By Neil Carman and Cyrus Reed
Under the Federal Clean Air Act and Federal Clean Water Act, citizens and organizations like the Sierra Club can use citizen enforcement suits to pressure companies to the negotiation table (or go to trial) when state and federal authorities have failed to clamp down on environmental rule-breakers. In the case of the Woodville Pellet Plant in East Texas, our action has led to positive change!
Texas is special
Hundreds to thousands of violations of the Clean Air Act occur that are not enforced by the Texas Commission on Environmental Quality (TCEQ) or the U.S. Environmental Protection Agency (EPA), which creates opportunities for citizens to enforce the rules. Note that Texas state environmental laws do not allow citizen enforcement suits. Since Texas is the #1 state in numbers of large industrial Clean Air Act polluters (at over 1,200 plants with thousands of smoke stacks and leaky process units), the Federal Clean Air Act is an excellent tool to address the huge number of violations.
Not just any Texan can take action through a citizen enforcement suit though. Standing is a key legal requirement to file these citizen lawsuits. That means neighboring citizens who have air quality concerns and outdoor use concerns are needed.
Where Sierra Club comes in
The Sierra Club has used the Federal Clean Air Act to great effect time and time again in Texas to go after refineries, gas processing plants, chemical plants, and many others. The Sierra Club has been able to reach a positive outcome (known as negotiated settlements agreed to as consent decrees (approved by EPA, DOJ, and a federal judge)) through all of the cases filed in Texas since 1995 with one exception - a case against the ExxonMobil refinery-chemical complex in Baytown - which has refused to settle over legal standing.
The Woodville pellet plant
One recent successful case involving a wood pellet manufacturing plant has helped foster community meetings, new state-of-the-art air pollution controls, improved air quality and compliance, payment of fines to the EPA and TCEQ, and even a payment to help low-income families weatherize their homes. Recently, the Sierra Club agreed that the company had met all the basic requirements in our settlement agreement, in essence that means we are not involved anymore. That being said, we are hopeful that the improved process and relationships with the community will continue, and that the company will continue to meet its obligations to keep the air clean.
What happened at the plant?
The environmental problems go back several years shortly after the new wood pellet processing was built without adequate pollution controls. The Sierra Club was contacted by some residents in East Texas in the town of Woodville, who live close to the plant and had serious concerns about daily plant operations related to toxic volatile organic compounds, visible soot, and other air pollution. The plant was creating small pellets of wood for a company that was shipping the pellets to Germany for power production.
The Sierra Club’s Neil Carman, working with an environmental law firm subcontracted by the Environmental Integrity Project - Powell Environmental Law (who specialize in seeking pollution controls for wood pellet plants in the southern U.S.) in addition to Lone Star Legal Aid and the Sierra Club’s Environmental Law Program - began to review TCEQ and EPA documents, interview nearby residents, and eventually filed a citizen enforcement suit.
At first, the case was an effort to seek a Contested Case Hearing (CCH) over the new air pollution controls that the company was delaying, and TCEQ was not approving an air permit for during a permit renewal. But the company and TCEQ decided to circumvent the CCH request and the TCEQ’s Executive Director approved the permit revisions without a CCH as the plant continued to suffer daily horrible air pollution episodes of high smoke and noxious VOC odors.
Our federal suit alleged that the company had violated federal and state permitting requirements at the facility through unauthorized emissions of volatile organic compounds and hazardous air pollutants from the dry hammermills, pellet cooler units, and green hammermills; unauthorized release of pollutants from the bypass stacks; and continued operation following expiration of the facility’s Title V permit (a federal air quality permit) on September 20, 2020.
Moreover, the previous owner had failed to report an accurate level of VOC in tons per year in its initial PI-1 air permit application to TCEQ. This was a red flag consistent with other wood pellet plants in the southern U.S. that needed VOC treatment devices such as a regenerative thermal oxidizer (RTO) and possibly other emissions control devices. TCEQ initially refused to require adequate smoke and VOC controls or a CCH for us to challenge the polluter in a permit hearing. As Woodville citizens continued to complain to the TCEQ, we filed a new lawsuit. Plus the owner sold the plant to a new company changing the case.
The settlement
While the case was filed with the federal court in Beaumont as is required with pre-trial discovery and depositions, ultimately the Sierra Club (through the independent law firm) agreed to a comprehensive settlement in late 2021. On November 17, 2021, the Sierra Club joined the company in filing a consent decree in the United States District Court for the Eastern District of Texas in the matter of Sierra Club v. Woodville Pellets, LLC, Civil Action No. 9:20-cv-00178 for review and approval by the Court in full resolution of Sierra Club’s Clean Air Act citizen suit, without any admission of liability by Woodville. On January 5, 2022, the United States gave notice that it had no objections to the Consent Decree and Environmental Benefit Payment to GET-CAP, and on January 28, it was approved by the federal judge in Beaumont.
Settlement measures help the community
While the company never admitted fault (and in fairness it was under new ownership which probably helped spur the agreement) they did agree to a series of measures, including:
- $200,000 in fines paid to the EPA, and another $200,000 in stipulated penalties;
- $483,000 paid to a local agency called GET-CAP to be used for energy efficiency and weatherization measures for local residents struggling with high bills and inefficient homes or apartments;
- Installation of a series of new, more effective controls at the plant to clamp down on pollution like styrene and other volatile organic compounds, soot, and SO2;
- A series of community meetings to discuss their progress on reducing pollution and providing more transparent information to the community;
- An agreement to continue to conduct stack testing going forward to ensure that the company does not violate their emission limits.
In addition to these agreements, and separate from our agreement, they also paid around $500,000 to TCEQ in a separate enforcement action for one of the same violations we alleged.
Recently, we agreed with our lawyers that the company had fulfilled its initial obligations and appears to be well set up to meet future obligations like stack testing.
Provisions like citizen enforcement suits are an important aspect of the Federal Clean Air Act. When regulators like the EPA and TCEQ fail to act, the Sierra Club has been ready to step in and help protect local residents.
EPA mainly delegates its Federal Clean Air Act enforcement authority to the TCEQ, leaving it to the state as chief enforcement agency in Texas while EPA files few enforcement cases. In fairness to TCEQ, it does pursue and settle dozens of Air Enforcement Orders every year to address serious violations and require corrective measures to reduce air pollution. However, in this case, they didn’t and the Sierra Club stepped in to make a difference, along with our local members!