The other BP catastrophe
Beleaguered BP Texas City refinery faces two lawsuits
On April 6, 2010, the Ultracracker unit at BP's Texas City refinery malfunctioned. What blipped onto a DowJones newswire as an "upset" a few days later was, in reality, progressing into one of the largest chemical emissions events the state has ever seen.
Now it's spawned at least two lawsuits: a $10 billion federal class action suit brought by attorney Tony Buzbee of Houston on behalf of the more than 2,000 workers exposed to the dangerous levels of carcinogens released during the incident and an environmental enforcement suit brought by Texas Attorney General Greg Abbott seeking what could be more than $1 million in fines for violations of the Texas Clear Air Act. Each charges that BP — to avoid bad publicity and lost profits from a shutdown — kept operations going at its largest refinery, exposing its workers and the entire Texas City community to more than 500,000 pounds of dangerous chemicals over a 40-day period. (Download all the legal documents referenced in this story to the right.)
The Ultracracker, in the Seussian argot of the petroleum industry, is where a refinery makes gasoline. At its unit in Texas City, BP continued operations between April 6 and May 16, even after the hydrogen compressor — which reduces emissions by trapping noxious chemicals for reuse in other parts of the refinery — had malfunctioned. Instead, the company opted to send the chemicals to the emergency flare device, which, much like pilot lights on a stove, ignites when it comes into contact with gases. In theory, the flare burns most of them up before they are released into the air. But even in the best of all possible worlds, 2 percent of the gases escape.
Usually, "you just don't see releases much over 100,000 pounds," says Neil Carman, the director of the Sierra Club's Clean Air program in Texas. In Texas City, an estimated 538,000 pounds of pollutants like benzene, sulfur dioxide and hydrogen sulfide leaked into the air during that period, though Carman believes the release may be "more than 10 times higher" than the number that BP reported to the Texas Commission on Environmental Quality. That's because, he says, BP assumes that its flare met the 2 percent standard but has no record proving that it does. "BP has no real monitoring technology up on the flare," he says. "They have no way to measure the actual emissions that did not get burned over the 40 days." BP says they did have monitors in place — they just did not show elevated readings of emissions after the accident.
Brent Coon, the Beaumont-based attorney who represented Texas City workers after a 2005 explosion in the same Ultracracker unit and has extensive experience litigating occupational claims in the petrochemical industry, called such emissions a "very common occurrence" at refineries, which often operate equipment until it becomes over-pressured and then must divert waste gases to relief valves. But it's unusual for them to last as long as it did at Texas City, he says. That's why it's not surprising that even an AG like Abbott — who is "not a corporate dragon-slayer," in Coon's characterization, and is currently suing to stop the Environmental Protection Agency from regulating greenhouse gases under the Clean Air Act and to lift the federal government's deep-water drilling moratorium — would go after them. BP is "an outlier, even in a dirty industry," says Coon, who believes that even if the state exercises a certain amount of deference to the industry, it has to go after the most flagrant violators, especially ones like BP that are already the subject of national outrage.
Michael Marr, BP's Texas City spokesman, would only issue an e-mailed statement in response to questions for this article. He said that during the 40-day Ultracracker compressor outage, production capacity was reduced to 55 percent. He also said that — "based on our understanding of the facts and circumstances" — BP did not believe there was any basis for legal claims in connection with the event and that it would not be paying any of them.
Long before Deepwater Horizon, the Texas City refinery was the ne'er-do-well of BP's holdings. The 2005 explosion killed 15 workers and injured another 170. The Occupational Safety and Health Administration imposed a $21 million fine, the highest ever assessed at the time, for safety violations leading up to the accident. BP also pleaded guilty to one violation of the Clean Air Act as a result of the explosion and agreed to an additional $50 million fine. Then, at the end of last year, OSHA fined the company another $87 million — again breaking a record — for failing to implement safety recommendations developed in the aftermath of the 2005 disaster. BP has since agreed to pay about $50 million of that fine but is contesting the remaining amount in court.
Abbott's current suit is his office's second legal challenge to BP's operating practices at the Texas City refinery. In a still-pending June 2009 lawsuit, the AG sued the company over 72 separate emissions violations, seven of which involved the compressor in the same Ultracracker unit. After that suit was filed, BP agreed to a temporary injunction. The terms of the injunction included requirements for BP to "take immediate action to mitigate the consequences of [future emissions] events … and prevent similar events in the future" and to "improve air monitoring systems so that BP can more easily identify emissions." The trial date for those violations is set for next summer.
The latest mark on the Texas City refinery's blemished record came less than a year after the company agreed to the injunction, and exactly two weeks before the Deepwater Horizon explosion in the Gulf on April 20. Of the more than 500,000 pounds of pollutants released during that period, approximately 17,000 of them were benzene, a potent human carcinogen that causes leukemia.
According to the class action suit, more than 2,000 Texas City refinery workers encountered benzene during the emissions event and have already experienced the drowsiness, dizziness, headaches and eye, skin and respiratory tract irritation associated with it. The suit also alleges such exposures are quite common at the plant.
The state's complaint cites a "history of repeated violations of the law" and a "pattern of failure to properly report" them to the TCEQ. It also says BP's poor operating and maintenance practices have resulted in an "egregious amount" of unauthorized emissions over the past few years. "Once again," the state says in its court papers, BP is "prioritizing profits over environmental compliance."
If a court finds BP guilty, it faces what could amount to more than $1 million in fines — up to $25,000 per day for each pollutant released. Still, that's not much, Coon observes, next to the multiple millions the Texas City facility has already racked up in fines from governmental entities.
"BP collects those fines like speeding tickets," he says. "A million dollars doesn't register on the BP corporate books. That's a company that makes $500 billion a year, so they look at a million-dollar fine as a nuisance and the cost of doing business."
Morgan Smith was an editorial intern and columnist at Slate, in Washington D.C., before moving to Austin to enter law school at the University of Texas in 2008. (She has put her degree on hold to join the Tribune’s staff.) A native of San Antonio, she has a B.A. in English from Wellesley College.