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Introduction

1. This is a citizen's suit, brought under Section 304 of the Clean Air Act (the Act), as amended, 42 U.S.C. Sec.. 7604. Plaintiffs seek a declaratory judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys' and expert witness' fees, for defendant's repeated violations of the emission standards in its permits issued pursuant to Sections 110 and 111 of the Act, 42 U.S.C. Sec. 7410 and 7411.

Jurisdiction and Venue

2. This Court has subject matter jurisdiction under Section 304(a) of the Act, 42 U.S.C. Sec. 7604(a).

3. On May 16, 1997, plaintiffs Texans United for a Safe Economy Education Fund (Texans United), Natural Resources Defense Council, Inc. (NRDC), the Sierra Club, and W.A. Cowan, Ranford Denoon, and Ron Van Osdol (citizens) gave notice of the violations and their intent to file suit to the Administrator of the United States Environmental Protection Agency (EPA), the Regional Administrator of EPA Region 6, the Texas Natural Resources Conservation Commission (TNRCC), the Texas Governor, and defendant, as required by Section 304(b)(1)(A) of the Act, 42 U.S.C. Sec. 7604(b)(1)(A).

4. More than 60 days have passed since the notice was received and neither EPA nor TNRCC has commenced and is diligently proSecuting a civil or criminal action in a court to redress the violations.

5. Venue is appropriate in the Southern District of Texas pursuant to Section 304(c)(1) of the Act, 42 U.S.C. Sec. 7604(c)(1), because the source of the violations is located within this district.

Parties

A. Plaintiffs

6. Plaintiff Texans United sues on behalf of its members. Texans United is a not-for-profit membership corporation organized under the laws of the District of Columbia, with its main office in Houston, Texas. Texans United has members throughout the State of Texas, including approximately 45 individual members residing in the Pasadena area. Texans United educates the public on toxic hazards and other environmental concerns. Texans United works to protect and restore the quality of the natural and human environment through the use of lawful means.

7. Plaintiff NRDC sues on behalf of its members. NRDC is a national not-for-profit membership corporation organized under the laws of the State of New York, with offices in New York, Washington, D.C., San Francisco, and Los Angeles. NRDC has over 350,000 members nationwide, including over 11,600 individual members residing in the State of Texas. NRDC is dedicated to the preservation, protection and defense of the environment, its wildlife and natural resources, and actively supports effective enforcement of the Clean Air Act on behalf of its members.

8. Plaintiff Sierra Club sues on behalf of its members. The Sierra Club is a non-profit public interest organization organized under the laws of the State of California, with its principal office in San Francisco, California. The Sierra Club has over 560,000 members nationwide. The Sierra Club has over 22,000 members who reside in Texas and are members of its Lone Star Chapter. The Sierra Club is dedicated to protecting Texas' natural resources, the heath of its people, and to exploring, enjoying and preserving the state's environment. The Sierra Club actively promotes the enforcement of existing federal air pollution laws, and the adoption of stricter federal air pollution standards, for the purpose of protecting public health. The Sierra Club's Lone Star Chapter seeks to protect the air quality along the Houston Ship Channel where Crown is located, and seeks to hold accountable those who contribute to poor air quality in this area.

9. The individual citizens and members of NRDC, Sierra Club and Texans United reside, own property, breathe the air, and/or use areas near defendant's facility. These citizens and members use and enjoy the benefits of natural resources into which defendant has emitted, and continues to emit, air pollutants, including sulfur dioxide. The interests of the individual citizens, and of NRDC's, Sierra Club's and Texans United's members, have been, are being, and will be adversely affected by defendant's emission of pollutants into the air in violation of its permit requirements and of federal air pollution standards.

B. Defendant

10. Defendant Crown Central Petroleum Corporation ("Crown") is a corporation organized under the laws of the State of Maryland, and has been qualified to do business in Texas since 1943. Crown owns and operates a petroleum refinery in Pasadena, Texas. Crown's Pasadena refinery consists of a fluid catalytic cracking unit (FCCU), sulfur recovery unit (SRU), and various fuel gas combustion devices, including the reformer # 3/auxiliary coker heater (reformer/heater), among other equipment. As part of its refining process, Crown recovers sulfur from crude oil. This process generates sulfur dioxide, which is emitted through the SRU's tail gas incinerator stack, into the ambient air. In addition, the refinery produces fuel gas that is burned in various combustion devices at the refinery, including the reformer/heater. Crown's refinery fuel gas contains hydrogen sulfide which is released into the ambient air as sulfur dioxide when combusted in the reformer/heater and other combustion devices.

C. Effects of Defendant's Sulfur Dioxide Pollution on Plaintiffs

11. Sulfur dioxide is a rapidly-diffusing reactive gas that is very soluble in water. It is emitted principally from combustion or processing of sulfur-containing fossil fuels and ores. At elevated concentrations, sulfur dioxide can adversely affect human health, create noxious odors, and/or contribute to unsightly plumes of airborne pollutants.

12. Defendant's excess emissions of sulfur dioxide into the air contributes to elevated levels of sulfur dioxide in the area surrounding defendant's facility. The individual citizens and members of NRDC, Sierra Club and Texans United have repeatedly suffered the effects of sulfur dioxide pollution from Crown's refinery since at least 1992.

13. Ranford Denoon is an individual plaintiff and a member of Texans United. He has lived within 1/4 mile of Crown for 20 years. He has seen yellow clouds of pollution coming from Crown's stacks into his neighborhood, and has smelled sharp sulfurous odors almost every day in the winter, and about once a week during the rest of the year. His home is to the southeast of Crown and the sulfur smells are at their worst when the wind is from the north. The sulfur smell makes him dizzy and nauseous, burns his skin and eyes, and gives him headaches. He leaves the area when the pollution level is high.

14. Arnoldo Cazares is a member of Texans United. He has lived about 1/4 mile south of Crown for four years. He has smelled a sharp sulfurous odor in and around his home, especially during the winter and when the wind is from the north. The pollution causes his nose to run and other allergy symptoms, and makes him feel like he's choking when he breathes it in. When the pollution is very bad, he has to leave the area.

15. Ron Van Osdol is an individual plaintiff and a member of Texans United. He has lived about 3/4 of a mile south of Crown for 20 years. He has smelled sulfurous pollution when it rains and when the wind is from the north. Since he has been exposed to this pollution, he has suffered shortness of breath and has trouble breathing.

16. W.A. Cowan is an individual plaintiff. He lives in Pasadena seven miles from Crown and until recently worked for 25 years at a plant next to Crown. During those years he suffered chronic sinus infections, upper respiratory irritation, eye irritation, and skin rashes, which he attributes in part to Crown's sulfur dioxide pollution. His health problems have been alleviated since he has been away from Crown. He refrains from travelling to or using areas near the plant to avoid the effects of Crown's pollution. He has occasionally smelled offensive sulfurous odors at his home, which is southeast of the plant.

17. Carma Garrett is a member of the Sierra Club. She lives in Pasadena, about seven miles from Crown, and visits her mother twice a week at her home about 1/4 mile southeast of Crown. She has smelled sulfurous pollution that she believes is coming from Crown, especially when the wind is from the north and when the weather is bad. The pollution from Crown discourages her from staying in the area.

18. Mary McKay is a member of NRDC. She lives in Pasadena about three miles southeast of Crown. The air where she lives smells like sulfur, especially on overcast days and in early mornings. On several occasions she has noticed a yellow fog/film on her car, and this concerns her. She is concerned about the effects of Crown's pollution on her health, her family's health, and her property. Her daughter had no breathing problems before moving to Pasadena, but developed asthma after moving there.

19. Nelson Drake is a member of NRDC. He lives in Pasadena, about five miles southeast of Crown. He is offended by pungent pollution odors in the air, which are at their worst in the early mornings and when the wind blows from the north. He is concerned about the impact of this pollution on his health, his daughter's health, and on his property.

Statutory Background

20. Section 304(a) of the Act, 42 U.S.C. Sec. 7604(a), authorizes citizens to bring suit for violation of any "emission standard or limitation" which is in effect under the Act. Section 304(f) of the Act, 42 U.S.C. Sec. 7604(f)(4), defines "emission standard or limitation" to include any requirement under Section 111 of the Act (relating to New Source Performance Standards), and any standard or limitation under an applicable State Implementation Plan approved by the EPA Administrator.

A. New Source Performance Standards

21. Section 111 of the Act, 42 U.S.C. Sec. 7411, provides that EPA shall establish federal standards of performance for each category of stationary source that causes or contributes to air pollution which may reasonably be anticipated to endanger public health. 42 U.S.C. Sec. 7411(b). These federal air pollution standards are known as "New Source Performance Standards." Pursuant to Section 111 of the Act, EPA has promulgated New Source Performance Standards applicable to petroleum refineries. 40 C.F.R. Sec. 60.100 et seq. These standards apply to various sources of air pollution at refineries, including fluid catalytic cracking units, sulfur recovery plants, and fuel gas combustion devices. 40 C.F.R. Sec. 60.100(a).

22. There are two New Source Performance Standards that apply to the sulfur oxide emissions from refineries: (1) A refinery shall not burn in any fuel gas combustion device any fuel gas that contains hydrogen sulfide in excess of 230 milligrams per dry square cubic meter (m/dscm), which is the equivalent of 0.10 grams per dry square cubic foot (g/dscf). 40 C.F.R. Sec. 60.104(a)(1). (2) In addition, a refinery shall not discharge any gases to the atmosphere from a sulfur recovery plant using incineration in excess of 250 parts per million (ppm) by volume of sulfur dioxide. 40 C.F.R. Sec. 60.104(a)(2)(i).

23. The New Source Performance Standards also require that refineries monitor and record their emissions. A refinery with a sulfur recovery plant followed by incineration shall install, calibrate, maintain and operate an instrument to continuously monitor and record the concentration of sulfur dioxide emissions into the atmosphere. 40 C.F.R. Sec. 60.105(a)(5). A refinery with a fuel gas combustion device subject to 40 C.F.R. Sec. 60.104(a)(1) shall install, calibrate, maintain and operate an instrument to continuously monitor and record the concentration by volume of sulfur dioxide emissions to the atmosphere, or alternatively, shall install, calibrate, maintain and operate an instrument to continuously monitor and record the concentration of hydrogen sulfide in the fuel gas being burned by the device. 40 C.F.R. Sec.Sec. 60.105(a)(3) and (a)(4).

24. Refineries subject to these monitoring requirements must report on a quarterly basis each exceedance of the performance standards, the date each exceedance occurred, the reason for the exceedance, and a description of the corrective action taken, if any. 40 C.F.R. Sec.Sec. 60.107(b)(1), (c)(1), (c)(3). The refinery owner or operator shall submit with the quarterly report a signed statement certifying the accuracy and completeness of the information contained in the report. 40 C.F.R. Sec. 60.107(f).

B. State Implementation Plan

25. Section 110 of the Act, 42 U.S.C. Sec. 7410, provides that each state shall adopt and submit for EPA approval a State Implementation Plan intended to implement, maintain and enforce national primary and Secondary ambient air quality standards within the state. Texas submitted a State Implementation Plan to EPA on January 28, 1972, and has periodically revised the plan since that date. The provisions of the Texas State Implementation Plan which have been approved by EPA are described in 40 C.F.R. Sec. 52.2270.

26. The approved Texas State Implementation Plan incorporates by reference Texas regulations concerning permits and certificates for air pollution sources, 31 TAC 116 et seq., 40 C.F.R. Sec. 52.2270(c)(97). Pursuant to those regulations, any person who constructs a new air pollution source or modifies an existing source must obtain a permit from TNRCC. 31 TAC 116.1(a), 40 C.F.R. Sec. 52.2270(c)(97)I. To obtain a permit, the source must have means for measuring the emission of significant air contaminants as determined by TNRCC. 31 TAC 116.3(a)(2), 40 C.F.R. Sec. 52.2270(c)(97)P. Once a permit to construct is issued, the pollution source must be permitted to operate. 31 TAC 116.1(a), 40 C.F.R. Sec. 52.2270(c)(97)I. Sources operating under TNRCC-issued construction or operation permits are subject to any applicable New Source Performance Standards promulgated by EPA. 31 TAC 116.3(a)(4), 116(b)(3), 40 C.F.R. Sec. 52.2270(c)(97)P. In addition, permits to construct and operate may contain general and specific special conditions established by TNRCC. 31 TAC 116.4, 40 C.F.R. Sec. 52.2270(c)(59).

27. Pursuant to EPA regulations implementing the Clean Air Act, "federally enforceable" requirements include "all limitations and conditions which are enforceable by the Administrator ... including operating permits issued under an EPA-approved program that is incorporated into the State implementation plan and expressly requires adherence to any permit issued under such program" 40 C.F.R. Sec. 51.166(b)(17). Accordingly, state permits issued pursuant to an EPA-approved permit program in a State Implementation Plan are federally enforceable.

Facts

A. Sulfur Dioxide Violations

28. The SRU at Crown's Pasadena refinery is regulated by Permit No. 6059 issued by the TNRCC pursuant to 31 TAC 116. The SRU permit was originally issued prior to 1992 and has been periodically amended by TNRCC since then. Pollutants from the SRU pass through a tail gas incinerator and then are emitted into the ambient air. Special Condition 20 of Permit 6059 limits the in-stack concentration of sulfur dioxide from the SRU's tail gas incinerator to not more than 250 ppm by volume calculated as an hourly average. Special Condition 22 of Permit No. 6059 requires that Crown install, calibrate and maintain a continuous emission monitoring system to measure and record the tail gas incinerator stack concentration of sulfur dioxide. Special Condition 23 of Permit No. 6059 requires that the SRU comply with all applicable requirements of the New Source Performance Standards.

29. Since at least May 1992, Crown has emitted sulfur dioxide through the SRU's stack in excess of 250 ppm, in violation of Special Condition 20 of Permit 6059, and in violation of the New Source Performance Standards for sulfur dioxide emissions from petroleum refineries, 40 C.F.R. Sec. 60.104(a)(2)(i). Crown has exceeded the 250 ppm standard for sulfur dioxide for more than 5,118 hours between May 16, 1992 and June 25, 1996.

30. Crown monitored each exceedance of the sulfur dioxide standard using its continuous emission monitoring system, and recorded the results of that monitoring in reports submitted to TNRCC on a quarterly basis since at least 1992. Each such report submitted by Crown to TNRCC contains the following statement by a Crown manager: "I certify that the information contained in these reports is true, accurate and complete to the best of my knowledge."

31. Attachment A to this complaint is a compilation of each exceedance of the sulfur dioxide emission standard that was reported by Crown to TNRCC in certified quarterly reports between May 16, 1992 and June 25, 1996.

32. Crown's violations of the sulfur dioxide standard in Permit No. 6059 have continued since June 25, 1996.

B. Hydrogen Sulfide Violations

33. The hydrogen sulfide content of fuel gas burned in combustion devices at Crown's Pasadena refinery is regulated by Permit No. 5953 issued by the TNRCC pursuant to 31 TAC 116. Permit No. 5953 was originally issued prior to 1992 and has been periodically amended by TNRCC since then. Special Condition 2 of Permit No. 5953 limits sulfur dioxide emissions by limiting the hydrogen sulfide content of fuel gas to no more than 0.10 gr/dscf, which is the equivalent of 160 ppm, as mandated by the New Source Performance Standards for petroleum refineries. TNRCC Agreed Order 94-11 requires that Crown measure and record the sulfur content of fuel gas burned at the facility. Special Condition 1 of Permit No. 5953 requires that fuel gas combustion devices at Crown comply with all applicable requirements of the New Source Performance Standards.

34. Since at least May 1992, Crown has burned fuel gas in combustion devices that contains hydrogen sulfide in excess of 160 ppm (0.10 gr/dscf), in violation of Special Condition 2 of Permit No. 5953, and in violation of the New Source Performance Standards for refinery fuel gas, 40 C.F.R. Sec. 60.104(a)(1). Crown has exceeded the 160 ppm (0.10 gr/dscf) standard for hydrogen sulfide for more than 5,723 hours between May 18, 1992 and December 14, 1996.

35. Crown monitored each exceedance of the hydrogen sulfide standard using its continuous monitoring system, and recorded the results of that monitoring in reports submitted to TNRCC on a quarterly basis since at least 1992. Each such report submitted by Crown to TNRCC contains the following statement by a Crown manager: "I certify that the information contained in these reports is true, accurate and complete to the best of my knowledge."

36. Attachment A to this complaint is a compilation of each exceedance of the hydrogen sulfide standard that was reported by Crown to TNRCC in certified quarterly reports between May 18, 1992 and December 14, 1996.

37. Crown's violations of the hydrogen sulfide standard in Permit No. 5953 have continued since December 14, 1996.

Claim

38. Plaintiffs reallege and incorporate by reference herein the allegations of the above paragraphs.

39. The emission standard for sulfur dioxide in Permit No. 6059 and the fuel gas standard for hydrogen sulfide in fuel gas in Permit No. 5953 were established pursuant to requirements in 31 TAC 116 et seq., Section 110 of the Act, 42 U.S.C. Sec. 7410, and the New Source Performance Standards for petroleum refineries, 40 C.F.R. Sec.Sec. 60.104(a)(2)(i) and 60.104(a)(1). Both of these standards are federally enforceable.

40. Crown has repeatedly exceeded the emission standard for sulfur dioxide and the fuel gas standard for hydrogen sulfide in its permits. Those exceedances are violations of the permits, the approved Texas State Implementation Plan, Section 110 of the Act, 42 U.S.C. Sec. 7410, the New Source Performance Standards for petroleum refineries, 40 C.F.R. Sec. 60.104(a)(1) and (a)(2)(i), and Sec.tion 111 of the Act, 42 U.S.C. Sec. 7411.

41. Crown's violations of its permits, the Texas State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act are continuing and/or intermittent.

42. Between May 16, 1992 and June 25, 1996, Crown violated the emission standard for sulfur dioxide in Permit No. 6059 for over 5,118 hours. Between May 18, 1992 and December 14, 1996, Crown violated the fuel gas standard for hydrogen sulfide in Permit No. 5953 for over 5,723 hours. Because of this extensive history of violations, plaintiffs believe and allege that, without the imposition of appropriate civil penalties and the issuance of an injunction, Crown will continue to violate its permits, the Texas State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act.

43. The New Source Performance Standards require that at all times, including periods of startup, shutdown, and malfunction, facility owners and operators maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with good air pollution control practice for minimizing emissions. 40 C.F.R. Sec. 60.11(d). Crown's repeated exceedances of the sulfur dioxide and hydrogen sulfide standards in its permits demonstrate that Crown has failed to operate and maintain its facility in a manner consistent with good air pollution practice for minimizing emissions, thereby violating 40 C.F.R. Sec. 60.11(d).

44. Crown is subject to an injunction ordering Crown to cease its violations of its permits, the Texas State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act.

45. Crown is subject to assessment of civil penalties for its violations of its permits, the Texas State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act, pursuant to Sections 113(b)(1) and 304(a), 42 U.S.C. Sec.Sec. 7413(b)(1) and 7604(a).

46. For the purpose of assessing the maximum penalty for which Crown may be liable, each instance of Crown's violation of its permits, the Texas State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act, constitutes a separate violation of Section 304 pursuant to Sections 304(a), 113(b) and 113(e)(2) of the Act, 42 U.S.C. Sec.Sec. 7604(a), 7413(b) and 7413(e)(2), for each day on which it has occurred, and is presumed to continue for each and every day on and after the giving of plaintiffs' notice of intent to sue.

Relief Requested

47. Wherefore, plaintiffs respectfully request this Court to grant the following relief:

A. Declare Crown to have violated and to be in violation of its Permits No. 6059 and 5953, the New Source Performance Standards for sulfur dioxide and hydrogen sulfide, 40 C.F.R. 60.104(a)(2)(i) and (a)(1), respectively, and of Sections 110 and 111 of the Act, 42 U.S.C. Sec.Sec. 7410 and 7411;

B. Enjoin Crown from operating its facility in Pasadena, Texas in such a manner as will result in the further violation of Crown's permits, Texas's approved State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act;

C. Order Crown to comply with all emission standards and limitations of its permits, Texas' approved State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act;

D. Order Crown to install ambient monitoring equipment which is sufficient to measure continuously the sulfur dioxide concentration of the air in areas used by plaintiffs and to provide immediate notification to plaintiffs and nearby residents of any concentrations which may pose a risk to public health or the environment;

E. Order Crown to provide plaintiffs with a copy of all quarterly excess emission reports and other documents which Crown submits to the state or federal government related to Crown's Permits No. 6059 and 5953 when submitted to these authorities, and all emission monitoring results which are not submitted to the state or federal government, within 30 days of their receipt by Crown;

F. Order Crown to pay appropriate civil penalties for each day of each violation of its permits, Texas' approved State Implementation Plan, the New Source Performance Standards for petroleum refineries, and the Act, pursuant to Sections 304(a) and 113(b) of the Act, 42 U.S.C. Sec.Sec. 7604(a) and 7413(b);

G. Award plaintiffs their costs (including reasonable attorney and expert witness fees) as authorized by Section 304(d) of the Act, 42 U.S.C. Sec. 7604(d); and

H. Award such other relief as this Court deems appropriate.

Respectfully submitted,

JAMES M. HECKER
Attorney-in-Charge
D.C. Bar No. 291740
MARK WENZLER
N.J. Bar No. 40536
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600

MICHAEL A. CADDELL
Texas Bar No. 03576700
JOE PHILLIPS
Texas Bar No. 15933200
Caddell & Chapman
1331 Lamar, Suite 1070
Houston, Texas 77010-3027
(713) 751-0400

OF COUNSEL:
NANCY MARKS
Natural Resources Defense Council, Inc.
40 West 20th Street
New York, New York 10011
(212) 727-4405