 'high priority violators' of the Clean Air Act — sites that regulators believe need urgent attention." About a quarter of those sites appear on the watch list, while nearly 300 have been HPVs for over a decade.

Not every facility on the list may be a serious or chronic offender, iWatch reported:

Facilities may appear for other reasons, EPA spokesman Larry Jackson said. For instance, enforcement officials may be tracking a polluter's compliance with a court order. A company in negotiations with authorities might be on the list. In other instances, violations may have been alleged but not proven. There also may be data errors — for example, a state agency's failure to report an enforcement action to the EPA.

The feds refused to disclose the reason each facility appears on the watch list.

Within the bureaucracy, the enforcement lapses are hardly a secret, iWatch reported:

A 2009 report by the EPA's inspector general found that "in many instances EPA and States are not addressing high priority violations … in a timely manner," thereby allowing "continued emissions from facilities [that] may result in significant environmental and public health impacts, deterrence efforts being undermined, and unfair economic benefits being created."

Specifically, the inspector general found that the EPA rarely took over from the states cases involving high priority violators – even though some cases had dragged on for a year and a half or more.

Sixteen of Arizona's 26 high-priority violators have been addressed through enforcement action, most with fines ranging from $2,200 up to $1 million. One violation was self-reported and corrected, one was for a permit application error, the data show.

Margot Perez-Sullivan, a spokeswoman for EPA Region 9, which covers Arizona, Nevada, California and Hawaii, declined to comment about how Arizona compares to the nation on compliance or the facts or EPA data available for any individual pollution case.

"We can't talk about specifics," she said.

Arizona air-quality enforcement

But a look at data and interviews with violators show a mixed bag of apparent administrative snafus and unaddressed violations in Arizona.

Arizona Portland Cement Co., which operates a cement plant near Interstate 10 in Marana, is the only Southern Arizona company on the high-priority violator list, though it is not on the shorter watch list.

The company has two recent air-quality violations—and fines to go with them.

TucsonSentinel.com reported on the Clean Air Act watch list with support from the Center for Public Integrity. CPI's iWatch News and NPR partnered with local news organizations to investigate Clean Air Act enforcement.

In 2006, the company paid the state $300,000 to settle a case involving emitting air pollution, failing to submit test reports, and not installing temperature monitors.

In January, the EPA fined Arizona Portland $350,000 for an expansion plan that would have exceeded emissions for particulate matter. The plant was ordered to reduce expected annual emissions by 80,000 pounds by adding $6.7 million of control equipment to the plan.

Although the EPA still lists the company as a high-priority violator, there never was a physical violation and the entire episode was sparked by a math error, said Steve Regis, vice president of engineering for CalPortland, Arizona Portland's parent company.

"Our consultant had an error in his spreadsheet, and we submitted the permit application using his data. We are in compliance. We were always in compliance," Regis said.

The company paid the fine to clear the decks for the expansion when the economy turns around, he said.

Another CalPortland plant, in Mojave, Calif., appears on the national watch list. The company told iWatch that it believes it is "inappropriate" for the plant to be listed.

"We have been working closely with EPA over the last several years to resolve all the agency's issues of concern relating to our permitted plant and we fully expect to complete that resolution to the EPA's satisfaction," the company said.

Another cement plant in Glendale that appears on the watch list, one belonging to CEMEX, shows no compliance issues in the EPA database. State regulators did not immediately respond to a request for information.

A company spokeswoman said "CEMEX is unaware of any outstanding violations that would place this facility on such a list."

"We are committed to environmental stewardship and continue to work closely with regulatory agencies to ensure our operations are in full compliance," said CEMEX's Sara Engdahl.

CEMEX also has applied for a permit to expand. Though the expansion will not allow the plant to process any more raw material, it will add a diesel generator to run a machine to crush asphalt for recycling, said Todd Martin of the Maricopa County Air Quality Department, which will issue the permit.

The net result would be an increase in nitrogen oxides, Martin said.

Nitrogen oxides are an ingredient in acid rain and contribute to ground-level ozone, a problem that has plagued the Phoenix valley for years, mostly in the summer.

There will be a public hearing Dec. 1 to discuss the CEMEX expansion.

Though a smelter belonging to mining giant Freeport-McMoRan is on the watch list of unaddressed violations, there was never a threat in the first place, said Mark Shaffer, communications director for the Arizona Department of Environmental Quality, the lead enforcement agency in a case against the company.

Last November, the EPA issued a notice of violation for the company's smelter in Miami, which melts copper and other metals out of ore, after a May 2010 test revealed the plant was emitting about 15 percent more particulate matter than its permit allowed. 

After the failed test, the company adjusted its output and was in compliance by June — four months before the EPA issued a notice of violation, Shaffer said, adding that there was never a threat to the public.

"ADEQ has no evidence that this violation resulted in an exceedance of EPA's health-based standards," he said.

The same was true for a violation at a Freeport-McMoRan mine in Morenci, the company said in a response to iWatch.

But Arizona's smelters have a long history of pollution. From iWatch New's report on the watch list:

In Hayden, Ariz., the federal government forced a century-old copper smelter to excavate the yards of nearly 300 residents because the soil was contaminated with arsenic and lead. Yet the state still allows discharges into the air of the same metals, which can cause cancer and neurological damage. Some citizens believe generations have been — and will continue to be — poisoned. The state views the smelter as only a minor source of hazardous air pollutants.

***

In the late 1990s, several hundred residents of Hayden, Ariz., sued Asarco, owner of one of the nation's few remaining copper smelters, hoping to get enough money to move away from the arsenic- and lead-contaminated town east of Phoenix. The company entered bankruptcy some years later and avoided big payouts. People are stuck, and the pollution continues.

Mary Corona, 53, has lived in Hayden since birth and said she suffers from constant, throbbing pain, as well as frequent bouts of nausea, dizziness and memory loss. She takes 10 prescription medications, including the powerful painkiller Oxycontin. When she was about 5, she began getting welts on her torso that looked like cigarette burns, she said. She remembers seeing thick clouds of dust from the Asarco tailings pile — today, a literal mountain of mining waste. Some neighbors have cancer; others have died. "There were people who could have stopped this years ago," Corona said. "They didn't care."

The extent of pollution from some companies on the watch list was not easily determined without EPA cooperation.

A Phoenix site belonging to Quebecor World, a printing company that merged with World Color in 2008, is on the list for July and September. But neither company is listed in the EPA air compliance database. A call to the company's Phoenix office went unanswered. No Phoenix property was included when World Color was absorbed by a bigger company, Quad/Graphics, last year, a spokeswoman for Quad/Graphics said.

The EPA database contains little information about CMS Steel Fabricators in Mesa. The company, which failed a stack test in 2008 and was fined $2,200, is listed in violation through the past two years apparently for a procedural violation. The firm is on the watch list for unknown reasons and did not respond to a request for an interview.

One company on the watch list insists it is simply a misunderstanding.

Vulcan Materials Co. is listed for dust control violations in Mesa, Phoenix and El Mirage. The EPA visited the sand and gravel operations last summer, and determined they were out of compliance with Clean Air Act particulate matter standards, said Mark Reardon, a company vice president and regional counsel.

But Vulcan had a subsequent meeting with federal regulators at which they showed their interpretation of their compliance data, Reardon said.

"We believe we satisfied them that we were in compliance — we are in compliance — and they took no further action," he said.

Vulcan did not hear from the EPA again, and Reardon was surprised to learn the company is on the watch list for lack of enforcement.

Dioxin, acid rain components among pollutants

Some risks from Clean Air Act violations appear real.

IMSAMET of Arizona, an aluminum recycling company in Goodyear, is on the HPV list but not on the watch list. The company was fined $153,000 last year after the company allowed a release of dioxins, highly toxic compounds that have been linked to cancer.

Though the EPA database does not say what the company did in the wake of the release, IMSAMET is meeting its compliance schedule as of September 2011.

The company did not respond to a request for an interview.

The Coronado Generating Station, a coal-fired power plant in St. Johns owned by the Salt River Project, is on the high-priority violator list. While EPA data show the company has been out of compliance for three years, the plant is not on the watch list.

In 2008, the company was fined $950,000 for improperly firing burners at the plant. The EPA ordered the company to install $430 million in upgrades to remove sulfur dioxide and nitrogen oxide—key ingredients of acid rain. The new equipment will also reduce other toxic releases.

Air quality near the plant never exceeded EPA standards, and the upgrades are well under way, said SRP spokesman Jeffrey Lane.

"We are about halfway finished with the work," Lane said.

Even minor violations are health risks

Despite the comparatively minor violations in Arizona, any Clean Air Act infraction is a threat to public health, said Christian Stumpf, regional director for government relations for the American Lung Association of the Southwest. He named power plants like Coronado as among the worst threats to air quality.

"Coal-fired power plants are extremely dangerous," he said.

Though dust seems innocuous, it can cause heart attacks, decrease lung function and aggravate asthma, and it has been linked to premature death in people with lung and heart disease, the EPA says.

WildEarth Guardians, a New Mexico-based environmental group with an office in Tucson, recently sued the EPA to designate Tucson and 14 other areas across eight states as "non-attaintment areas" for dust standards. An ambient air monitoring point near Interstate 19 exceeded particulate matter standards from 2008-10, WildEarth Guardians said in the lawsuit.

Taken together, these sources of pollution are a huge threat and the EPA needs to step up, said Jeremy Nichols, Climate and Energy Program Director for WildEarth Guardians. 

"These air quality violations are a sign of out control air pollution. These sources—whether they be coal-fired power plants or dusty roads—need to be reined in," he said.

"It's time for clean air to come first in these areas."