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Louisiana’s Department of Environmental Quality has been accused of protecting the chemical industry it regulates. The agency is facing cutbacks as new plants are slated for communities that already have some of the country’s most toxic air.
Five years ago, the owners of the Noranda Alumina plant on the border of St. John and St. James parishes in Louisiana discovered a big problem: They were emitting more than half a ton of mercury, a heavy metal that is toxic to humans and animals even in trace amounts, into the air each year. And the plant had likely been doing it for decades, in violation of its permit.
Plant officials, as required, alerted the Louisiana Department of Environmental Quality. Then they asked for permission to keep doing what they had been doing.
The DEQ in late 2017 granted the request, giving Noranda a permit that allowed it to send 1,500 pounds of mercury into the air each year—a bit more than the plant’s owners estimated it had already been emitting. The permit called for the company to reduce that, over five years, to a maximum of 1,200 pounds.
Noranda’s previously undetected pollution made it easily the top emitter of mercury in Louisiana at the time and among the top five in the nation. The DEQ acknowledged that the unpermitted substance was wafting over the nearby town of Gramercy and the Blind River, where fish have long had elevated levels of mercury.
Agency officials said the Noranda plant couldn’t be held “solely responsible” for worrisome mercury levels in local fish. And they repeated an advisory that had been in place for years: People should limit their Blind River fish intake to a maximum of four meals per month—and no more than one in the case of pregnant women and children.
For its sins, Noranda agreed in May 2017 to pay a $95,750 fine. Rather than force the company to cut mercury emissions immediately, the DEQ required only that Noranda investigate ways to do so and to perform additional monitoring. In the meantime, it would be business as usual.
“The social and economic benefits of Noranda Alumina outweigh its adverse environmental impacts,” a DEQ official wrote in granting the company permission to emit mercury. “Notably, the Louisiana constitution requires balancing, not protection of the environment as an exclusive goal.”
DEQ officials pointed out that the plant, which was receiving a range of subsidies and tax breaks from the state’s economic development arm, employed 439 people, had a $58 million payroll and was considering hiring 75 new workers. Keeping it open was “critical to ensure a domestic supply” of the key material in aluminum.
The episode is emblematic of environmental oversight in Louisiana. Regulators try to work with industry rather than punish violators too severely. Permission to pollute is often granted long after the fact. And when fines or penalties are levied, they’re often too small to make an impact.
With an economy that relies on oil and gas exploration and petrochemical plants, Louisiana hasn’t been a trailblazer in environmental regulation. It wasn’t until Gov. Buddy Roemer took office in 1988 that the DEQ, created just four years earlier, grew its ranks and started making a concerted effort to force polluters to clean up their act.
But the “Roemer Revolution” would last just four years, in part because of industry blowback over the DEQ’s new zealousness. Today’s DEQ is a slimmer one. Almost unnoticed, the agency charged with protecting Louisiana’s fragile environment has absorbed startling cuts, mostly during former Gov. Bobby Jindal’s eight-year tenure.
As Jindal prepared to leave office in 2016, the DEQ’s staffing had fallen by 36% since its peak 13 years earlier, according to an analysis by The Times-Picayune and The Advocate.
The fines the DEQ metes out to offenders have also waned over time. As of the week of Dec. 19, the agency has tallied just $1.6 million in fees and settlements. That’s the smallest amount in the last two decades, and it’s less than half the average over that time, DEQ records show.
In 2011, the EPA’s inspector general attempted to examine how states stack up in enforcing the nation’s primary environmental laws: the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act, which deals with solid and hazardous waste. The findings were brutal for Louisiana. The inspector general found that in the six-year period studied, Louisiana was in the bottom quarter of all states in enforcing the Clean Air Act and the RCRA. It was slightly better, but still below average, in enforcing the Clean Water Act.
Summarizing the findings, the inspector general chalked up Louisiana’s failures to several factors: “a lack of resources, natural disasters, and a culture in which the state agency is expected to protect industry.” DEQ officials derided the latter comment as hearsay.
The lack of resources the inspector general observed has only gotten worse. Since the report, the DEQ has lost a third of its staff. No similar assessment has been attempted since then, though more recent EPA reviews have shown improvements in how often facilities are inspected.
Chuck Carr Brown, who was named DEQ secretary in 2016 by Gov. John Bel Edwards, challenges the notion that his agency is understaffed. “The numbers don’t tell the whole story,” Brown said, adding that the EPA would not give the DEQ authority over federal environmental laws if it weren’t getting the job done.
“We have never missed these commitments. Whether we have 1,052 or 700 employees, we have remained protective of human health and the environment.”
As for the falloff in fines, Brown said, “Effectiveness is not measured by the amount of penalties collected but rather by overall compliance.” He noted progress in achieving air quality goals—especially with regard to ozone levels—across much of south Louisiana.
DEQ officials defended their handling of the Noranda episode, noting that the company self-reported the mercury problem and that the levels discovered in the air nearby did not violate Louisiana’s ambient air quality standards.
John Habisreitinger, executive vice president at Noranda, said the DEQ was tough but fair with the company.
“There were points in the process, as we were honing in on best practices with respect to monitoring, where they were very aggressive at holding us to a tighter standard,” he said. “We had to make sure we stayed within those levels. There was a lot of work and rigor that went into this.”
Louisiana’s environmental regulatory agency is hardly alone among its peers in having to tighten its belt. A recent report by the Environmental Integrity Project, a watchdog group, found that, adjusting for inflation, 30 of the 48 states in the continental U.S. cut spending on environmental agencies between 2008 and 2018. Forty of them cut staffing.
But Louisiana was among the most aggressive, the analysis found. It ranked No. 4 among the states in the depth of its staffing cuts to its environmental agency and No. 2 in budget cuts during that time, the analysis found.
The cutbacks in Louisiana have arrived at a challenging time in the state, as low natural gas prices have spurred a wave of massive new industrial projects, mostly in and around Lake Charles and along the Mississippi River between Baton Rouge and New Orleans. An analysis by ProPublica and The Times-Picayune and The Advocate found that many of the new plants and expansions are going into communities that already have some of the most toxic air pollution in Louisiana — and the country.
While the DEQ’s budget has gotten a modest boost during Edwards’ tenure, the increased funding hasn’t come close to replenishing the agency’s ranks.
The lax handling of the Noranda episode wasn’t atypical for the DEQ. Environmental groups and unhappy neighbors of industry have long complained that the agency is too deferential to polluters that also happen to be job creators.
Among the dissatisfied: Those living near the Denka plant in LaPlace, the only facility in America that emits chloroprene, which the EPA classifies as a “likely carcinogen.”
Because of those emissions, the EPA said in 2015 that people in the surrounding neighborhood face—by a significant margin—the nation’s highest risk of developing cancer from an airborne source. While the EPA has not set a legally enforceable limit on how much chloroprene a plant may emit, the agency set an average level of 0.2 micrograms per cubic meter as a safe threshold. Air monitoring by the EPA at six locations near the plant this year shows average concentrations ranging from 2.5 times to 17 times the level the agency has said is safe.
DEQ officials have not insisted that Denka meet that bar, which is not required under its permit. Instead, the DEQ has cast doubt on the validity of the EPA number. In the meantime, the agency and the plant’s owners signed a deal that called for chloroprene emissions to be reduced by 85% — a level that, if achieved, would still not meet the EPA’s guideline.
Denka officials in October announced they had cut chloroprene by 86%. But the company would not have made the goal without revising upward its estimates of what it had emitted before the improvements.
The DEQ has not decided whether to accept Denka’s revised calculations, and so far it has asked that Denka provide a fuller explanation.
Brown, the DEQ’s secretary, has attended dozens of community meetings and says he’s sympathetic to Denka’s neighbors. But he thinks opportunists have hyped concerns about the facility and misled people who don’t understand science.
The Louisiana Tumor Registry is supposed to track every cancer case in the state, and it has found no cluster near Denka. By comparison, he notes, the risks identified by the EPA are totally theoretical.
Brown thinks the EPA’s focus on cancer risk has made people more fearful than they need to be, given the lack of evidence of a problem. “EPA has really not communicated risk versus rate effectively,” he said.
While Denka has invested a reported $35 million into pollution reductions at the DEQ’s urging, critics are upset that the company has yet to face any fine or official sanction.
“They should be facing millions of dollars in penalties,” said Eric Schaeffer, the former director of the EPA’s Office of Civil Enforcement and now executive director of the Environmental Integrity Project.
But Jim Harris, a spokesman for Denka, says the DEQ has been plenty tough.
“They certainly have held us accountable,” Harris said. “DEQ is checking constantly to make sure we’re doing what we need to do.”
The donnybrook over Denka is hardly the first time the DEQ has found itself at odds with the EPA while defending a big Louisiana industry.
When the steelmaker Nucor announced plans in 2008 for a $3.4 billion, multiphase campus in Convent, in St. James Parish, it was a coup for the Jindal administration. As many as 1,250 people were going to work there one day, and the state was offering $160 million in tax incentives.
But environmental groups, including the Sierra Club and the Louisiana Environmental Action Network, groused about the permitting process, saying that the DEQ should have forced Nucor to combine all of its air emissions under a single permit. Instead, the DEQ allowed the company to get different permits for different phases, which the groups complained would allow Nucor to pollute more.
Over the objections of neighbors and environmentalists, the DEQ set a crucial public hearing on those questions for Dec. 28, 2010, right in the middle of the holidays. A month later, the state awarded two key permits.
The owners of a nearby grain elevator, Zen-Noh, sued in federal court in New Orleans and state court in Baton Rouge to challenge the permits and stop construction of the plant. Zen-Noh argued that the allowable emissions could harm their product and sicken their workers. (Less altruistically, the company also said Nucor’s emissions could unfairly limit how much neighbors, including Zen-Noh, were allowed to pollute in the future.)
A Nucor spokesman said at the time that it was “regrettable that in this time of high unemployment that the environmental permitting process would be exploited to stop industrial growth in this country.”
The grain elevator’s owners apologized for taking actions that could get in the way of economic development, but they said they had “no choice.”
“It must be remembered that DEQ had the option of permitting the plant correctly all along and chose to do otherwise,” company president John Williams said at the time.
In the end, the EPA stepped in. Federal regulators ordered the DEQ to rewrite the permits to reduce the allowed emissions of certain toxic chemicals, including arsenic and benzene, and to limit the emissions of fine particulate matter, which is linked to lung disease.
In the end, only one of the five facilities Nucor had envisioned for the campus was built.
Of all the plants the DEQ regulates, Exxon Mobil’s hulking refinery and chemical manufacturing campus in Baton Rouge may be the hardest for the agency to look past. It’s not merely visible from the DEQ’s offices, its belching stacks dominate the capital’s northern neighborhoods. Exxon Mobil is Baton Rouge’s biggest taxpayer and one of its most influential corporate citizens.
Yet, it was the EPA, not the DEQ or its counterpart in Texas, that finally squeezed a major settlement out of Exxon Mobil for the company’s regular violation of the Clean Air Act by improperly burning waste gases at three facilities in Baton Rouge and five in Texas.
Exxon Mobil agreed in 2017 to pay a penalty of $2 million and to spend $300 million to install new pollution controls at its plants. The settlement was the culmination of a case the EPA had opened in 2010. (The DEQ was a party to the settlement and got a share of the fine, but the action was led by the EPA.)
The deal made one announced by the DEQ in 2014 seem paltry by comparison.
The DEQ agreement involved four Exxon Mobil facilities in and around Baton Rouge, and it covered a similar pattern of troubling conduct: unauthorized releases of millions of pounds of hazardous chemicals and other operational problems going back to 2008.
But what the DEQ got out of Exxon Mobil was a couple of orders of magnitude less: a $300,000 penalty plus a promise to spend a total of $2 million on pollution-control measures and environmental mitigation projects. It wasn’t just the money, either: The EPA also forced Exxon Mobil to limit its use of the flares responsible for much of its air pollution, and it got the company to agree to conduct fenceline monitoring of its emissions.
Exxon Mobil officials said they appreciated the way the DEQ resolved a series of penalties in one global agreement. “This agreement helped to resolve future incidents in a more efficient, transparent and objective manner,” said Stephanie Cargile, a spokeswoman for the oil giant’s Baton Rouge operations. “At the time, it was the first of its kind in the state.”
Cargile added that Exxon Mobil’s refinery has improved its environmental record dramatically in recent years, reducing toxic emissions overall by more than half in the last five years and cutting sulfur dioxide emissions by 79% — which won the company a leadership award from the DEQ.
Below the Minimum
DEQ officials insist they’ve always fulfilled their regulatory mission, and they promise they will continue to do so even with major staffing cuts.
But environmental watchdogs disagree on the first point and worry that the belt-tightening will make things worse. They point out the new projects being built around south Louisiana mean a monumental workload for the state employees overseeing a complex permitting process.
“I don’t doubt they have good people there,” said Schaeffer, the former EPA official. “But if you’ve got a giant buildout of oil and gas projects, how can you absorb a 30% cut to your staff?”
One way to pay for the shortage is through overtime. Since 2006, Louisiana has allowed industry to request “expedited permit processing.” About 230 applicants, most of them seeking air permits, have sought it this year; over half have already received their permits.
Expediting is supposed to pay for itself, because the applicant has to pay for the permit reviewer’s overtime. For industry, that line item may seem minor in the context of a project that could cost hundreds of millions, or even billions, of dollars.
Critics, meanwhile, say the system sets up a clear conflict of interest, with regulators unlikely to take a hard line on companies paying them time and a half.
“A student can’t pay a teacher who is grading his paper, and we shouldn’t let the industry pay the people reviewing its permits,” said Anne Rolfes, director of the Louisiana Bucket Brigade, an activist group.
Even with the overtime, the cuts at the DEQ eventually got so deep that even some industry officials began to worry.
In February 2016, shortly after Edwards took office, the leaders of the trade associations for Louisiana’s chemical and oil and gas industries, with remarkable candor, both told The Advocate they supported hikes in their permitting fees.
“We know the department (DEQ) is suffering financially, so we understand the necessity to increase fees,” said Dan Borne, then the president of the Louisiana Chemical Association.
That year, the Legislature approved a 20% increase in air permit fees. The question is whether that was anywhere near enough.
Paul Templet, who was secretary of the DEQ during Roemer’s brief tenure, looks back on his time at the department three decades ago with pride and a measure of regret at the backsliding he has seen in the intervening decades.
He believes Louisiana’s regulators are still too cozy with the industries they’re supposed to be monitoring. In a recent interview, Templet recalled he often used public shaming as a tool, holding news conferences to denounce major polluters. He said pollution-control spending by Louisiana shot up exponentially during his tenure, which created jobs along with cleaner air.
“We would call out the 10 companies with the highest releases with the press out there and say, ‘You’re in the top 10; we want you to lower your releases,’” he said. “That got some reaction out of them. Industry doesn’t like being in the news, and one of the real tools the state has is to embarrass them.
“I don’t see any complaining by industry right now, which tells me that DEQ is not doing its job.”
This article was produced in partnership with The Times-Picayune and The Advocate, which is a member of the ProPublica Local Reporting Network. Gordon Russell is the managing editor for investigations at The Times-Picayune and The Advocate.
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